As filed with the Securities and Exchange Commission on December ___, 1996
Reg. No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
the Securities Act of 1933
Tracor, Inc.
(Exact name of registrant as specified in its charter)
Delaware 74-2618088
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6500 Tracor Lane, Austin, Texas 78725-2000
(Address of Principal (Zip Code)
Executive Offices)
Tracor Deferred Compensation Plan
(Full title of the plan)
Robert K. Floyd
Vice President and Chief Financial Officer
Tracor, Inc.
6500 Tracor Lane
Austin, Texas 78725
512/929-4680
(Name, address, and telephone number,
including area code, of agent for service)
Copy to:
Russell E. Painton
Vice President and General Counsel
Tracor, Inc.
6500 Tracor Lane
Austin, Texas 78725
512/929-2230
Calculation of Registration Fee
Title of securities Amount to be Proposed Proposed Amount of
to be registered registered1 maximum maximum registration
offering aggregate Fee
price per offering
share2 price2
Common Stock par
value $.01 per share 200,000 $22.00 $4,400,000 $1,517
1 In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
2 The registration fee has been calculated pursuant to Rule 457(h).
PART I
INFORMATION NOT REQUIRED
IN THE REGISTRATION STATEMENT
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Tracor, Inc. (the "Corporation") hereby incorporates by reference in this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "SEC"):
a) The Corporation's Annual Report on Form 10-K for the year ending
December 31, 1995;
b) A description of Tracor's common stock, the class of securities to be
offered, is contained in the Corporation's Registration Statement on
Form 10, as amended, (File No.0-20227) filed on July 17, 1992.
c) All other reports filed by the Registrant pursuant to Section 13(a) of
15(d) of the Securities Exchange Act of 1934 since December 31, 1995;
All documents filed by Tracor with the Commission pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all the securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of the
filing of such documents with the commission.
Item 4. Description of Securities
The securities to be offered are registered under Section 12 of the Exchange
Act.
Item 5. Interests of Named Experts and Counsel
Russell E. Painton, Vice-President, Corporate Secretary and General Counsel
of Tracor, Inc., has given an opinion as to the legality of the shares being
registered. Mr. Painton owns stock in the Company and holds options to
acquire additional shares of stock in the Company, the total fair market
value of which exceeds $50,000.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers a Delaware
corporation to 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 (other
than an action by or in the right or such corporation) by reason of the fact
that such person is or was a director, officer, employee, or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee, or agent of another corporation or enterprise.
A corporation may indemnify such person against expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually
and reasonably incurred by such person in connection with such action, suit,
or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. A Delaware corporation may
indemnify officers and directors in an action by or in the right of the
corporation to procure a judgment in its favor under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation. Where an
officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify him against
the expenses (including attorneys' fees) which he actually and reasonably
incurred in connection therewith. The indemnification provided is not deemed
to be exclusive of any other rights to which an officer or director may be
entitled under any corporation's bylaw, agreement, vote, or otherwise.
In accordance with Section 145 of the Delaware General Corporation Law, the
Certificate of Incorporation of Tracor provides in Article VIII for the
following indemnification:
The corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all
of the expenses, liabilities, or other matters referred to in or covered
by said section, and the indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may
be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director,
officer, employee, or agent and shall inure to the benefit of the heirs,
executors, and administrators of such person. No amendment,
modification, or repeal of this Article VIII shall affect or impair in
any way the rights of any director or officer of the Corporation to
indemnification under the provisions hereof with respect to any action,
suit, or proceeding arising out of, or relating to, any actions,
transactions, or facts occurring prior to the final adoption of such
amendment, termination, or repeal.
In addition, Section 6. of Article VIII of Tracor's bylaws provide that the
corporation shall indemnify its directors, officers, employees, and agents to
the fullest extent permitted by the General Corporation Law of the State of
Delaware and its Certificate of Incorporation.
Tracor maintains director and officer liability insurance in the aggregate
amount of $10,000,000.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
3.(i) Restated Certificate of Incorporation of Tracor, Inc.
3.(ii) Bylaws of the Company, as amended and restated June 13, 1996.
4.1 Tracor Deferred Compensation Plan
4.2 Specimen Certificate representing Common Stock of Tracor (incorporated
by reference to Exhibit 4.6 of Tracor's Registration Statement
on Form 10, as amended, dated July 17, 1992 (File No. 0-20227)).
5.1 Opinion of Russell E. Painton, General Counsel to Tracor, Inc.
as to the legality of the shares being registered.
23.1 Consent of Ernst & Young, LLP, Independent Auditors.
Item 9. Undertakings.
1. Tracor hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in the post-effective amendment
by those paragraphs is contained in periodic reports filed by Tracor
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) that, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at the time shall be deemed to be the initial bona fide
offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities Act
of 1934 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized in the City of Austin, State of Texas on ____ day of December,
1996.
Tracor, Inc.
By: /s/ James B. Skaggs
-------------------
James B. Skaggs
President
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed by Directors of the corporation on the
____ day of December, 1996.
/s/ William E. Conway
---------------------
William E. Conway
/s/ Julian Davidson
---------------------
Julian Davidson
/s/ Anthony Grillo
---------------------
Anthony Grillo
/s/ Bob Marbut
---------------------
Bob Marbut
/s/ Elvis Mason
--------------------
Elvis Mason
/s/ James B. Skaggs
--------------------
James B. Skaggs
/s/ Thomas P. Stafford
----------------------
Lt. Gen. Thomas P. Stafford
<PAGE>
The Plan. Pursuant to the requirments of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan)
have duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Austin,
State of Texas, on December 5, 1996.
Tracor Deferred Compensation Plan
By: /s/Robert K. Floyd
-----------------------
Robert K. Floyd
Plan Committee Chairman
RESTATED CERTIFICATE OF INCORPORATION
OF
TRACOR, INC.
Tracor, Inc., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is Tracor, Inc. The date of filing
of its original Certificate of Incorporation with the Secretary
of State was November 25, 1991.
2. This Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of
this corporation by deleting all provisions relating to Class A
Common Stock.
3. This Restated Certificate of Incorporation was duly adopted in
accordance with Section 245 of the Delaware General Corporation
Law.
4. The text of the Certificate of Incorporation as amended or
supplemented heretofore is further amended hereby to read as
herein set forth in full:
ARTICLE I
NAME
The name of the corporation is TRACOR, INC. (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation within the State
of Delaware is 1209 Orange Street, Wilmington, New Castle County,
Delaware 19801, and the name of its registered agent at such address is
The Corporation Trust Company.
ARTICLE III
PURPOSE
The purpose for which the Corporation is organized is to engage in any
and all lawful acts and activities for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE IV
CAPITAL
Section 1. The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is Fifty-Four Million
(54,000,000) shares, of which Fifty-Three Million (53,000,000) shares
shall be designated Common Stock, par value $.01 per share ("Common
Stock") and One Million (1,000,000) shares shall be designated Preferred
Stock, par value $.01 per share ("Preferred Stock").
Section 2. The Board of Directors may authorize the issuance from time
to time of the Preferred Stock in one or more series with such
designations, preferences, qualifications, limitations, restrictions and
optional or other special rights (which may differ with respect to each
series) as the Board of Directors may fix by resolution. Without
limiting the foregoing, the Board of Directors is authorized to fix with
respect to each series:
(1) the number of shares which shall constitute the series and the
name of the series;
(2) the rate and times at which, and the preferences and conditions
under which, dividends shall be payable on shares of the series,
and the status of such dividends as cumulative or non-cumulative
and as participating or non-participating;
(3) the prices, times and terms, if any, at or upon which shares of
the series shall be subject to redemption;
(4) the rights, if any, of holders of shares of the series to convert
such shares into, or to exchange such shares for, shares of any
other class of stock of the Corporation;
(5) the terms of the sinking fund or redemption or purchase account,
if any, to be provided for shares of the series;
(6) the rights and preferences, if any, of the holders of shares of
the series upon any liquidation, dissolution or winding-up of the
affairs of, or upon any distribution of the assets of, the
Corporation;
(7) the limitations, if any, applicable while such series is
outstanding, on the payment of dividends or making of
distributions on, or the acquisition of, the Common Stock or any
other class of stock which does not rank senior to the shares of
the series;
(8) the voting rights to be provided for shares of the series; and
(9) such other terms as the Board of Directors may lawfully
determine.
Section 3. (a) Except as otherwise provided by law or by the
resolutions of the Board of Directors providing for the issuance of any
series of Preferred Stock, holders of the Common Stock will have the
exclusive right, as herein provided, to vote for the election of
directors and for all other purposes. Each holder of Common Stock will
be entitled to one vote for each share held.
(b) Subject to all of the rights of Preferred Stock or any series
thereof, the holders of outstanding shares of Common Stock will
be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available therefor, dividends
payable pro rata among all such shares in cash, in stock or
otherwise.
(c) Upon any liquidation, dissolution or winding-up of the
Corporation, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the
Corporation and subject to the rights of the holders of Preferred
Stock, the remaining net assets of the Corporation will be
distributed to the holders of outstanding shares of Common Stock
pro rata in accordance with the outstanding shares held. The
merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or a
sale of all or substantially all of the assets of the
Corporation, or any purchase or redemption of shares of stock of
the Corporation of any class, shall not be deemed to be a
liquidation, dissolution or winding-up of the Corporation for
purposes of this paragraph.
ARTICLE V
DIRECTORS
The number of directors of the Corporation shall be fixed from time to
time by the directors as specified in the bylaws of the Corporation.
The directors shall be elected by the holders of the Corporation's
Common Stock. Each member of the Board of Directors so elected shall
serve until the expiration of his term and until his or her successor
has been elected and has qualified, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. In
the interim between annual meetings of stockholders, any vacancy in any
class of directors of the Board of Directors created by the death,
resignation, retirement, disqualification or removal of a director,
shall be filled by the vote of a majority of the remaining directors.
