<PAGE>
FORM 8-B
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
REGISTRATION OF SECURITIES OF CERTAIN SUCCESSOR ISSUERS
Filed Pursuant to Section 12(b) or (g) of
the Securities Exchange Act of 1934
OBJECTIVE SYSTEMS INTEGRATORS, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 68-0239619
- --------------------------------------------------------------------------------
(State of incorporation or organization) (I.R.S. Employer Identification No.)
100 Blue Ravine Road, Folsom, California 95630
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
NONE
- --------------------------------------------------------------------------------
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK ($0.001 PAR VALUE)
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(Title of class)
<PAGE>
Item 1. General Information
-------------------
(a) The registrant, Objective Systems Integrators, Inc. (the "Company"
or the "Registrant"), was incorporated in Delaware on October 9, 1996.
(b) The Company's fiscal year ends June 30.
Item 2. Transaction of Succession
-------------------------
(a) The predecessor to the Company was Objective Systems Integrators,
Inc., a California corporation ("OSI California"). OSI California had Common
Stock registered pursuant to Section 12(g) of the Securities Exchange Act of
1934 (the "Exchange Act").
(b) On January 28, 1997, OSI California merged into the Company to
effect a reincorporation into Delaware. Pursuant to the Agreement and Plan of
Merger of Objective Systems Integrators, Inc., a Delaware corporation, and
Objective Systems Integrators, Inc., a California corporation, each share of
OSI 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 OSI 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 Company currently has 100,000,000 shares of authorized Common
Stock, of which 32,308,059 shares had been issued as of January 15, 1997. None
of such issued shares were held in treasury as of January 28, 1997.
Item 4. Description of Registrant's Securities to be Registered
-------------------------------------------------------
The Company's security to be registered hereunder is its Common Stock.
The holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders. Subject to
preferences that may be applicable to any outstanding Preferred Stock, holders
of Common Stock are entitled to receive ratably such dividends as may be
declared by the Board of Directors out of funds legally available therefor. In
the event of a liquidation, dissolution or winding up of the Company, holders of
Common Stock are entitled to share ratably in all assets remaining after payment
of liabilities and the liquidation preference of any outstanding Preferred
Stock. Holders of Common Stock have no preemptive rights and have no rights to
convert their Common Stock into any other securities.
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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<PAGE>
Pursuant to the Company's Certificate of Incorporation, the Board of
Directors has the authority, without further action by the stockholders, to
issue up to 5,000,000 shares of Preferred Stock in one or more series and to fix
the designations, powers, preferences and rights (including, without limitation,
dividend rights, conversion rights, voting rights, terms of redemption and
liquidation preferences) and the qualifications, limitations or restrictions
thereof, any or all of which may be greater than the rights of the Common Stock.
The Board of Directors, without stockholder approval, can issue Preferred Stock
with voting, conversion or other rights that could adversely affect the voting
power and other rights of the holders of Common Stock. Preferred Stock could
thus be issued quickly with terms calculated to delay or prevent a change in
control of the Company or make removal of management more difficult.
Additionally, the issuance of Preferred Stock may have the effect of decreasing
the market price of the Common Stock. At present, there are no shares of
Preferred Stock outstanding.
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.
Item 5. Financial Statements and Exhibits
---------------------------------
(a) Financial Statements
--------------------
Not applicable. The capital structure and balance sheet of the
Company immediately after the merger were substantially the same as those of OSI
California.
(b) Exhibits
--------
(i) Proxy Statement or Prospectus. Not applicable. The capital
structure and balance sheet of the Company immediately after
the merger were substantially the same as those of OSI
California.
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<PAGE>
(ii) Other Exhibits.
2.1 Agreement and Plan of Merger.
3.1 Certificate of Incorporation.
3.2 Bylaws of Registrant.
4.1 Fourth Article of the Certificate of Incorporation
(See Exhibit 3.1).
10.1/(1)/ OSI California's Stock Option Plan, as amended and
form of agreements thereto.
10.2/(1,3)/ OSI California's 1994 Stock Option Plan and form
of agreements thereto.
10.3/(1)/ OSI California's 1995 Employee Stock Purchase Plan
and form of agreements thereto.
10.4/(1)/ OSI California's 1995 Director Stock Option Plan
and form of agreement thereto.
10.5/(1)/ Form of Indemnification Agreement executed by OSI
California and each of its officers and directors
10.6/(1)/ Letter Agreement between OSI California and Wells
Fargo Bank dated December 9, 1994
10.6.2/(1)/ Revolving Line of Credit executed by OSI
California on behalf of Wells Fargo Bank.
10.7/(1)/ Sprint Network Management Systems Agreement
between OSI California and Sprint/United
Management Company dated October 18, 1994.
10.8/(1)/ Standard Office Lease-Gross between OSI California
and PIWI Investments dated February 14, 1994.
10.9.1/(1)/ Letter of Intent between OSI California and McLaw
Cellular Communications, Inc., dated September 1,
1994.
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<PAGE>
10.9.2/(1*)/ Letter Agreement between OSI California and AT&T
Wireless Services, Inc., dated as of September 15,
1994.
10.10/(1*)/ Stockholder Rights Agreement among OSI California,
Tom L. Johnson and Dick G. Vento and the
purchasers of Preferred Stock named therein dated
September 27, 1995.
10.11/(1)/ Voting Agreement by and among OSI California, Tom
L. Johnson, Dick G. Vento and the purchasers of
Preferred Stock named therein dated September 27,
1995.
10.12/(1)/ Letter Agreement between OSI California and Joseph
T. Ambrozy dated as of November 24, 1995.
10.13/(2)/ Master License Agreement dated December 31, 1995
between OSI California and AT&T Wireless Services,
Inc.
10.14 Form of Indemnification Agreement executed by
Registrant and each of its officers and
directors.
____________________________
/(*)/ 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.
/(1)/ Incorporated by reference to the exhibits filed with OSI California's
Registration Statement on Form S-1 (Reg. No. 33-97506) as declared
effective by the Commission on November 30, 1995.
/(2)/ Incorporated by reference to exhibits filed with OSI California's
Quarterly Report on Form 10-Q for the fiscal quarter ended December 31,
1995.
/(3)/ Incorporated by reference to exhibits filed with OSI California's
Registration Statement on Form (S-8) (Reg.No. 333-18189 as declared
effective by the Commission on December 19, 1996.
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<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Company has duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
OBJECTIVE SYSTEMS INTEGRATORS, INC.
Date: January 31, 1997 By: /s/ Philip N. Cardman
----------------------------------
Philip N. Cardman
Vice President, General Counsel
and Corporate Secretary
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<PAGE>
LIST OF ATTACHED EXHIBITS
2.1 Agreement and Plan of Merger
3.1 Certificate of Incorporation
3.2 Bylaws of Registrant
4.1 Fourth Article of the Certificate of
Incorporation (See Exhibit 3.1)
10.14 Form of Indemnification Agreement Executed by Registrant and each of
its officers and directors
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<PAGE>
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF OBJECTIVE SYSTEMS INTEGRATORS, INC.,
A DELAWARE CORPORATION,
AND
OBJECTIVE SYSTEMS INTEGRATORS, INC.,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of January 28, 1997 (the
"Agreement") is between Objective Systems Integrators, Inc., a Delaware
corporation ("OSI Delaware"), and Objective Systems Integrators, Inc., a
California corporation ("OSI California"). OSI Delaware and OSI California are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. OSI Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 105,000,000
shares, $.001 par value, of which 100,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." The Preferred
Stock of OSI Delaware is undesignated as to series, rights, preferences,
privileges or restrictions. As of January 28, 1997, 100 shares of Common Stock
were issued and outstanding, all of which are held by OSI California, and no
shares of Preferred Stock were issued and outstanding.
B. OSI California is a corporation duly organized and existing under the
laws of the State of California and has an authorized capital of 55,000,000
shares, no par value, of which 50,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." The Preferred Stock of OSI
California is undesignated as to series, rights, preferences, privileges or
restrictions. As of January 15, 1997, 32,308,059 shares of Common Stock were
issued and outstanding, and no shares of Preferred Stock were issued and
outstanding.
C. The Board of Directors of OSI California has determined that, for the
purpose of effecting the reincorporation of OSI California in the State of
Delaware, it is advisable and in the best interests of OSI California and its
shareholders that OSI California merge with and into OSI Delaware upon the terms
and conditions herein provided.
D. The respective Boards of Directors of OSI Delaware and OSI California
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective shareholders and executed by the undersigned
officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, OSI Delaware and OSI California hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
<PAGE>
I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
------
Delaware General Corporation Law and the California General Corporation Law, OSI
California shall be merged with and into OSI Delaware (the "Merger"), the
separate existence of OSI California shall cease and OSI Delaware shall survive
the Merger and shall continue to be governed by the laws of the State of
Delaware, and OSI Delaware shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be
Objective Systems Integrators, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective when the
------------------------
following actions shall have been completed:
(a) This Agreement and the Merger was adopted and approved by the
shareholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the California
General Corporation Law on October 14, 1996 and November 14, 1996,
respectively;
(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;
(c) An executed Certificate of Merger or an executed, acknowledged and
certified 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; and
(d) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the California General
Corporation Law shall have been filed with the Secretary of State of the
State of California.
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 OSI California shall cease and OSI 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 OSI
California's Boards of Directors, (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of OSI California in the
manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations 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 OSI California in the same manner as if
OSI Delaware had itself incurred
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<PAGE>
them, all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the California General Corporation Law.
II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of OSI
----------------------------
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 OSI 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 OSI California
----------------------
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their respective 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 OSI California Common Stock. Upon the Effective Date of the Merger,
---------------------------
each share of OSI California Common Stock, no par value, issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be changed and converted into and exchanged for one fully paid and nonassessable
share of Common Stock, $.001 par value, of the Surviving Corporation.
