As filed with the Securities and Exchange Commission on December 19, 1996.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ASECO CORPORATION
(Exact name of registrant as specified in its charter)
04-2816806
(I.R.S. Employer Identification No.)
Delaware
(State or other jurisdiction of incorporation or organization)
500 Donald Lynch Boulevard, Marlboro, MA 01752
(Address of principal executive offices) (Zip Code)
1986 Incentive Stock Option Plan
1993 Employee Stock Purchase Plan
1993 Non-Employee Director Stock Option Plan
1993 Omnibus Stock Plan
(Full title of plans)
Carl S. Archer, Jr., President and Chief Executive Officer
Aseco Corporation, 500 Donald Lynch Boulevard, Marlboro, MA 01752
(Name and address of agent for service)
(508) 481-8896
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of securities to be registered...........Common Stock, $.01 par value
Amount to be registered (1)....................400,000 shares
Proposed maximum offering
price per share (2).......................$ 9.625
Proposed maximum aggregate
offering price (2)........................$ 3,850,000.00
Amount of registration fee.....................$ 1,166.67
(1) Plus such additional number of shares as may be required
pursuant to the plans in the event of a stock dividend, split-up
of shares, recapitalization or other similar change in the Common
Stock.
(2) Estimated solely for the purpose of calculating the
registration fee, in accordance with Rule 457(h)(1), on the basis
of the average of the high and low sale prices of the Common
Stock as reported on the Nasdaq National Market System on
December 16, 1996.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with
the requirements of Form S-8 and relates to 400,000 shares of
Common Stock, $.01 par value, of Aseco Corporation (the "Company") which
represents the aggregate
increase in the number of shares issuable under the Company's
1993 Omnibus Stock Plan and 1993 Non-Employee Director Stock
Option Plan approved by the Board of Directors of the Company on
May 13, 1996 and subsequently approved by stockholders of the
Company on August 8, 1996. The Company previously filed with the
Securities and Exchange Commission on July 20, 1993, a
Registration Statement on Form S-8 (File No. 33-66250), covering
an aggregate of 751,661 shares of the Company's Common Stock,
including 200,000 shares then reserved for issuance under the
Company's 1993 Omnibus Stock Plan and 35,000 shares then reserved
for issuance under the Company's 1993 Non-Employee Director Stock
Option Plan; on February 1, 1995, a Registration Statement on
Form S-8 (File No. 33-89036), covering an additional 200,000
shares then reserved for issuance under the Company's 1993
Omnibus Stock Plan; and on December 14, 1995, a Registration
Statement on Form S-8 (File No. 33-80425), covering an aggregate
of 560,000 shares of the Company's Common Stock, including
530,000 additional shares then reserved for issuance under the
Company's 1993 Omnibus Stock Plan and 30,000 additional shares
then reserved for issuance under the Company's 1993 Non-Employee
Director Stock Option Plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are hereby incorporated by reference
in this Registration Statement:
(a) The Company's 1996 Annual Report to Stockholders filed
with the Securities and Exchange Commission (the "Commission") on
June 28, 1996, containing the Company's audited financial
statements for its fiscal year ending March 31, 1996;
(b) The Company's Quarterly Reports on Form 10-Q for the
three month periods ended June 30, 1996 and September 30, 1996,
filed with the Commission; and
(c) The description of the Company's Common Stock contained in
(i) the Company's registration statement on Form 8-A filed with the
Commission on February 26, 1993 and (ii) the Company's registration statements
on Form 8-A and Form 8-A/A filed with the Commission on August 26, 1996 and
August 28, 1996, respectively.
In addition, all documents filed by the Company after the
initial filing date of this registration statement pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and prior to the
filing of a post-effective amendment which indicates that all
shares registered hereunder have been sold or which de-registers
all shares then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Officers and Directors
Section 145 of the General Corporation Law of the State of
Delaware provided that a corporation may indemnify a director,
officer, employee or agent against expenses (including attorneys'
fee), judgments, fines and for amounts paid in settlement in
respect of or unsuccessful defense of any action, suit or
proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful.
II-1
<PAGE>
Article Ninth of the Company's Third Restated Certificate of
Incorporation provides that no director of the Company shall be
personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for breach of the director's duty of loyalty, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived an improper
personal benefit. Article Ninth further provides that a
director's personal liability shall be eliminated or limited in
the future to the fullest extent permitted from time to time by
the Delaware General Corporation Law.
Article Tenth of the Company's Third Restated Certificate of
Incorporation provides that the Company shall, to the fullest
extent permitted from time to time under the Delaware General
Corporation Law, indemnify each of its directors and officers
against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in respect of any action,
suit or proceeding in which such director or officer may be
involved or with which he may be threatened, while in office or
thereafter, by reason of his or her actions or omissions in
connection with services to the Company, such indemnification to
include prompt payment of expenses in advance of the final
disposition of any such action, suit or proceeding.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits.
4.1 Third Restated Certificate of Incorporation of the
Company (incorporated by reference from the Company's
Registration Statement on Form S-1 (SEC File No. 33-57644)
initially filed on January 29, 1993).
4.2 Amended and Restated By-Laws of the Company.
4.3 Rights Agreement, dated as of August 15, 1996, between
the Company and State Street Bank and Trust Company, as Rights
Agent, with exhibits (incorporated by reference from the
Company's Registration Statement on Form
8-A filed on August 26, 1996).
5.1 Opinion of Choate, Hall & Stewart as to the legality of
the shares being registered.
10.1 The Company's 1993 Omnibus Stock Plan (as amended and
restated effective as of June 14, 1996).
10.2 The Company's 1993 Non-Employee Director Stock Option
Plan (as amended and restated effective as of May 13, 1996).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
II-2
<PAGE>
24.1 Power of Attorney (included in page II-5).
Item 9. Undertakings
(a) The Company hereby undertakes:
(1) to file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement to include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
(2) that, for the purposes of determining any
liability under the Securities Act of 1933, as amended (the
"Securities Act"), each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) to remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing
of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Company pursuant to the foregoing
provision, or otherwise, the Company has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such securities
being registered, the Company will, unless in the opinion of
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Company certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town
of Marlboro, The Commonwealth of Massachusetts on December 19,
1996.
Aseco Corporation
(Issuer and Employer)
By: /s/ Carl S. Archer, Jr.
- --------------------------
Carl S. Archer, Jr.,
President and Chief
Executive Officer
II-4
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below constitutes and appoints Carl S. Archer,
Jr., Sebastian J. Sicari and Robert V. Jahrling, jointly and
severally, his true and lawful attorneys-in-fact and agents with
full powers of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and
all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed below on
December 19, 1996 by the following persons in the capacities
indicated.
Name Capacity
/s/ Carl S. Archer, Jr. President, Chief Executive Officer
- ----------------------- and Director (Principal Executive Officer)
Carl S. Archer, Jr.
/s/ Sebastian J. Sicari Vice President, Finance and Administration,
- ------------------------ Chief Financial Officer and Treasurer (Principal
Sebastian J. Sicari Financial and Accounting Officer)and Director)
/s/ Sheldon Buckler Director
- ------------------------
Sheldon Buckler
/s/ Sheldon Weinig Director
- ------------------------
Sheldon Weinig
/s/ Gerald L. Wilson Director
- ------------------------
Gerald L. Wilson
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit Number
4.1 Third Restated Certificate of Incorporation of the Company
(incorporated by reference from the Company's Registration
Statement on Form S-1 (SEC File No. 33-57644) initially filed on
January 29, 1993).