Any director elected to fill a vacancy shall have the same remaining
term as that of his predecessor. Any director may be removed at any
time, with or without cause, only by the affirmative vote of holders of
at least a majority of the outstanding shares of capital stock of the
Corporation entitled to vote for the election of such director who are
present, in person or by proxy, at a special meeting called for that
purpose or by written consent of holders of such capital stock
representing a majority of such class of capital stock then outstanding
in accordance with law. The number of directors which shall constitute
the whole Board of Directors may be increased or reduced as specified in
the bylaws of the Corporation. A written ballot will not be required
for the election of directors.
ARTICLE VI
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
No director (including any advisory director) of the Corporation shall
be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived an
improper personal benefit. If the General Corporation Law of the State
of Delaware is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law
of the State of Delaware, as so amended. Any repeal or modification of
this Section by the shareholders of the Corporation shall be prospective
only and shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
ARTICLE VII
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of the State of Delaware, as the same may be
amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all
of the expenses, liabilities or other matters referred to in or covered
by said section, and the indemnification provided for herein shall not
be deemed exclusive of any other rights to which those indemnified may
be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person. No amendment, modification
or repeal of this Article VII shall affect or impair in any way the
rights of any director or officer of the Corporation to indemnification
under the provisions hereof with respect to any action, suit or
proceeding arising out of, or relating to, any actions, transactions or
facts occurring prior to the final adoption of such amendment,
termination or repeal.
ARTICLE VIII
AMENDMENT OF BYLAWS
In furtherance and not in limitation of the powers conferred by statute,
the Board of Directors of the Corporation is expressly authorized to
make, alter or repeal the bylaws of the Corporation; provided, however,
that Article VIII, Section 8, and Paragraphs (b) and (c) of Article III,
Section 2, of the bylaws may be amended only by the affirmative vote of
holders representing 80% of the outstanding Common Stock.
4. This Restated Certificate of Incorporation was duly adopted by vote
of the stockholders in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware.
5. This Restated Certificate of Incorporation shall be effective on
June 13, 1996.
IN WITNESS WHEREOF, said Tracor, Inc. has caused this Certificate to be
signed and acknowledged by Russell E. Painton, its Vice President,
General Counsel and Secretary, this 13th day of June, 1996.
DATED: June 13, 1996
TRACOR, INC.
By: /s/ Russell E. Painton
----------------------------
Russell E. Painton,
Vice President, General Counsel
and Secretary
BYLAWS
OF
TRACOR, INC.
(the "Corporation")
as Amended and Restated
June 13, 1996
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be at 1209 Orange Street, Wilmington, New Castle County, Delaware
19801 c/o The Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the
Board of Directors may from time to time determine or the business of
the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders for all
purposes may be held at such time and place, either within or without
the State of Delaware, as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
Section 2. Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such
time as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly executed waiver of
notice of such meeting. At such meeting, the stockholders shall elect
directors and transact such other business as may properly be brought
before the meeting.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute, the
Certificate of Incorporation or these Bylaws, may be called by the
President, the Board of Directors, or the holders of not less than
twenty-five percent (25%) of all shares entitled to vote at the
meetings. Business transacted at all special meetings shall be confined
to the purposes stated in the notice of the meeting.
Section 4. Notice. Written or printed notice stating the place, date,
and hour of each meeting of the stockholders and, in the case of a
special meeting, the purpose or purposes for which the meeting is
called, shall be given not less than ten (10) nor more than sixty (60)
days before the date of the meeting, either personally or by mail, by or
at the direction of the President, the Board of Directors, or
stockholders calling the meeting, to each stockholder of record entitled
to vote at such meeting. If such notice is to be sent by mail, it shall
be directed to such stockholder at his address as it appears on the
records of the Corporation, unless he shall have filed with the
Secretary of the Corporation a written request that notices to him be
mailed to some other address, in which case it shall be directed to him
at such other address. Notice of any meeting of stockholders shall not
be required to be given to any stockholder who shall attend such meeting
in person or by proxy and shall not, at the beginning of such meeting,
object to the transaction of any business because the meeting is not
lawfully called or convened, or who shall, either before or after the
meeting, submit a signed waiver of notice, in person or by proxy.
Section 5. Voting List. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has
charge of the Corporation's stock ledger, either directly or through
another officer appointed by him or through a transfer agent appointed
by the Board of Directors, shall prepare a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical
order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, 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 a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be
held. Such list shall also be produced and kept at the time and place
of the meeting at all times during such meeting and may be inspected by
any stockholder who is present.
Section 6. Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or represented by proxy,
shall constitute a quorum at any meeting of stockholders, except as
otherwise provided by statute, the Certificate of Incorporation or these
Bylaws. If a quorum shall not be present at any meeting of
stockholders, the stockholders entitled to vote thereat who are present,
in person or by proxy, or, if no stockholder entitled to vote is
present, any officer of the Corporation, may adjourn the meeting from
time to time until a quorum shall be present. When a meeting is
adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place are announced at the meeting at
which the adjournment is taken. At any adjourned meeting at which a
quorum shall be present, any business may be transacted which might have
been transacted at the original meeting had a quorum been present;
provided that, if the adjournment is for more than thirty (30) days or
if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the adjourned meeting.
Section 7. Required Vote; Withdrawal Of Quorum. When a quorum is
present at any meeting, the vote of the holders of at least a majority
of the outstanding shares entitled to vote who are present, in person or
by proxy, shall decide any question brought before the meeting, unless
the question is one on which, by express provision of statute, the
Certificate of Incorporation or these Bylaws, a different vote is
required, in which case such express provision shall govern and control
the decision of the question.
The stockholders present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum.
Section 8. Method of Voting; Proxies.
(a) Each outstanding share, regardless of class, shall be entitled to
one vote on each matter submitted to a vote at a meeting of
stockholders, except to the extent that the voting rights of the
shares of any class or classes are limited, denied, increased or
decreased by the Certificate of Incorporation.
(b) Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act
for him by proxy, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides
for a longer period. Each proxy shall be filed with the
Secretary of the Corporation prior to or at the time of the
meeting.
(c) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to
subsection (b) of this section, the following shall constitute a
valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another
person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or by an authorized officer,
director, employee or agent of the stockholder signing such
writing or causing such stockholder's signature to be
affixed to such writing by any reasonable means including,
but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act
for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder
of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission, provided that any such telegram, cablegram or
other means of electronic transmission must either set forth
or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is
determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if
there are no inspectors, such other persons making that
determination shall specify the information upon which they
relied.
(d) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to
subsection (c) of this section may be substituted or used in lieu
of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used,
provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire
original writing or transmission.
(e) A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power.
Section 9. 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, the Board of Directors may fix a
record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the
day next preceding the day on which the meeting is held. A
determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date
upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date has been fixed by the
Board of Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is
required by statute or these Bylaws, shall be the first date on
which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery
to its registered office in Delaware, its principal place of
business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded. Such delivery shall be by hand or by
certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by statute or these
Bylaws, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be
at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders 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 a record date, which record date
shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more
than sixty (60) days prior to such payment, exercise, or other
action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
Section 10. Action Without Meeting.
(a) Any action required or permitted to be taken at a meeting of the
stockholders of the Corporation may be taken without a meeting,
without prior notice and without a vote, if a consent or consents
in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted. Such consent or consents shall be
delivered to the Corporation at its registered office in
Delaware, at its principal place of business, or to an officer or
agent of the Corporation having custody of the book in which
proceedings of stockholders' meetings are recorded. Such
delivery shall be by hand or by certified or registered mail,
return receipt requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the written consent, and no consent shall
be effective to take the corporate action referred to therein
unless, within sixty (60) days of the earliest dated consent
delivered in the manner required by this section to the
Corporation, written consents signed by a sufficient number of
stockholders to take action are delivered to the Corporation in
the manner required by this section.
(d) Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given by
the Corporation to those Stockholders who have not consented to
the action in writing.
Section 11. Inspectors of Elections. The Board of Directors may, in
advance of any meeting of stockholders, appoint one or more inspectors
to act at such meeting or any adjournment thereof. If any of the
inspectors so appointed shall fail to appear or act, the chairman of the
meeting shall, or if inspectors shall not have been appointed, the
chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of inspector at such
meeting with strict impartiality and according to the best of his
ability. The inspectors shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the
number of shares represented at the meeting, the existence of a quorum,
and the validity and effect of proxies and shall receive votes, ballots,
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes,
ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by
them. No director or candidate for the office of director shall act as
an inspector of an election of directors. Inspectors need not be
stockholders.
ARTICLE III
DIRECTORS
Section 1. Management. The business and affairs of the Corporation
shall be managed by its Board of Directors, who may exercise all such
powers of the Corporation and do all such lawful acts and things as are
not by statute, the Certificate of Incorporation or these Bylaws
directed or required to be exercised or done by the stockholders. The
Board of Directors shall keep regular minutes of its proceedings.
Section 2. Number; Election.
(a) The Board of Directors shall consist of one (1) or more directors
who need not be stockholders or residents of the State of
Delaware. The number of directors which shall constitute the
whole Board of Directors may be increased or reduced as provided
in Section 3 immediately following. A written ballot will not
be required for the election of directors.
(b) The Board of Directors shall be divided into three classes, each
class to consist as nearly as possible of one-third of the
directors. The term of office of one class of directors shall
expire each year. The initial term of office of the Class I
directors shall expire at the 1997 annual meeting of
stockholders. The initial term of office of the Class II
directors shall expire at the 1998 annual meeting of
stockholders. The initial term of office of the Class III
directors shall expire at the 1999 annual meeting of
stockholders. Commencing with the 1997 annual meeting of
stockholders, the directors of the class elected at each annual
meeting of stockholders shall hold office for a term of three
years. The directors for the class of directors whose term is
expiring at such annual meeting shall be elected at the annual
meeting of the stockholders, except as hereinafter provided, and
each director elected shall hold office until his successor is
elected and qualified or until his earlier resignation or
removal.
(c) Effective upon the issuance of shares of common stock of the
Corporation pursuant to the terms of that certain Acquisition
Agreement, dated as of March 9, 1996, as amended, by and among
the Corporation and Westmark Systems, Inc. (the "Acquisition
Agreement"), the Board of Directors shall be automatically
increased by one director, who shall be a Class III director.