3.2 OSI California Options and Stock Purchase Rights. Upon the Effective
------------------------------------------------
Date of the Merger, the Surviving Corporation shall assume and continue the
stock option plans (including without limitation the Stock Option Plan, the 1994
Stock Option Plan, and the 1995 Directors Option Plan) and all other employee
benefit plans (including without limitation the 1995 Employee Stock Purchase
Plan) of OSI California. Each outstanding and unexercised option or other right
to purchase or security convertible into OSI California Common Stock shall
become an option or right to purchase or a security convertible into the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each share of OSI California Common Stock
issuable pursuant to any such option, stock purchase right or convertible
security, on the same terms and conditions and at an exercise price per share
equal to the exercise price applicable to any such OSI California option, stock
-3-
<PAGE>
purchase right or convertible security at the Effective Date of the Merger.
There are no options, purchase rights for or securities convertible into
Preferred Stock of OSI California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of OSI California Common
Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 OSI Delaware Common Stock. Upon the Effective Date of the Merger,
-------------------------
each share of Common Stock, $.001 par value, of OSI Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by OSI 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 OSI California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Chase Mellon Shareholder Services, Inc. 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 such holders' shares of OSI
California Common Stock were converted as herein provided. Unless and until so
surrendered, each outstanding certificate theretofore representing shares of OSI
California Common Stock shall be deemed for all purposes to represent the number
of whole shares of the Surviving Corporation's Common Stock into which such
shares of OSI 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 shares of stock represented by 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 OSI California so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
If any certificate for shares of OSI 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 and that the person requesting
such transfer pay to OSI Delaware or the Exchange Agent any transfer or other
taxes payable by reason of the 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 OSI Delaware that such tax has been paid or is not
payable.
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<PAGE>
IV
GENERAL
4.1 Covenants of OSI Delaware. OSI 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 OSI Delaware of all of the franchise tax
liabilities of OSI 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 OSI
------------------
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of OSI California such deeds and other instruments, and there shall be
taken or caused to be taken by OSI Delaware and OSI California 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 OSI Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of OSI California and otherwise to carry out the
purposes of this Agreement, and the officers and directors of OSI Delaware are
fully authorized in the name and on behalf of OSI 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 filing of this Agreement with the
-----------
Secretary of State of the State of Delaware, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either OSI California or OSI Delaware, or both, notwithstanding the
approval of this Agreement by the shareholders of OSI California or by the sole
stockholder of OSI 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
California and Delaware, provided that an amendment made subsequent to the
adoption of this Agreement by the shareholders of either Constituent Corporation
shall not: (1) 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, (2) alter or change any term of the Certificate of Incorporation of
the Surviving Corporation to be effected by the Merger, or (3) 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 of shares or series thereof of
such Constituent Corporation.
-5-
<PAGE>
4.5 Registered Office. The registered office of the Surviving Corporation
-----------------
in the State of Delaware is located at Corporation Trust Center, 1209 Orange
Street, in the City of 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 100 Blue Ravine
Road, Folsom, California 95630 and copies thereof will be furnished to any
shareholder of either Constituent Corporation, upon request and without cost.
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.
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<PAGE>
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of OSI Delaware and OSI California, is
hereby executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
OBJECTIVE SYSTEMS INTEGRATORS, INC.
a Delaware corporation
By: /s/ Joseph T. Ambrozy
-------------------------
Joseph T. Ambrozy,
President and Chief
Executive Officer
ATTEST:
/s/ Philip N. Cardman
- ----------------------------------
Philip N. Cardman, Vice President,
General Counsel and Secretary
OBJECTIVE SYSTEMS INTEGRATORS, INC.
a California corporation
By: /s/ Joseph T. Ambrozy
------------------------
Joseph T. Ambrozy,
President and Chief
Executive Officer
ATTEST:
/s/ Philip N. Cardman
- ----------------------------------
Philip N. Cardman, Vice President,
General Counsel and Secretary
-7-
<PAGE>
OBJECTIVE SYSTEMS INTEGRATORS, INC.
(California Corporation)
OFFICERS' CERTIFICATE
Joseph T. Ambrozy and Philip N. Cardman certify that:
1. They are the President and the Secretary, respectively, of Objective
Systems Integrators, Inc., 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". There are authorized 50,000,000 shares of
Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock is
undesignated as to series, rights, preferences or restrictions.
3. There were 31,831,815 shares of Common Stock, and no shares of
Preferred Stock, outstanding as of the record date (the "Record Date") of the
shareholders' meeting at which the Agreement and Plan of Merger attached hereto
(the "Merger Agreement") was approved. All shares of Common Stock outstanding
were entitled to vote on the merger.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class 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, voting
as a single class.
6. Joseph T. Ambrozy and Philip N. Cardman further declare under penalty
of perjury under the laws of the State of California that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in Folsom, California on January 28, 1997.
/s/ Joseph T. Ambrozy
-------------------------------------
Joseph T. Ambrozy, President and
Chief Executive Officer
/s/ Philip N. Cardman
--------------------------------------
Philip N. Cardman, Vice President,
General Counsel and Secretary
-8-
<PAGE>
OBJECTIVE SYSTEMS INTEGRATORS, INC.
(Surviving Corporation)
OFFICERS' CERTIFICATE
Joseph T. Ambrozy and Philip N. Cardman certify that:
1. They are the President and the Secretary, respectively, of Objective
Systems Integrators, Inc., 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". There are authorized 100,000,000 shares
of Common Stock and 5,000,000 shares of Preferred Stock. The Preferred Stock is
undesignated as to series, rights, preferences or restrictions.
3. There were 100 shares of Common Stock outstanding and entitled to vote
on the Agreement and Plan of Merger attached hereto (the "Merger Agreement").
There were no shares of Preferred Stock outstanding.
4. The principal terms of the Merger Agreement were approved by the Board
of Directors and by the vote of a number of shares of each class 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. Joseph T. Ambrozy and Philip N. Cardman further declare under penalty
of perjury under the laws of the State of Delaware that each has read the
foregoing certificate and knows the contents thereof and that the same is true
of their own knowledge.
Executed in Folsom, California on January 28, 1997.
/s/ Joseph T. Ambrozy
-------------------------------------
Joseph T. Ambrozy, President and
Chief Executive Officer
/s/ Philip N. Cardman
-------------------------------------
Philip N. Cardman, Vice President,
General Counsel and Secretary
-9-
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
OBJECTIVE SYSTEMS INTEGRATORS, INC.
FIRST: The name of the Corporation is Objective Systems Integrators,
Inc. (the "Corporation").
SECOND: The address of the Corporation's registered office in the State
of Delaware is Corporation Trust Center, 1209 Orange Street, in
the City of Wilmington, County of New Castle, zip code 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: The Corporation is authorized to issue two classes of stock to
be designated respectively Common Stock and Preferred Stock. The
total number of shares of all classes of stock which the
Corporation has authority to issue is One Hundred Five Million
(105,000,000), consisting of One Hundred Million (100,000,000)
shares of Common Stock, $0.001 par value (the "Common Stock"),
and Five Million (5,000,000) shares of Preferred Stock, $0.001
par value (the "Preferred Stock").
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized subject
to limitations prescribed by law, to fix by resolution or
resolutions the designations, powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, of
each such series of Preferred Stock, including without
limitation authority to fix by resolution or resolutions, the
dividend rights, dividend rate, conversion rights, voting
rights, rights and terms of redemption (including sinking fund
provisions), redemption price or prices, and liquidation
preferences of any wholly unissued series of Preferred Stock,
and the number of shares constituting any such series and the
designation thereof, or any of the foregoing.
The Board of Directors is further authorized to increase (but
not above the total number of authorized shares of the class) or
decrease (but not below the number of shares of any such series
then outstanding) the number of shares of any series, the number
of which was fixed by it, subsequent to the issue of shares of
such series then outstanding, subject to the powers, preferences
and rights, and the
<PAGE>
qualifications, limitations and restrictions thereof 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 which they had prior to the
adoption of the resolution originally fixing the number of
shares of such series.
FIFTH: The name and mailing address of the incorporator are as follows:
Philip N. Cardman
Objective Systems Integrators, Inc.
100 Blue Ravine Road
Folsom, California 95630
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The election of directors need not be by written ballot unless a
stockholder demands election by written ballot at a meeting of
stockholders and before voting begins or unless the Bylaws of
the Corporation shall so provide.
EIGHTH: The number of directors which constitute the whole Board of
Directors of the Corporation shall be designated in the Bylaws
of the Corporation.
NINTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors is
expressly authorized to adopt, alter, amend or repeal the Bylaws
of the Corporation.
TENTH: To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or 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.
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.
ELEVENTH: At the election of directors of the Corporation, each holder of
stock or of any class or series of stock shall be entitled to as
many votes as shall equal the number of votes which such
stockholder would be entitled to cast for the election of
directors with respect to his or her shares of stock multiplied
by the number of directors to be elected and may cast all such
votes for any director or for any two or more of them as such
stockholder may see fit.
-2-
<PAGE>
TWELFTH: 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 laws of the State of Delaware) 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.
THIRTEENTH: 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 the
laws of the State of Delaware, and all rights conferred herein
are granted subject to this reservation.
The undersigned incorporator hereby acknowledges that the foregoing
Certificate of Incorporation is his act and deed and that the facts stated
herein are true.
Dated: October 9, 1996 /s/ Carmine J. Broccole
------------------------------------------
Carmine J. Broccole
Incorporator
-3-
<PAGE>
CERTIFICATE OF CORRECTION FILED TO CORRECT
A CERTAIN ERROR IN THE
CERTIFICATE OF INCORPORATION OF
OBJECTIVE SYSTEMS INTEGRATORS, INC.