4.2 Amended and Restated By-Laws of the Company.
4.3 Rights Agreement, dated as of August 15, 1996, between the
Company and State Street Bank and Trust Company, as Rights Agent,
with exhibits (incorporated by reference from the Company's
Registration Statement on Form 8-A filed on August 26, 1996).
5.1 Opinion of Choate, Hall & Stewart.
10.1 The Company's 1993 Omnibus Stock Plan (as amended and
restated effective as of June 14, 1996).
10.2 The Company's 1993 Non-Employee Director Stock Option Plan
(as amended and restated effective as of May 13, 1996).
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-5).
II-6
DS1-292164
Exhibit 10.2
ASECO CORPORATION
1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Amended and Restated Effective as of May 13, 1996)
1. Purpose. This Non-Qualified Stock Option Plan, to be known as the
1993 Non-Employee Director Stock Option Plan (hereinafter, this "Plan") is
intended to promote the interests of Aseco Corporation (hereinafter, the
"Company") by providing an inducement to obtain and retain the services of
qualified persons who are not employees or officers of the Company to serve as
members of its Board of Directors (the "Board").
2. Available Shares. The total number of shares of Common Stock, par
value $.01 per share, of the Company (the "Common Stock"), for which options
may be granted under this Plan shall not exceed 165,000 shares, subject to
adjustment in accordance with paragraph 10 of this Plan. Shares subject to
this Plan are authorized but unissued shares or shares that were once issued
and subsequently reacquired by the Company. If any options granted under this
Plan are surrendered before exercise or lapse without exercise, in whole or in
part, the shares reserved therefor shall continue to be available under this
Plan.
3. Administration. This Plan shall be administered by the Board or by a
committee appointed by the Board (the "Committee"). In the event the Board
fails to appoint or refrains from appointing a Committee, the Board shall have
all power and authority to administer this Plan. In such event, the word
"Committee" wherever used herein shall be deemed to mean the Board. The
Committee shall, subject to the provisions of the Plan, have the power to
construe this Plan, to determine all questions hereunder, and to adopt and
amend such rules and regulations for the administration of this Plan as it may
deem desirable.
4. Granting of Options.
(a) Initial Grant. On the effective date of a registration
statement on Form S-1 covering the initial public offering of the Company's
Common Stock (the "Effective Date"), each person who is then a member of the
Board, and who is not a current or former employee or officer of the Company,
shall be automatically granted, without further action by the Board, an option
to purchase 3,000 shares of the Common Stock.
(b) Initial Grant to New Directors. Subject to the availability of
shares under this Plan, each person who is first elected as a member of the
Board after May 15, 1996 and during the term of this Plan, and who is not on
the date of such election a current or former employee or officer of the
Company, shall be automatically granted an option to purchase 15,000 shares of
the Common Stock on the date of his or her first election as a member of the
Board.
(c) Automatic Grants. On April 30 of each year commencing April 30,
1996 and during the term of this Plan, each person who is then serving on the
Board, and who is not a current or former employee or officer of the Company,
shall automatically be granted an option to purchase 2,500 shares of the Common
Stock, subject to the availability of shares under this Plan.
(d) Initial Option Adjuster. On May 15, 1996, each person who is
serving on the Board as of such date, who is not a current or former employee
or officer of the Company and who is to serve on the Board following the 1996
Annual Meeting of Stockholders of the Company shall automatically be granted an
option to purchase an additional 10,000 shares of Common Stock.
Except for the specific options referred to above, no other options shall
be granted under this Plan.
<PAGE>
5. Option Price. The purchase price of the stock covered by an option
granted pursuant to this Plan shall be 100% of the fair market value of such
shares on the day the option is granted. The option price will be subject to
adjustment in accordance with the provisions of paragraph 10 of this Plan. For
purposes of this Plan, if, at the time an option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if the Common Stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the Common
Stock on the Nasdaq National Market System, if the Common Stock is not then
traded on a national securities exchange; or (iii) the closing bid price (or
average of bid prices) last quoted (on that date) by an established quotation
service for over-the-counter National Market System. If, at the time an option
is granted under the Plan, the Company's stock is not publicly traded, "fair
market value" shall be the fair market value on the date the option is granted
as determined by the Board in good faith.
6. Period of Option. Unless sooner terminated in accordance with the
provisions of paragraph 8 of this Plan, an option granted hereunder shall
expire on the date which is ten (10) years after the date of grant of the
option.
7. Vesting of Shares and Non-Transferability of Options.
(a) Vesting. Options granted under this Plan shall not be
exercisable until they become vested. Options granted pursuant to Sections
4(b), 4(c) and 4(d) of this Plan shall vest in the optionee and thus become
exercisable immediately by the optionee in two annual installments of 50% each
on the first and second anniversary of the date of grant. Options granted
pursuant to Section 4(a) of the Plan shall be 100% vested on the date of grant
and thus be fully exercisable at any time prior to their expiration.
(b) Legend on Certificates. The certificates representing such
shares shall carry such appropriate legend, and such written instructions shall
be given to the Company's transfer agent, as may be deemed necessary or
advisable by counsel to the Company in order to comply with the requirements of
the Securities Act of 1933 or any state securities laws.
(c) Non-transferability. Any option granted pursuant to this Plan
shall not be assignable or transferable other than by will or the laws of
descent and distribution or pursuant to a domestic relations order and shall be
exercisable during the optionee's life time only by him or her.
8. Termination of Option Rights.
(a) In the event an optionee ceases to be a member of the Board for
any reason other than death or permanent disability, any then unexercised
portion of options granted to such optionee shall, to the extent not then
vested, immediately terminate and become void; any portion of an option which
is then vested but has not been exercised at the time the optionee so ceases to
be a member of the Board may be exercised, to the extent it is then vested, by
the optionee within two years of the date the optionee ceased to be a member of
the Board; and all options shall terminate after such two year period has have
expired.
(b) In the event that an optionee ceases to be a member of the Board
by reason of his or her death or permanent disability, any option granted to
such optionee shall be immediately, and automatically accelerated and become
fully vested and all unexercised options shall be exercisable by the optionee
(or by the optionee's personal representative, heir or legatee, in the event of
death) until the scheduled expiration date of the option.
<PAGE>
9. Exercise of Option. Subject to the terms and conditions of this Plan
and the option agreements, an option granted hereunder shall, to the extent
then exercisable, be exercisable in whole or in part by giving written notice
to the Company by mail or in person addressed to Aseco Corporation, 500 Donald
Lynch Boulevard, Marlboro, Massachusetts 01752, Attention: Chief Financial
Officer, stating the number of shares with respect to which the option is being
exercised, accompanied by payment in full for such shares. Payment may be (a)
in United States dollars in cash or by check, (b) in whole or in part in shares
of Common Stock of the Company already owned by the person or persons
exercising the option or shares subject to the option being exercised (subject
to such restrictions and guidelines as the Board may adopt from time to time),
valued at fair market value determined in accordance with the provisions of
paragraph 5 or (c) consistent with applicable law, through the delivery of an
assignment to the Company of a sufficient amount of the proceeds from the sale
of the Common Stock acquired upon exercise of the option and an authorization
to the broker or selling agent to pay that amount to the Company, which sale
shall be at the participant's direction at the time of exercise. There shall
be no such exercise at any one time as to fewer than one hundred (100) shares
or all of the remaining shares then purchasable by the person or persons
exercising the option, if fewer than one hundred (100) shares. The Company's
transfer agent shall, on behalf of the Company, prepare a certificate or
certificates representing such shares acquired pursuant to exercise of the
option, shall register the optionee as the owner of such shares on the books of
the Company and shall cause the fully executed certificates(s) representing
such shares to be delivered to the optionee as soon as practicable after
payment of the option price in full. The holder of an option shall not have
any rights of a stockholder with respect to the shares covered by the option,
except to the extent that one or more certificates for such shares shall be
delivered to him or her upon the due exercise of the option.