Pursuant to the terms of the Acquisition Agreement, the Board of
Directors shall appoint Elvis Mason to the additional
directorship. Such directorship shall automatically terminate at
the 1999 meeting of stockholders, and the number of directors
shall be automatically decreased by one.
Section 3. Change in Number. The number of directors may be increased
or decreased from time to time by resolution of the Board of Directors,
but no decrease shall have the effect of shortening the term of any
incumbent director.
Section 4. Removal. Any director may be removed in accordance with
Delaware law at any annual or special meeting of stockholders, only by
the affirmative vote of the holders of a majority of the shares
represented in person or by proxy at such meeting and entitled to vote
for the election of such director, if notice of the intention to act
upon such matters shall have been given in the notice calling such
meeting.
Section 5. Vacancies and Newly Created Directorships. Vacancies and
newly-created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole
remaining director. Each director so chosen shall hold office until the
first annual meeting of stockholders held after his election at which
the term of office of his class expires and until his successor is
elected and qualified or until his earlier resignation or removal. If
at any time there are no directors in office, an election of directors
may be held in the manner provided by statute. Except as otherwise
provided in these Bylaws, when one or more directors shall resign from
the Board of Directors, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall
have the power to fill such vacancy or vacancies, the vote thereon to
take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in
these Bylaws with respect to the filling of other vacancies.
Section 6. Election of Directors; Cumulative Voting Prohibited. At
every election of directors, each stockholder shall have the right to
vote in person or by proxy the number of voting shares owned by him for
as many persons as there are directors to be elected and for whose
election he has a right to vote. Cumulative voting shall be prohibited.
Section 7. Place of Meetings. The directors of the Corporation may
hold their meetings, both regular and special, either within or without
the State of Delaware.
Section 8. First Meetings. The first meeting of each newly elected
Board shall be held without further notice immediately following the
annual meeting of stockholders, and at the same place, unless by
unanimous consent of the directors then elected and serving, such time
or place shall be changed.
Section 9. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as shall
from time to time be determined by the Board of Directors.
Section 10. Special Meetings. Special meetings of the Board of
Directors may be called by the President on twenty-four (24) hours
notice to each director, if by telecopy, electronic facsimile or hand
delivery, or on three (3) days' notice if by mail or by telegram.
Special meetings may be called in like manner and on like notice on the
written request of any one of the directors. Except as may be otherwise
expressly provided by statute, the Certificate of Incorporation or these
Bylaws, neither the business to be transacted at, nor the purpose of,
any special meeting need be specified in a notice or waiver of notice.
Section 11. Quorum. At all meetings of the Board of Directors, the
presence of a majority of the directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and
the vote of a majority of the directors present at any meeting at which
a quorum is present shall be the act of the Board of Directors, except
as may be otherwise specifically provided by statute, or the Certificate
of Incorporation or these Bylaws. If a quorum shall not be present at
any meeting of directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 12. Action Without Meeting; Telephone Meetings. Any action
required or permitted to be taken at a meeting of the Board of Directors
or of any committee thereof may be taken without a meeting if a consent
in writing, setting forth the action so taken, is signed by all the
members of the Board of Directors or committee, as the case may be.
Such consent shall have the same force and effect as a unanimous vote at
a meeting. Subject to applicable notice provisions and 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 and hold a meeting 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 meeting shall constitute presence in person at such meeting, except
where a person's participation is for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
Section 13. Chairman of the Board. The Board of Directors may elect a
Chairman of the Board to preside at their meetings and to perform such
other duties as the Board of Directors may from time to time assign to
him.
Section 14. Compensation. Directors, as such, shall not receive any
stated salary for their services, but, by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be
allowed for attendance at each regular or special meeting of the Board
of Directors; provided, that nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES
Section 1. Designation. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or
more committees.
Section 2. Number; Qualification; Term. Each committee shall consist
of one or more directors appointed by resolution adopted by a majority
of the entire Board of Directors. The number of committee members may
be increased or decreased from time to time by resolution adopted by a
majority of the entire Board of Directors. Each committee member shall
serve as such until the earliest of (i) the expiration of his term as
director, (ii) his resignation as a committee member or as a director,
or (iii) his removal as a committee member or as a director.
Section 3. Authority. Each committee, to the extent expressly provided
in the resolution of the Board of Directors establishing such committee,
shall have and may exercise all of the authority of the Board of
Directors in the management of the business and affairs of the
Corporation except to the extent expressly restricted by statute, the
Certificate of Incorporation or these Bylaws.
Section 4. Committee Changes; Removal. The Board of Directors shall
have the power at any time to fill vacancies in, to change the
membership of, and to discharge any committee. The Board of Directors
may remove any committee member, at any time, with or without cause.
Section 5. Alternate Members of Committees. The Board of Directors may
designate one or more directors as alternate members of any committee.
Any such alternate member may replace any absent or disqualified member
at any meeting of the committee.
Section 5. Regular Meetings. Regular meetings of any committee may be
held without notice at such time and place as may be designated from
time to time by the committee and communicated to all members thereof.
Section 7. Special Meetings. Special meetings of any committee may be
held whenever called by any committee member. The committee member
calling any special meeting shall cause notice of such special meeting,
including therein the time and place of such special meeting, to be
given to each committee member at least (i) twenty-four (24) hours
before such special meeting if notice is given by telecopy, electronic
facsimile or hand delivery or (ii) at least three days before such
special meeting if notice is given by mail or by telegram. Neither the
business to be transacted at, nor the purpose of, any special meeting of
any committee need be specified in the notice or waiver of notice of any
special meeting.
Section 8. Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the Board of Directors
shall constitute a quorum for the transaction of business. If a quorum
is not present at a meeting of any committee, a majority of the members
present may adjourn the meeting from time to time, without notice other
than an announcement at the meeting, until a quorum is present. The act
of a majority of the members present at any meeting at which a quorum is
in attendance shall be the act of a committee, unless the act of a
greater number is required by law, the Certificate of Incorporation or
these Bylaws.
Section 9. Minutes. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the Board of
Directors upon the request of the Board of Directors. The minutes of
the proceedings of each committee shall be delivered to the Secretary of
the Corporation for placement in the minute books of the Corporation.
Section 10. Compensation. Committee members may, by resolution of the
Board of Directors, be allowed a fixed sum and expenses of attendance,
if any, for attending any committee meetings.
Section 11. Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the Board of
Directors or any director of any responsibility imposed upon it or such
director by law.
ARTICLE V
NOTICES
Section 1. Method. Whenever by statute, the Certificate of
Incorporation, or these Bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as
to how such notice shall be given, personal notice shall not be
required, and any such notice may be given (a) in writing, by mail,
postage prepaid, addressed to such committee member, director, or
stockholder at his address as it appears on the books or (in the case of
a stockholder) the stock transfer records of the Corporation, or (b) by
any other method permitted by law (including but not limited to
overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be given
when deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be
deemed to be given at the time delivered to such service with all
charges prepaid and addressed as aforesaid. Any notice required or
permitted to be given by telegram, telex, or telefax shall be deemed to
be delivered and given at the time transmitted with all charges prepaid
and addressed as aforesaid.
Section 2. Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by
statute, the Certificate of Incorporation or these Bylaws, a written
waiver thereof, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to
notice. Attendance of a stockholder, director, or committee member at a
meeting shall constitute a waiver of notice of such meeting, except when
the person attends for the express purpose of objecting at the beginning
of the meeting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 3. Exception to Notice Requirement. The giving of any notice
required under any provision of the General Corporation Law of Delaware,
the Certificate of Incorporation or these Bylaws shall not be required
to be given to any stockholder to whom (i) notice of two consecutive
annual meetings, and all notices of meetings or of the taking of action
by written consent without a meeting to such stockholder during the
period between such two consecutive annual meetings, or (ii) all, and at
least two, payments (if sent by first class mail) of dividends or
interest on securities during a twelve-month period, have been mailed
addressed to such person at his address as shown on the records of the
Corporation and have been returned undeliverable. If any such
stockholder shall deliver to the Corporation a written notice setting
forth his then current address, the requirement that notice be given to
such stockholder shall be reinstated.
ARTICLE VI
OFFICERS
Section 1. Officers. The officers of the Corporation shall be elected
by the directors and shall be a President, a Vice President, a
Secretary, and a Treasurer. The Board of Directors may also choose a
Chairman of the Board, additional Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers. Any two or more offices
may be held by the same person, except that no person shall be both the
President and the Secretary.
Section 2. Election. The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect the officers of the
Corporation, none of whom need be a member of the Board, a stockholder
or a resident of the State of Delaware. The Board of Directors may
appoint such other officers and agents as it shall deem necessary, who
shall be appointed for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the
Board of Directors.
Section 3. Compensation. The compensation of all officers and agents
of the Corporation shall be fixed by the Board of Directors.
Section 4. Removal and Vacancies. Each officer of the Corporation
shall hold office until his successor is elected and qualified or until
his earlier resignation or removal. Any officer or agent elected or
appointed by the Board of Directors may be removed either for or without
cause by a majority of the directors represented at a meeting of the
Board of Directors at which a quorum is represented, whenever in the
judgment of the Board of Directors the best interests of the Corporation
will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. If the office of
any officer becomes vacant for any reason, the vacancy may be filled by
the Board of Directors.
Section 5. President. The President shall be the chief executive
officer of the Corporation. He shall preside at all meetings of the
stockholders and the Board of Directors unless the Board of Directors
shall elect a Chairman of the Board, in which event the President shall
preside at Board meetings in the absence of the Chairman of the Board.
The President shall have general and active management of the business
and affairs of the Corporation, shall see that all orders and
resolutions of the Board are carried into effect, and shall perform such
other duties as the Board of Directors shall prescribe.
Section 6. Vice Presidents. In the absence of the President or in the
event of his inability or refusal to act, the Vice President (or in the
event there is more than one Vice President, the vice presidents in the
order designated by the Board, or in the absence of any designation,
then in the order of their election or appointment) shall perform the
duties of the President, and when so acting shall have all the powers of
and be subject to all of the restrictions upon the President. Each Vice
President shall have only such powers and perform only such duties as
the Board of Directors may from time to time prescribe or as the
President may from time to time delegate to him.