FILED IN THE OFFICE OF THE SECRETARY OF STATE
OF DELAWARE ON OCTOBER 9, 1996
OBJECTIVE SYSTEMS INTEGRATORS, INC., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
1. The name of the corporation is Objective Systems Integrators, Inc.
2. That a Certificate of Incorporation was filed by the Secretary of
State of Delaware on October 9, 1996 and that said Certificate requires
correction as permitted by Section 103 of the General Corporation Law of the
State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected is as
follows: Name and address of incorporator have been misstated.
4. Article Fifth of the Certificate is corrected to read as follows:
"FIFTH: The name and mailing address of the incorporator are as
follows:
Carmine J. Broccole
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304"
IN WITNESS WHEREOF, said corporation has caused this Certificate to be
signed by Carmine J. Broccole, its Incorporator, this 10th day of October, 1996.
OBJECTIVE SYSTEMS INTEGRATORS, INC.
/s/ Carmine J. Broccole
-----------------------
Carmine J. Broccole
Incorporator
-4-
<PAGE>
EXHIBIT 3.2
AMENDED BYLAWS
OF
OBJECTIVE SYSTEMS INTEGRATORS, INC.
(A DELAWARE CORPORATION)
(Amended as of January 18, 1997)
<PAGE>
AMENDED BYLAWS OF
OBJECTIVE SYSTEMS INTEGRATORS, INC.
(a Delaware corporation)
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <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 MEETING.......................................... 3
2.4 NOTICE OF STOCKHOLDERS' MEETINGS......................... 3
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
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING............... 5
2.12 PROXIES.................................................. 5
2.13 ORGANIZATION............................................. 6
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE.................... 6
ARTICLE III
DIRECTORS...................................................... 6
3.1 POWERS................................................... 6
3.2 NUMBER OF DIRECTORS...................................... 7
3.3 ELECTION AND TERM OF OFFICE OF DIRECTORS................. 7
3.4 RESIGNATION AND VACANCIES................................ 7
3.5 REMOVAL OF DIRECTORS..................................... 8
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE................. 8
</TABLE>
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<PAGE>
TABLE OF CONTENTS
(Continued)
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
3.7 FIRST MEETINGS........................................... 8
3.8 REGULAR MEETINGS......................................... 9
3.9 SPECIAL MEETINGS; NOTICE................................. 9
3.10 QUORUM................................................... 9
3.11 WAIVER OF NOTICE......................................... 10
3.12 ADJOURNMENT.............................................. 10
3.13 NOTICE OF ADJOURNMENT.................................... 10
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING........ 10
3.15 FEES AND COMPENSATION OF DIRECTORS....................... 10
3.16 APPROVAL OF LOANS TO OFFICERS............................ 10
3.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION... 11
ARTICLE IV
COMMITTEES...................................................... 11
4.1 COMMITTEES OF DIRECTORS.................................. 11
4.2 MEETINGS AND ACTION OF COMMITTEES........................ 12
4.3 COMMITTEE MINUTES........................................ 12
ARTICLE V
OFFICERS....................................................... 12
5.1 OFFICERS................................................. 12
5.2 ELECTION OF OFFICERS..................................... 12
5.3 SUBORDINATE OFFICERS..................................... 13
5.4 REMOVAL AND RESIGNATION OF OFFICERS...................... 13
5.5 VACANCIES IN OFFICES..................................... 13
5.6 CHAIRMAN OF THE BOARD.................................... 13
5.7 CHIEF EXECUTIVE OFFICER AND PRESIDENT.................... 14
5.8 VICE PRESIDENTS.......................................... 14
5.9 SECRETARY................................................ 14
5.10 CHIEF FINANCIAL OFFICER.................................. 15
5.11 ASSISTANT SECRETARY...................................... 15
5.12 ADMINISTRATIVE OFFICERS.................................. 15
5.13 AUTHORITY AND DUTIES OF OFFICERS......................... 15
</TABLE>
-ii-
<PAGE>
TABLE OF CONTENTS
(Continued)
<TABLE>
<S> <C> <C>
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS............................................... 16
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS................. 16
6.2 INDEMNIFICATION OF OTHERS................................. 17
6.3 INSURANCE................................................. 17
ARTICLE VII
RECORDS AND REPORTS............................................ 17
7.1 MAINTENANCE AND INSPECTION OF RECORDS..................... 17
7.2 INSPECTION BY DIRECTORS................................... 18
7.3 ANNUAL STATEMENT TO STOCKHOLDERS.......................... 18
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS............ 18
7.5 CERTIFICATION AND INSPECTION OF BYLAWS.................... 18
ARTICLE VIII
GENERAL MATTERS................................................ 18
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING..... 18
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS................. 19
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED........ 19
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES.......... 19
8.5 SPECIAL DESIGNATION ON CERTIFICATES....................... 20
8.6 LOST CERTIFICATES......................................... 20
8.7 TRANSFER AGENTS AND REGISTRARS............................ 21
8.8 CONSTRUCTION; DEFINITIONS................................. 21
ARTICLE IX
AMENDMENTS..................................................... 21
</TABLE>
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<PAGE>
AMENDED BYLAWS
OF
OBJECTIVE SYSTEMS INTEGRATORS, INC.
(A DELAWARE CORPORATION)
ARTICLE I
CORPORATE OFFICES
-----------------
1.1 REGISTERED OFFICE
-----------------
The registered office of the corporation shall be fixed in the certificate
of incorporation of the corporation.
1.2 OTHER OFFICES
-------------
The board of directors may at any time establish branch or subordinate
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 any place within or outside the
State of Delaware designated by the board of directors. In the absence of any
such designation, stockholders' meetings shall be held at the principal
executive office of the corporation.
2.2 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 an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be: (A) specified in the notice
of meeting (or any supplement thereto) given by or at
<PAGE>
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 business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given timely notice thereof in writing to the Secretary of the corporation.
To be timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the corporation not less than thirty (30)
calendar days in advance of the estimated mailing date for the proxy statement
relating to the corporation's next annual meeting as specified in the
corporation's proxy statement released to stockholders in connection with the
previous year's annual meeting of stockholders; provided, however, that in the
event that no annual meeting was held in the previous year or the date of the
annual meeting has been changed by more than thirty (30) days from the date
contemplated at the time of the previous year's proxy statement, notice by the
stockholder to be timely must be so received a reasonable time before the
solicitation is made. A stockholder's notice to the Secretary shall set forth
as to each matter the stockholder proposes to bring before the annual meeting:
(i) 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, (ii)
the name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder, (iv) any material
interest of the stockholder in such business and (v) any other information that
is required to be provided by the stockholder pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), in his
capacity as a proponent to a stockholder proposal. Notwithstanding the
foregoing, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholder's meeting,
stockholders must provide notice as required by the regulations promulgated
under the 1934 Act. Notwithstanding anything in these Bylaws to the contrary,
no business shall be conducted at any annual meeting except in accordance with
the procedures set forth in this paragraph. The chairman of the annual meeting
shall, if the facts warrant, determine and declare at the meeting that business
was not properly brought before the meeting and in accor dance with the
provisions of this paragraph, and, if he should so determine, he shall so
declare at the meeting that any such business not properly brought before the
meeting shall not be transacted.
Only persons who are nominated in accordance with the procedures set forth
in this paragraph shall be eligible for election as Directors. Nominations of
persons for election to the Board of Directors of the corporation may be made at
a meeting of stockholders by or at the direction of the Board of Directors or by
any stockholder of the corporation entitled to vote in the election of Directors
at the meeting who complies with the notice procedures set forth in this
paragraph. Such nominations, other than those made by or at the direction of the
Board of Directors, shall be made pursuant to timely notice in writing to the
Secretary of the corporation in accordance with the provisions of the prior
paragraph of this Section 2.2. Such stockholder's notice shall set forth (i) as
to each person, if any, whom the stockholder proposes to nominate for election
or re-election as a Director: (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the corporation which are
beneficially owned by such person, (D) 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 nominations are to
be made by the stockholder, and (E) any other
-2-
<PAGE>
information relating to such person that is required to be disclosed in
solicitations of proxies for elections of Directors, or is otherwise required,
in each case pursuant to Regulation 14A under the 1934 Act (including without
limitation such person's written consent to being named in the proxy statement,
if any, as a nominee and to serving as a Director if elected); and (ii) as to
such stockholder giving notice, the information required to be provided pursuant
to the preceding paragraph of this Section 2.2. At the request of the Board of
Directors, any person nominated by a stockholder for election as a Director
shall furnish to the Secretary of the corporation that information required to
be set forth in the stockholder's notice of nomination which pertains to the
nominee. No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set forth in this
paragraph (c). The chairman of the meeting shall, if the facts warrants,
determine and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if he should so
determine, he shall so declare at the meeting, and the defective nomination
shall be disregarded.
2.3 SPECIAL MEETING
---------------
A special meeting of the stockholders may be called at any time by the
board of directors, or by the chairman of the board, or by the president, or by
one or more stockholders holding shares in the aggregate entitled to cast not
less than fifteen percent (15%) of the votes of all shares of stock owned by
stockholders entitled to vote at that meeting.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
--------------------------------
All notices of meetings of stockholders shall be sent or otherwise given in
accordance with Section 2.5 of these bylaws not less than ten (10) nor more than
sixty (60) days before the date of the meeting. The notice shall specify the
place, date and hour of the meeting and (i) in the case of a special meeting,
the purpose or purposes for which the meeting is called (no business other than
that specified in the notice may be transacted) or (ii) in the case of the
annual meeting, those matters which the board of directors, at the time of
giving the notice, intends to present for action by the stockholders (but any
proper matter may be presented at the meeting for such action). The notice of
any meeting at which directors are to be elected shall include the name of any
nominee or nominees who, at the time of the notice, the board intends to present
for election.
