RESOLUTION
OF THE BOARD OF DIRECTORS
OF
INPRISE CORPORATION
SEPTEMBER 19, 2000
WHEREAS, the Board of Directors of Inprise Corporation (the
"Corporation") deems it desirable and in the best interests of the Corporation
to amend the Corporation's Bylaws to provide, among other things, for a revision
of the advance notice procedure with respect to stockholder nominations of
directors and notice of stockholder intention to present new business at the
annual meeting.
NOW, THEREFORE, BE IT RESOLVED, that the amendments to the
Corporation's Bylaws annexed as Exhibit A to these resolutions are hereby
approved and adopted by the Board of Directors in accordance with the provisions
of Article FIFTH of the Corporation's Restated Certificate of Incorporation and
Article VI, Section 50 of the Corporation's Bylaws.
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EXHIBIT A
1. Article II, Section 5 of the corporation's Bylaws is hereby
amended to read in its entirety as follows:
5. ANNUAL MEETING
The annual meeting of stockholders shall be held each year on a date
and at a time designated by the Board of Directors. At the meeting, directors
shall be elected and any other proper business may be transacted.
At any annual meeting of stockholders of the corporation, only such
business shall be conducted as shall have been properly brought before the
meeting (a) by or at the direction of the Board of Directors or (b) by any
stockholder of the corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 5 and on the record date
for the determination of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set forth in this Section 5.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and
received by the Secretary at the principal executive offices of the corporation
not less than ninety (90) days nor more than one hundred-twenty (120) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
shall set forth in writing as to each matter the stockholder proposes to bring
before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (b) the name and record address, as they appear on the
corporation's books, of such stockholder, (c) the class and series and number of
shares of each class and series of capital stock of the corporation which are
owned beneficially or of record by the
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stockholder, (d) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (e) a representation
that such stockholder is a holder of record of stock of the corporation entitled
to vote at such meeting and that such stockholder intends to appear in person or
by proxy at the annual meeting to bring such business before the meeting.
In addition, notwithstanding anything in this Section 5 to the
contrary, a stockholder intending to nominate one or more persons for election
as a director at an annual meeting must comply with Section 19.1 of these bylaws
for such nomination to be properly brought before such meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 5; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 5 shall be deemed to preclude discussion by
any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the meeting in
accordance with the foregoing procedures, the chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
2. Article II, Section 16 of the corporation's Bylaws is hereby
amended to read in its entirety as follows:
16. 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. Nothing contained in this
Section 16 shall require the corporation to include electronic mail addresses or
other electronic contact information on such list. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting for a
period of at least 10 days prior to the meeting: (i) on a reasonably accessible
electronic network, provided that the information required to gain access to
such list is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the principal place of business of the corporation. In the
event that the corporation determines to make the list available on an
electronic network, the corporation may
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take reasonable steps to ensure that such information is available only to
stockholders of the corporation. If the meeting is to be held at a physical
location, then the list shall 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. If the meeting is to be held solely by means of remote
communications, then the list shall be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting.
3. Article III, Section 19.1 of the corporation's Bylaws is hereby
amended to read in its entirety as follows:
19.1 NOTIFICATION OF NOMINATIONS
Subject to the rights of holders of any class or series of stock having
a preference over the Common Stock as to dividends or upon liquidation,
nominations for the election of directors may be made (a) by or at the direction
of the Board of Directors or a proxy committee appointed by the Board of
Directors or (b) by any stockholder of the corporation (i) who is a stockholder
of record on the date of the giving of the notice provided for in this Section
19.1 and on the record date for the determination of the stockholders entitled
to vote at such meeting and (ii) who complies with the notice procedures set
forth in this Section 19.1.
In addition to any other applicable requirements, for a nomination to
be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary of the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and
received by the Secretary at the principal executive offices of the corporation
not less than ninety (90) days nor more than one hundred-twenty (120) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary
shall set forth in writing (a) as to each person whom the stockholder proposes
to nominate for election as a director (i) the name, age, business address and
residence address of the
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person, (ii) the principal occupation and employment of the person, (iii) the
class and series and number of shares of each class and series of capital stock
of the corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (or in any law or statute replacing such section) and the rules and
regulations promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class and
series and number of shares of each class and series of capital stock of the
corporation which are owned beneficially or of record by such stockholder, (iii)
a description of all arrangements or understandings between such stockholder and
each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and that such stockholder intends
to appear in person or by proxy at the meeting to nominate the person or persons
named in its notice and (v) any other information relating to such stockholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act (or in any law or statute
replacing such section) and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the
corporation unless nominated in accordance with the procedures set forth in this
Section 19.1. If the chairman of the meeting determines that a nomination was
not made in accordance with the foregoing procedures, the chairman shall declare
to the meeting that the nomination was defective and such defective nomination
shall be disregarded.
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