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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM 8-B
FOR REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SOLECTRON CORPORATION
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(Exact name of Registrant as specified in its charter)
Delaware 94-2447045
- - ---------------------------------------- ---------------------------------
(State of incorporation or organization) (IRS Employer Identification No.)
777 Gibraltar Drive
Milpitas, CA 95035
(Address of principal executive offices) (Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
-------------------- ------------------------------
Common Stock, $.001 par value per share
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(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item 1. General Information.
(a) The registrant, Solectron Corporation (the "Company" or the
"Registrant"), was incorporated in Delaware on January 27,
1997.
(b) Registrant's fiscal year ends on August 31.
Item 2. Transaction of Succession.
(a) The predecessor to the Company was Solectron Corporation, a
California corporation ("Solectron California"). Solectron
California had Common Stock registered pursuant to Section
12(g) of the Securities Exchange Act of 1934 (the "Exchange
Act").
(b) On February 25, 1997, Solectron California merged into the
Company to effect a reincorporation into Delaware (the
"Merger"). Pursuant to the Agreement and Plan of Merger of
Solectron Corporation, a Delaware corporation and Solectron
Corporation, a California corporation, each share of Solectron
California's Common Stock no par value was automatically
converted into one share of the Company's Common Stock, $0.001
par value, on the effective date of the Merger. Each stock
certificate representing issued and outstanding shares of
Solectron California's Common Stock from the date of the
Merger represents the same number of shares of the Company's
Common Stock.
Item 3. Securities to be Registered.
The authorized capital stock of Registrant consists of 200,000,000
shares of Common Stock, $.001 par value per share, and 1,200,000 shares of
Preferred Stock, $.001 par value per share. As of January 31, 1997, 63,952,655
shares of Common Stock were outstanding. None of such issued shares were held
in treasury as of January 31, 1997. No shares of Preferred Stock were
outstanding as of January 31, 1997.
Item 4. Description of Securities to be Registered.
The holders of Common Stock are entitled to one vote for each share
held of record on all matters to be voted upon by the stockholders, except that
stockholders may cumulate their votes in the election of directors. Subject to
preferences that may be applicable to any outstanding Preferred Stock, the
holders of Common Stock are entitled to receive ratably such dividends, if any,
as may be declared from time to time by Registrant's Board of Directors out of
funds legally available therefor. In the event of a liquidation, dissolution
or winding up of Registrant, the holders of Common Stock are entitled to share
ratably in all assets remaining after payment of liabilities, subject to prior
distribution rights of Preferred Stock, if any, then outstanding. The Common
Stock has no preemptive or conversion rights or other subscription rights.
There are no redemption or sinking fund provisions applicable to the Common
Stock. All outstanding shares of Common Stock are fully paid and
non-assessable.
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Certain provisions of the Certificate of Incorporation and Bylaws of
the Company may be considered to have antitakeover implications. Such
provisions could discourage certain attempts to obtain control of the Company,
even though such attempts might be beneficial to the Company and its
stockholders.
The Bylaws of the Company contain an advance notice procedure with
regard to the nomination, other than by or at the direction of the Board of
Directors, of candidates for election as directors (the "Nomination Procedure")
and with regard to certain matters to be brought before any meeting of
stockholders (the "Business Procedure"). The Nomination Procedure provides
that only persons nominated by or at the direction of the Board of Directors or
by a stockholder who has given timely written notice in proper form to the
Secretary of the Company prior to the meeting, will be eligible for election as
directors. The Business Procedure provides that at a meeting of stockholders
only such business may be conducted as has been brought before the meeting by
or at the direction of the Board of Directors or by a stockholder who has given
timely written notice in proper form to the Secretary of the Company prior to
the meeting of such stockholder's intention to bring business before the
meeting.
The Certificate of Incorporation of the Company authorizes 1,200,000
shares of Preferred Stock, with a par value of $.001 per share. Pursuant to
the Company's Certificate of Incorporation, the Board of Directors has the
authority, without further vote or action by the stockholders, to fix the
designation, powers, preferences, and rights of the shares of each series of
Preferred Stock and the qualifications, limitations or restrictions thereof
including, but not limited to, dividend rights, conversion privileges, voting
rights, terms of redemption and liquidation preferences. At present, there are
no shares of Preferred Stock outstanding.
The Certificate of Incorporation of the Company provides that to the
fullest extent permitted by Delaware law, no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Certificate of Incorporation also
incorporates any future amendments to Delaware law with respect to the
elimination of such liability.
Section 203 of the Delaware General Corporation Law, from which the
Company has not opted out in its Certificate of Incorporation, restricts
certain "business combinations" with interested stockholders" for three years
following the date that a person or entity becomes an interested stockholder,
unless the Board of Directors approves the business combination and/or certain
other requirements are met.
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Item 5. Financial Statements and Exhibits.
(a) Financial Statements. Not applicable. The capital structure
and balance sheets of the Company immediately after the Merger
were substantially the same as those of Solectron California.
(b) Exhibits.
(i) Proxy Statement. Not applicable. The capital
structure and balance sheets of the Company immediately after
the Merger were substantially the same as those of Solectron
California.
(ii) Other Exhibits.
1.1 Agreement and Plan of Merger between
Registrant and Solectron California.
3.1 Certificate of Incorporation of Registrant.
3.2 Bylaws of Registrant.
10.1(1) Preferred Stock Purchase Agreement dated
September 29, 1983, together with amendments
thereto dated February 28, 1984 and June 23,
1988.
10.2(1) Form of Indemnification Agreement between
Solectron California and its officers,
directors and certain other key employees.
10.3(1) Amendment to Exhibit 10.2
10.4(2) 1983 Incentive Stock Option Plan, as amended
August 13, 1991.
10.5(3) 1988 Employee Stock Purchase Plan, as amended
October 1992.
10.6(4) Amended and Restated 1992 Stock Option Plan.
10.8(5*)Asset Purchase Agreement dated as of January
29, 1996, as amended and restated of March 29,
1996 by and among Solectron Texas, L.P.,
Solectron California and Texas Instruments,
Incorporated.
10.10(6)Stock Acquisition Agreement dated August 28,
1993, between Solectron California and
Solectron California Corporation.
10.11(6)Multicurrency Credit Agreement dated June 30,
1993, between Solectron California and Bank
of America National Trust and Savings
Association as Agent and Issuing Bank.
10.12(7)Lease Agreement between BNP Leasing
Corporation, as Landlord, and Solectron
California, as Tenant, Effective September 6,
1994.
10.13(7)Purchase Agreement, by and between Solectron
California and BNP Leasing Corporation, dated
September 6, 1994.
10.14(7)Pledge and Security Agreement, by and between
Solectron California, as Debtor, and BNP
Leasing Corporation, as Secured Party, dated
September 6, 1994.
10.15(7)Assignment and Assumption Agreement between
Solectron California and Solectron California
Corporation, dated November 9, 1994.
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10.16(7)Custodial Agreement by and between Solectron
California, Banque Nationale De Paris, and
BNP Leasing Corporation, dated September 6,
1994.
10.17(7)First Amendment to Multicurrency Credit
Agreement, dated August 29, 1994.
10.18(7)Second Amendment to Multicurrency Credit
Agreement, dated September 30, 1994.
10.19(8)Agreement and Plan of Reorganization, by and
among the Solectron California, Force Acq.
Corp. and Force Computers, Inc. as amended.
10.20(9)Form of Indemnification Agreement to be
entered into between Registrant and its
officers, directors and certain other key
employees.
11.(10) Statement re: Computation of Earnings of
Solectron California.
21.(10) Subsidiaries of Registrant.
__________________________________
(1) Incorporated by reference to the Exhibits to Solectron California's
Registration Statement on Form S-1 (File No. 33-22840).
(2) Incorporated by reference to the Exhibits to Solectron California's
Registration Statement on Form S-8 (File No. 33-46686).
(3) Incorporated by reference to the Exhibits to Solectron California's
Form 10-K for the year ended August 31, 1992.