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 directors 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.
-3-
<PAGE>
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
--------------------------------------------
Written notice of any meeting of stockholders shall be given either
personally or by first-class mail or by telegraphic or other written
communication. Notices not personally delivered shall be sent charges prepaid
and shall be addressed to the stockholder at the address of that stockholder
appearing on the books of the corporation or given by the stockholder to the
corporation for the purpose of notice. Notice shall be deemed to have been
given at the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
An affidavit of the mailing or other means of giving any notice of any
stockholders' meeting, executed by the secretary, assistant secretary or any
transfer agent of the corporation giving the notice, shall be prima facie
evidence of the giving of such notice.
2.7 QUORUM
------
The holders of a majority in voting power 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 either (i) the chairman of
the meeting or (ii) the stockholders entitled to vote thereat, present in person
or represented by proxy, shall have power to adjourn the meeting in accordance
with Section 2.7 of these bylaws.
When a quorum is present 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 provision of the laws of the State of Delaware or
of the certificate of incorporation or these bylaws, a different vote is
required, in which case such express provision shall govern and control the
decision of the question.
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 initially constituting the quorum.
2.8 ADJOURNED MEETING; NOTICE
-------------------------
When a meeting is adjourned to another time and 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 thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
-4-
<PAGE>
2.9 VOTING
------
The stockholders entitled to vote at any meeting of stockholders shall be
determined in accordance with the provisions of Section 2.11 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, and to voting trusts and other voting agreements).
Except as may be otherwise provided in the certificate of incorporation or
these bylaws, each stockholder shall be entitled to as many votes as shall equal
the number of votes which such stockholder would be entitled to cast for the
election of directors with respect to his or her shares of stock multiplied by
the number of directors to be elected and may cast all such votes for any
director or for any two or more of them as such stockholder may see fit.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT
-------------------------------------
The stockholders of the corporation may not take action by written consent
without a meeting. Any such actions must be taken at a duly called annual or
special meeting.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING
------------------------------------------
For purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in advance, a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors and which shall not be more
than sixty (60) days nor less than ten (10) days before the date of any such
meeting, and in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any shares on
the books of the corporation after the record date.
If the board of directors does not so fix a record date, the record date
for determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the business day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting
unless the board of directors fixes a new record date for the adjourned meeting,
but the board of directors shall fix a new record date if the meeting is
adjourned for more than thirty (30) days from the date set for the original
meeting.
The record date for any other purpose shall be as provided in Section 8.1
of these bylaws.
2.12 PROXIES
-------
Every person entitled to vote for directors, or on any other matter, shall
have the right to do so either in person or by one or more agents authorized by
a written proxy signed by the person and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon after
-5-
<PAGE>
11 months 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, tele-facsimile 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.
2.13 ORGANIZATION
------------
The president, or in the absence of the president, the chairman of the
board, shall call the meeting of the stockholders to order, and shall act as
chairman of the meeting. In the absence of the president, the chairman of the
board, and all of the vice presidents, the stockholders shall appoint a chairman
for such 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 the conduct of business. The
secretary of the corporation shall act as secretary of all meetings of the
stockholders, but in the absence of the secretary at any meeting of the
stockholders, the chairman of the meeting may appoint any person to act as
secretary of the meeting.
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.
ARTICLE III
DIRECTORS
---------
3.1 POWERS
------
Subject to the provisions of the General Corporation Law of Delaware and to
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.
-6-
<PAGE>
3.2 NUMBER OF DIRECTORS
-------------------
The board of directors shall consist of six (6) 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 AND TERM OF OFFICE OF DIRECTORS
----------------------------------------
Except as provided in Section 3.4 of these bylaws, directors shall be
elected at each annual meeting of stockholders to hold office until the next
annual meeting. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected
and until a successor has been elected and qualified.
3.4 RESIGNATION AND VACANCIES
-------------------------
Any director may resign effective on giving written notice to the chairman
of the board, the president, the secretary or the board of directors, unless the
notice specifies a later time for that resignation to become effective. If the
resignation of a director is effective at a future time, the board of directors
may elect a successor to take office when the resignation becomes effective.
Vacancies in the board of directors may be filled by a majority of the
remaining directors, even if less than a quorum, or by a sole remaining
director. Each director so elected shall hold office until the next annual
meeting of the stockholders and until a successor has been elected and
qualified.
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.
(iii) A vacancy created by the removal of a director may be filled by
a majority of directors then in office or the shareholders.
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
of a stockholder, may call a special meeting of stockholders in accordance with
the provisions of the
-7-
<PAGE>
certificate of incorporation or these bylaws, or 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 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, if and so long as
stockholders of the corporation are entitled to cumulative voting, if less than
the entire board is to be removed, no director may be removed without cause if
the votes cast against his removal would be sufficient to elect him if then
cumulatively voted at an election of the entire board of directors, pursuant to
Delaware General Corporation Law Section 141(k)(2).
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.
3.6 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
----------------------------------------
Regular meetings of the board of directors may be held at any place within
or outside the State of Delaware that has been designated from time to time by
resolution of the board. In the absence of such a designation, regular meetings
shall be held at the principal executive office of the corporation. Special
meetings of the board may be held at any place within or outside the State of
Delaware that has been designated in the notice of the meeting or, if not stated
in the notice or if there is no notice, at the principal executive office of the
corporation.
Any meeting of the board, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such participating
directors shall be deemed to be present in person at the meeting.
3.7 FIRST MEETINGS
--------------
The first meeting of each newly elected board of directors shall be held at
such time and place as shall be fixed by the vote of the stockholders at the
annual meeting. In the event of the failure of
-8-
<PAGE>
the stockholders to fix the time or place of such first meeting of the newly
elected board of directors, or in the event such meeting is not held at the time
and place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
3.8 REGULAR MEETINGS
----------------
Regular meetings of the board of directors may be held without notice at
such time as shall from time to time be determined by the board of directors.
If any regular meeting day shall fall on a legal holiday, then the meeting shall
be held at the same time and place on the next succeeding full business day.
3.9 SPECIAL MEETINGS; NOTICE
------------------------
Special meetings of the board of directors for any purpose or purposes may
be called at any time by the chairman of the board, the president, any vice
president, the secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
telecopy or telegram, charges prepaid, addressed to each director at that
director's address as it is shown on the records of the corporation. If the
notice is mailed, it shall be deposited in the United States mail at least four
(4) days before the time of the holding of the meeting. If the notice is
delivered personally or by telephone, telecopy or telegram, it shall be
delivered personally or by telephone or to the telegraph company at least forty-
eight (48) hours before the time of the holding of the meeting. Any oral notice
given personally or by telephone may be communicated either to the director or
to a person at the office of the director who the person giving the notice has
reason to believe will promptly communicate it to the director. The notice need
not specify the purpose or the place of the meeting, if the meeting is to be
held at the principal executive office of the corporation.
3.10 QUORUM
------
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in Section
3.12 of these bylaws. Every act or decision done or made by a majority of the
directors present at a duly held meeting at which a quorum is present shall be
regarded as the act of the board of directors, subject to the provisions of the
certificate of incorporation and applicable law.
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 at least a majority of the quorum for that meeting.
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3.11 WAIVER OF NOTICE
----------------
Notice of a meeting need not be given to any director (i) who signs a
waiver of notice, whether before or after the meeting, or (ii) who attends the
meeting other than for the express purposed of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened. All such waivers shall be filed with the corporate records
or made part of the minutes of the meeting. A waiver of notice need not specify
the purpose of any regular or special meeting of the board of directors.
3.12 ADJOURNMENT
-----------
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting of the board to another time and place.
3.13 NOTICE OF ADJOURNMENT
---------------------
Notice of the time and place of holding an adjourned meeting of the board
need not be given unless the meeting is adjourned for more than twenty-four (24)
hours. If the meeting is adjourned for more than twenty-four (24) hours, then
notice of the time and place of the adjourned meeting shall be given before the
adjourned meeting takes place, in the manner specified in Section 3.9 of these
bylaws, to the directors who were not present at the time of the adjournment.
3.14 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
-------------------------------------------------
Any action required or permitted to be taken by the board of directors may
be taken without a meeting, provided that all members of the board individually
or collectively consent in writing to that action. Such action by written
consent shall have the same force and effect as a unanimous vote of the board of
directors. Such written consent and any counterparts thereof shall be filed with
the minutes of the proceedings of the board of directors.
3.15 FEES AND COMPENSATION OF DIRECTORS
----------------------------------
Directors and members of committees may receive such compensation, if any,
for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the board of directors. This Section 3.15 shall not
be construed to preclude any director from serving the corporation in any other
capacity as an officer, agent, employee or otherwise and receiving compensation
for those services.
3.16 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 any of its
subsidiaries, including any officer or employee who is a director of the
corporation or any of its subsidiaries, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the
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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 contained 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.
3.17 SOLE DIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION
------------------------------------------------------
In the event only one director is required by these bylaws or the
certificate of incorporation, then any reference herein to notices, waivers,
consents, meetings or other actions by a majority or quorum of the directors
shall be deemed to refer to such notice, waiver, etc., by such sole director,
who shall have all the rights and duties and shall be entitled to exercise all
of the powers and shall assume all the responsibilities otherwise herein
described as given to the board of directors.
ARTICLE IV
COMMITTEES
----------
4.1 COMMITTEES OF DIRECTORS
-----------------------
The board of directors may, by resolution adopted by a majority of the
authorized number of directors, designate one (1) or more committees, each
consisting of two or more directors, to serve at the pleasure of the board. The
board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. The appointment of members or alternate members of a committee
requires the vote of a majority of the authorized number of directors. Any
committee, to the extent provided in the resolution of the board, shall have and
may exercise all the powers and authority of the board, 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 the General Corporation Law of
Delaware, fix the designations and 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.