Section 7. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and record all
votes and the minutes of all proceedings in a book to be kept for that
purpose and shall perform like duties for any committee when required.
Except as otherwise provided herein, the Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or President, under whose
supervision he shall be. He shall keep in safe custody the seal of the
Corporation and, when authorized by the Board of Directors, affix the
same to any instrument requiring it, and, when so affixed, it shall be
attested by his signature or by the signature of the Treasurer or an
Assistant Secretary.
Section 8. Assistant Secretaries. Each Assistant Secretary shall have
only such powers and perform only such duties as the Board of Directors
may from time to time prescribe or as the President may from time to
time delegate.
Section 9. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts
of receipts and disbursements of the Corporation and shall deposit all
monies and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and directors, at the
regular meetings of the Board of Directors, or whenever they may require
it, an account of all his transactions as Treasurer and of the financial
condition of the Corporation, and shall perform such other duties as the
Board of Directors may prescribe. If required by the Board of
Directors, he shall give the Corporation a bond in such form, in such
sum, and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his
office and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers,
vouchers, money, and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section 10. Assistant Treasurers. Each Assistant Treasurer shall have
only such powers and perform only such duties as the Board of Directors
may from time to time prescribe.
ARTICLE VII
CERTIFICATES REPRESENTING SHARES
Section 1. Certificates. The shares of the Corporation shall be
represented by certificates in such form as shall be determined by the
Board of Directors. Such certificates shall be consecutively numbered
and shall be entered in the books of the Corporation as they are issued.
Each certificate shall state on the face thereof the holder's name, the
number and class of shares, and the par value of such shares or a
statement that such shares are without par value. Each certificate
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. Any or all of the signatures on
a certificate may be facsimile.
Section 2. Legends. The Board of Directors shall have the power and
authority to provide that certificates representing shares of stock
shall bear such legends as the Board of Directors shall authorize,
including, without limitation, such legends as the Board of Directors
deems appropriate to assure that the Corporation does not become liable
for violations of federal or state securities laws or other applicable
law.
Section 3. Lost Certificates. The Corporation may issue a new
certificate representing shares in place of any certificate theretofore
issued by the Corporation, alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate to be lost, stolen or destroyed. The Board of
Directors, in its discretion and as a condition precedent to the
issuance thereof, may require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to advertise the
same in such manner as it shall specify and/or to give the Corporation a
bond in such form, in such sum, and with such surety or sureties as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 5. Transfer of Shares. Shares of stock shall be transferable
only on the books of the Corporation by the holder thereof in person or
by his duly authorized attorney. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate representing
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the
Corporation or the transfer agent of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books.
Section 5. Registered Stockholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the
holder in fact thereof for any and all purposes, and, accordingly, shall
not be bound to recognize any equitable or other claim or interest in
such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided
by law.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. The directors, subject to any restrictions
contained in the Certificate of Incorporation, may declare dividends
upon the shares of the Corporation's capital stock. Dividends may be
paid in cash, in property, or in shares of the Corporation, subject to
the provisions of the General Corporation Law of Delaware and the
Certificate of Incorporation.
Section 2. Reserves. By resolution of the Board of Directors, the
directors may set apart out of any of the funds of the Corporation such
reserve or reserves as the directors from time to time, in their
discretion, think proper to provide for contingencies, or to equalize
dividends, or to repair or maintain any property of the Corporation, or
for such other purposes as the directors shall think beneficial to the
Corporation, and the directors may modify or abolish any such reserve in
the manner in which it was created.
Section 3. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time
designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 5. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation. Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
Section 6. Indemnification. The Corporation shall indemnify its
directors, officers, employees and agents to the fullest extent
permitted by the General Corporation Law of Delaware and the Certificate
of Incorporation.
Section 7. Transactions with Directors and Officers. No contract or
other transaction between the Corporation and any other corporation and
no other act of the Corporation shall, in the absence of fraud, be
invalidated or in any way affected by the fact that any of the directors
of the Corporation are pecuniarily or otherwise interested in such
contract, transaction or other act, or are directors or officers of such
other corporation. Any director of the Corporation, individually, or
any firm or corporation of which any such 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, however, that the
fact that the director, individually, or the firm or corporation is so
interested shall be disclosed or shall have been known to the Board of
Directors or a majority of such members thereof as shall be present at
any annual meeting or at any special meeting, called for that purpose,
of the Board of Directors at which action upon any contract or
transaction shall be taken. Any director of the Corporation who is so
interested may be counted in determining the existence of a quorum at
any such annual or special meeting of the Board of Directors which
authorizes such contract or transaction, and may vote thereat to
authorize 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. Every director of the Corporation is hereby relieved from
any disability which might otherwise prevent him from carrying out
transactions with or contracting with the Corporation for the benefit of
himself or any firm, corporation, trust or organization in which or with
which he may be in anywise interested or connected.
Section 8. Amendments. These Bylaws may be altered, amended, or
repealed or new bylaws may be adopted by the stockholders or by the
Board of Directors at any regular meeting of the stockholders or the
Board of Directors, at any special meeting of the stockholders or the
Board of Directors if notice of such alteration, amendment, repeal, or
adoption of new bylaws be contained in the notice of such special
meeting, or by written consent of the Board of Directors or the
stockholders without a meeting; provided, however, that no amendment to
this Article VIII, Section 8, or to paragraphs (b) or (c) of Article
III, Section 2 of these Bylaws shall be effective without the
affirmative vote of holders representing 80% of the outstanding Common
Stock.
Section 9. Table of Contents; Headings. The Table of Contents and
headings used in these Bylaws have been inserted for convenience only
and do not constitute matters to be construed in interpretation.
CERTIFICATE BY SECRETARY
The undersigned, being the secretary of the Corporation, hereby
certifies that the foregoing Amended and Restated Bylaws were duly
adopted by the stockholders of the Corporation effective on June 13,
1996.
IN WITNESS WHEREOF, I have signed this certification as of the 13th day
of June, 1996.
/s/ Russell E. Painton
------------------------------------
Russell E. Painton, Secretary
TRACOR DEFERRED COMPENSATION PLAN
Tracor, Inc., a Delaware corporation, by resolution of its Board of
Directors adopted the Tracor Deferred Compensation Plan (the "Plan"),
effective December 1, 1996, for the benefit of its eligible employees.
The Plan is a nonqualified deferred compensation plan pursuant to which
certain eligible Employees of the Company (as hereinafter defined) may
elect to defer compensation. The Plan is maintained primarily for the
purpose of providing deferred compensation for a select group of
management or highly compensated employees, within the meaning of
Sections 201(2); 301(3); and 401(a)(1) of the Employee Retirement
Income Security Act of 1974, as amended. The Plan is unfunded for tax
purposes and for purposes of Title I of ERISA. The Participants have
the status of general unsecured creditors of the Company and the Plan
constitutes a mere promise by the employer to make benefit payments in
the future.
ARTICLE I
DEFINITIONS
Whenever the following terms are used in the Plan with the first letter
capitalized, they shall have the meaning specified below unless the
context clearly indicates to the contrary.
"Accounting Date" shall mean the end of each day that the New York Stock
Exchange and the Trustee are open and conducting business, or such other
date or dates as may be established by the committee during the Plan
Year to make the adjustments described in Section 7.1 of the Qualified
Plan.
"Administrator" shall mean the Company, acting through the Retirement
Committee. The Administrator shall have all the duties and
responsibilities imposed by ERISA, except as specifically assigned,
delegated to or reserved to the Board under the Plan.
"Affiliate" shall mean any employer which, at the time of reference,
was, with the Company, a member of a controlled group of corporations or
trades or businesses under common control, or a member of an affiliated
service group, as determined under regulations issued by the Secretary
of the Treasury or his delegate under Code Sections 414(b), (c), and
(m), and 415(h) and any other entity required to be aggregated with the
Company pursuant to regulations issued under Code Section 414(o).
"Beneficiary" shall mean the person or persons on whose behalf benefits
may payable hereunder after his death in accordance with the terms of
the Qualified Plan.
"Board" shall mean the board of directors of the Company. The Board may
delegate any power or duty otherwise allocated to the Administrator to
any other person or persons.
"Cause" shall mean termination of a Participant by the Company or any
Affiliate, as the case may be, for "cause," "good cause," or other
similar circumstances, pursuant to the then current termination policy
thereof.
"Change in Control" shall mean, with respect to the Company or any
Affiliate
(a) a change of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A, or any
successor provision thereto, promulgated under the Securities
Exchange Act of 1934 (the "Exchange Act"); provided that, without
limitation, a change of control shall be deemed to have occurred
if (i) any "person" or "group" (as those terms are used in
Sections 13(d) and 14(d), respectively, of the Exchange Act) is
or becomes the "beneficial owner" (as defined in Rule 13d-3
issued under the Exchange Act), directly or indirectly, of
securities of the Company entitled to cast 20% or more of the
votes entitled to be cast for the election of directors of the
Company by the holders of its then outstanding securities; and
(ii) at any time during the period of 36 months subsequent to the
securities acquisition described above, individuals who at the
beginning of such period constitute the Board cease for any
reason to constitute at least the majority thereof unless the
election, or the nomination for election by the Company's
shareholders, of each new Director was approved by a vote of at
least two-thirds of the directors still in office who were
directors at the beginning of such 36-month period; or
(b) any "person" or group," as described above, is or becomes the
"beneficial owner," directly or indirectly, of securities of the
Company entitled to cast 40% or more of votes entitled to be cast
for the election of directors of the Company by the holders of
its then outstanding securities.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Company" shall mean Tracor, Inc. and any Affiliate which subsequently
adopts the Plan as a whole or as to any one or more divisions, in
accordance with Section 12.3(b), and any successor company which
continues the Plan under Section 12.3(a), acting in each case through
its board of directors.