10. Adjustments Upon Changes in Capitalization and Other Matters. Upon
the occurrence of any of the following events, an optionee's rights with
respect to options granted to him or her hereunder shall be adjusted as
hereinafter provided:
(a) If, after January 18, 1993, the shares of Common Stock shall be
subdivided or combined into a greater smaller number of shares or if the
Company shall issue any shares of Common Stock as a stock dividend on its
outstanding Common Stock, the number of shares of Common Stock deliverable upon
the exercise of options shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase
price per share to reflect such subdivision, combination or stock dividend. No
adjustment, however, shall be made for the 1-for-2.4 reverse split of the
Common Stock declared by the Board on January 18, 1993.
(b) Merger; Consolidation; Liquidation; Sale of Assets. In the
event the Company is merged into or consolidated with another corporation under
circumstances where the Company is not the surviving corporation, or if the
Company is liquidated or sells or otherwise disposes of all or substantially
all of its assets to another corporation while unexercised options remain
outstanding under the Plan, (i) subject to the provisions of clauses (iii),
(iv) and (v) below, after the effective date of such merger, consolidation or
sale, as the case may be, each holder of an outstanding option shall be
entitled, upon exercise of such option, to receive in lieu of shares of Common
Stock, shares of such stock or other securities as the holders of shares of
Common Stock received pursuant to the terms of the merger, consolidation or
sale; or (ii) the Board may waive any discretionary limitations imposed with
respect to the exercise of the option so that all options from and after a date
prior to the effective date of such merger, consolidation, liquidation or sale,
as the case may be, specified by the Board, shall be exercisable in full; or
(iii) all outstanding options may be cancelled by the Board as of the effective
date of any such merger, consolidation, liquidation or sale, provided that
notice of such cancellation shall be given to each holder of an option, and
each such holder thereof shall have the right to exercise such option in full
(without regard to any discretionary limitations imposed with respect to the
option)
<PAGE>
during a 30-day period preceding the effective date of such merger,
consolidation, liquidation
or sale; or (iv) all outstanding options may be cancelled by the Board as of
the date of any such merger, consolidation, liquidation or sale, provided that
notice of such cancellation shall be given to each holder of an option and each
such holder thereof shall have the right to exercise such option but only to
the extent exercisable in accordance with any discretionary limitations imposed
with respect to the option prior to the effective date of such merger,
consolidation, liquidation or sale; or (v) the Board may provide for the
cancellation of all outstanding options and for the payment to the holders
thereof of some part or all of the amount by which the value thereof exceeds
the payment, if any, which the holder would have been required to make to
exercise such option.
(c) Issuance of Securities. Except as expressly provided herein, no
issuance by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall affect, and no adjustment
by reason thereof shall be made with respect to, the number or price of shares
subject to options. No adjustments shall be made for dividends paid in cash or
in property other than securities of the Company.
(d) Adjustments. Upon the happening of any of the foregoing events,
the class and aggregate number of shares set forth in paragraph 2 of this Plan
that are subject to options which previously have been or subsequently may be
granted under this Plan shall also be appropriately adjusted to reflect such
events. The Board shall determine the specific adjustments to be made under
this paragraph 10 and its determination shall be conclusive.
11. Restrictions on Issuance of Shares. Notwithstanding the provisions
of paragraphs 4 and 9 of this Plan, the Company shall have no obligation to
deliver any certificate or certificates upon exercise of an option until one of
the following conditions shall be satisfied:
(i) The shares with respect to which the option has been exercised are at
the time of the issue of such shares effectively registered under applicable
Federal and state securities laws as now in force or hereafter amended; or
(ii) Counsel for the Company shall have given an opinion that such shares
are exempt from registration under Federal and state securities laws as now in
force or hereafter amended; and the Company has complied with all applicable
laws and regulations with respect thereto, including without limitation all
regulations required by any stock exchange upon which the Company's outstanding
Common Stock is then listed.
12. Representation of Optionee. If requested by the Company, the
optionee shall deliver to the Company written representations and warranties
upon exercise of the option that are necessary to show compliance with Federal
and state securities laws, including representations and warranties to the
effect that a purchase of shares under the option is made for investment and
not with a view to their distribution (as that term is used in Securities Act
of 1933).
13. Option Agreement. Each option granted under the provisions of this
Plan shall be evidenced by an option agreement, which agreement shall be duly
executed and delivered on behalf for the Company and by the optionee to whom
such option is granted. The option agreement shall contain such terms,
provisions and conditions not inconsistent with this Plan as may be determined
by the officer executing it.
14. Termination and Amendment of Plan. Options may no longer be granted
under this Plan after January 18, 2003, and this Plan shall terminate when all
options granted or to be granted hereunder are no longer outstanding. The
Board may at any time terminate this Plan or make such modification or
amendment thereof as it deems advisable; provided, however, that the Board may
not, without approval by the affirmative vote of the holders of a majority of
the
<PAGE>
shares of Common Stock present in person or by proxy and entitled to vote at
the meeting, (a) increase the maximum number of shares for which options may be
granted under this Plan (except by adjustment pursuant to Section 10), (b)
materially modify the requirements as to eligibility to participate in this
Plan, (c) materially increase benefits accruing to option holders under this
Plan, or (d) amend this Plan in any manner which would cause Rule 16b-3 to
become inapplicable to this Plan; and provided further that the provisions of
this Plan specified in Rule 16b-3(c)(2)(ii)(A) (or any successor or amended
provision thereof) under the Securities Exchange Act of 1934 (including without
limitation, provisions as to eligibility, amount, price and timing of awards)
may not be amended more than once every six months, other than to comport with
changes in the Internal Revenue Code, the Employee Retirement Income Security
Act, or the rules thereunder. Termination or any modification or amendment of
this Plan shall not, without consent of a participant, affect his or her rights
under an option previously granted to him or her.
15. Withholding of Income Taxes. Upon the exercise of an option, the
Company, in accordance with Section 3402(a) of the Internal Revenue Code, may
require the optionee to pay withholding taxes in respect of amounts considered
to be compensation includible in the optionee's gross income.
16. Compliance with Regulations. It is the Company's intent that the
Plan comply with all respects with Rule 16b-3 under the Securities Exchange Act
of 1934 (or any successor or amended version thereof) and any applicable
Securities and Exchange Commission interpretations thereof. If any provision
of this Plan is deemed not to be in compliance with Rule 16b-3, the provision
shall be null and void.
17. Governing Law. The validity and construction of this Plan and the
instruments evidencing options shall be governed by the laws of The
Commonwealth of Massachusetts, without giving effect to the principles of
conflicts of law thereof.
Date Approved by Board of
Directors of the Company: May 13, 1996
Date Approved by Stockholders
of the Company: August 8, 1996
1-195651.1
Exhibit 5.1
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
TELEPHONE (617) 248-5000
FACSIMILE (617) 248-4000
TELEX 49615860
December 19, 1996
Aseco Corporation
500 Donald Lynch Boulevard
Marlboro, MA 01752
Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-8 (the "Registration Statement") to be filed on December
19, 1996 by Aseco Corporation. (the "Company") under the Securities Act of
1933, as amended, for registration under said Act of 400,000 shares of common
stock, $.01 par value (the "Common Stock"), of the Company.