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4.2 MEETINGS AND ACTION OF COMMITTEES
---------------------------------
Meetings and actions of committees shall be governed by, and held and taken
in accordance with, the following provisions of Article III of these bylaws:
Section 3.6 (place of meetings; meetings by telephone), Section 3.8 (regular
meetings), Section 3.9 (special meetings; notice), Section 3.10 (quorum),
Section 3.11 (waiver of notice), Section 3.12 (adjournment), Section 3.13
(notice of adjournment) and Section 3.14 (board action by written consent
without 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 be determined either by resolution of the board of directors or
by resolution of the committee, that special 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.
4.3 COMMITTEE MINUTES
-----------------
Each committee shall keep regular minutes of its meetings and report the
same to the board of directors when required.
ARTICLE V
OFFICERS
--------
5.1 OFFICERS
--------
The Corporate Officers of the corporation shall be a chief executive
officer and president, a secretary and a chief financial officer. The
corporation may also have, at the discretion of the board of directors, a
chairman of the board, one or more vice presidents (however denominated), one or
more assistant secretaries, one or more assistant treasurers, and such other
officers as may be appointed in accordance with the provisions of Section 5.3 of
these bylaws. Any number of offices may be held by the same person.
In addition to the Corporate Officers of the Company described above, there
may also be such Administrative Officers of the corporation as may be designated
and appointed from time to time by the president of the corporation in
accordance with the provisions of Section 5.12 of these bylaws.
5.2 ELECTION OF OFFICERS
--------------------
The Corporate Officers of the corporation, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or Section 5.5 of
these bylaws, shall be chosen by the board of directors, subject to the rights,
if any, of an officer under any contract of employment, and
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shall hold their respective offices for such terms as the board of directors may
from time to time determine.
5.3 SUBORDINATE OFFICERS
--------------------
The board of directors may appoint, or may empower the president to
appoint, such other Corporate Officers as the business of the corporation may
require, each of whom shall hold office for such period, have such power and
authority, and perform such duties as are provided in these bylaws or as the
board of directors may from time to time determine.
The president may from time to time designate and appoint Administrative
Officers of the corporation in accordance with the provisions of Section 5.12 of
these bylaws.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
-----------------------------------
Subject to the rights, if any, of a Corporate Officer under any contract of
employment, any Corporate Officer may be removed, either with or without cause,
by the board of directors at any regular or special meeting of the board or,
except in case of a Corporate Officer chosen by the board of directors, by any
Corporate Officer upon whom such power of removal may be conferred by the
board of directors.
Any Corporate 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. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the Corporate
Officer is a party.
Any Administrative Officer designated and appointed by the president may be
removed, either with or without cause, at any time by the president. Any
Administrative Officer may resign at any time by giving written notice to the
president or to the secretary of the corporation.
5.5 VACANCIES IN OFFICES
--------------------
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these bylaws for regular appointments to that office.
5.6 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 such other
powers and perform such other duties as may from time to time be assigned to him
by the board of directors or as may be prescribed by these bylaws. If there is
no president, then the chairman of the board shall also be the chief executive
officer of the corporation and shall have the powers and duties prescribed in
Section 5.7 of these bylaws.
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<PAGE>
5.7 CHIEF EXECUTIVE OFFICER AND 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 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
or she 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 or she 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 perform such other duties as may be prescribed by the board of
directors or these bylaws.
5.8 VICE PRESIDENTS
---------------
In the absence or disability of the president, and if there is no chairman
of the board, 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.
5.9 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 the board 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 or she 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.
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5.10 CHIEF FINANCIAL OFFICER
-----------------------
The chief financial officer shall keep and maintain, or cause to be kept
and maintained, 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 for a purpose reasonably related to
his position as a director.
The chief financial officer shall deposit all money 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 or she 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 or
her transactions as chief financial officer and of the financial condition of
the corporation, and shall have such other powers and perform such other duties
as may be prescribed by the board of directors or these bylaws.
5.11 ASSISTANT SECRETARY
-------------------
The assistant secretary, if any, or, if there is more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his or her inability or refusal
to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
5.12 ADMINISTRATIVE OFFICERS
-----------------------
In addition to the Corporate Officers of the corporation as provided in
Section 5.1 of these bylaws and such subordinate Corporate Officers as may be
appointed in accordance with Sec tion 5.3 of these bylaws, there may also be
such Administrative Officers of the corporation as may be designated and
appointed from time to time by the president of the corporation. Administrative
Officers shall perform such duties and have such powers as from time to time may
be determined by the president or the board of directors in order to assist the
Corporate Officers in the furtherance of their duties. In the performance of
such duties and the exercise of such powers, however, such Administrative
Officers shall have limited authority to act on behalf of the corporation as the
board of directors shall establish, including but not limited to limitations on
the dollar amount and on the scope of agreements or commitments that may be made
by such Administrative Officers on behalf of the corporation, which limitations
may not be exceeded by such individuals or altered by the president without
further approval by the board of directors.
5.13 AUTHORITY AND DUTIES OF OFFICERS
--------------------------------
In addition to the foregoing powers, authority and duties, all officers of
the corporation shall respectively have such authority and powers and perform
such duties in the management of the business of the corporation as may be
designated from time to time by the board of directors.
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ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
-------------------------------------------------
AND OTHER AGENTS
----------------
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 as the same now exists or may hereafter
be amended, indemnify any person against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending or completed action, suit,
or proceeding in which such person was or is a party or is threatened to be made
a party by reason of the fact that such person is or was a director or officer
of the corporation. For purposes of this Section 6.1, a "director" or "officer"
of the corporation shall mean 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, 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.
The corporation shall be required to indemnify a director or officer in
connection with an action, suit, or proceeding (or part thereof) initiated by
such director or officer only if the initiation of such action, suit, or
proceeding (or part thereof) by the director or officer was authorized by the
board of directors of the corporation.
The corporation shall pay the expenses (including attorney's fees) incurred
by a director or officer of the corporation entitled to indemnification
hereunder in defending any action, suit or proceeding referred to in this
Section 6.1 in advance of its final disposition; provided, however, that payment
of expenses incurred by a director or officer of the corporation in advance of
the final disposition of such action, suit or proceeding shall be made only upon
receipt of an undertaking by the director or officer to repay all amounts
advanced if it should ultimately be determined that the director or officer is
not entitled to be indemnified under this Section 6.1 or otherwise.
The rights conferred on any person by this Article shall not be exclusive
of any other rights which such person may have or hereafter acquire under any
statute, provision of the corporation's Certificate of Incorporation, these
bylaws, agreement, vote of the stockholders or disinterested directors or
otherwise.
Any repeal or modification of the foregoing provisions of this Article
shall not adversely affect any right or protection hereunder of any person in
respect of any act or omission occurring prior to the time of such repeal or
modification.
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6.2 INDEMNIFICATION OF OTHERS
-------------------------
The corporation shall have the power, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware as the same now
exists or may hereafter be amended, to indemnify any person (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, and amounts paid in settlement actually and reasonably incurred in
connection with any threatened, pending or completed action, suit, or
proceeding, in which such person was or is a party or is threatened to be made a
party by reason of the fact that such person is or was an employee or agent of
the corporation. For purposes of this Section 6.2, an "employee" or "agent" of
the corporation (other than a director or officer) shall mean 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, 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 or her and incurred
by him or her in any such capacity, or arising out of his or her status as such,
whether or not the corporation would have the power to indemnify him or her
against such liability under the provisions of the General Corporation Law of
Delaware.
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 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 of its business and properties.
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
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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 or her position as a director.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
--------------------------------
The board of directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
----------------------------------------------
The chairman of the board, if any, the president, any vice president, the
chief financial officer, the secretary or any assistant secretary of this
corporation, 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 the
stock of any other corporation or corporations standing in the name of this
corporation. The authority herein granted 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.
7.5 CERTIFICATION AND INSPECTION OF BYLAWS
--------------------------------------
The original or a copy of these bylaws, as amended or otherwise altered
to date, certified by the secretary, shall be kept at the corporation's
principal executive office and shall be open to inspection by the stockholders
of the corporation, at all reasonable times during office hours.
ARTICLE VIII
GENERAL MATTERS
---------------
8.1 RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING
-----------------------------------------------------
For purposes of determining the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any rights or the
stockholders entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other lawful action,
the board of directors may fix, in advance, a record date, which shall not
precede the date upon which
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the resolution fixing the record date is adopted and which shall not be more
than sixty (60) days before any such action. In that case, only stockholders of
record at the close of business on the date so fixed are entitled to receive the
dividend, distribution or allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any shares on the books of the
corporation after the record date so fixed, except as otherwise provided by law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the board of directors adopts the
applicable resolution.
8.2 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS
-----------------------------------------
From time to time, the board of directors shall determine by resolution
which person or persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are issued in
the name of or payable to the corporation, and only the persons so authorized
shall sign or endorse those instruments.
8.3 CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED
--------------------------------------------------
The board of directors, except as otherwise provided in these bylaws, may
authorize and empower any officer or officers, or agent or agents, to enter into
any contract or execute any instrument in the name of and on behalf of the
corporation; such power and authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors or within
the agency power of an officer, no officer, agent or employee shall have any
power or authority to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or for any amount.
8.4 STOCK CERTIFICATES; TRANSFER; PARTLY PAID SHARES
------------------------------------------------
The shares of the 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 or
vice-chairman of the board of directors, or the president or vice-president, and
by the treasurer or an assistant treasurer, or the secretary or an assistant
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 or she were such
officer, transfer agent or registrar at the date of issue.