"Compensation" of a Participant for any Plan Year shall mean his total
taxable remuneration received from the Company and all Affiliates in
that Plan Year for services rendered as an Employee (including those
items not reported on Form W-2 as determined under Treasury Regulation
Section 1.415-2(d)(2)(iii)-(iv)), including deferred compensation under the
Plan and amounts not includable in gross income by reason of Code
Sections 125 (cafeteria plans); 402(a)(8) (401(k) plans); 402(h); or
403(b), but exclusive of
(a) Company and Affiliate contributions to a deferred compensation
plan (to the extent includable in the Participant's gross income
solely by reason of Code Section 415) and any distribution from a
deferred compensation plan (other than a nonqualified plan);
(b) amounts realized from the exercise of a nonqualified stock option
or taxable by reason of restricted property becoming freely
tradable or free of a substantial risk of forfeiture, as
described in Code Section 83;
(c) amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option;
(d) other amounts which receive special tax benefits such as Company
or Affiliate contributions toward the purchase of an annuity
contract described in Code Section 403(b) (whether or not
excludable from the Participant's gross income);
(e) all reimbursements or other expense allowances, fringe benefits
(cash and non-cash), moving expenses, deferred compensation, and
welfare benefits (including severance benefits) (even if
includable in gross income).
"Disability" shall mean a Participant's disability, as defined by the
then current policies of the Company or its Affiliates, as the case may
be.
"Employee" shall mean any person who renders services to a Company in
the status of an employee as that term is defined in Code Section
3121(d), including officers but not including
(a) directors who serve solely in that capacity;
(b) attorneys, accountants, and other persons doing independent work
for the Company or an Affiliate where the relationship of
employer and employee does not exist between said person and the
Company or Affiliate; and
(c) leased employees treated as Employees of the Company pursuant to
Code Sections 414(n) and (o) or employees of an Affiliate.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Hardship" of a Participant as determined by the Administrator in its
discretion on the basis of all relevant facts and circumstances and in
accordance with nondiscriminatory and objective standards, uniformly
interpreted and consistently applied, and with regard to the existence
of other resources which are reasonably available to the Participant in
question, shall mean an unforeseeable financial emergency or extreme
hardship affecting the personal or family affairs of the Participant and
having a significant financial effect. The Administrator may find that
financial emergency or extreme hardship exists in situations in which a
distribution is necessary for purposes such as, but not limited to the
following: (i) for the purposes of enabling a Participant to meet
unforeseeable financial requirements of an illness or disability of the
Participant or a member of his family; (ii) loss of Participants
property due to casualty; and (iii) other similar extraordinary
circumstances arising as a result of events beyond the control of the
Participant. A financial need shall not constitute a Hardship unless it
is for at least $1,000.00 (or the entire principal amount of the
Participant's Nonqualified Deferred Compensation Account, if less).
"Investment Fund" shall have the meaning set forth in Section 1.1(A)(25)
of the Qualified Plan.
"Nonqualified Account" or "Nonqualified Accounts" of a Participant shall
mean, as the context indicates, any of his Nonqualified Deferred
Compensation Account, Nonqualified Company Matching Account, or
Nonqualified Company Profit Sharing Account.
"Nonqualified Company Matching Account" of a Participant shall mean the
account, if any, established on behalf of the Participant in accordance
with Section 2.1.
"Nonqualified Company Profit Sharing Account" of a Participant shall
mean the account, if any, established on behalf of the Participant in
accordance with Section 2.1.
"Nonqualified Deferred Compensation" of a Participant shall mean the
amounts deferred by such Participant under Section 4.1 of the Plan.
"Nonqualified Deferred Compensation Account" of a Participant shall mean
the account, if any, established on behalf of the Participant in
accordance with Section 5.1(a).
"Participant" shall mean any person included in the Plan as provided in
Article III.
"Plan" shall mean this Tracor Deferred Compensation Plan.
"Plan Quarter" shall mean the three-month periods ending on March 31;
June 30; September 30; and December 31 of each Plan Year.
"Plan Year" shall mean the twelve-month period commencing on January 1
and ending on December 31 (except that the first Plan Year shall begin
on December 1, 1996, and end on December 31, 1996).
"Qualified Accounts" of a Participant shall mean his accounts in the
Qualified Plan.
"Qualified Plan" shall mean the Tracor, Inc. 401(k) Savings Plan or, if
appropriate, the equivalent Qualified Plan of an Affiliate, as such may
be hereafter amended from time to time, or any successor thereto.
"Separation from Service" of an Employee shall mean his resignation from
or discharge by the Company or an Affiliate, or his death, but shall not
include his transfer among the Company and Affiliates. A leave of
absence or sick leave authorized by the Company or an Affiliate in
accordance with established policies, a vacation period, a temporary
layoff for lack of work, or a military leave shall not constitute a
Separation from Service; provided, however, that
(a) continuation upon a temporary layoff for lack of work for a
period in excess of three months shall be considered a discharge
effective as of the commencement of the third month of such
period; and
(b) failure to return to work upon expiration of any leave of
absence, sick leave, or vacation or within three days after
recall from a temporary layoff for lack of work or before
expiration of a military leave shall be considered a resignation
effective as of the date of commencement of such leave of
absence, sick leave, military leave, vacation, or temporary
layoff.
"Service" of an Employee, expressed in days, shall mean his "Service" as
defined under the Qualified Plan.
"Trust Agreement" shall mean the Tracor, Inc. Nonqualified Trust, a
"Rabbi Trust" created in connection with the execution of this Plan, as
set forth in Exhibit A hereto, as amended.
"Trust Fund" shall mean the trust fund established pursuant to the terms
of the Trust Agreement.
"Trustee" shall mean the corporate trustee or trustees or the individual
trustee or trustees, as the case may be, appointed from time to time
pursuant to the provisions of the Trust Agreement to administer the
Trust Fund.
"Vested," when used with reference to Nonqualified Accounts, shall mean
not subject to forfeiture, except as provided in the Plan.
ARTICLE II
NONQUALIFIED ACCOUNTS
Section 2.1 - Nonqualified Accounts. The Administrator shall establish
and maintain (or cause to be established and maintained) for each
Participant's Nonqualified Accounts to which shall be credited the
amounts determined under Section 5.1 and credited or debited the amounts
determined under Article VI.
Section 2.2 - Assignments, etc., Prohibited. No part of the
Nonqualified Deferred Compensation Account, Nonqualified Company
Matching Account, and Nonqualified Profit Sharing Account of a
Participant shall be liable for the debts, contracts, or engagements of
any Participant, his Beneficiaries or successors in interest, or be
taken in execution by levy, attachment, or garnishment or by any other
legal or equitable proceeding, nor shall any such person have any rights
to alienate, anticipate, commute, pledge, encumber, or assign any
benefits or payments hereunder in any manner whatsoever, except to
designate a Beneficiary as provided herein.
ARTICLE III
ELIGIBILITY
Section 3.1 - Requirements for Participation. Any Employee who
qualifies for the definition of "highly compensated" employee in the
Qualified Plan, according to Section 414(q) of the Code (indexed at
$80,000.00 per annum for calendar year 1997), and who is selected by the
Administrator shall be eligible to be a Participant for such Plan Year
on such date. Such employees shall be (i) officers and executives of the
Company; or (ii) in management positions which report directly to a
Company President or Corporate Officer; or (iii) marketing managers with
responsibility for the acquisition of new business; or (iv) program
managers and other P&L managers who have overall performance
responsibilities for significant contracts; or (v) other key employees
of the Company who have a job assignment with significant impact on
profits, operating effectiveness, and overall success of the Company.
Section 3.2 - Deferral Election Form. Participants who elect to defer
their Compensation pursuant to this Plan shall submit a form (the
"Deferral Election Form") to the Administrator which shall contain the
following:
(a) the consent of the Participant that he, his successors in
interest and assigns, and all persons claiming under him shall be
bound, to the extent authorized by law, by the statements
contained therein and by the provisions of the Plan;
(b) the amount of Compensation to be deferred and his authorization
for the Company to reduce his Compensation accordingly;
(c) the date on which the Participant wishes to receive the deferred
amounts, and the form in which he wishes to receive same; and
(d) such other information as may be required by the Administrator.
ARTICLE IV
PARTICIPANTS' DEFERRALS
Section 4.1 - Deferral Eligibility. Each Participant who has elected to
defer the maximum amount permitted for him under Sections 3.6 and 4.2 of
the Qualified Plan may elect to defer to his Nonqualified Deferred
Compensation Account for any Plan Year an amount which is any whole
number percentage (not greater than 50% of his base compensation or 100%
of his incentive compensation, net of applicable payroll withholding
taxes) of his Compensation, to the extent that such amount exceeds the
amount to be credited to his Qualified Amounts for such Plan Year.
Such election shall be made by submission of the Deferral Election Form
to the Administrator (not later than the earlier of (i) ten days prior
to the last day of the next preceding Plan Year or (ii) 30 days after
the date on which the Employee becomes eligible to be a Participant) and
shall remain in effect for each Plan Year during which an Employee is a
Participant or until earlier discontinued pursuant to Section 4.2 below.
Section 4.2 - Discontinuance of Deferral. A Participant may elect, upon
30 days prior written notice, to discontinue deferral of his
Compensation for any Plan Year commencing after receipt of such notice.
Section 4.3 - Deferral Period. Participants may elect to defer
Compensation for any period in excess of one Plan Year (a "Deferral
Period"), provided, however, that a Participant may designate only one
Deferral Period. The Deferral Period may be specified as
(a) a period of years;
(b) a period of years or a period ending on the date of the
Participant's termination of Service with the Company, whichever
first occurs; or
(c) a period ending on the participant's date of his termination from
Service.
In each event, the Participant shall begin receiving payments in the
manner provided herein.
ARTICLE V
CREDITING OF DEFERRALS AND
COMPANY MATCHING CONTRIBUTIONS
Section 5.1 - Determination of Credits.
(a) Each Participant's Nonqualified Deferred Compensation Account
shall be credited from time to time with an amount which is equal
to the amount of Compensation such Participant elected to defer
under Section 4.1 above.