We are familiar with the Company's Third Restated Certificate of
Incorporation, its By-Laws, as amended, and its corporate minute book, as well
as the Registration Statement. We have also examined such other documents,
records and certificates and made such further investigation as we have deemed
necessary for the purposes of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Company under its 1993 Non-Employee
Director Stock Option Plan and its 1993 Omnibus Stock Plan, as in effect on the
date hereof, when issued against receipt of the agreed purchase price therefor,
will be legally issued, fully paid and nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement and consent to the filing of this opinion as an exhibit
to the Registration Statement and to all references to this Firm included
therein.
Very truly yours,
CHOATE, HALL & STEWART
DS1-308389
Exhibit 10.1
ASECO CORPORATION
1993 OMNIBUS STOCK PLAN
(Amended and Restated Effective as of June 14, 1996)
1. Purpose. This 1993 Stock Plan (the "Plan") is intended to provide
incentives (a) to the officers and other employees of Aseco Corporation (the
"Company"), its parent (if any) and any present or future subsidiaries of the
Company (collectively, "Related Corporations") by providing them with
opportunities to purchase stock in the Company pursuant to options which
qualify as "incentive stock options" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), granted hereunder ("ISO" or "ISOs"); (b)
to directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to purchase stock in the
Company pursuant to options granted hereunder which do not qualify as ISOs
("Non-Qualified Option" or "Non-Qualified Options"); (c) to directors,
officers, employees and consultants of the Company and Related Corporations by
providing them with awards of stock in the Company ("Awards"); and (d) to
directors, officers, employees and consultants of the Company and Related
Corporations by providing them with opportunities to make direct purchases of
stock in the Company ("Purchases"). Both ISOs and Non-Qualified Options are
referred to hereafter individually as an "Option" and collectively as
"Options." As used herein, the terms "parent" and "subsidiary" mean "parent
corporation" and "subsidiary corporation" as those terms are defined in Section
425 of the Code.
2. Administration of the Plan. (a) The Plan shall be administered by
the Board of Directors of the Company (the "Board"). The Board may appoint a
Compensation Committee (the "Committee") of two or more of its members to
administer this Plan. In the event the Company registers any class of any
equity security pursuant to Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), each member of the Committee shall be a
"disinterested person" as defined in Rule 16b-3 under the Exchange Act and an
"outside director" as defined in Section 162(m) of the Code. Subject to
ratification of the grant of each Option or Award and of the authorization of
each Purchase by the Board (if so required by applicable state law), and
subject to the terms of the Plan, the Committee, if so appointed, shall have
the authority to (i) determine the employees of the Company and Related
Corporations (from among the class of employees eligible under paragraph 3 to
receive ISOs) to whom ISOs may be granted, and to determine (from among the
class of individuals and entities eligible under paragraph 3 to receive Non-
Qualified Options and Awards and to make Purchases) to whom Non-Qualified
Options or Awards may be granted and who may make Purchases; (ii) determine the
time or times at which Options or Awards may be granted or Purchases made;
(iii) determine the option price of shares subject to each Option, which price
with respect to ISOs shall not be less than the minimum specified in paragraph
6, and the purchase price of shares subject to each Purchase; (iv) determine
whether each Option granted shall be an ISO or a Non-Qualified Option; (v)
determine (subject to paragraph 7) the time or times when each Option shall
become exercisable and the duration of the exercise period; (vi) determine
whether restrictions such as repurchase options are to be imposed on shares
subject to Options, Awards and Purchases, and the nature of such restrictions,
if any, and (vii) interpret the Plan and prescribe and rescind rules and
regulations relating to it. If the Committee determines to issue a Non-
Qualified Option, it shall take whatever actions it deems necessary, under
Section 422 of the Code and the regulations promulgated thereunder, to ensure
that such Option is not treated as an ISO. The interpretation and construction
by the Committee of any provisions of the Plan or of any Option, Award or
authorization for any Purchase granted under it shall be final unless otherwise
determined by the Board. The Committee may from time to time adopt such rules
and regulations for carrying out the Plan as it may deem best. No member of
the Board or the Committee shall be liable for any action or determination made
in good faith with respect to the Plan or any Option, Award or authorization
for Purchase granted under it.
<PAGE>
(b) The Committee may select one of its members as its chairman, and
shall hold meetings at such time and places as it may determine. Acts by a
majority of the Committee, or acts reduced to or approved in writing by a
majority of the members of the Committee, shall be the valid acts of the
Committee. All references in this Plan to the Committee shall mean the Board
if there is no Committee so appointed. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause), and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the Committee
and thereafter directly administer the Plan.
3. Eligible Employees and Others. ISOs may be granted to any officer or
other employee of the Company or any Related Corporation. Those directors of
the Company who are not employees may not be granted ISOs under the Plan. Non-
Qualified Options and Awards may be granted to, and Purchases may be made by,
any director (whether or not an employee), officer, employee or consultant of
the Company or any Related Corporation. The Committee may take into
consideration an optionee's individual circumstances in determining whether to
grant an ISO or a Non-Qualified Option or to authorize a Purchase. Granting of
any Option or Award to, or any Purchase by, any individual or entity shall
neither entitle that individual or entity to, nor disqualify him from,
participation in any other grant of Options or Awards, or in any other
Purchase.
4. Stock. The stock subject to Options, Awards and Purchases shall be
authorized but unissued shares of Common Stock of the Company, par value $.01
per share (the "Common Stock"), or shares of Common Stock re-acquired by the
Company in any manner. The aggregate number of shares which may be issued
pursuant to the Plan is 1,230,000, subject to adjustment as provided in
paragraph 13. Any such shares may be issued as ISOs, Non-Qualified Options or
Awards, or to persons or entities making Purchases, so long as the aggregate
number of shares so issued does not exceed such number, as adjusted. If any
Option granted under the Plan shall expire or terminate for any reason without
having been exercised in full or shall cease for any reason to be exercisable
in whole or in part, the unpurchased shares subject thereto shall again be
available for grants of Options or Awards and for Purchases under the Plan.
5. Granting of Options. Options may be granted under the Plan at any
time on or after January 18, 1993 and prior to January 18, 2003. Any such
grants of ISOs shall be subject to the receipt, within 12 months of January 18,
1993, of the approval of Stockholders as provided in paragraph 15. The date of
grant of an Option under the Plan will be the date specified by the Committee
at the time it awards the Option; provided, however, that such date shall not
be prior to the date of award. The Committee shall have the right, with the
consent of the optionee, to convert an ISO granted under the Plan to a Non-
Qualified Option pursuant to paragraph 16. Any other provision of the Plan
notwithstanding, the number of shares of Common Stock for which options may be
granted in any fiscal year of the Company to any participant shall not exceed
100,000.
6. Minimum Option Price: ISO Limitations.
A. The price per share specified in the agreement relating to each
ISO granted under the Plan shall not be less than the fair market value per
share of Common Stock on the date of such grant. In the case of an ISO to be
granted to an employee owning stock possessing more than ten percent of the
total combined voting power of all classes of stock of the Company or any
Related Corporation, the price per share specified in the agreement relating to
such ISO shall not be less than 110 percent of the fair market value of Common
Stock on the date of grant.
B. In no event shall the aggregate fair market value (determined at
the time the option is granted) of Common Stock for which ISOs granted to any
employee are exercisable for the first time by such employee during any
calendar year (under all stock option plans of the Company and any Related
Corporation) exceed $100,000.