(4) Incorporated by reference to the Exhibits to Solectron California's
Registration Statement on Form S-8, filed February 2, 1995 (File No.
33-75270).
(5) Incorporated by reference to the Exhibits of the Solectron
California's Form 10-Q for the quarter ended February 29, 1996.
(6) Incorporated by reference to the Exhibits to Solectron California's
Form 10-K for the year ended August 31, 1993.
(7) Incorporated by reference to the Exhibits to Solectron California's
Form 10-K for the year ended August 31, 1994.
(8) Incorporated by reference to the Exhibits to the Solectron
California's Registration Statement on Form S-4 as amended, filed
November 20, 1996. (File No. 333-15983).
(9) Incorporated by reference to the Exhibits to Solectron California's
Definitive Proxy Statement on Schedule 14-A, filed December __, 1996.
(10) Incorporated by reference to the Exhibits to Solectron California's
Form 10-Q for the quarter ended December 31, 1996.
* Confidential treatment has been granted with respect to certain portions of
this exhibit. Omitted portions have been filed separately with the Securities
and Exchange Commission.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
SOLECTRON CORPORATION
Date: February 25, 1997 By:/s/ Susan Wang
------------------------------------
Susan Wang
Senior Vice President,
Chief Financial Officer and Secretary
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EXHIBIT INDEX
Page
Number
Under
Sequential
Exhibit Numbering
No. Exhibit System
- - ------- ------- ------
1. Agreement and Plan of Merger.
3.1 Registrant's Certificate of Incorporation.
3.2 Registrant's Bylaws.
<PAGE> 1
EXHIBIT 1.1
AGREEMENT AND PLAN OF MERGER
OF SOLECTRON CORPORATION,
A DELAWARE CORPORATION,
AND
SOLECTRON CORPORATION,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of February 25, 1997 (the
"Agreement") is between Solectron Corporation, a Delaware corporation
("Solectron Delaware") and Solectron Corporation, a California corporation
("Solectron California"). Solectron Delaware and Solectron California are
sometimes referred to herein as the "Constituent Corporations."
R E C I T A L S
A. Solectron Delaware is a corporation duly organized and
existing under the laws of the State of Delaware and has an authorized capital
of 201,200,000 shares, 200,000,000 of which are designated "Common Stock,"
$0.001 par value, and 1,200,000 of which are designated "Preferred Stock,"
$0.001 par value. As of the date hereof, 100 shares of Common Stock were
issued and outstanding, all of which were held by Solectron California.
B. Solectron California is a corporation duly organized and
existing under the laws of the State of California and has an authorized
capital of 81,200,000 shares, 80,000,000 of which are designated "Common
Stock," no par value, and 1,200,000 of which are designated "Preferred Stock,"
no par value. At January 31, 1997, 63,952,655 shares of Common Stock and no
shares of Preferred Stock were issued and outstanding.
C. The Board of Directors of Solectron California has determined
that, for the purpose of effecting the reincorporation of Solectron California
in the State of Delaware, it is advisable and in the best interests of
Solectron California and its shareholders that Solectron California merge with
and into Solectron Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of Solectron Delaware and
Solectron California have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective sole stockholder and
shareholders, and executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Solectron Delaware and Solectron California hereby
agree, subject to the terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the California General Corporation
Law, Solectron California shall be merged with and into Solectron Delaware (the
"Merger"), the separate existence of Solectron California shall cease and
Solectron Delaware shall survive the Merger and shall continue to be governed
by the laws of the State of Delaware, and Solectron Delaware shall be, and is
herein sometimes referred as, the "Surviving Corporation," and the name of the
Surviving Corporation shall be Solectron Corporation.
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1.2 FILING AND EFFECTIVENESS. The Merger shall become effective
when the following actions shall have been completed:
(a) This Agreement and Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
Corporations Code;
(b) All of the conditions precedent to the consummation
of the Merger specified in this Agreement shall have been satisfied or duly
waived by the party entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of the State
of Delaware.
(d) All statutory requirements under the California
Corporations Code shall have been complied with.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger,
the separate existence of Solectron California shall cease and Solectron
Delaware, as the Surviving Corporation (i) shall continue to possess all of its
assets, rights, powers and property as constituted immediately prior to the
Effective Date of the Merger, (ii) shall be subject to all actions previously
taken by its and Solectron California's Board of Directors, (iii) shall
succeed, without other transfer, to all of the assets, rights, powers and
property of Solectron California in the manner more fully set forth in Section
259 of the Delaware General Corporation Law, (iv) shall continue to be subject
to all of the debts, liabilities and obligations of Solectron Delaware as
constituted immediately prior to the Effective Date of the Merger, and (v)
shall succeed, without other transfer, to all of the debts, liabilities and
obligations of Solectron California in the same manner as if Solectron Delaware
had itself incurred them, all as more fully provided under the applicable
provisions of the Delaware General Corporation Law and the California
Corporations Code.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of Solectron Delaware as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of Solectron Delaware as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Bylaws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of
Solectron California immediately prior to the Effective Date of the Merger
shall be the directors and officers of the Surviving Corporation until their
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 SOLECTRON CALIFORNIA COMMON STOCK. Upon the Effective Date of
the Merger, each share of Solectron California Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the Merger and
without any
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action by the Constituent Corporations, the holder of such shares or any other
person, be converted into and exchanged for one (1) fully paid and
nonassessable share of Common Stock, $0.001 par value, of the Surviving
Corporation.
3.2 SOLECTRON CALIFORNIA OPTIONS, STOCK PURCHASE RIGHTS AND
CONVERTIBLE SECURITIES.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume the obligations of Solectron California under the
option plans and all other employee benefit plans of Solectron California. Each
outstanding and unexercised option, or other right to purchase, or security
convertible into, Solectron California Common Stock (a "Right") shall become an
option, or right to purchase or a security convertible into the Surviving
Corporation's Common Stock, respectively, on the basis of one (1) share of the
Surviving Corporation's Common Stock for each share of Solectron California
Common Stock, issuable pursuant to any such Right, on the same terms and
conditions and at an exercise price per share equal to the exercise price
applicable to any such Solectron California Right at the Effective Date of the
Merger. This Section 3.2(a) shall not apply to outstanding shares of Solectron
California Common Stock. Such Common Stock is subject to Section 3.1 hereof.
(b) A number of shares of the Surviving Corporation's
Common Stock shall be reserved for issuance upon the exercise of options, stock
purchase rights and convertible securities equal to the number of shares of
Solectron California Common Stock so reserved immediately prior to the Effective
Date of the Merger.
3.3 SOLECTRON DELAWARE COMMON STOCK. Upon the Effective Date of
the Merger, each share of Common Stock, $0.001 par value, of Solectron Delaware
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by Solectron Delaware, the holder of such shares or any
other person, be canceled and returned to the status of authorized but unissued
shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of
Solectron California Common Stock may, at such stockholder's option, surrender
the same for cancellation to Boston EquiServe L.P., as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of the
Surviving Corporation's Common Stock into which the surrendered shares were
converted as herein provided. Unless and until so surrendered, each outstanding
certificate theretofore representing shares of Solectron California Common Stock
shall be deemed for all purposes to represent the number of shares of the
Surviving Corporation's Common Stock into which such shares of Solectron
California Common Stock were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transferability as the certificates of Solectron
California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws, or other such additional legends as agreed upon by the
holder and the Surviving Corporation.
If any certificate for shares of Solectron Delaware stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper
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and comply with applicable securities laws and that the person requesting such
transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of Solectron Delaware that such tax has been paid or is not
payable.