(b) The Nonqualified Company Matching Account of each Participant who
elected to defer Compensation shall be credited with matching
contributions up to the extent of the scheduled match rate in
Section 1.1(A)(18) of the Qualified Plan, offset by any matching
contributions credited to such Participant in the Qualified Plan.
(c) The Nonqualified Company Profit Sharing Account of each
Participant shall be credited with an amount which is equal to
the contribution rate specified in schedule of Section 1.1(A)(39)
of the Qualified Plan, offset by any amounts credited in the
Qualified Plan.
ARTICLE VI
INVESTMENT OPTIONS;
VALUATION OF NONQUALIFIED ACCOUNTS
Section 6.1 - Investment Credits and Debits.
(a) Compensation deferred by a Participant, Company matching
contributions (as provided for in Section 5.1(b) above), and
Employer profit sharing amounts, if any, shall be credited to
Participant's Nonqualified Accounts on the next following
Accounting Date after deduction from his Compensation and
deposited in the Trust Fund and shall be allocated among the
Investment Funds (as defined in the Qualified Plan) as directed
by the Participant from time to time.
(b) Each Nonqualified Account is valued as of each Accounting Date
following the effective date of the Plan, based upon the fair
market value of the assets of each Nonqualified Account, as
determined by the Trustee. In determining such fair market
value, each Nonqualified Account shall include adjustments
regarding all dividends, interest income, other investment income
and expenses, investment management fees and expenses,
administrative fees and expenses, applicable taxes, and
authorized withdrawals.
ARTICLE VII
VESTING OF NONQUALIFIED ACCOUNTS
Section 7.1 - Vesting of Accounts.
(a) Each Participant's interest in his Nonqualified Deferred
Compensation Account shall be Vested at all times.
(b) The Vested portion of a Participant's Nonqualified Company
Matching Account and his Nonqualified Company Profit Sharing
Account shall be calculated as provided for in Sections
1.1(A)(59) and 1.1(A)(60) of the Qualified Plan; provided that,
in any event, the interest of a Participant in his Nonqualified
Company Matching Account and his Nonqualified Company Profit
Sharing Account shall become fully Vested upon the earliest to
occur of
(i) his death;
(ii) his Termination for other than Cause;
(iii) his 65th birthday;
(iv) his Disability;
(v) a Change in Control; or
(vi) termination of the Plan.
ARTICLE VIII
BENEFITS
Section 8.1 - Manner and Time of Distributions. A Participant may elect
to receive the Vested amounts credited to his Nonqualified Accounts
either in a lump sum or in five- or ten-year annual installment
payments. Such lump sum payment shall be made, and the installment
payments shall begin, not later than the date which is 15 days after the
first day of the Plan Year following the Deferral Period. In the event
of five- or ten-year installment payments, each annual payment to be
made will be equal to an amount determined by dividing the total number
of payments remaining to be made into the total amount of funds then
available in such Participant's Nonqualified Accounts.
Section 8.2 - Effect of Failure to Locate Distributee. If the person to
whom deferred Compensation is payable hereunder has not been ascertained
or located within one year after expiration of the Deferral Period, the
amount of his Nonqualified Accounts shall be forfeited and such amounts
shall be removed from such accounts.
Section 8.3 - Forfeitures. If a Participant has a Separation from
Service due to resignation or discharge for Cause, the portions of his
Nonqualified Company Matching Account and Nonqualified Company Profit
Sharing Account which are not Vested shall be forfeited on the date of
such Separation from Service. All forfeitures under this Article VIII
shall become part of the principal of the Trust Fund; forfeitures in
the Nonqualified Company Matching account shall be used to offset the
Company's matching contributions contemplated in Section 5.1 (b); and
forfeitures in the Nonqualified Company Profit Sharing account shall be
used to offset the Company's matching contributions contemplated in
Section 5.1(c).
Forfeitures under Section 8.2, above, shall be used, first, to offset
the Company's matching contributions to the Nonqualified Company
Matching Account and, second, to the extent available, to offset the
Company's matching contributions to the Nonqualified Company Profit
Sharing Account.
ARTICLE IX
BENEFITS UPON DEATH
Section 9.1 - Distribution on Death.
(a) Upon the death of a Participant or former Participant, prior to
his Separation from Service, the Vested amount credited to his
Nonqualified Accounts as of the last Accounting Date, less any
amounts required to be withheld by law, shall be paid in five
annual installments to the former Participant's Beneficiaries.
(b) Upon the death of a Participant or former Participant, subsequent
to his Separation from Service, the Vested amount credited to his
Nonqualified Accounts as of the last Accounting Date, less any
amounts required to be withheld by law, shall be paid in a lump
sum to the former Participant's Beneficiaries.
(c) Such Payment shall be made not later than 30 days after the end
of the calendar quarter in which the Participant's or former
Participant's death occurs.
ARTICLE X
OTHER DISTRIBUTIONS FROM NONQUALIFIED ACCOUNTS
Section 10.1 - Hardship Distributions from Nonqualified Deferred
Compensation Accounts. A Participant may apply for a distribution from
the Vested portions of his Nonqualified Accounts on account of a
Hardship, subject to the following requirements:
(a) The Participant's Hardship distribution shall not exceed the
amount which is necessary to satisfy the Hardship.
(b) The decision of the Administrator regarding the existence or
nonexistence of a hardship of a Participant shall be final and
binding.
(c) The Participant has not received a Hardship distribution within
the 12-month period preceding the distribution.
(d) The Administrator shall have the authority to require a
Participant to provide such proof as it deems necessary to
establish the existence and significant nature of the
Participant's hardship, including, but not limited to the lack of
existing insurance or other assets that may be liquidated without
incurring additional financial hardship, or the absence of an
opportunity to terminate other deferral elections.
Section 10.2 - Distribution Upon Disability. Upon a Participant's
Separation from Service due to a Disability, he shall begin receiving
distributions from his Nonqualified Accounts, payable in five annual
installments.
Section 10.3 - Distributions in the Event of Taxation. Should any
amounts contained in a Participant's Nonqualified Accounts become
subject to taxation by the Internal Revenue Service of the U.S.
Government prior to the actual receipt thereof by the Participant, or
his Beneficiary, then such amounts shall become immediately payable
thereto in a lump sum distribution(s).
ARTICLE XI
ADMINISTRATIVE PROVISIONS
Section 11.1 - Administrator's Duties and Powers.
(a) The Administrator shall conduct the general administration of the
Plan in accordance with the Plan and shall have all the necessary
power and authority to carry out that function. Among its
necessary powers and duties, are the following:
(i) to delegate all or part of its function as Administrator to
others and to revoke any such delegation;
(ii) to determine questions of eligibility and vesting of
Participants and their entitlement to benefits;
(iii) to select and engage attorneys, accountants, actuaries,
trustees, appraisers, brokers, consultants, administrators,
physicians, or other persons to render service or advice
with regard to any responsibility the Administrator or the
board has under the Plan, or otherwise, to designate such
persons to carry out responsibilities, and (with the
Company, the Board, and its officers, trustees, and
Employees) to rely upon the advice, opinions or valuations
of any such persons, to the extent permitted by law, being
fully protected in acting or relying thereon in good faith;
(iv) to interpret the Plan for purpose of the administration and
application of the Plan, in a manner not inconsistent with
the Plan or applicable law and to amend or revoke any such
interpretation; and
(v) to adopt Rules of the Plan that are not inconsistent with
the Plan or applicable law and to amend or revoke any such
rules.
(b) Every finding, decision, and determination made by the
Administrator shall, to the full extent permitted by law, be
final and binding upon all parties.
Section 11.2 - Limitations Upon Powers. The Plan shall be uniformly and
consistently administered, interpreted, and applied with regard to all
Participants in similar circumstances.
Section 11.3 - Indemnification by the Company; Liability Insurance.
(a) The Company shall pay or reimburse the Administrator for all
expenses incurred thereby and shall indemnify and hold it
harmless from, all claims, liabilities, and costs (including
reasonable attorneys' fees) arising out of the good faith
performance of its Plan functions.
(b) The Company shall obtain and provide for any such person, at the
Company's expense, liability insurance against liabilities
imposed on him by law.
Section 11.4 - Recordkeeping.
(a) The Administrator shall maintain, or cause to be maintained,
suitable records as follows:
(i) records of each Participant's Nonqualified Accounts which
shall show, separately, among other things, deferrals,
Company matching amounts, and Company profit sharing
amounts, plus any forfeitures and the gains and losses
within such accounts; and
(ii) records of its deliberations and decisions.
(b) The Administrator may appoint a secretary to keep records of
proceedings, to transmit its decisions, instructions, consents,
or directions to any interested party, and to execute and file,
on behalf of the Administrator, such documents, reports, or other
matters as may be necessary or appropriate under ERISA and to
perform other ministerial acts.
(c) The Administrator shall not be required to maintain any records
or accounts which duplicate any records or accounts maintained by
the Company.
Section 11.5 - Statement to Participants. Within 30 days after the last
day of each Plan Quarter, the Administrator shall furnish (or cause to
be furnished) to each Participant a statement setting forth the value of
his Nonqualified Accounts and the Vested percentage thereof and such
other information as the Administrator shall deem appropriate.
Section 11.6 - Inspection of Records. Copies of the Plan and records of
a Participant's Nonqualified Accounts shall be open to inspection by him
or his duly authorized representatives at the office of the Company at
any reasonable business hour.
Section 11.7 - Service in More than One Capacity. Any person or group
of persons may serve more than one capacity with respect to the Plan.
Section 11.8 - Accounting for Distributions. Records for each
Nonqualified Account shall be maintained by the Trustee.
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.1 - Termination or Amendment of the Plan.
(a) The Board shall have the right at any time to declare the Plan
terminated completely as to the Company or as to any division,
facility, or other operational unit thereof, and may amend same
from time to time, provided that no termination or amendment
shall reduce or terminate any benefit to or in respect of any
Participant.
(b) In the event of any such termination, the Administrator shall
continue to maintain Participants' Nonqualified Accounts and
payment from, and vesting under, such Nonqualified Accounts shall
be made in accordance with the Plan.