<PAGE>
C. If, at the time an Option is granted under the Plan, the
Company's Common Stock is publicly traded, "fair market value" shall be
determined as of the last business day for which the prices or quotes discussed
in this sentence are available prior to the date such Option is granted and
shall mean (i) the average (on that date) of the high and low prices of the
Common Stock on the principal national securities exchange on which the Common
Stock is traded, if such stock is then traded on a national securities
exchange; or (ii) the last reported sale price (on that date) of the Common
Stock on the NASDAQ National Market System, if the Common Stock is not then
traded on a national securities exchange; or (iii) the closing bid price (or
average of bid prices) last quoted (on that date) by an established quotation
service for over-the-counter securities, if the Common Stock is not reported on
the NASDAQ National Market System or on a national securities exchange.
However, if the Common Stock is not publicly traded at the time an Option is
granted under the Plan, "fair market value" shall be deemed to be the fair
value of the Common Stock as determined by the Committee after taking into
consideration all factors which it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in
paragraphs 9 and 10, each Option shall expire on the date specified by the
Committee, but not more than ten years from the date of grant and in the case
of ISOs granted to an employee owning stock possessing more than ten percent of
the total combined voting power of all classes of stock of the Company or any
Related Corporation, not more than five years from date of grant. Subject to
earlier termination as provided in paragraphs 9 and 10, the term of each ISO
shall be the term set forth in the original instrument granting such ISO,
except with respect to any part of such ISO that is converted into a Non-
Qualified Option pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraphs 9
through 12, each Option granted under the Plan shall be exercisable as follows:
A. The Option shall either be fully exercisable on the date of
grant or shall become exercisable thereafter in such installments as the
Committee may specify.
B. Once an installment becomes exercisable it shall remain
exercisable until expiration or termination of the Option, unless otherwise
specified by the Committee.
C. Each Option or installment may be exercised at any time or from
time to time, in whole or in part, for up to the total number of shares with
respect to which it is then exercisable.
D. The Committee shall have the right to accelerate the date of
exercise of any installment; provided that the Committee shall not accelerate
the exercise date of any installment of any Option granted to any employee as
an ISO (and not previously converted into a Non-Qualified Option pursuant to
paragraph 16) if such acceleration would violate the annual vesting limitation
contained in Section 422(d) of the Code which provides generally that the
aggregate fair market value (determined at the time the option is granted) of
the stock with respect to which ISOs granted to any employee are exercisable
for the first time by such employee during any calendar year (under all plans
of the Company and any Related Corporation) shall not exceed $100,000.
9. Termination of Employment. If an ISO optionee ceases to be employed
by the Company or any Related Corporation other than by reason of death or
disability as provided in paragraph 10, no further installments of his ISOs
shall become exercisable, and his ISOs shall terminate after the passage of 60
days from the date of termination of his employment, but in no event later than
on their specified expiration dates except to the extent that such ISOs (or
unexercised installments thereof) have been converted into Non-Qualified
Options pursuant to paragraph 16. Leave of absence with the written approval
of the Committee shall not be
<PAGE>
considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Company or any Related Corporation
to continue the employment of the employee after the approved period of
absence. Employment shall also be considered as continuing uninterrupted
during any other bona fide leave of absence (such as those attributable to
illness, military obligations or governmental service) provided that the period
of such leave does not exceed 90 days or, if longer, any period during which
such optionee's right to reemployment is guaranteed by statute. Nothing in the
Plan shall be deemed to give any grantee of any Option or Award, or any person
or entity entitled to make a Purchase, the right to be retained in employment
or other service by the Company or any Related Corporation for any period of
time. ISOs granted under the Plan shall not be affected by any change of
employment within or among the Company and Related Corporations, so long as the
optionee continues to be an employee of the Company or any
Related Corporation. In granting any Non-Qualified Option, the Committee may
specify that such Non-Qualified Option shall be subject to the restrictions set
forth herein with respect to ISOs, or to such other termination or cancellation
provisions as the Committee may determine.
10. Death; Disability; Dissolution. If an optionee ceases to be employed
by the Company and all Related Corporations by reason of his death, any Option
of his may be exercised, to the extent of the number of shares with respect to
which he could have exercised it on the date of his death, by his estate,
personal representative or beneficiary who has acquired the Option by will or
by the laws of descent and distribution, at any time prior to the earlier of
the Option's specified expiration date or 180 days from the date of the
optionee's death.
If an optionee ceases to be employed by the Company and all Related
Corporations by reason of his disability, he shall have the right to exercise
any Option held by him on the date of termination of employment, to the extent
of the number of shares with respect to which he could have exercised it on
that date, at any time prior to the earlier of the Option's specified
expiration date or 180 days from the date of the termination of the optionee's
employment. For the purposes of the Plan, the term "disability" shall have the
meaning assigned to it in Section 22(e)(3) of the Code or any successor
statute.
In the case of a partnership, corporation or other entity holding a Non-
Qualified Option, if such entity is dissolved, liquidated, becomes insolvent or
enters into a merger or acquisition with respect to which such optionee is not
the surviving entity, such Option shall terminate immediately.
11. Assignability. No Option shall be assignable or transferable by the
optionee except by will or by the laws of descent and distribution, and during
the lifetime of the Optionee each Option shall be exercisable only by him.
12. Terms and Conditions of Options. Options shall be evidenced by
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. The Committee may from time to time confer
authority and responsibility on one or more of its own members and/or one or
more officers of the Company to execute and deliver such instruments. The
proper officers of the Company are authorized and directed to take any and all
action necessary or advisable from time to time to carry out the terms of such
instruments.
<PAGE>
13. Adjustments. Upon the happening of any of the following described
events, an optionee's rights with respect to Options granted to him hereunder
shall be adjusted as hereinafter provided:
A. In the event shares of Common Stock shall be sub-divided or
combined into a greater or smaller number of shares (other than the 1-for-2.4
reverse split of the Common Stock approved by the Board on January 18, 1992) or
if, upon a merger, consolidation, reorganization, split-up, liquidation,
combination, recapitalization or the like of the Company, the shares of Common
Stock shall be exchanged for other securities of the Company or of another
corporation, each optionee shall be entitled, subject to the conditions herein
stated, to purchase such number of shares of common stock or amount of other
securities of the Company or such other corporation as were exchangeable for
the number of shares of Common Stock which such optionee would have been
entitled to purchase except for such action, and appropriate adjustments shall
be made in the purchase price per share to reflect such subdivision,
combination, or exchange.
B. In the event the Company shall issue any of its shares as a
stock dividend upon or with respect to the shares of stock of the class which
shall at the time be subject to option hereunder, each optionee upon exercising
an Option shall be entitled to receive (for the purchase price paid upon such
exercise) the shares as to which he is exercising his Option and, in addition
thereto (at no additional cost), such number of shares of the class or classes
in which such stock dividend or dividends were declared or paid, and such
amount of cash in lieu of fractional shares, as he would have received if he
had been the holder of the shares as to which he is exercising his Option at
all times between the date of grant of such Option and the date of its
exercise.
C. Notwithstanding the foregoing, any adjustments made pursuant to
subparagraph A or B shall be made only after the Committee, after consulting
with counsel for the Company, determines whether such adjustments with respect
to ISOs will constitute a "modification" of such ISOs as that term is defined
in Section 425 of the Code, or cause any adverse tax consequences for the
holders of such ISOs. No adjustments shall be made for dividends paid in cash
or in property other than securities of the Company.
D. No fractional shares shall actually be issued under the Plan.
Any fractional shares which, but for this subparagraph D, would have been
issued to an optionee pursuant to an Option, shall be deemed to have been
issued and immediately sold to the Company for their fair market value, and the
optionee shall receive from the Company cash in lieu of such fractional shares.