IV. GENERAL
4.1 COVENANTS OF SOLECTRON DELAWARE. Solectron Delaware covenants
and agrees that it will, on or before the Effective Date of the Merger:
(a) qualify to do business as a foreign corporation in
the State of California and in connection therewith irrevocably appoint an
agent for service of process as required under the provisions of Section 2105
of the California General Corporation Law;
(b) file any and all documents with the California
Franchise Tax Board necessary for the assumption by Solectron Delaware of all
of the franchise tax liabilities of Solectron California; and
(c) take such other actions as may be required by the
California General Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required
by Solectron Delaware or by its successors or assigns, there shall be executed
and delivered on behalf of Solectron California such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other actions as shall be appropriate or necessary in order to vest or
perfect in or conform of record or otherwise by Solectron Delaware the title to
and possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Solectron California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of Solectron Delaware are fully authorized in the name and on behalf
of Solectron California or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the
Merger, this Agreement may be terminated and the Merger may be abandoned for
any reason whatsoever by the Board of Directors of either Solectron California
or of Solectron Delaware, or of both, notwithstanding the approval of this
Agreement by the shareholders of Solectron California or by the sole
stockholder of Solectron Delaware, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement (or certificate in lieu thereof) with the Secretaries of State of the
States of Delaware and California, provided that an amendment made subsequent
to the adoption of this Agreement by the stockholders of either Constituent
Corporation shall not: (a) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation; (b) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (c)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is 1209 Orange Street, Wilmington,
Delaware 19801, County of New Castle and The Corporation Trust Company is the
registered agent of the Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at 847
Gibraltar Drive, Building 5, Milpitas, California 95035 and copies thereof will
be furnished to any stockholder of either Constituent Corporation, upon request
and without cost.
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4.7 GOVERNING LAW. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the laws
of the State of Delaware and, so far as applicable, the merger provisions of
the California General Corporation Law.
4.8 COUNTERPARTS. In order to facilitate the filing and recording
of this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Solectron Corporation, a Delaware
corporation, and Solectron Corporation, a California corporation, is hereby
executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
SOLECTRON CORPORATION,
a Delaware corporation
By:/s/ Koichi Nishimura
---------------------------------------------
Koichi Nishimura, Ph.D., President, Chief
Executive Officer, and Chairman of the Board
ATTEST:
/s/ Susan Wang
- - --------------------------------------------------
Susan Wang, Senior Vice President, Chief Financial
Officer, and Secretary
SOLECTRON CORPORATION,
a California corporation
By:/s/ Koichi Nishimura
---------------------------------------------
Koichi Nishimura, Ph.D., President, Chief
Executive Officer, and Chairman of the Board
ATTEST:
/s/ Susan Wang
- - --------------------------------------------------
Susan Wang, Senior Vice President, Chief Financial
Officer, and Secretary
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SOLECTRON CORPORATION
A CALIFORNIA CORPORATION
OFFICERS' CERTIFICATE
Koichi Nishimura and Susan Wang certify that:
1. They are the President and the Secretary, respectively, of
Solectron Corporation, a corporation organized under the laws of the State of
California.
2. The corporation has authorized two classes of stock,
designated "Common Stock" and "Preferred Stock," respectively.
3. There were 52,966,689 shares of Common Stock and no shares of
Preferred Stock outstanding as of November 15, 1996 (the "Record Date") and
entitled to vote at the shareholders' meeting at which the Agreement and Plan
of Merger attached hereto was approved.
4. The principal terms of the Agreement and Plan of Merger were
approved by the Board of Directors and by the vote of a number of shares of
each class and series of stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes
entitled to be cast by holders of Common Stock outstanding as of the Record
Date.
6. Koichi Nishimura and Susan Wang further declare under penalty
of perjury under the laws of the State of California that they have read the
foregoing certificate and know the contents thereof and that the same is true
of their own knowledge.
Executed in Milpitas, California on February __, 1997.
/s/ Koichi Nishimura
----------------------------------
Koichi Nishimura, Ph.D., President
/s/ Susan Wang
----------------------------------
Susan Wang, Secretary
<PAGE> 7
SOLECTRON CORPORATION
A DELAWARE CORPORATION
OFFICERS' CERTIFICATE
Koichi Nishimura and Susan Wang certify that:
1. They are the President and the Secretary, respectively, of
Solectron Corporation, a corporation organized under the laws of the State of
Delaware.
2. The corporation has authorized two classes of stock,
designated "Common Stock" and "Preferred Stock," respectively.
3. There are 100 shares of Common Stock outstanding and entitled
to vote on the Agreement and Plan of Merger attached hereto. There are no
shares of Preferred Stock outstanding.
4. The principal terms of the Agreement and Plan of Merger were
approved by the Board of Directors and by the vote of a number of shares of
each class and series of stock which equaled or exceeded the vote required.
5. The percentage vote required was more than 50% of the votes
entitled to be cast by holders of outstanding shares of Common Stock.
6. Koichi Nishimura and Susan Wang further declare under penalty
of perjury under the laws of the State of California that they have read the
foregoing certificate and know the contents thereof and that the same is true
of their own knowledge.
Executed in Milpitas, California on February 21, 1997.
/s/ Koichi Nishimura
----------------------------------
Koichi Nishimura, Ph.D., President
/s/ Susan Wang
----------------------------------
Susan Wang, Secretary
<PAGE> 8
CERTIFICATE OF INCORPORATION
OF
SOLECTRON CORPORATION
Solectron Corporation, a corporation organized and existing under the
laws of the State of Delaware, does hereby certify:
FIRST: The name of the Corporation is Solectron Corporation (the
"Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
FOURTH: This corporation is authorized to issue two classes of shares: Common
Stock and Preferred Stock. The total number of shares which this
corporation is authorized to issue is two hundred one million two
hundred thousand (201,200,000) shares. The number of shares of Common
Stock authorized is two hundred million (200,000,000) shares, $.001
par value. The number of shares of Preferred Stock authorized is one
million two hundred thousand (1,200,000) shares, $.001 par value.
The shares of Preferred Stock authorized by this Certificate of
Incorporation may be issued from time to time in one or more series.
For any wholly unissued series of Preferred Stock, the Board of
Directors is hereby authorized to fix and alter the dividend rights,
dividend rates, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption prices,
liquidation preferences, the number of shares constituting any such
series and the designation thereof, or any of them.
For any series of Preferred Stock having issued and outstanding
shares, the Board of Directors is hereby authorized to increase or
decrease the number of shares of such series when the number of shares
of such series was originally fixed by the Board of Directors, but
such increase or decrease shall be subject to the limitations and
restrictions stated in the resolution of the Board of Directors
originally fixing the number of shares of such series.
If the number of shares of any series is so decreased, then the shares
constituting such decrease shall resume the status that they had prior
to the adoption of the resolution originally fixing the number of
shares of such series.
<PAGE> 9
FIFTH: The name and mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
-------------------------------------------------
Susan Wang Solectron Corporation
847 Gibraltar Drive, Building 5
Milpitas, CA 95035
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting
and before voting begins.
EIGHTH: A. At each annual meeting of stockholders, directors of the
Corporation shall be elected to hold office until the expiration
of the term for which they are elected, and until their
successors have been duly elected and qualified; except that if
any such election shall not be so held, such election shall take
place at a stockholders' meeting called and held in accordance
with the Delaware General Corporation Law. Commencing with the
first annual meeting of stockholders held after calendar 1997
(the "First Annual Meeting"), the directors of the Corporation
shall be divided into three classes as nearly equal in size as
is practicable, hereby designated Class I, Class II and Class
III. For the purposes hereof, the initial Class I, Class II and
Class III directors shall be those directors so designated and
elected at the First Annual Meeting. The term of office of the
initial Class I directors shall expire at the next succeeding
annual meeting of stockholders, the term of office of the
initial Class II directors shall expire at the second succeeding
annual meeting of stockholders and the term of office of the
initial Class III directors shall expire at the third succeeding
annual meeting of the stockholders. At each annual meeting
after the First Annual Meeting, directors to replace those of a
Class whose terms expire at such annual meeting shall be elected
to hold office until the third succeeding annual meeting and
until their respective successors shall have been duly elected
and qualified. If the number of directors is hereafter changed,
any newly created directorships or decrease in directorships
shall be so apportioned among the classes as to make all classes
as nearly equal in number as is practicable.