Section 12.2 - Limitation of Rights. Nothing contained in the Plan
shall give any Employee the right to be retained in the service of the
Company or to interfere with or restrict the right to the Company, which
is hereby expressly reserved, to discharge or retire any Employee,
except as provided by law, at any time without notice and with or
without cause. Inclusion under the Plan will not give any Employee any
right or claim to any benefit hereunder except to the extent such right
has specifically become fixed under the terms of this Plan.
Section 12.3 - Consolidation or Merger; Adoption of Plan by Other
Companies.
(a) There shall be no merger, consolidation with, transfer, or sale
of the assets of liabilities of the Plan to any other plan unless
each Participant in this Plan would have, following such event,
accounts which are equal to or greater than his corresponding
Nonqualified Accounts had the Plan been terminated immediately
before such merger, consolidation, transfer, or sale.
(b) An Affiliate may, with the approval of the Administrator, adopt
the Plan as a whole company or as to any one or more divisions
effective as of the first day of any Plan Year by resolution of
its own board of directors. Such Affiliate shall give written
notice of such adoption to the Administrator.
Section 12.4 - Payment on Behalf of Minor, etc.. In the event any
amount becomes payable under the Plan to a minor or a person who, in the
sole judgment of the Administrator is considered by reason of physical
or mental condition to be unable to give a valid receipt therefor, the
Administrator may direct that such payment be made to any person found
by the administrator its sole judgment, to have assumed the care of such
minor or other person. Any payment made pursuant to such determination
shall constitute a full release and discharge of the Company, the Board,
the Administrator, and their officers, directors, and employees.
Section 12.5 - Governing Law. This Plan shall be construed,
administered, and governed in all respects under the laws of the State
of Texas.
Section 12.6 - Pronouns and Plurality. The masculine pronoun shall
include the feminine pronoun, and the singular the plural where the
context so indicates.
Section 12.7 - Titles. Titles are provided herein for convenience only
and are not to serve as a basis for interpretation or construction of
the Plan.
Section 12.8 - References. Unless the context clearly indicates to the
contrary, a reference to a statute, regulation or document shall be
construed as referring to any subsequently enacted, adopted or executed
statute, regulation or document.
Section 12.9 - No Tax Guarantee. Neither this Plan nor any
representations made in connection with it shall be construed to be
assurance or guarantee of a deferral of income for income tax purposes
of any amount to be paid pursuant to this Plan.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed on this ___ day of December, 1996.
TRACOR, INC.
By: ___________________________
Name: ___________________________
Title: ___________________________
<PAGE>
TRACOR, INC. NONQUALIFIED TRUST
THIS AGREEMENT made this 1st day of December, 1996, by and between
TRACOR, INC. (the "Company") and NORWEST BANK MINNESOTA, N.A.
(the "Trustee").
WHEREAS, the Company has adopted a Tracor Deferred Compensation
Plan dated as of December 1, 1996 (the "Plan");
WHEREAS, the Company has incurred or expects to incur liability
under the terms of the Plan with respect to the individuals
participating in the Plan;
WHEREAS, the Company wishes to establish a trust (hereinafter, the
"Trust") and to contribute to the Trust assets that shall be held
therein, subject to the claims of the Company's creditors in the
event of the Company's Insolvency (as herein defined) until paid to
Plan Participants and their Beneficiaries in such manner and at
such times as specified in the Plan;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an "unfunded" arrangement and shall not affect the
status of the Plan as an "unfunded" plan maintained for the purpose
of providing deferred compensation for a select group of management
or highly compensated employees for purposes of Title I of the
Employee Retirement Security Act of 1974; and
WHEREAS, it is the intention of the Company to make contributions
to the Trust to provide itself with a source of funds to assist it
in the meeting of its liabilities under the Plan,
NOW, THEREFORE, the parties do hereby establish the Trust and agree that
the Trust shall be comprised, held, and disposed of as follows:
Section 1. Establishment of the Trust.
(a) The Company hereby deposits with the Trustee, in trust, $100.00
which shall become the principal of the Trust to be held,
administered, and disposed of by the Trustee as provided in this
Trust Agreement, and the Trustee does hereby acknowledge receipt
of such property and agrees to hold such property and such other
assets delivered thereto under the Trust Agreement in Trust
pursuant to the terms hereof.
(b) The Trust hereby established is irrevocable by the Company.
(c) The Trust is intended to be a grantor trust, of which the Company
is the grantor, within the meaning of subpart E, part I,
subchapter J, chapter 1, subtitle A of the Internal Revenue Code
of 1986, as amended, and shall be construed accordingly.
(d) The principal of the Trust, and any earnings thereon shall be
held separate and apart from other funds of the Company and shall
be used exclusively for the uses and purposes as herein set
forth. Plan Participants and their Beneficiaries shall have no
preferred claim, or any beneficial ownership interest in, any
assets of the Trust. Any rights created under the Plan and this
Trust Agreement shall be mere unsecured contractual rights of
Plan Participants and their Beneficiaries against the Company.
Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the
event of Insolvency.
(e) The Company, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property
acceptable to the Trustee in trust with the Trustee to augment the
principal to be held, administered, and disposed of by the
Trustee as provided in this Trust Agreement. Neither the Trustee
nor any Plan Participant or Beneficiary shall have any right to
compel such additional deposits.
(f) The Company shall, as soon as possible, but in no event longer
than 45 days following each Payday (as defined herein) make an
irrevocable contribution to the Trust in an amount that reflects
the elections made by Plan Participants from time to time in
accordance with the Plan.
Section 2. Payments to the Company.
(a) Upon a participant making an election to defer any Compensation
under the Plan, the Company shall deliver to the Trustee a
schedule (the "Payment Schedule") that indicates the amount of
Compensation being deferred by each Plan Participant, the form in
which such amount is to be paid at the expiration of the Deferral
Period, and the time of commencement of payment of such amounts.
At the expiration of each Deferral Period, the Trustee shall
disburse funds to the Company for benefit payments to be made by
the Company to Plan Participants in the amounts that the
Administrator shall direct from time to time in writing and the
Company shall make such payments pursuant to the Plan. The
Trustee shall have no obligations to ascertain any compliance by
the Company with the terms of the Plan or of applicable law, nor
shall the Trustee be responsible for making benefit payments to
Participants under the Plan, or be responsible for any federal,
state, or local income tax reporting or withholding with respect
to such Plan benefits.
(b) The entitlement of a Plan Participant or his Beneficiaries to
benefits under the Plan shall be determined by the Administrator
or such other party as shall be designated under the Plan, and
any claim for such benefits shall be considered and reviewed
under the procedures set out in the Plan.
(c) Company, in its sole discretion, may, at any time, or from time
to time, make additional deposits of cash or other property in
trust with Trustee to augment the principal to be held,
administered, and disposed of by the Trustee as provided in this
Trust Agreement. Neither Trustee nor any Plan Participant or
Beneficiary shall have any right to compel such additional
deposits.
Section 3. The Trustee's Responsibility Regarding Payments to the Trust
Beneficiary When the Company is Insolvent.
(a) The Trustee shall cease payment of amounts to the Company
hereunder if the Company should declare itself, or be declared,
insolvent. The Company shall be considered "Insolvent" for
purposes of this the Trust Agreement if (i) the Company is unable
to pay its debts as they become due, or (ii) the Company is
subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
(b) At all times during the continuance of this the Trust, as
provided in Section 1.(d) hereof, the principal and income of the
Trust shall be subject to claims of general creditors of the
Company under federal and state law as set forth below.
(i) The Board of Directors or the Chief Executive Officer of
the Company shall have the duty to inform the Trustee in
writing of the Company's Insolvency. If a person claiming
to be a creditor of the Company alleges in writing to the
Trustee that the Company has become Insolvent, the Trustee
shall determine whether the Company is Insolvent and,
pending such determination, the Trustee shall discontinue
payment of amounts to the Company.
(ii) Unless the Trustee has actual knowledge of the Company's
Insolvency, or has received notice from the Company or a
person claiming to be a creditor alleging that the Company
is Insolvent, the Trustee shall have no duty to inquire
whether the Company is Insolvent. The Trustee may in all
events rely on such evidence concerning the Company's
solvency as may be furnished to the Trustee that provides
the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
(iii) If at any time the Trustee has determined that Company is
Insolvent, the Trustee shall discontinue payments to the
Company and shall hold the assets of the Trust for the
benefit of Company's general creditors. Nothing in this
Trust Agreement shall in any way diminish any rights of
Plan Participants or their Beneficiaries to pursue their
rights as general creditors to Company with respect to
benefits due under the Plan or otherwise.
(iv) The Trustee shall resume the payment of amounts to the
Company in accordance with Section 2. of this Trust
Agreement only after the Trustee has determined that the
Company is not Insolvent (or is no longer Insolvent).
(c) Provided that there are sufficient assets, if the Trustee
discontinues the payment of benefits from the Trust pursuant to
Section 3(b) hereof and subsequently resumes such payments, the
first payment following such discontinuance shall include the
aggregate amount of all payments due to the Company under the
terms of the Plan for the period of such discontinuance, less the
aggregate amount of any payments made to such Participants or
their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
Section 4. Payments to the Company. Except as provided in Section
3. hereof, after the Trust has become irrevocable, the Company shall
have no right or power to direct the Trustee to return to the Company or
to divert to others any of the Trust assets before all payment of
benefits have been made to Plan Participants and their Beneficiaries
pursuant to the terms of the Plan.
Section 5. Investment Authority.
(a) Selection of Investment Options. The Trustee shall have no
responsibility for the selection of investment options under the
Trust and shall not render investment advice to any person in
connection with the selection of such options.
(b) Available Investment Options. The Company shall direct the
Trustee as to what Investment Options are offered. The Company
has currently determined to offer as investment options only
securities issued by the investment companies identified on
Schedule "A" attached hereto (the "Investment Options");
provided, however, that, solely by reason thereof, the Trustee
shall not be considered a fiduciary with investment discretion.
The Company may add additional Investment Options or delete same
by written notice to the Trustee. Such additions and deletions
will be made in order to cause such Investment Options to remain
the same as are available from time to time to Participants in
the Tracor, Inc. 401(k) Savings Plan.