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Certificates for shares shall be of such form and device as the board of
directors may designate and shall state the name of the record holder of the
shares represented thereby; its number; date of issuance; the number of shares
for which it is issued; a summary statement or reference to the powers,
designations, preferences or other special rights of such stock and the
qualifications, limitations or restrictions of such preferences and/or rights,
if any; a statement or summary of liens, if any; a conspicuous notice of
restrictions upon transfer or registration of transfer, if any; a statement as
to any applicable voting trust agreement; if the shares be assessable, or, if
assessments are collectible by personal action, a plain statement of such facts.
Upon surrender to the secretary or transfer agent of the corporation
of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
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.
8.5 SPECIAL DESIGNATION ON CERTIFICATES
-----------------------------------
If the corporation is authorized to issue more than one class of stock or
more than one series of any class, then the powers, the designations, the
preferences and the relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the corporation shall
issue to represent such class or series of stock; provided, however, that,
except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements there may be set forth on the
face or back of the certificate that the corporation shall issue to represent
such class or series of stock a statement that the corporation will furnish
without charge to each stockholder who so requests the powers, the designations,
the preferences and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
8.6 LOST CERTIFICATES
-----------------
Except as provided in this Section 8.6, 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 board of
directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of replacement
certificates on such terms and conditions as the board may require; the board
may require indemnification of the corporation
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secured by a bond or other adequate security sufficient to protect the
corporation against any claim that may be made against it, including any expense
or liability, on account of the alleged loss, theft or destruction of the
certificate or the issuance of the replacement certificate.
8.7 TRANSFER AGENTS AND REGISTRARS
------------------------------
The board of directors may appoint one or more transfer agents or transfer
clerks, and one or more registrars, each of which shall be an incorporated bank
or trust company -- either domestic or foreign, who shall be appointed at such
times and places as the requirements of the corporation may necessitate and the
board of directors may designate.
8.8 CONSTRUCTION; DEFINITIONS
-------------------------
Unless the context requires otherwise, the general provisions, rules
of construction and definitions in the General Corporation Law of Delaware shall
govern the construction of these bylaws. Without limiting the generality of
this provision, as used in these bylaws, the singular number includes the
plural, the plural number includes the singular, and the term "person" includes
both an entity and a natural person.
ARTICLE IX
AMENDMENTS
----------
The original or other bylaws of the corporation may be adopted, amended or
repealed by 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 the filing of the operative written consent(s) shall be stated in
said book.
-21-
<PAGE>
CERTIFICATE OF ADOPTION OF BYLAWS
OF
OBJECTIVE SYSTEMS INTEGRATORS, INC.
a Delaware corporation
Certificate by Secretary of Adoption by Board of Directors
----------------------------------------------------------
The undersigned hereby certifies that he is the duly elected,
qualified, and acting Secretary of Objective Systems Integrators, Inc., a
Delaware corporation, and that the foregoing Bylaws, comprising twenty-six (26)
pages, were adopted as the Bylaws of the corporation on January 18, 1997, by the
members of the corporation's Board of Directors.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and
affixed the corporate seal this 18th day of January, 1997.
/s/ Philip N. Cardman
_______________________________
Philip N. Cardman, Secretary
-22-
<PAGE>
EXHIBIT 10.14
OBJECTIVE SYSTEMS INTEGRATORS, INC.
-----------------------------------
INDEMNIFICATION AGREEMENT
-------------------------
THIS INDEMNIFICATION AGREEMENT ("Agreement") is effective as of January 18,
1997, by and between OBJECTIVE SYSTEMS INTEGRATORS, INC., a Delaware corporation
("OSI"), and _________________ ("Indemnitee").
WHEREAS, Objective Systems Integrators, Inc., a California corporation, expects
to reincorporate into Delaware;
WHEREAS, OSI desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve OSI and its related entities;
WHEREAS, OSI and Indemnitee recognize the continued difficulty in obtaining
liability insurance for OSI's directors, officers, employees, agents and
fiduciaries, the significant increases in the cost of that insurance and the
general reductions in the coverage of that insurance;
WHEREAS, OSI and Indemnitee further recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees,
agents and fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited; and
WHEREAS, in connection with OSI's reincorporation, OSI and Indemnitee desire to
continue having in place the additional protection provided by an
indemnification agreement to provide Indemnitee with indemnification and
advancement of expenses to the maximum extent permitted by Delaware law;
NOW, THEREFORE, OSI and Indemnitee agree as set forth below.
1. DEFINITIONS.
-----------
(a) CHANGE IN CONTROL. A "Change in Control" will be deemed to have occurred
-----------------
if, on or after the date of this Agreement, (1) any "person," as that
term is used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended (the "Act"), or group acting in concert, other than a
trustee or other fiduciary holding securities under an OSI employee
benefit plan acting in that capacity or a corporation owned directly or
indirectly by the stockholders of OSI in substantially the same
proportions as their ownership of stock of OSI, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Act), directly or indirectly,
of OSI securities representing more than 50% of the total voting power
represented by OSI's then outstanding Voting Securities, (2) during any
period of two consecutive years, individuals who at the start of the
period constitute the OSI Board of Directors, and any new director whose
election by the Board of Directors or nomination for election by OSI's
stockholders was approved by a vote of at least two thirds (2/3) of the
directors then still in office who either were directors at the start of
the period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of OSI's Board of
Directors, (3) the OSI stockholders approve a merger or consolidation of
OSI with another corporation, other than a merger or consolidation that
would result in the OSI Voting Securities outstanding immediately before
the approval continuing to represent (either by remaining outstanding or
by being converted into Voting Securities of the surviving entity) at
least 80% of the total voting power represented by the Voting Securities
of OSI or the surviving entity outstanding immediately after the merger
or consolidation, or (4) the OSI stockholders approve a plan of complete
liquidation of OSI or an agreement for the sale or disposition by OSI (in
one transaction or a series of related transactions) of all or
substantially all of OSI's assets.
Page 1
<PAGE>
(b) CLAIM. With respect to a Covered Event, a "Claim" is any threatened,
-----
pending or completed action, suit, proceeding or alternative dispute
resolution mechanism, or any hearing, inquiry or investigation that
Indemnitee in good faith believes might lead to the institution of such
an action, suit, proceeding or alternative dispute resolution mechanism,
whether civil, criminal, administrative, investigative or other.
(c) OSI. References to "OSI" include, in addition to Objective Systems
---
Integrators, Inc., any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger to which
Objective Systems Integrators, Inc. (or any of its wholly owned
subsidiaries) is a party and which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, employees, agents or fiduciaries, so that if Indemnitee is or
was a director, officer, employee, agent or fiduciary of the constituent
corporation, or is or was serving at the request of the constituent
corporation as a director, officer, employee, agent or fiduciary of
another corporation, partnership, joint venture, employee benefit plan,
trust or other enterprise, Indemnitee will stand in the same position
under this Agreement with respect to the resulting or surviving
corporation as Indemnitee would have stood with respect to the
constituent corporation if its separate existence had continued.
(d) COVERED EVENT. A "Covered Event" is any event or occurrence related to
-------------
the fact that Indemnitee is or was a director, officer, employee, agent
or fiduciary of OSI, or any subsidiary of OSI, or is or was serving at
the request of OSI as a director, officer, employee, agent or fiduciary
of any other corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action or inaction on the part of
Indemnitee while serving in that capacity.
(e) EXPENSES. "Expenses" are any and all expenses (including attorneys' fees
--------
and all other costs, expenses and obligations incurred in connection with
investigating, defending, being a witness in or participating in
(including on appeal), or preparing to defend, be a witness in or
participate in, any action, suit, proceeding, alternative dispute
resolution mechanism, hearing, inquiry or investigation), judgments,
fines, penalties and amounts paid in settlement (if the settlement is
approved in advance by OSI, which approval will not be unreasonably
withheld) of any Claim and any federal, state, local or foreign taxes
imposed on Indemnitee as a result of the actual or deemed receipt of any
payments under this Agreement.
(f) EXPENSE ADVANCE. "Expense Advance" is a payment to Indemnitee under
---------------
Section 3 of Expenses in advance of settlement or final judgment in any
action, suit, proceeding or alternative dispute resolution mechanism,
hearing, inquiry or investigation which is a Claim.
(g) INDEPENDENT LEGAL COUNSEL. "Independent Legal Counsel" is an attorney or
-------------------------
firm of attorneys, selected in accordance with Section 2(d), who will not
have otherwise performed services for OSI or Indemnitee within the last
three years (other than with respect to matters concerning the rights of
Indemnitee under this Agreement or of other Indemnitees under similar
indemnity agreements).
(h) OTHER ENTERPRISES. References to "other enterprises" include employee
-----------------
benefit plans; references to "fines" include any excise taxes assessed on
Indemnitee with respect to an employee benefit plan; and references to
"serving at the request of OSI" include any service as a director,
officer, employee, agent or fiduciary of OSI which imposes duties on, or
involves services by, the director, officer, employee, agent or fiduciary
with respect to an employee benefit plan, its participants or its
beneficiaries; and if Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan, Indemnitee will be deemed
to have acted in a manner "not opposed to the best interests of OSI"
under this Agreement.
Page 2
<PAGE>
(i) REVIEWING PARTY. Subject to Section 2(d), a "Reviewing Party" is any
---------------
person or body appointed by the Board of Directors in accordance with
applicable law to review OSI's obligations under this Agreement and under
applicable law, which may include members of OSI's Board of Directors,
Independent Legal Counsel or any other person or body not a party to the
particular Claim for which Indemnitee is seeking indemnification.
(j) SECTION. Unless otherwise indicated, "Section" refers to a section of
-------
this Agreement.
(k) VOTING SECURITIES. "Voting Securities" are any securities of OSI that
-----------------
vote generally in the election of directors.