B. Vacancies occurring on the Board of Directors may be filled
by vote of a majority of the remaining members of the Board of
Directors, although less than a quorum, at a meeting of the Board
of Directors. A person so elected by the Board of Directors to
fill a vacancy shall hold office until the next succeeding annual
meeting of stockholders of the Corporation at which the class to
which the directorship belongs is to be elected and until his or
her successor shall have been duly elected and qualified.
NINTH: The number of directors which constitute the whole Board of
Directors of the Corporation shall be designated in the Bylaws
of the Corporation.
-2-
<PAGE> 10
TENTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make,
alter, amend or repeal the Bylaws of the Corporation.
ELEVENTH: A. To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or as it may hereafter be
amended, no director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director.
B. Neither any amendment nor repeal of this Article, nor the
adoption of any provision of this Certificate of Incorporation
inconsistent with this Article, shall eliminate or reduce the
effect of this Article in respect of any matter occurring, or
any cause of action, suit or claim that, but for this Article,
would accrue or arise, prior to such amendment, repeal or
adoption of an inconsistent provision.
TWELFTH: At the election of directors of the Corporation, each holder of
stock of any class of series shall be entitled to as many votes
as shall equal the number of votes which (except for such
provision as to cumulative voting) he would be entitled to cast
for the election of directors with respect to his shares of
stock multiplied by the number of directors to be elected by
him, and he may cast all of such votes for a single director or
may distribute them among the number to be voted for, or for any
two or more of them as he may see fit, so long as the name of
the candidate for director shall have been placed in nomination
prior to the voting and the stockholder, or any other holder of
the same class or series of stock, has given notice at the
meeting prior to the voting of the intention to cumulate votes.
THIR-
TEENTH: Meetings of stockholders may be held within or without the State
of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept (subject to any provision contained in
the statutes) outside of the State of Delaware at such place or
places as may be designated from time to time by the Board of
Directors or in the Bylaws of the Corporation.
FOUR-
TEENTH: Stockholders of the Corporation may not take action by written
consent in lieu of a meeting but must take any actions at a duly
called annual or special meeting.
FIF-
TEENTH: Advance notice of stockholder nomination for the election of
directors and of business to be brought by stockholders before
any meeting of the stockholders of the Corporation shall be
given in the manner provided in the Bylaws of the Corporation.
SIX-
TEENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
-3-
<PAGE> 11
THE UNDERSIGNED, being the incorporator hereinbefore named, for
the purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, does make this certificate, hereby declaring and
certifying that this is her act and deed and the facts herein stated are true,
and accordingly, has hereunto set her hand this 18th day of December, 1996.
/s/ SUSAN WANG
-------------------------------
Susan Wang
-4-
<PAGE> 1
EXHIBIT 3.1
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
--------------------------------
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "SOLECTRON CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-SEVENTH DAY OF JANUARY, A.D. 1997, AT 9:05 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW
CASTLE COUNTY RECORDER OF DEEDS FOR RECORDING.
[OFFICIAL SEAL] /s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
2710631 8100 AUTHENTICATION: 8301705
971026000 DATE: 01-27-97
<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
SOLECTRON CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I CORPORATE OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 REGISTERED OFFICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 OTHER OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 PLACE OF MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 ANNUAL MEETING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 SPECIAL MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS . . . . . . . . . 3
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE . . . . . . . . . . . . . . . . . . . 4
2.7 QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.8 ADJOURNED MEETING; NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 VOTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.10 WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING . . . . . . . . . . . . . 5
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS . . . . . . . . . . . 6
2.13 PROXIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE . . . . . . . . . . . . . . . . . . . . . . 6
2.15 CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1 POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 NUMBER OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.3 ELECTION QUALIFICATION AND TERM OF OFFICE OF DIRECTORS . . . . . . . . . . . . . . 7
3.4 RESIGNATION AND VACANCIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE . . . . . . . . . . . . . . . . . . . . . 9
3.6 FIRST MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.7 REGULAR MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.8 SPECIAL MEETINGS; NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3.9 QUORUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.10 WAIVER OF NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
3.11 ADJOURNED MEETING; NOTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.12 CONDUCT OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING . . . . . . . . . . . . . . . . 11
</TABLE>
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<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C>
3.14 FEES AND COMPENSATION OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . 11
3.15 APPROVAL OF LOANS TO OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3.16 REMOVAL OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.17 ADVISORY DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.1 COMMITTEES OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.2 COMMITTEE MINUTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3 MEETINGS AND ACTION OF COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.1 OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2 ELECTION OF OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.3 REMOVAL AND RESIGNATION OF OFFICERS . . . . . . . . . . . . . . . . . . . . . . . 14
5.4 CHAIRMAN OF THE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.5 PRESIDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.6 VICE PRESIDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.7 SECRETARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.8 CHIEF FINANCIAL OFFICER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VI INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS . . . . . . . . . . . . . . . . . . . . 16
6.2 INDEMNIFICATION OF OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.3 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.4 PAYMENT OF EXPENSES IN ADVANCE . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.5 INDEMNITY NOT EXCLUSIVE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.6 CONFLICTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII RECORDS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.1 MAINTENANCE AND INSPECTION OF RECORDS . . . . . . . . . . . . . . . . . . . . . . 17
7.2 INSPECTION BY DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS . . . . . . . . . . . . . . . . . . 18
7.4 SUBSIDIARY CORPORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C>
ARTICLE VIII GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.1 STOCK CERTIFICATES; PARTLY PAID SHARES . . . . . . . . . . . . . . . . . . . . . . 19
8.2 LOST CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.3 CONSTRUCTION; DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.4 DIVIDENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.5 FISCAL YEAR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.6 SEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.7 TRANSFER OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.8 STOCK TRANSFER AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.9 REGISTERED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.10 EXECUTION OF CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE X DISSOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE XI CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES . . . . . . . . . . . . . . . . . . . 22
11.2 DUTIES OF CUSTODIAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
</TABLE>
-iii-
<PAGE> 5
BYLAWS
OF
SOLECTRON CORPORATION
ARTICLE V
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation in the State of Delaware
shall be in the City of Wilmington, County of New Castle, State of Delaware.
The name of the registered agent of the corporation at such location is CT
Corporation.
1.2 OTHER OFFICES
The Board of Directors may at any time establish other offices at any
place or places where the corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at the principal executive
office of the corporation, within or outside the State of Delaware, unless some
other appropriate and convenient location be designated for that purpose from
time to time by the Board of Directors.
2.2 ANNUAL MEETING
Annual meetings of the Stockholders shall be held, each year, at the
time and on the day as designated by resolution of the Board of Directors.
At the annual meeting, the stockholders shall elect a Board of
Directors, consider reports of the affairs of the corporation and transact such
other business as may be properly brought before the meeting.
2.3 SPECIAL MEETINGS
<PAGE> 6
A special meeting of the stockholders may be called at any time by the
Board of Directors, the Chairman of the Board, the President, or the Secretary.
Except as next provided, notice shall be given as for the annual meeting.
Upon receipt of a written request addressed to the Chairman,
President, or Secretary, mailed or delivered personally to such officer by any
person (other than the Board) entitled to call a special meeting of
stockholders, such officer shall cause notice to be given, to the stockholders
entitled to vote, that a meeting will be held at a time requested by the person
or persons calling the meeting, not less than twenty five nor more than sixty
days after the receipt of such request.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings with stockholders shall be in writing and
shall be sent or otherwise given in accordance with Section 2.6 of these bylaws
not less than ten (10) nor more than sixty (60) days before the date of the
meeting to each stockholder entitled to vote at such meeting. The notice shall
specify the place, date, and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
Notice of meetings, annual or special, shall be given in writing not
less than ten (10) nor more than sixty (60) days before the date of the
meeting, to stockholders entitled to vote thereat by the Secretary or an
assistant secretary, or if there be no such officer, or in the case of his
neglect or refusal, by any director or stockholder.