(c) Investment Directions. In order to provide for an accumulation
of assets comparable to the Company's contractual liabilities
accruing under the Plan, the Company will direct the Trustee, in
writing, to invest the assets held in the Trust as directed by
Plan Participants. In the event that the Trustee fails to
receive directions from the Company, the assets allocable to each
Plan Participant shall be invested in the Norwest Stable Return
Fund (as set forth on Schedule "A" hereto).
(d) Investment Funds. The Company hereby acknowledges that it has
received from the Trustee a copy of the prospectus for each
investment selected by the Company as an Investment Option.
Trust investments in Investment Options shall be subject to the
following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of
an Investment Option (other than for exchanges) shall be
made on the date on which the Trustee receives from the
Company or a Plan Participant all information and
documentation necessary accurately to effect such purchases
and sales (and, in the case of a purchase, the date on
which the Trustee has received a wire transfer of funds
necessary to make such purchase). Exchanges of Funds shall
be made on the same business day that the Trustee receives
a proper direction if received before 4:00 p.m. eastern
time; if the direction is received after 4:00 p.m. eastern
time, the exchange shall be made the following day.
(ii) Voting. At the time of mailing of notice of each annual or
special stockholders' meeting of any Investment Option, the
Trustee shall send a copy of the notice and all proxy
solicitation materials to the Company, together with a
voting direction form for return to the Trustee or its
designee. The Company shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote
the shares contained in each Investment Option (both vested
and unvested). The Trustee shall vote the shares as
directed by the Company. The Trustee shall not vote shares
for which it has received no directions from the Company.
The Trustee shall have no duty to solicit directions from
the Company.
Section 6. Disposition of Income. During the term of this Trust,
all income received by the Trust, net of expenses and taxes, shall be
accumulated and reinvested.
Section 7. Accounting by the Trustee. The Trustee shall keep
accurate and detailed records of all investments, receipts,
disbursements, and all other transactions required to be made, including
such specific records as shall be agreed upon in writing between the
Company and the Trustee. Within 30 days following the close of each
calendar year and within 30 days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Company a written account of
its administration of the Trust during such year or during the period
from the close of the last preceding year to the date of such removal or
resignation, setting forth all investments, receipts, disbursements, and
other transactions effected by it, including a description of all
securities and investments purchased and sold with the cost or net
proceeds of such purchases or sales (accrued interest paid or receivable
being shown separately), and showing all cash, securities, and other
property held in Trust at the end of such year or as of the date of such
removal or resignation, as the case may be.
Section 8. Responsibility of the Trustee.
(a) The Trustee shall act with the care, skill, prudence, and
diligence under the circumstances then prevailing that a prudent
person acting in like capacity and familiar with such matters
would use in the conduct of an enterprise of a like character and
with like aims, provided, however, that the Trustee shall incur
no liability to any person for any action taken pursuant to a
direction, request or approval given by the Company or a
Participant which is contemplated by, and in conformity with, the
terms of the Plan or this Trust and is given in writing. In the
event of a dispute between the Company or a Participant and the
Trustee, the Trustee may apply to a court of competent
jurisdiction to resolve the dispute.
(b) The Trustee may consult with legal counsel with respect to any of
its duties or obligations hereunder.
(c) The Trustee may hire agents (including affiliates), accountants,
actuaries, investment advisors, financial consultants, or other
professionals to assist it in performing any of its duties or
obligations hereunder.
(d) Notwithstanding any powers granted to the Trustee pursuant to
this Trust Agreement or to applicable law, the Trustee shall not
have any power that could give this Trust the objective of
carrying on a business and dividing the gains therefrom, within
the meaning of Section 301.7701-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal
Revenue Code.
Section 9. Compensation and Expenses of the Trustee. The Company
shall pay all administrative and the Trustee's fees and expenses in
accordance with Schedule "B." If not so paid, the fees and expenses
shall be paid from the Trust.
Section 10. Resignation and Removal of the Trustee.
(a) The Trustee may resign at any time by written notice to the
Company, which shall be effective 90 days after receipt of such
notice unless the Company and the Trustee agree otherwise.
(b) The Trustee may be removed by the Company on 30 days notice or
upon shorter notice accepted by the Trustee.
(c) If the Trustee resigns or is removed successor shall be
appointed, in accordance with Section 11 hereto, effective the
date of such resignation or removal. If no such appointment has
been made, the Trustee may apply to a court of competent
jurisdiction for appointment of a successor or for instructions.
All expenses of the Trustee in connection with such proceeding
shall be allowed as administrative expenses of the Trust.
(d) Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred
to the successor Trustee. The transfer shall be completed within
60 days after receipt of notice of such resignation or removal,
unless the Company shall extend such period.
Section 11. Appointment of Successor. If the Trustee resigns or is
removed in accordance with Section 10. (a) or (b) hereof, the Company
may appoint any third party, such as a bank trust department or other
party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee. The appointment shall be effective
when accepted in writing by the new Trustee, who shall have all of the
rights and powers of the former Trustee, including ownership rights in
the Trust assets. The former Trustee shall execute any instrument
necessary for reasonably requested by the Company or the successor
Trustee to evidence the transfer.
Section 12. Amendment or Termination.
(a) This Trust Agreement may be amended by a written instrument
executed by the Trustee and the Company. Notwithstanding the
foregoing, no such amendment shall conflict with the terms of the
Plan or shall make the Trust revocable after it has become
irrevocable in accordance with Section 1.(b) hereof.
(b) The Trust shall not terminate until the date on which Plan
Participants and their Beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plan.
Section 13. Miscellaneous.
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without
invalidating the remaining provisions hereof.
(b) Benefits payable to Plan Participants and their Beneficiaries
under this Trust Agreement may not be anticipated, assigned
(either at law or in equity), alienated, pledged, encumbered, or
subjected to attachment, garnishment, levy, execution, or other
legal or equitable process.
(c) Capitalized terms not defined herein are as defined in the Plan.
(d) This Trust Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
Section 14. Effective Date. The effective date of this Trust
Agreement shall be December 1, 1996.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of its effective date.
NORWEST BANK MINNESOTA, N.A. TRACOR, INC.
(the "Trustee") (the "Company")
By: ___________________ By: ___________________
Name: ___________________ Name: ___________________
Title: ___________________ Title: ___________________
ATTEST: ATTEST:
__________________________ __________________________
Printed Name Printed Name
<PAGE>
Schedule "A"
RECORDKEEPING AND ADMINISTRATIVE SERVICES
Administration
Establishment and maintenance of participant account and election
percentages
Daily valuation
Maintenance of ten plan investment options:
- Fidelity Contrafund - Norwest Small Cap Opportunities Fund
- Norwest Growth Equity Fund - Norwest Stable Return Fund
- Tracor Stock Fund - T.Rowe Price Spectrum Income Fund
- Vanguard Inst. Index Fund - Vanguard International Fund
- Vanguard Wellington Fund - Vanguard Windsor II
Maintenance of three money classifications:
- Company Matching Account - Company Profit Sharing Account
- Deferred Compensation Account
Processing
Processing of contribution data each payroll period
Daily processing of transfers and changes of future allocations
Monthly processing of wire transfers to Tracor to accommodate benefit
payments
Other
Monthly trial balance
Quarterly administrative reports
Quarterly participant statements
<PAGE>
Schedule "B"
FEE SCHEDULE
. Base Annual Participant Fee.......$15,000.00 per year*
. Per Participant Annual Fee........$40.00 per year
. Investment Management Fee for
Norwest Stable Return Fund..........35 basis points
. Other Investment Management Fees..as per prospectuses
. Statement Mailing.................$1.19 per statement with inserts
. Transfer to Tracor................$10.00 per transfer
. Tape Transmissions................$40.00 per tape
. Proxy Voting and Tabulations......at cost
* This fee will be imposed pro rata for each calendar quarter, or any
part thereof, that it remains necessary to maintain a participant's
account(s) as part of the Plan's records; e.g., vested, deferred,
forfeiture, top-heavy, and terminated Participants who must remain
on file through calendar year-end for 1099-R reporting purposes.
December 5, 1996
Tracor, Inc.
6500 Tracor Lane
Austin, Texas 78725
Dear Sirs:
I have represented Tracor, Inc., a Delaware corporation (the "Company"),
in connection with the registration with the Securities and Exchange
Commission under the Securities Act of 1933, of the Company's Deferred
Compensation Plan (the "Plan").
In this connection, I have examined originals, or copies certified or
otherwise identified to my satisfaction of such documents, of corporate
and other records, certificates, and other papers as I deemed it necessary
to examine for the purpose of this opinion, including the Registration
Statement of the Company for the registration of the Plan on Form S-8
under the Securities Act of 1933 (the "Registration Statement").
Based upon such examination, it is my opinion that the Plan has been
duly authorized and constitutes a binding obligation of the Company,
and the shares of common stock of the Company that will be purchased
by the Company from time to time pursuant to the Plan have been legally
issued, and are fully paid, and non-assessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement. In giving this consent I do not thereby admit that I am
within the category of persons whose consent is required under Section 7
of the Securities Act of 1933 as amended or the rules and regulations
thereunder.
Very truly yours,
/s/ Russell E. Painton
- ----------------------
Russell E. Painton
Vice President and
General Counsel
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration
Statement (Form S-8) for the registration of 200,000 shares of common
stock pertaining to the Tracor Deferred Compensation Plan of our
report dated January 26, 1996, except for Note N, as to which the
date is March 12, 1996, with respect to the consolidated financial
statements of Tracor, Inc. included in its Annual Report on Form 10-K
for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
----------------------
Austin, Texas
December 5, 1996
<PAGE>
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration
Statement (Form S-8) for the registration of 200,000 shares of common
stock pertaining to the Tracor Deferred Compensation Plan of our
report dated March 24, 1995, with respect to the consolidated
financial statements of AEL Industries, Inc. for the year ended
February 24, 1995, included in the Form 8-K filed by Tracor, Inc.
with the Securities and Exchange Commission on February 22, 1996.
/s/ Ernst & Young LLP
----------------------
Austin, Texas
December 5, 1996