2. INDEMNIFICATION.
---------------
(a) EXPENSE INDEMNIFICATION. Subject to the provisions of Section 2(b), OSI
-----------------------
will indemnify Indemnitee for Expenses to the fullest extent permitted by
law if Indemnitee was, is or becomes a party to or witness or other
participant in, or is threatened to be made a party to or witness or
other participant in, any Claim (whether by reason of or arising in part
out of a Covered Event), including all interest, assessments and other
charges paid or payable in connection with or in respect of those
Expenses.
(b) REVIEW OF OBLIGATIONS. Notwithstanding the foregoing, if any Reviewing
---------------------
Party has determined (in a written opinion where Independent Legal
Counsel is the Reviewing Party) that applicable law prohibits Indemnitee
from being entitled to be indemnified under this Agreement, (1) OSI will
have no obligation under Section 2(a) to make further payments to
Indemnitee after the determination by the Reviewing Party, and (2) OSI
will be entitled to be reimbursed by Indemnitee (who agrees to reimburse
OSI) for all Expenses previously paid to Indemnitee to which Indemnitee
is not entitled; provided, however, that if Indemnitee has commenced or
thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that applicable law permits
Indemnitee to be indemnified under this Agreement, the determination made
by the Reviewing Party that Indemnitee is not entitled to be indemnified
will not be binding and Indemnitee will not be required to reimburse OSI
for any previously paid Expenses until a final judicial determination is
made with respect thereto (as to which all rights of appeal have been
exhausted or lapsed). Indemnitee's obligation to reimburse OSI for
Expenses will be unsecured and no interest will be charged.
(c) UNFAVORABLE DETERMINATION; BINDING EFFECT. If a Reviewing Party
-----------------------------------------
determines that applicable law substantively prohibits Indemnitee from
being indemnified under this Agreement, either in whole or in part,
Indemnitee may commence litigation seeking an initial determination by
the court or challenging the Reviewing Party's determination (or any
aspect of that determination, including the legal or factual bases for
it) and, subject to Section 15, OSI consents to service of process and to
appear in the litigation. Absent litigation, determinations by a
Reviewing Party will be conclusive and binding on OSI and Indemnitee.
Page 3
<PAGE>
(d) SELECTION; CHANGE IN CONTROL. If there has not been a Change in Control,
----------------------------
the Reviewing Party will be selected by the Board of Directors. If there
has been a Change in Control (other than a Change in Control which has
been approved by a majority of OSI's Board of Directors who were
directors immediately before the Change in Control), the Reviewing Party
for all matters concerning the rights of Indemnitee to indemnification of
Expenses under this Agreement, any other agreement or under OSI's
Certificate of Incorporation or Bylaws as now or later in effect, or
under any other applicable law, if desired by Indemnitee, will be
Independent Legal Counsel selected by Indemnitee and approved by OSI
(which approval will not be unreasonably withheld). Among other things,
Independent Legal Counsel will render its written opinion to OSI and
Indemnitee as to whether and to what extent applicable law permits
Indemnitee to be indemnified under this Agreement. OSI will abide by that
opinion, pay the reasonable fees of the Independent Legal Counsel and
indemnify fully that Counsel against all expenses (including attorneys'
fees), claims, liabilities and damages arising out of or relating to this
Agreement or its engagement under it. Notwithstanding any other provision
of this Agreement, OSI will not be required to pay Expenses of more than
one Independent Legal Counsel for Indemnitee, and that Independent Legal
Counsel will be the Independent Legal Counsel for all other Indemnitees
unless (1) employment of separate counsel by one or more Indemnitees has
been previously authorized by OSI in writing, or (2) an Indemnitee has
provided OSI with a written statement that the Indemnitee has reasonably
concluded there may be a conflict of interest between the Indemnitee and
the other Indemnitees with respect to the matters arising under this
Agreement.
(e) MANDATORY PAYMENT. Notwithstanding any other provision of this Agreement
-----------------
other than Section 10, to the extent that Indemnitee has been successful
on the merits or otherwise, including, without limitation, the dismissal
of an action without prejudice, in defense of a Claim, Indemnitee will be
indemnified against all Expenses incurred by Indemnitee in connection
with the Claim.
3. EXPENSE ADVANCES.
----------------
(a) OBLIGATION TO MAKE ADVANCES. OSI will make Expense Advances to
---------------------------
Indemnitee on receiving a written undertaking, by or on behalf of
Indemnitee, to repay the Advances if it is ultimately determined that
applicable law prohibits Indemnitee from being indemnified for them by
OSI.
(b) FORM OF UNDERTAKING. The obligation to repay Expense Advances under
-------------------
Indemnitee's written undertaking will be unsecured and no interest will
be charged.
(c) REASONABLE EXPENSE ADVANCES. For Expense Advances where Indemnitee has
---------------------------
made written demand to OSI in accordance with this Agreement, all
Expenses included in the Expense Advance will be presumed conclusively to
be reasonable if they are certified as being so by affidavit of
Indemnitee's counsel.
4. PROCEDURES FOR INDEMNIFICATION AND EXPENSE ADVANCES.
---------------------------------------------------
(a) TIMING. All Expense payments (including, without limitation, Expense
------
Advances) by OSI to Indemnitee under this Agreement will be made to the
fullest extent permitted by law as soon as practicable after written
demand by Indemnitee is presented to OSI. In no event, will payment be
made later than 30 business days after written demand, except for Expense
Advances, which will be made no later than 10 business days after written
demand.
Page 4
<PAGE>
(b) NOTICE/COOPERATION. As a condition precedent to indemnification or the
------------------
receipt of Expense Advances, Indemnitee will give OSI notice as soon as
practicable of any Claim made against Indemnitee for which
indemnification under this Agreement could be sought. Notice will be
directed to OSI's Chief Executive Officer at the address shown on the
signature page of this Agreement (or such other address as OSI designates
in writing to Indemnitee). In addition, Indemnitee will give OSI such
information and cooperation as OSI may reasonably require and is within
Indemnitee's power.
(c) NO PRESUMPTIONS; BURDEN OF PROOF. For purposes of this Agreement, the
--------------------------------
termination of any Claim by judgment, order, settlement (whether with or
without court approval) or conviction, or on a plea of nolo contendere or
---------------
its equivalent, will not create a presumption that Indemnitee failed to
meet any particular standard of conduct or had any particular belief, or
that a court has determined that indemnification is not permitted by this
Agreement or applicable law. In addition, neither the failure of a
Reviewing Party to have determined whether Indemnitee has met any
particular standard of conduct or had any particular belief, nor an
actual determination by a Reviewing Party that Indemnitee has not met
that standard of conduct or did not have that belief, before the start of
legal proceedings by Indemnitee to secure a judicial determination that
Indemnitee should be indemnified under this Agreement under applicable
law, will be a defense to Indemnitee's claim or create a presumption that
Indemnitee has not met a particular standard of conduct or did not have a
particular belief. In connection with a determination by a Reviewing
Party, or otherwise, as to whether applicable law permits Indemnitee to
be indemnified under this Agreement, the burden of proof will be on OSI
to establish that Indemnitee is not entitled to indemnification.
(d) NOTICE TO INSURERS. If, at the time OSI receives notice of a Claim under
------------------
Section 4(b), OSI has liability insurance in effect which may cover the
Claim, OSI will give prompt notice that the Claim has commenced to the
insurers according to the procedures set forth in each respective policy.
OSI will thereafter take all necessary or desirable action to cause the
insurers to pay, on behalf of Indemnitee, all amounts payable under the
policies as a result of the Claim.
(e) SELECTION OF COUNSEL. If OSI is obligated under this Agreement to
--------------------
provide indemnification for, or make any Expense Advances with respect
to, the Expenses of a Claim, if appropriate OSI may assume the defense of
the Claim with counsel approved by Indemnitee (which approval will not be
unreasonably withheld) on the delivery of notice to Indemnitee stating
OSI's election to do so. After delivery of the notice, approval of
counsel by Indemnitee and retention of counsel by OSI, OSI will not be
liable to Indemnitee for the fees or expenses of separate counsel
thereafter retained by or on behalf of Indemnitee in connection with the
same Claim; provided, however, that (1) Indemnitee may employ separate
counsel in the Claim at Indemnitee's expense, and (2) if (A) Indemnitee's
employment of separate counsel has been previously authorized by OSI, (B)
Indemnitee has reasonably concluded that there may be a conflict of
interest between Indemnitee and OSI in the conduct of the defense, or (C)
OSI does not continue to retain such counsel to defend the Claim, then
the fees and expenses of Indemnitee's separate counsel will be Expenses
for which Indemnitee may receive indemnification or Expense Advances
under this Agreement.
5. ADDITIONAL RIGHTS; NONEXCLUSIVITY.
---------------------------------
(a) SCOPE. OSI will indemnify the Indemnitee to the fullest extent permitted
-----
by law, notwithstanding that the indemnification is not specifically
authorized by the other provisions of this Agreement, OSI's Certificate
of Incorporation, OSI's Bylaws or by statute. If any applicable law,
statute or rule changes after the date of this Agreement, and the change
expands the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, employee, agent or fiduciary, it is the
intent of the parties that Indemnitee will enjoy by this Agreement the
greater benefits afforded by the change. If any applicable law,
Page 5
<PAGE>
statute or rule changes after the date of this Agreement, and the change
narrows the right of a Delaware corporation to indemnify a member of its
board of directors or an officer, employee, agent or fiduciary, the
change, to the extent not otherwise required by the law, statute or rule
to be applied to this Agreement, will have no effect on this Agreement or
the parties' rights and obligations under it except as set forth in
Section 10(a).