Such notices or any reports shall be given personally or by mail or
other means of written communication and shall be sent to the stockholder's
address appearing on the books of the corporation, or supplied by him to the
corporation for the purpose of notice.
Notice of any meeting of stockholders shall specify the place, the day
and the hour of meeting, and (1) in case of a special meeting, the general
nature of the business to be transacted and no other business may be
transacted, or (2) in the case of an annual meeting, those matters which the
Board at date of mailing, intends to present for action by the stockholders.
At any meetings where directors are to be elected, notice shall include the
names of the nominees, if any, intended at date of Notice to be presented by
management for election.
If a shareholder supplies no address, notice shall be deemed to have
been given to him if mailed to the place where the principal executive office
of the Company, inside or outside the State of Delaware, is situated, or
published at least once in some newspaper of general circulation in the County
of said principal office.
-2-
<PAGE> 7
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS
To be properly brought before an annual meeting or special meeting,
nominations for the election of director or other business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a stockholder. For such nominations or
other business to be considered properly brought before the meeting by a
stockholder such stockholder must have given timely notice and in proper form
of his intent to bring such business before such meeting. To be timely, such
stockholder's notice must be delivered to or mailed and received by the
Secretary of the corporation not less than ninety (90) days prior to the
meeting; provided, however, that in the event that less than one-hundred (100)
days notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth day following the
day on which such notice of the date of the meeting was mailed or such public
disclosure was made. To be in proper form, a stockholder's notice to the
secretary shall set forth:
(i) the name and address of the stockholder who intends
to make the nominations or propose the business and, as the case may
be, the name and address of the person or persons to be nominated or
the nature of the business to be proposed;
(ii) a representation that the stockholder is a holder of
record of stock of the corporation entitled to vote at such meeting
and, if applicable, intends to appear in person or by proxy at the
meeting to nominate the person or persons specified in the notice or
introduce the business specified in the notice;
(iii) if applicable, a description of all arrangements or
understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder;
(iv) such other information regarding each nominee or each
matter of business to be proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission had the nominee
been nominated, or intended to be nominated, or the matter been
proposed, or intended to be proposed by the Board of Directors; and
(v) if applicable, the consent of each nominee to serve
as director of the corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination
of any person or the proposal of any business not made in compliance with the
foregoing procedure.
-3-
<PAGE> 8
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if mailed, is given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation. An
affidavit of the Secretary or an assistant secretary or of the transfer agent
of the corporation that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
2.7 QUORUM
The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the certificate of
incorporation. If, however, such quorum is not present or represented at any
meeting of the stockholders, then the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. At such adjourned meeting at
which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken is approved by a
majority of the stockholders required initially to constitute a quorum.
When a quorum is present or represented at any meeting, the vote of
the holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which, by express provisions of the statutes or
of the certificate of incorporation, a different vote is required, in which
case such express provision shall govern and control the decision of the
question.
2.8 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place, unless these
bylaws otherwise require, notice need not be given of the adjourned meeting if
the time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting the corporation may transact
any business that might have been transacted at the original meeting. If the
adjournment is for more than forty-five (45) days, or if after the adjournment
a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
-4-
<PAGE> 9
2.9 VOTING
The stockholders entitled to vote at any meeting of stockholders shall
be determined in accordance with the provisions of Section 2.12 and Section
2.14 of these bylaws, subject to the provisions of Sections 217 and 218 of the
General Corporation Law of Delaware (relating to voting rights of fiduciaries,
pledgers and joint owners of stock and to voting trusts and other voting
agreements).
Except as may otherwise be provided in the certificate of
incorporation or the last paragraph of this Section 2.9, each stockholder shall
be entitled to one vote for each share of capital stock held by such
stockholder.
At a stockholders' meeting at which directors are to be elected, or at
elections held under special circumstances, a stockholder shall be entitled to
cumulate votes (i.e., cast for any candidate a number of votes greater than the
number of votes which such stockholder normally is entitled to cast). Each
holder of stock of any class or series who elects to cumulate votes shall be
entitled to as many votes as equals the number of votes which (absent this
provision as to cumulative voting) he would be entitled to cast for the
election of directors with respect to his shares of stock multiplied by the
number of directors to be elected by him, and he may cast all of such votes for
a single director or may distribute them among the number to be voted for, or
for any two or more of them, as he may see fit, so long as the name of the
candidate for director shall have been placed in nomination prior to the voting
and the stockholder, or any other holder of the same class or series of stock,
has given notice at the meeting prior to the voting of the intention to
cumulate votes.
2.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice unless so required by the certificate of incorporation or
these bylaws.
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING
The stockholders of the corporation may not take action by written
consent without a meeting but must take any such actions at a duly called
annual or special meeting.
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2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS
In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof or entitled to express consent or dissent to corporate action in
writing without a meeting (if otherwise permitted by these bylaws and the
corporation's certificate of incorporation), or entitled to receive payment of
any dividend or other distribution or allotment of any rights or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall be not more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
days prior to any other action.
If the Board of Directors does not so fix a record date, the fixing of
such record date shall be governed by the provisions of Section 213 of the
General Corporation Law of Delaware.
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.
2.13 PROXIES
Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by a written proxy, signed
by the stockholder and filed with the Secretary, 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. A proxy shall be deemed signed if the
stockholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the stockholder or the
stockholder's attorney-in-fact. The revocability of a proxy that states on its
face that it is irrevocable shall be governed by the provisions of Section
212(e) of the General Corporation Law of Delaware.
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of the corporation
shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders and of the number of shares held by each such
stockholder.
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2.15 CONDUCT OF BUSINESS
Meetings of stockholders shall be presided over by the Chairman of the
Board, if any, or in his absence by the President, or in his absence by a Vice
President, or in the absence of the foregoing persons by a chairman designated
by the Board of Directors, or in the absence of such designation by a chairman
chosen at the meeting. The Secretary shall act as secretary of the meeting,
but in his absence the chairman of the meeting may appoint any person to act as
secretary of the meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the meeting, including
such matters as the regulation of the manner of voting and conduct of business.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law of Delaware
and any limitations in the certificate of incorporation or these bylaws
relating to action required to be approved by the stockholders or by the
outstanding shares, the business and affairs of the corporation shall be
managed and all corporate powers shall be exercised by or under the direction
of the Board of Directors.
Each director shall exercise such powers and otherwise perform such
duties in good faith, in the manner such director believes to be in the best
interests of the corporation, and with such care, including reasonable inquiry,
using ordinary prudence, as a person in a like position would use under similar
circumstances.
3.2 NUMBER OF DIRECTORS
The Board of Directors shall consist of nine (9) members. The number
of directors may be changed by an amendment to this bylaw, duly adopted by the
Board of Directors or by the stockholders, or by a duly adopted amendment to
the certificate of incorporation.
3.3 ELECTION QUALIFICATION AND TERM OF OFFICE OF DIRECTORS
Except as provided in Section 3.4 of these bylaws, at each annual
meeting of stockholders, directors of the corporation shall be elected to hold
office until the expiration of the term for which they are elected, and until
their successors have been duly elected and qualified; except that if any such
election shall not be so held, such election shall take place at a
stockholders' meeting called and held in accordance with the Delaware General
Corporation Law. The term of office of a director shall begin immediately
after election. Commencing with the first annual meeting of stockholders after
calendar year 1997 (the "First Annual Meeting"), the directors of the
corporation shall be divided into three classes as nearly equal in size as is
practicable, hereby designated Class I, Class II
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and Class III. For the purposes hereof, the initial Class I, Class II and
Class III directors shall be those directors so designated and elected at the
First Annual Meeting. The term of office of the initial Class I directors
shall expire at the next succeeding annual meeting of stockholders, the term of
office of the initial Class II directors shall expire at the second succeeding
annual meeting of stockholders and the term of office of the initial Class III
directors shall expire at the third succeeding annual meeting of stockholders.