E. Upon the happening of any of the foregoing events described in
subparagraphs A or B above, the class and aggregate number of shares set forth
in paragraph 4 hereof which are subject to Options which previously have been
or subsequently may be granted under the Plan shall also be appropriately
adjusted to reflect the events specified in such subparagraphs. The Committee
shall determine the specific adjustments to be made under this paragraph 13,
and subject to paragraph 2, its determination shall be conclusive.
14. Means of Exercising Options. An Option (or any part or installment
thereof) shall be exercised by giving written notice to the Company at its
principal office address. Such notice shall identify the Option being
exercised and specify the number of shares as to which such Option is being
exercised, accompanied by full payment of the purchase price therefor either
(a) in United States dollars in cash or by check, or (b) at the discretion of
the Committee, through delivery of shares of Common Stock having fair market
value equal as of the date of the exercise to the cash exercise price of the
Option, or (c) at the discretion of the Committee, by delivery of the
optionee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable Federal rate, as defined
in section 1274(d) of the Code, or (d) at the discretion of the Committee, by
any combination of (a), (b) and (c) above. If the Committee exercises its
discretion to permit payment of the
<PAGE>
exercise price of an ISO by means of the methods set forth in clauses (b) or
(c) of the preceding sentence, such discretion shall be exercised in writing at
the time of the grant of the ISO in question. The holder of an Option shall
not have the rights of a shareholder with respect to the shares covered by his
Option until the date of issuance of a stock certificate to him for such
shares. Except as expressly provided above in paragraph 13 with respect to
change in capitalization and stock dividends, no adjustment shall be made for
dividends or similar rights for which the record date is before the date such
stock certificates is issued.
15. Term and Amendment of Plan. This Plan was adopted by the Board on
January 18, 1993, and was approved by the holders of a majority of the
outstanding voting stock of the Company on January 29, 1994. The Plan was
subsequently amended and restated by the Board effective January 12, 1994,
subject to approval of the amendments thereto by the stockholders of the
Company on or before January 12, 1995. The Plan shall expire on January 18,
2003 (except as to Options outstanding on that date). The Board may terminate
or amend the Plan in any respect at any time, except that, any amendment that
(a) increases the total number of shares that may be issued under the Plan
(except by adjustment pursuant to paragraph 13); (b) changes the class of
persons eligible to participate in the Plan, or (c) materially increases the
benefits to participants under the Plan, shall be subject to approval by
Stockholders obtained within 12 months before or after the Board adopts a
resolution authorizing any of the foregoing amendments, and shall be null and
void if such approval is not obtained. Except as provided in the fourth
sentence of this paragraph 15, in no event may action of the Board of
Stockholders alter or impair the rights of an optionee, purchaser or Award
recipient without his consent, under any Option, Purchase or Award previously
granted to or made by him.
16. Conversion of ISOs into Non-Qualified Options: Termination of ISOs.
The Committee, at the written request of any optionee, may in its discretion
take such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such Options.
At the time of such conversion, the Committee (with the consent of the
Optionee) may impose such conditions on the exercise of the resulting Non-
Qualified Options as the Committee in its discretion may determine, provided
that such conditions shall not be inconsistent with this Plan. Nothing in the
Plan shall be deemed to give any optionee the right to have such optionee's
ISOs converted into Non-Qualified Options, and no such conversion shall occur
until and unless the Board takes appropriate action. The Committee, with the
consent of the optionee, may also terminate any portion of any ISO that has not
been exercised at the time of such termination.
17. Application of Funds. The proceeds received by the Company from the
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
18. Governmental Regulation. The Company's obligation to sell and
deliver shares of the Common Stock under this Plan is subject to the approval
of any governmental authority required in connection with the authorization,
issuance or sale of such shares.
19. Withholding of Additional Income Taxes. The Company, in accordance
with Section 3402(a) of the Code, may, upon exercise of a Non-Qualified Option,
the grant of an Award, the making of a Purchase of Common Stock for less than
its fair market value, or the making of a Disqualifying Disposition (as defined
in paragraph 20) require the optionee exercising such Option, Award recipient
or purchaser to pay additional withholding taxes in respect of the amount that
is considered compensation includible in such person's gross income.
<PAGE>
20. Notice to Company of Disqualifying Disposition. Each employee who
receives ISOs shall agree to notify the Company in writing immediately after
the employee makes a disqualifying disposition of any Common Stock received
pursuant to the exercise of an ISO (a "Disqualifying disposition").
Disqualifying Disposition means any disposition (including any sale) of such
stock before the later of (a) two years after the employee was granted the ISO
under which he acquired such stock, or (b) one year after the employee acquired
such stock by exercising such ISO. If the Employee has died before such stock
is sold, these holding period requirements do not apply and no Disqualifying
Disposition will thereafter occur.
21. Governing Laws; Construction. The validity and construction of the
Plan and the instruments evidencing Options, Awards and Purchases shall be
governed by the laws of The Commonwealth of Massachusetts. In construing this
Plan, the singular shall include the plural and the masculine gender shall
include the feminine and neuter, unless the context otherwise requires.
DS1-5840
Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) for the registration of 400,000 shares of common stock pertaining to
the 1993 Omnibus Stock Plan, 1993 Non-Employee Director Stock Option Plan, 1993
Employee Stock Purchase Plan and 1986 Incentive Stock Option Plan of Aseco
Corporation of our report dated May 10, 1996, except for Note L, as to which
the date is June 14, 1996, with respect to the consolidated financial
statements and schedule of Aseco Corporation included in its Annual Report
(Form 10-K) for the year ended March 31, 1996, filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
December 17, 1996
Last Amended March 22, 1994
AMENDED AND RESTATED BY-LAWS
OF
ASECO CORPORATION
ARTICLE I.
Certificate of Incorporation
These by-laws, the powers of the corporation and of its directors and
stockholders, and all matters concerning the conduct and regulation of the
business of the corporation shall be subject to such provisions in regard
thereto as are set forth in the certificate of incorporation filed pursuant to
the General Corporation Law of Delaware which is hereby made a part of these
by-laws.
The term "certificate of incorporation" in these by-laws, unless the
context requires otherwise, includes not only the original certificate of
incorporation filed to create the corporation but also all other certificates,
agreements of merger or consolidation, plans of reorganization, or other
instruments, howsoever designated, filed pursuant to the General Corporation
Law of Delaware which have the effect of amending or supplementing in some
respect the corporation's original certificate of incorporation.
ARTICLE II.
Annual Meeting
The annual meeting of stockholders shall be held within six months of the
end of the previous fiscal year of the corporation (as established in Article
XXIV of these by-laws) within or without the State of Delaware, on such date,
and at such time as shall be fixed by the board of directors and specified in
the notice of the meeting. Purposes for which an annual meeting is to be held,
in addition to those prescribed by law, by the certificate of incorporation or
by these by-laws, may be specified by the directors or the president and shall
be included in the notice of the meeting. If the board of directors determines
that, in the interest of an informed stockholder vote on any matter, it is
appropriate to adjourn the annual meeting of stockholders to a later date in
order to make available information materially relevant to consideration of
such matter, the president or other officer presiding at such meeting may defer
any action on such matter and, without a stockholder vote on the matter of
adjournment, adjourn the meeting for the purpose of considering and acting on
such matter at a session to be convened at a later date. When the annual
meeting is adjourned to another time or place, 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. If the adjournment is for more than thirty
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.
<PAGE>
ARTICLE III.
Special Meetings of Stockholders
Special meetings of the stockholders may be held either within or without
the State of Delaware, at such time and place and for such purposes as shall be
specified in a call for such meeting made by the board of directors, the chief
executive officer or the president of the corporation or by the secretary
within l0 days after receipt of the written request of a majority of the
directors.