(b) NONEXCLUSIVITY. The indemnification and the payment of Expense Advances
--------------
provided by this Agreement (1) is in addition to any rights to which
Indemnitee may be entitled under OSI's Certificate of Incorporation, its
Bylaws, any other agreement, any vote of stockholders or disinterested
directors, the General Corporation Law of the State of Delaware or
otherwise, and (2) will continue as to Indemnitee for any action taken or
not taken while serving in an indemnified capacity even though Indemnitee
may later cease to serve in that capacity.
6. NO DUPLICATION OF PAYMENTS.
--------------------------
OSI will not be liable under this Agreement to make any payments to the
extent Indemnitee has otherwise actually received payment (under an insurance
policy, provision of OSI's Certificate of Incorporation, Bylaws or otherwise)
of the amounts otherwise payable.
7. PARTIAL INDEMNIFICATION.
-----------------------
If Indemnitee is entitled to indemnification by OSI under this Agreement for
some or a portion of Expenses incurred in connection with a Claim, but not
for the total amount of those Expenses, OSI will nevertheless indemnify
Indemnitee for the portion of the Expenses to which Indemnitee is entitled.
8. MUTUAL ACKNOWLEDGMENT.
---------------------
In certain instances, Federal law or applicable public policy may prohibit
OSI from indemnifying its directors, officers, employees, agents or
fiduciaries, whether under this Agreement or otherwise. OSI has undertaken,
and may hereafter be required to undertake, with the Securities and Exchange
Commission to submit the question of the application of public policy to
OSI's indemnification of its officers and directors to a court of competent
jurisdiction.
9. LIABILITY INSURANCE.
-------------------
To the extent OSI maintains liability insurance applicable to directors,
officers, employees, agents or fiduciaries, Indemnitee will be covered by
those policies in such a manner as to provide Indemnitee the same rights and
benefits as are provided to the most favorably insured of OSI's directors, if
Indemnitee is a director; or of OSI's officers, if Indemnitee is not a
director of OSI but is an officer; or of OSI's key employees, agents or
fiduciaries, if Indemnitee is not an officer or director but is a key
employee, agent or fiduciary.
Page 6
<PAGE>
10. EXCEPTIONS.
----------
Notwithstanding any other provision of this Agreement, OSI will not be
obligated under this Agreement:
(a) EXCLUDED ACTION OR OMISSIONS. To indemnify or make Expense Advances to
----------------------------
Indemnitee with respect to Claims arising out of acts, omissions or
transactions for which Indemnitee is prohibited from receiving
indemnification under applicable law.
(b) CLAIMS INITIATED BY INDEMNITEE. To indemnify or make Expense Advances to
------------------------------
Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee and not by way of defense, counterclaim or crossclaim, except
(1) with respect to actions or proceedings brought to establish or
enforce a right to indemnification under this Agreement, any other
agreement or insurance policy or under OSI's Certificate of
Incorporation or Bylaws now or hereafter in effect relating to Claims
for Covered Events, (2) in specific cases if the Board of Directors has
approved the initiation or bringing of the Claim, or (3) as otherwise
required under Section 145 of the Delaware General Corporation Law,
regardless of whether Indemnitee ultimately is determined to be entitled
to the indemnification, Expense Advances or insurance recovery, as the
case may be.
(c) LACK OF GOOD FAITH. To indemnify Indemnitee for any Expenses incurred
------------------
by the Indemnitee with respect to any action instituted (1) by
Indemnitee to enforce or interpret this Agreement, if a court having
jurisdiction over the action determines as provided in Section 13 that
each of the material assertions made by the Indemnitee as a basis for
the action was not made in good faith or was frivolous, or (2) by or in
the name of OSI to enforce or interpret this Agreement, if a court
having jurisdiction over the action determines as provided in Section 13
that each of the material defenses asserted by Indemnitee in the action
was made in bad faith or was frivolous.
(d) CLAIMS UNDER SECTION 16(b). To indemnify Indemnitee for Expenses and the
--------------------------
payment of profits arising from the purchase and sale by Indemnitee of
securities in violation of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or any similar successor statute.
11. EXPENSES IN ACTIONS RELATING TO ENFORCEMENT OR INTERPRETATION.
-------------------------------------------------------------
If any action is instituted by Indemnitee under this Agreement or under any
liability insurance policies maintained by OSI to enforce or interpret any
of the terms hereof or thereof, Indemnitee will be entitled to be
indemnified for all Expenses incurred by Indemnitee with respect to the
action (including without limitation attorneys' fees), regardless of whether
Indemnitee is ultimately successful in the action, unless as a part of the
action a court having jurisdiction over the action makes a final judicial
determination (as to which all rights of appeal have been exhausted or
lapsed) that each of the material assertions made by Indemnitee as a basis
for the action was not made in good faith or was frivolous; provided,
however, that until such final judicial determination is made, Indemnitee
will be entitled under Section 3 to receive payment of Expense Advances
hereunder with respect to the action. If an action is instituted by or in
the name of OSI under this Agreement to enforce or interpret any of the
terms of this Agreement, Indemnitee will be entitled to be indemnified for
all Expenses incurred by Indemnitee in defense of the action (including
without limitation costs and expenses incurred with respect to Indemnitee's
counterclaims and cross-claims made in the action), unless as a part of the
action a court having jurisdiction over the action makes a final judicial
determination (as to which all rights of appeal therefrom have been
exhausted or lapsed) that each of the material defenses asserted by
Indemnitee in the action was made in bad faith or was frivolous; provided,
however, that until such final judicial determination is made, Indemnitee
will be entitled under Section 3 to receive payment of Expense Advances
hereunder with respect to the action.
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<PAGE>
12. PERIOD OF LIMITATIONS.
---------------------
No legal action will be brought and no cause of action will be asserted by
or in the right of OSI against Indemnitee, Indemnitee's estate, spouse,
heirs, executors or personal or legal representatives after the expiration
of two years from the date of accrual of the cause of action, and any claim
or cause of action of OSI will be extinguished and deemed released unless
asserted by the timely filing of a legal action within such two year period;
provided, however, that if any shorter period of limitations is otherwise
applicable to any such cause of action, the shorter period will govern.
13. GENERAL.
-------
(a) COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which will constitute an original.
(b) BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement will be binding
--------------------------------------
upon and inure to the benefit of and be enforceable by the parties and
their respective successors, assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of OSI), spouses, heirs and
personal and legal representatives. OSI will require and cause any
successor (whether direct or indirect, and whether by purchase, merger,
consolidation or otherwise) to all, substantially all, or a substantial
part, of the business or assets of OSI, by written agreement in form and
substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that
OSI would be required to perform if no such succession had taken place.
This Agreement will continue in effect regardless of whether Indemnitee
continues to serve as a director, officer, employee, agent or fiduciary
(as applicable) of OSI or of any other enterprise at OSI's request.
(c) NOTICE. All notices, requests, demands and other communications under
------
this Agreement will be in writing and will be deemed duly given (1) if
delivered by hand and signed for by the party addressed, on the date of
delivery, or (2) if mailed by domestic certified or registered mail with
postage prepaid, on the third business day after the date postmarked.
Addresses for notice to either party are as shown on the signature page
of this Agreement, or as subsequently modified by written notice.
(d) CONSENT TO JURISDICTION. OSI and Indemnitee each hereby irrevocably
-----------------------
consent to the jurisdiction of the courts of the State of Delaware for
all purposes in connection with any action or proceeding which arises
out of or relates to this Agreement and agree that any action instituted
under this Agreement will be commenced, prosecuted and continued only in
the Court of Chancery of the State of Delaware in and for New Castle
County, which will be the exclusive and only proper forum for
adjudicating such a claim.
(e) SEVERABILITY. The provisions of this Agreement will be severable if any
------------
provision (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid,
void or otherwise unenforceable, and the remaining provisions will
remain enforceable to the fullest extent permitted by law. Furthermore,
to the fullest extent possible, the provisions of this Agreement
(including without limitation each portion of this Agreement containing
any provision held to be invalid, void or
Page 8
<PAGE>
otherwise unenforceable, that is not itself invalid, void or
unenforceable) will be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(f) CHOICE OF LAW. This Agreement, and all rights, remedies, liabilities,
-------------
powers and duties of the parties to this Agreement, will be governed by
and construed in accordance with the laws of the State of Delaware as
applied to contracts between Delaware residents entered into and to be
performed entirely in the State of Delaware without regard to principles
of conflicts of laws.
(g) SUBROGATION. In the event of payment under this Agreement, OSI will be
-----------
subrogated to the extent of the payment to all of the rights of recovery
of Indemnitee, who will execute all documents required and will do all
acts that may be necessary to secure those rights and to enable OSI
effectively to bring suit to enforce those rights.
(h) AMENDMENT AND TERMINATION. No amendment, modification, termination or
-------------------------
cancellation of this Agreement will be effective unless it is in writing
signed by both the parties. No waiver of any of the provisions of this
Agreement will be deemed to be or will constitute a waiver of any other
provisions (whether or not similar), nor will any waiver constitute a
continuing waiver.
(i) INTEGRATION AND ENTIRE AGREEMENT. This Agreement sets forth the entire
--------------------------------
understanding between the parties and supersedes and merges all previous
written and oral negotiations, commitments, understandings and
agreements relating to its subject matter between the parties.
(j) NO CONSTRUCTION AS EMPLOYMENT AGREEMENT. Nothing in this Agreement will
---------------------------------------
be construed as giving Indemnitee any right to be retained in the employ
of OSI or any of its subsidiaries or affiliated entities.
IN WITNESS WHEREOF, the parties have executed this Indemnification Agreement as
of the date first above written.
OBJECTIVE SYSTEMS INTEGRATORS, INC. INDEMNITEE:
By: _______________________________ ______________________________________
(signature)
Print Name: _______________________ Print Name: __________________________
Title: ____________________________
Address: 100 Blue Ravine Road. Address: _____________________________
Folsom, California 95630 _____________________________
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