At each annual meeting after the annual meeting of stockholders scheduled to be
held thereafter, directors to replace those of a Class office whose terms
expire at such annual meeting shall be elected to hold office until the third
succeeding annual meeting and until their respective successors shall have been
duly elected and qualified. If the number of directors is hereafter changed,
any newly created directorships or decrease in directorships shall be so
apportioned among the classes as to make all classes as nearly equal in number
as is practicable.
Directors need not be stockholders unless so required by the
certificate of incorporation or these bylaws, wherein other qualifications for
directors may be prescribed. Election of directors need not be by written
ballot unless a stockholder demands election by written ballot at the meeting
and before voting begins.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice to the
corporation. Stockholders may remove directors with cause. Any vacancy
occurring in the Board of Directors because of resignation or death of a
director may be filled by a majority of the remaining members of the Board of
Directors, although such majority is less than a quorum, or by a sole remaining
director, and each director so elected shall hold office until his successor is
elected at the next succeeding annual meeting of stockholders at which the
class to which the directorship belongs is to be elected or at a special
meeting called for that purpose.
Unless otherwise provided in the certificate of incorporation or these
bylaws:
(i) Vacancies and newly created directorships resulting
from any increase in the authorized number of directors elected by all
of the stockholders having the right to vote as a single class may be
filled by a majority of the directors then in office, although less
than a quorum, or by a sole remaining director.
(ii) Whenever the holders of any class or classes of stock
or series thereof are entitled to elect one or more directors by the
provisions of the certificate of incorporation, vacancies and newly
created directorships of such class or classes or series may be filled
by a majority of the directors elected by such class or classes or
series thereof then in office, or by a sole remaining director so
elected.
If at any time, by reason of death or resignation or other cause, the
corporation should have no directors in office, then any officer or any
stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for the
person or estate
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of a stockholder may apply to the Court of Chancery for a decree summarily
ordering an election as provided in Section 211 of the General Corporation Law
of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a majority of
the whole board (as constituted immediately prior to any such increase), then
the Court of Chancery may, upon application of any stockholder or stockholders
holding at least ten (10) percent of the total number of the shares at the time
outstanding having the right to vote for such directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the directors chosen by the directors then in office as
aforesaid, which election shall be governed by the provisions of Section 211 of
the General Corporation Law of Delaware as far as applicable.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The Board of Directors of the corporation may hold meetings, both
regular and special, either within or outside the State of Delaware, at such
place as is designated in the notice of the meeting.
Unless otherwise restricted by the certificate of incorporation or
these bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors,
or any committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Accurate minutes of any meeting of the Board of Directors or any
committee thereof shall be maintained by the Secretary or other office
designated for that purpose.
3.6 FIRST MEETINGS
The first meeting of each newly elected Board of Directors shall be
held immediately following the adjournment of the annual meetings of the
stockholders.
3.7 REGULAR MEETINGS
Regular meetings of the Board of Directors may be held without notice
at the corporate offices or such other place, within or without the State of
Delaware, at such time and place as the Board designates.
3.8 SPECIAL MEETINGS; NOTICE
Special meetings of the Board may be called at any time by the
President or, if he is absent or unable or refuses to act, by any vice
president or the Secretary or by any two directors, or by one director if only
one is provided.
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At least forty-eight (48) hours notice of the time and place of
special meetings shall be delivered personally to the directors or personally
communicated to them by a corporate officer by telephone or telegraph. If the
notice is sent to a director by letter, it shall be addressed to him at his
address as it is shown upon the records of the corporation (or if it is not so
shown on such records or is not readily ascertainable, at the place in which
the meetings of the directors are regularly held). In case such notice is
mailed, it shall be deposited in the United States mail, postage prepaid, in
the place in which the principal executive office of the corporation is
located, at least four (4) days prior to the time of the holding of the
meeting. Such mailing, telegraphing, telephoning or delivery as above provided
shall be due, legal and personal notice to such director.
When all of the directors are present at any directors' meeting,
however called or noticed, and either (i) sign a written consent thereto on the
records of such meeting, or (ii) if a majority of the directors is present and
if those not present sign a waiver of notice of such meeting or a consent to
holding the meeting or an approval of the minutes thereof, whether prior to or
after the holding of such meeting, which said waiver, consent or approval shall
be filed with the Secretary of the corporation or (iii) if a director attends a
meeting without notice, but without protesting, prior thereto or at its
commencement, the lack of notice to him, then the transactions thereof are as
valid as if had at a meeting regularly called and noticed.
3.9 QUORUM
A majority of the number of directors as fixed by the certificate of
incorporation or bylaws, shall be necessary to constitute a quorum for the
transaction of business, and the action of a majority of the directors present
at any meeting at which there is a quorum, when duly assembled, is valid as a
corporate act; provided that a minority of the directors, in the absence of a
quorum, may adjourn from time to time, but may not transact any business. A
meeting at which a quorum is initially present may continue to transact
business, notwithstanding the withdrawal of directors, if any action taken is
approved by a majority of the required quorum for such meeting.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any provision of the
General Corporation Law of Delaware or of the certificate of incorporation or
these bylaws, a written waiver thereof, signed by the person entitled to
notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice unless so required
by the certificate of incorporation or these bylaws.
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3.11 ADJOURNED MEETING; NOTICE
Notice of the time and place of holding an adjourned meeting need not
be given to absent directors if the time and place be fixed at the meeting
adjourned and held within twenty-four (24) hours, but if adjourned more than
twenty-four (24) hours, notice shall be given to all directors not present at
the time of the adjournment.
3.12 CONDUCT OF BUSINESS
Meetings of the Board of Directors shall be presided over by the
Chairman of the Board, if any, or in his absence by the President, or in their
absence by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting. The chairman of any
meeting shall determine the order of business and the procedures at the
meeting.
3.13 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of incorporation or
these bylaws, any action required or permitted to be taken at any meeting of
the Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board or committee, as the case may be, consent
thereto in writing and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
3.14 FEES AND COMPENSATION OF DIRECTORS
Directors, as such, shall not receive any stated salary for their
services, but by resolution of the Board, a fixed sum and expense of
attendance, if any, may be allowed for attendance at each regular and special
meeting of the Board; provided that nothing herein contained shall be construed
to preclude any director from serving the Company in any other capacity and
receiving compensation therefor.
3.15 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiary, including any officer or employee who is a director of the
corporation or its subsidiary, whenever, in the judgment of the directors, such
loan, guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or without
interest and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the corporation. Nothing in this section shall be deemed to deny,
limit or restrict the powers of guaranty or warranty of the corporation at
common law or under any statute.
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3.16 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the certificate of
incorporation or by these bylaws, any director or the entire Board of Directors
may be removed with cause by the holders of a majority of the shares then
entitled to vote at an election of directors; provided, however, that, so long
as stockholders of the corporation are entitled to cumulative voting, no
individual director may be removed (unless the entire board is removed) if the
number of votes cast against such removal would be sufficient to elect the
director if then cumulatively voted at an election of the class of directors of
which the director is a part. A vacancy created by the removal of a director
may be filled only by the approval of the stockholders.
No reduction of the authorized number of directors shall have the
effect of removing any director prior to the expiration of such director's term
of office.