ARTICLE IV.
Notice of Stockholders' Meetings
Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, which notice shall be
given not less than ten nor more than sixty days before the date of the
meeting, except where longer notice is required by law, to each stockholder
entitled to vote at such meeting, by leaving such notice with him or by mailing
it, postage prepaid, directed to him at his address as it appears upon the
records of the corporation. In case of the death, absence, incapacity or
refusal of the secretary, such notice may be given by a person designated
either by the secretary or by the person or persons calling the meeting or by
the board of directors. When a meeting is adjourned to another time or place,
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 which might have
been transacted at the original meeting. If the adjournment is for more than
thirty 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.
An affidavit of the secretary or an assistant secretary or of the transfer
agent of the corporation that the notice has been given shall, in the absence
of fraud, be prima facie evidence of the facts stated therein.
ARTICLE V.
Quorum of Stockholders; Stockholder List
At any meeting of the stockholders, holders present or represented by
proxy at the commencement of such meeting of a majority in interest of all
shares issued and outstanding and entitled to vote at the meeting shall
constitute a quorum, but holders of a lesser interest may adjourn any meeting
from time to time, and the meeting may be held as adjourned without further
notice. Shares represented at a meeting as to which the holder has no voting
power with respect to one or more matters (such as in the case of a broker non-
vote) will be deemed present for purposes of establishing a quorum for the
meeting. When a quorum is present at any meeting a majority of the stock
present or represented and voting for or against a matter shall, except where a
larger vote is required by law, by the certificate of incorporation or by these
by-laws, decide any question (other than an election of directors) brought
before such meeting.
<PAGE>
The secretary or other officer having charge of the stock ledger shall
prepare and make, at least ten 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 days prior to the
meeting, either at a place within the city or town where the meeting is to be
held, which place shall have been specified in the notice of the meeting, or,
if not so specified, at the place where the meeting is to be held. Said list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof and may be inspected by any stockholder who is present. The
stock ledger shall be the only evidence as to who are the stockholders entitled
to examine the stock ledger, the list of stockholders required by this Article
or the books of the corporation, or the stockholders entitled to vote in person
or by proxy at any meeting of stockholders.
ARTICLE VI.
Proxies and Voting
Except as otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock held by such stockholder. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person
or persons to act for him by proxy but (except as otherwise expressly permitted
by law) no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period or the proxy (a) states that it
is irrevocable and (b) is coupled with an interest sufficient in law to support
an irrevocable power.
Prior to, but not after, the consummation of an offer and sale of Common
Stock of the corporation to the public pursuant to a registration statement
filed by the corporation on Form S-1 under the Securities Act of 1933, as
amended, unless otherwise provided in the certificate of incorporation, any
action required by law to, or which may, be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote therein were present
and voted. Prompt notice of the taking of such action without a meeting by
less than unanimous written consent shall be given to those stockholders, who
have not consented in writing.
ARTICLE VII.
Stockholders' Record Date
In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the board of directors may fix, in advance, a record date, which
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action.
<PAGE>
If no record date is fixed:
(1) The record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived,
at the close of business on the day next preceding the day on which the meeting
is held.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first
written consent is expressed.
(3) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the board of directors
adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply, to any adjournment of the meeting,
provided, however, that the board of directors may fix a new record date for
the adjourned meeting.
ARTICLE VIII.
Board of Directors
Except as otherwise provided by law or by the certificate of
incorporation, the business and affairs of the corporation shall be managed by
the board of directors. Subject to the rights of holders of preferred stock,
nominations for the election of directors may be made by the board of directors
or a committee appointed by the board of directors or by any stockholder
entitled to vote in the election of directors generally. However, any
stockholder entitled to vote in the election of directors generally may
nominate one or more persons for election as directors at a meeting only if
written notice of such stockholder's intent to make such nomination or
nominations has been given, either by personal delivery or by United States
mail, postage prepaid, to the secretary of the corporation not later than 80
days prior to the date of any annual or special meeting. In the event that the
date of such annual or special meeting was not publicly announced by the
corporation by mail, press release or otherwise more than 90 days prior to the
meeting, notice by the stockholder to be timely must be delivered to the
secretary of the corporation not later than the close of business on the tenth
day following the day on which such announcement of the date of the meeting was
communicated to the stockholders.
Each such notice shall set forth: (a) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (b) a representation that the stockholder is a holder of record
of stock of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice; (c) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder, (d) such other information
regarding each nominee proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or intended
to be nominated, by the board of directors; and (e) the consent of each nominee
to serve as a director of the corporation is so elected.
<PAGE>
The classification of the board of directors, the term of each class of
directors and the manner of election and removal of directors shall be as set
forth in the certificate of incorporation. Each director shall hold office
until his successor is elected and qualified or until his earlier resignation
or removal. Any director may resign at any time upon written notice to the
corporation. No director need be a stockholder.
ARTICLE IX.
Committees
The board of directors may, by resolution passed by a majority of the
whole board, designate one or more committees, each committee to consist of one
or more of the directors of the corporation. The board may designate one or
more directors as alternate members of any committee who may replace any absent
or disqualified member at any meeting of the committee and may define the
number and qualifications which shall constitute a quorum of such committee.
Except as otherwise limited by law, any such committee, to the extent provided
in the resolution appointing such committee, shall have and may exercise the
powers of the board of directors in the management of the business and affairs
of the corporation, and may authorize the seal of the corporation to be affixed
to all papers which may require it. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum,
may unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
ARTICLE X.
Meetings of the Board of Directors and of Committees
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may by vote from time to time determine.
Special meetings of the board of directors may be held at any place either
within or without the State of Delaware at any time when called by the
president, treasurer, secretary or two or more directors, reasonable notice of
the time and place thereof being given to each director. A waiver of such
notice in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent to
such notice. In any case it shall be deemed sufficient notice to a director to
send notice by mail at least forty-eight hours, or to deliver personally or to
send notice by telegram at least twenty-four hours, before the meeting,
addressed to him at his usual or last known business or residence address.
Unless otherwise restricted by the certificate of incorporation or by
other provisions of these by-laws, (a) any action required or permitted to be
taken at any meeting of the board of directors or of any committee thereof may
be taken without a meeting if all members of the board or of such committee, as
the case may be, consent thereto in writing and such writing or writings are
filed with the minutes of proceedings of the board or committee, and (b)
members of the board of directors or of any committee designated by the board
may participate in a meeting thereof by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and such participation shall constitute
presence in person at such meeting.
<PAGE>
ARTICLE XI.
Quorum of the Board of Directors
Except as otherwise expressly provided in the certificate of incorporation
or in these by-laws, a majority of the total number of directors at the time in
office shall constitute a quorum for the transaction of business, but a smaller
number of directors may adjourn any meeting from time to time. Except as
otherwise so expressly provided, the vote of a majority of the directors
present at any meeting at which a quorum is present shall be the act of the
board of directors, provided, that the affirmative vote in good faith of a
majority of the disinterested directors, even though the disinterested
directors shall be fewer than a quorum, shall be sufficient to authorize a
contract or transaction in which one or more directors have interest if the
material facts as to such interest and the relation of the interested directors
to the contract or transaction have been disclosed or are known to the
directors.
ARTICLE XII.
Waiver of Notice of Meetings
Whenever notice is required to be given under any provision of law or the
certificate of incorporation or these by-laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or
regular members of a committee of directors need be specified in any written
waiver of notice unless so required by the certificate of incorporation or the
by-laws.