3.17 ADVISORY DIRECTORS
The Board of Directors from time to time may elect one or more persons
to be Advisory Directors who shall not by such appointment be members of the
Board of Directors. Advisory Directors shall be available from time to time to
perform special assignments specified by the President, to attend meetings of
the Board of Directors upon invitation and to furnish consultation to the
Board. The period during which the title shall be held may be prescribed by
the Board of Directors. If no period is prescribed, the title shall be held at
the pleasure of the Board.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The Board of Directors may, by resolution passed by a majority of the
whole Board, designate one or more committees, with each committee to consist
of two or more of the directors of the corporation. The Board may designate
one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he or they constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors or in the bylaws of the corporation, shall
have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers that may
require it; but no such committee shall have the power or authority to (i)
amend the certificate of incorporation (except that a committee may, to the
extent authorized in the resolution or resolutions providing for the issuance
of shares of stock adopted by the Board of Directors as provided in Section
151(a) of
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the General Corporation Law of Delaware, fix any of the preferences or rights
of such shares relating to dividends, redemption, dissolution, any distribution
of assets of the corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the corporation), (ii) adopt an
agreement of merger or consolidation under Sections 251 or 252 of the General
Corporation Law of Delaware, (iii) recommend to the stockholders the sale,
lease or exchange of all or substantially all of the corporation's property and
assets (iv) recommend to the stockholders a dissolution of the corporation or a
revocation of a dissolution, or (v) amend the bylaws of the corporation; and,
unless the board resolution establishing the committee, the bylaws or the
certificate of incorporation expressly so provide, no such committee shall have
the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger pursuant to Section
253 of the General Corporation Law of Delaware.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provisions of Article III of these bylaws,
Section 3.5 (place of meetings and meetings by telephone), Section 3.7 (regular
meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum),
Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of
adjournment), Section 3.12 (conduct of business) and Section 3.13 (action
without a meeting), with such changes in the context of those bylaws as are
necessary to substitute the committee and its members for the Board of
Directors and its members; provided, however, that the time of regular meetings
of committees may also be called by resolution of the Board of Directors and
that notice of special meetings of committees shall also be given to all
alternate members, who shall have the right to attend all meetings of the
committee. The Board of Directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be chairman of the board or a
president or both, a secretary, and a chief financial officer. The corporation
may also have, at the discretion of the Board of Directors, one or more vice
presidents, one or more assistant secretaries, and any such other officers as
may be appointed in accordance with the provisions of Section 5.2 of these
bylaws. Any number of offices may be held by the same person.
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5.2 ELECTION OF OFFICERS
Except as otherwise provided in this Section 5.2, the officers of the
corporation shall be chosen annually by the Board of Directors, and each shall
hold his office until he shall resign or shall be removed or otherwise
disqualified to serve, or his successor shall be elected and qualified.
The Board of Directors may appoint such officers and agents of the
business as the corporation may require, each of whom shall hold office for
such period, have such authority, and perform such duties as are provided in
these bylaws or as the Board of Directors may from time to time determine. Any
vacancy occurring in any office of the corporation shall be filled in the
manner prescribed in the Bylaws for regular appointments to such office.
5.3 REMOVAL AND RESIGNATION OF OFFICERS
Any officer may be removed, either with or without cause, by an
affirmative vote of the majority of the Board of Directors at any regular or
special meeting of the Board or, except in the case of an officer chosen by the
Board of Directors, by any officer upon whom such power of removal may be
conferred by the Board of Directors or, in the case of an officer appointed by
the President, by the President.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation shall not
be necessary to make it effective.
5.4 CHAIRMAN OF THE BOARD
The Chairman of the Board, if such an officer be elected, shall, if
present, preside at meetings of the Board of Directors and exercise and perform
such other powers and duties as may from time to time be assigned to him by the
Board of Directors or as may be prescribed by these bylaws.
5.5 PRESIDENT
Subject to such supervisory powers, if any, as may be given by the
Board of Directors to the Chairman of the Board, if there be such an officer,
the President, unless otherwise determined by the Board of Directors, shall be
the chief executive officer of the corporation and shall, subject to the
control of the Board of Directors, have general supervision, direction, and
control of the business and the officers of the corporation. He shall preside
at all meetings of the stockholders and, in the absence or nonexistence of a
chairman of the board, at all meetings of the Board of Directors. He shall
have the general powers and duties of management usually vested in the office
of president of a corporation and shall have such other powers and duties as
may be prescribed by the Board of Directors or these bylaws.
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5.6 VICE PRESIDENTS
In the absence or disability of the President, the Vice Presidents, if
any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a Vice President designated by the Board of Directors, shall perform
all the duties of the President and when so acting shall have all the powers
of, and be subject to all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them respectively by the Board of Directors,
these bylaws, the President or the Chairman of the Board.
5.7 SECRETARY
The Secretary shall keep or cause to be kept, at the principal
executive office of the corporation or such other place as the Board of
Directors may direct, a book of minutes of all meetings and actions of
directors, committees of directors, and stockholders. The minutes shall show
the time and place of each meeting, whether regular or special (and, if
special, how authorized and the notice given), the names of those present at
directors' meetings or committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings thereof.
The Secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the Board of
Directors, a share register, or a duplicate share register, showing the names
of all stockholders and their addresses, the number and classes of shares held
by each, the number and date of certificates evidencing such shares, and the
number and date of cancellation of every certificate surrendered for
cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and of the Board of Directors required to be given by law
or by these bylaws. He shall keep the seal of the corporation, if one be
adopted, in safe custody and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors or by these bylaws.
5.8 CHIEF FINANCIAL OFFICER
The Chief Financial Officer shall keep and maintain, or cause to be
kept and maintained in accordance with generally accepted accounting
principles, adequate and correct books and records of accounts of the
properties and business transactions of the corporation, including accounts of
its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The Chief Financial Officer shall deposit all monies and other
valuables in the name and to the credit of the corporation with such
depositaries 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, shall
render to the President and directors, whenever they request it, an account of
all of his transactions as Chief Financial Officer and of the financial
condition of the corporation, and shall have such other
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powers and perform such other duties as may be prescribed by the Board of
Directors or these bylaws.
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the manner
permitted by the General Corporation Law of Delaware, indemnify each of its
directors and officers against expenses (including attorneys' fees), judgments,
fines, settlements, and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such person
is or was an agent of the corporation. For purposes of this Section 6.1, a
"director" or "officer" of the corporation includes any person (i) who is or
was a director or officer of the corporation, (ii) who is or was serving at the
request of the corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, including, without
limitation, any direct or indirect subsidiary of the corporation, or (iii) who
was a director or officer of a corporation which was a predecessor corporation
of the corporation or of another enterprise at the request of such predecessor
corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and in the manner
permitted by the General Corporation Law of Delaware, to indemnify each of its
employees and agents (other than directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the corporation
(other than a director or officer) includes any person (i) who is or was an
employee or agent of the corporation, (ii) who is or was serving at the request
of the corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, including, without limitation, any
direct or indirect subsidiary of the corporation, or (iii) who was an employee
or agent of a corporation which was a predecessor corporation of the
corporation or of another enterprise at the request of such predecessor
corporation.
6.3 INSURANCE
The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the
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power to indemnify him against such liability under the provisions of the
General Corporation Law of Delaware and this Section 6.
6.4 PAYMENT OF EXPENSES IN ADVANCE
Expenses incurred in defending any civil or criminal action or
proceeding for which indemnification is required pursuant to Section 6.1, or
for which indemnification is permitted pursuant to Section 6.2 following
authorization thereof by the Board of Directors, may be paid by the corporation
in advance of the final disposition of such action or proceeding upon receipt
of an undertaking by or on behalf of the indemnified party to repay such amount
if it shall ultimately be determined that the indemnified party is not entitled
to be indemnified as authorized in this Section 6.
6.5 INDEMNITY NOT EXCLUSIVE
The indemnification provided by this Section 6 shall not be deemed
exclusive of any other rights to which those seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office, to the extent that such
additional rights to indemnification are authorized in the certificate of
incorporation.
6.6 CONFLICTS
No indemnification or advance shall be made under this Section 6,
except where such indemnification or advance is mandated by law or the order,
judgment or decree of any court of competent jurisdiction, in any circumstance
where it appears:
(a) That it would be inconsistent with a provision of the
certificate of incorporation, these bylaws, a resolution of the stockholders or
an agreement in effect at the time of the accrual of the alleged cause of the
action asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive office or at
such place or places as designated by the Board of Directors, keep a record of
its stockholders listing their names and
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addresses and the number and class of shares held by each stockholder, a copy
of these bylaws as amended to date, accounting books, and other records.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the
right during the usual hours for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and its other books and
records and to make copies or extracts therefrom. A proper purpose shall mean
a purpose reasonably related to such person's interest as a stockholder. In
every instance where an attorney or other agent is the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing that authorizes the attorney or other agent to
so act on behalf of the stockholder. The demand under oath shall be directed
to the corporation at its registered office in Delaware or at its principal
place of business.
7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the corporation's stock
ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his position as a director. The Court of
Chancery is hereby vested with the exclusive jurisdiction to determine whether
a director is entitled to the inspection sought. The Court may summarily order
the corporation to permit the director to inspect any and all books and
records, the stock ledger, and the stock list and to make copies or extracts
therefrom. The Court may, in its discretion, prescribe any limitations or
conditions with reference to the inspection, or award such other and further
relief as the Court may deem just and proper.
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The Chairman of the Board, the President, any Vice President, the
Chief Financial Officer, the Secretary, or any other person authorized by the
Board of Directors or the President or a Vice President, is authorized to vote,
represent, and exercise on behalf of this corporation all rights incident to
any and all shares of any other corporation or corporations standing in the
name of this corporation. The authority granted herein may be exercised either
by such person directly or by any other person authorized to do so by proxy or
power of attorney duly executed by such person having the authority.
7.4 SUBSIDIARY CORPORATIONS
Shares of this corporation owned by a subsidiary shall not be entitled
to vote on any matter. A subsidiary for these purposes is defined as a
corporation, the shares of which possessing more than 25% of the total combined
voting power of all classes of shares entitled to vote, are owned directly or
indirectly through one or more subsidiaries.
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ARTICLE VIII
GENERAL MATTERS
8.1 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of a corporation shall be represented by certificates,
provided that the Board of Directors of the corporation may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply
to shares represented by a certificate until such certificate is surrendered to
the corporation. Notwithstanding the adoption of such a resolution by the
Board of Directors, every holder of stock represented by certificates and, upon
request, every holder of uncertificated shares, shall be entitled to have a
certificate signed by, or in the name of the corporation by the Chairman of the
Board of Directors, or the President or Vice President, and by the Chief
Financial Officer or the secretary of such corporation representing the number
of shares registered in certificate form. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
The corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the consideration to be
paid therefor. Upon the face or back of each stock certificate issued to
represent any such partly paid shares, or upon the books and records of the
corporation in the case of uncertificated partly paid shares, the total amount
of the consideration to be paid therefor and the amount paid thereon shall be
stated. Upon the declaration of any dividend on fully paid shares, the
corporation shall declare a dividend upon partly paid shares of the same class,
but only upon the basis of the percentage of the consideration actually paid
thereon.
8.2 LOST CERTIFICATES
Except as provided in this Section 8.2, no new certificates for shares
shall be issued to replace a previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time. The corporation
may issue a new certificate of stock or uncertificated shares in the place of
any certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the corporation may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnity it against any claim that may be made against it
on account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate or uncertificated shares.
8.3 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general provisions, rules
of construction, and definitions in the Delaware General Corporation Law shall
govern the construction of these bylaws.
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Without limiting the generality of this provision, the singular number includes
the plural, the plural number includes the singular, and the term "person"
includes both a corporation and a natural person.
8.4 DIVIDENDS
The directors of the corporation, subject to any restrictions
contained in the certificate of incorporation, may declare and pay dividends
upon the shares of its capital stock pursuant to the General Corporation Law of
Delaware. Dividends may be paid in cash, in property, or in shares of the
corporation's capital stock.
The directors of the corporation may set apart out of any of the funds
of the corporation available for dividends a reserve or reserves for any proper
purpose and may abolish any such reserve.
8.5 FISCAL YEAR
The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors and may be changed by the Board of Directors.
8.6 SEAL
The corporation may adopt a corporate seal, which may be altered at
pleasure, and may use the same by causing it or a facsimile thereof to be
impressed or affixed or in any other manner reproduced.
8.7 TRANSFER OF STOCK
Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction in its books.
8.8 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and perform any
agreement with any number of stockholders of any one or more classes of stock
of the corporation to restrict the transfer of shares of stock of the
corporation of any one or more classes owned by such stockholders in any manner
not prohibited by the General Corporation Law of Delaware.
8.9 REGISTERED STOCKHOLDERS
The corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends
and to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the
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part of another person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
8.10 EXECUTION OF CONTRACTS
The Board of Directors, except as in the Bylaws otherwise provided,
may authorize any officer or officers, agent or agents, to enter into any
contract or execute and instrument in the name of and on behalf of the
corporation. Such authority may be general or confined to specific instances.
Unless so authorized by the Board of Directors, no officer, agent or employee
shall have any power or authority to bind the corporation by any contract or
agreement, or to pledge its credit, or to render it liable for any purpose or
to any amount, except as provided in Sec. 142 of Delaware General Corporation
Law.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted,
amended or repealed by a majority of the stockholders entitled to vote;
provided, however, that the corporation may, in its certificate of
incorporation, confer the power to adopt, amend or repeal bylaws upon the
directors. The fact that such power has been so conferred upon the directors
shall not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws.
Whenever an amendment or new bylaw is adopted, it shall be copied in
the book of bylaws with the original bylaws, in the appropriate place. If any
bylaw is repealed, the fact of repeal with the date of the meeting at which the
repeal was enacted or written assent was filed shall be stated in said book.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the Board of
Directors of the corporation that the corporation should be dissolved, the
Board, after the adoption of a resolution to that effect by a majority of the
whole Board at any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the adoption of the
resolution and of a meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation
entitled to vote thereon votes for the proposed dissolution, then a certificate
stating that the dissolution has been authorized in accordance with the
provisions of Section 275 of the General Corporation Law of Delaware and
setting forth the names
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and residences of the directors and officers shall be executed, acknowledged,
and filed and shall become effective in accordance with Section 103 of the
General Corporation Law of Delaware. Upon such certificate's becoming
effective in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any stockholder, may
appoint one or more persons to be custodians and, if the corporation is
insolvent, to be receivers, of and for the corporation when:
(i) at any meeting held for the election of directors the
stockholders are so divided that they have failed to elect successors
to directors whose terms have expired or would have expired upon
qualification of their successors; or
(ii) the business of the corporation is suffering or is
threatened with irreparable injury because the directors are so
divided respecting the management of the affairs of the corporation
that the required vote for action by the Board of Directors cannot be
obtained and the stockholders are unable to terminate this division;
or
(iii) the corporation has abandoned its business and has
failed within a reasonable time to take steps to dissolve, liquidate
or distribute its assets.
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a receiver
appointed under Section 291 of the General Corporation Law of Delaware, but the
authority of the custodian shall be to continue the business of the corporation
and not to liquidate its affairs and distribute its assets, except when the
Court of Chancery otherwise orders and except in cases arising under Sections
226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.
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CERTIFICATE OF ADOPTION OF BYLAWS
OF
SOLECTRON CORPORATION
Adoption by Incorporator
The undersigned person appointed in the Certificate of Incorporation
to act as the Incorporator of Solectron Corporation hereby adopts the
foregoing bylaws, comprising twenty-three (23) pages, as the Bylaws of the
corporation.
Executed this 27th day of January 1997.
/s/ Susan Wang
-------------------------------
Susan Wang, Incorporator
Certificate by Secretary of Adoption by Incorporator
The undersigned hereby certifies that she is the duly elected,
qualified, and acting Secretary of Solectron Corporation and that the foregoing
Bylaws, comprising twenty-three (23) pages, were adopted as the Bylaws of the
corporation on January 27, 1997, by the person appointed in the Certificate of
Incorporation to act as the Incorporator of the corporation.
IN WITNESS WHEREOF, the undersigned has hereunto set her hand and
affixed the corporate seal this 27th day of January 1997.
/s/ Susan Wang
-------------------------------
Susan Wang, Secretary
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