ARTICLE XIII.
Officers and Agents
The corporation shall have a president, secretary and treasurer, who shall
be chosen by the directors, each of whom shall hold his office until his
successor has been chosen and qualified or until his earlier resignation or
removal. The corporation may have such other officers and agents as are
desired, each of whom shall be chosen by the board of directors and shall hold
his office for such term and have such authority and duties as shall be
determined by the board of directors. The board of directors may secure the
fidelity of any or all of such officers or agents by bond or otherwise. Any
number of offices may be held by the same person. Each officer shall, subject
to these by-laws, have in addition to the duties and powers herein set forth,
such duties and powers as the board of directors shall from time to time
designate. In all cases where the duties of any officer, agent or employee are
not specifically prescribed by the by-laws, or by the board of directors, such
officer, agent or employee shall obey the orders and instructions of the
president. Any officer may resign at any time upon written notice to the
corporation.
<PAGE>
ARTICLE XIV.
President
The president shall, subject to the direction and under the supervision of
the board of directors, be the chief executive officer of the corporation and
shall have general and active control of its affairs and business and general
supervision over its officers, agents and employees. Except as otherwise voted
by the board, he shall preside at all meetings of the stockholders and of the
board of directors at which he is present. The president shall have custody of
the treasurer's bond, if any.
ARTICLE XV.
Secretary
The secretary shall record all the proceedings of the meetings of the
stockholders and directors in a book, which shall be the property of the
corporation, to be kept for that purpose; and perform such other duties as
shall be assigned to him by the board of directors. In the absence of the
secretary from any such meeting, a temporary secretary shall be chosen, who
shall record the proceedings of such meeting in the aforesaid book.
ARTICLE XVI.
Treasurer
The treasurer shall, subject to the direction and under the supervision of
the board of directors, have the care and custody of the funds and valuable
papers of the corporation, except his own bond, and he shall, except as the
board of directors shall generally or in particular cases authorize the
endorsement thereof in some other manner, have power to endorse for deposit or
collection all notes, checks, drafts and other obligations for the payment of
money to the corporation or its order. He shall keep, or cause to be kept,
accurate books of account, which shall be the property of the corporation.
ARTICLE XVII.
Removals
The board of directors may, at any meeting called for the purpose, by vote
of a majority of their entire number remove from office any officer or agent of
the corporation or any member of any committee appointed by the board of
directors or by any committee appointed by the board of directors or by any
officer or agent of the corporation.
<PAGE>
ARTICLE XVIII.
Vacancies
Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise and newly created directorships resulting
from any increase in the authorized number of directors, may be filled by a
majority of the directors then in office (though less than a quorum) or by a
sole remaining director and each of the incumbents so chosen shall hold office
for the unexpired term in respect of which the vacancy occurred and until his
successor shall have been duly elected and qualified or for such shorter period
as shall be specified in the filling of such vacancy or, if such vacancy shall
have occurred in the office of director, until such a successor shall have been
chosen by the stockholders.
ARTICLE XIX.
Certificate of Stock
Every holder of stock in the corporation 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 (if one shall be incumbent) or the
president or a vice-president and by the treasurer or an assistant treasurer,
or the secretary or an assistant secretary, certifying the number of shares
owned by him in the corporation. If such certificate is countersigned (1) by a
transfer agent other than the corporation or its employee, or (2) by a
registrar other than the corporation or its employee, any other signatures on
the certificate may be facsimiles. In case any officer who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the designations, preferences and
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 certificates which the corporation shall issue to represent
such class or series of stock or there shall be set forth on the face or back
of the certificates which 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 designations, preferences and
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. Any restriction imposed upon the transfer of shares
or registration of transfer of shares shall be noted conspicuously on the
certificate representing the shares subject to such restriction.
ARTICLE XX.
Restrictions on Transfer
The following restrictions are imposed upon the transfer of shares of the
capital stock of the corporation:
<PAGE>
The corporation shall have the right to purchase, or to direct the
transfer of, the shares of its capital stock in the events and subject to the
conditions and at a price fixed as provided below; each holder of shares of
such capital stock holds his shares subject to this right and by accepting the
same upon original issue or subsequent transfer thereof, the stockholder agrees
for himself, his legal representatives and assigns as follows:
In the event of any change in the ownership of any share or shares of such
capital stock (made or proposed) or in the right to vote thereon (whether by
the holder's act or by death, legal disability, operation of law, legal
processes, order of court, or otherwise, except by ordinary proxies or powers
of attorney) the corporation has the right to purchase such share or all or any
part of such shares or to require the same to be sold to a purchaser or
purchasers designated by the corporation or to follow each such method in part
at a price per share equal to the fair value thereof at the close of business
on the last business day next preceding such event as determined by mutual
agreement or, failing such agreement, by arbitration as provided below.
In any such event the owner of the share or shares concerned therein
(being for the purposes of these provisions, all persons having any property
interest therein) shall give notice thereof in detail satisfactory to the
corporation. Within ten days after receipt of said owner's notice, the
corporation shall elect whether or not to exercise its said rights in respect
of said shares and, if it elects to exercise them, shall give notice of its
election.
Failing agreement between the owner and the corporation as to the price
per share to be paid, such price shall be the fair value of such shares as
determined by three arbitrators, one designated within five days after the
termination of said ten-day period by the registered holder of said share or
shares or his legal representatives, one within said period of five days by the
corporation and the third within five days after said appointment last
occurring by the two so chosen. Successor arbitrators, if any shall be
required, shall be appointed, within reasonable time, as nearly as may be in
the manner provided as to the related, original appointment. No appointment
shall be deemed as having been accomplished unless such arbitrator shall have
accepted in writing his appointment as such within the time limited for his
appointment. Notice of each appointment of an arbitrator shall be given
promptly to the other parties in interest. Said arbitrators shall proceed
promptly to determine said fair value. The determination of the fair value of
said share or shares by agreement of any two of the arbitrators shall be
conclusive upon all parties interested in such shares. Forthwith upon such
determination the arbitrators shall mail or deliver notice of such
determination to the owner (as above defined) and to the corporation.
Within ten days after agreement upon said price or mailing of notice of
determination of said price by arbitrators as provided below (whichever shall
last occur), the shares specified therein for purchase shall be transferred to
the corporation or to the purchaser or purchasers designated therein or in part
to each as indicated in such notice of election against payment of said price
at the principal office of the corporation.
If in any of the said events, notice therefor having been given as
provided above, the corporation elects in respect of any such shares or any
part thereof not to exercise its said rights, or fails to exercise them or to
give notice or make payment all as provided above, or waives said rights by
vote or in authorized writing, then such contemplated transfer or such change
may become effective as to those shares with respect to which the corporation
elects not to exercise its rights or fails to exercise them or to give notice
or to make payment, if consummated within thirty days after such election,
failure or waiver by the corporation, or within such longer period as the
corporation may authorize.
<PAGE>
If the owner's notice in respect of any of such shares of capital stock is
not received by the corporation as provided above, or if the owner fails to
comply with these provisions in respect of any such shares in any other regard,
the corporation, at its option and in addition to its other remedies, may
suspend the rights to vote or to receive dividends on said shares, or may
refuse to register on its books any transfer of said shares or otherwise to
recognize any transfer or change in the ownership thereof or in the right to
vote thereon, one or more, until these provisions are complied with to the
satisfaction of the corporation; and if the required owner's notice is not
received by the corporation after written demand by the corporation it may also
or independently proceed as though a proper owner's notice has been received at
the expiration of ten days after mailing such demand, and, if it exercises its
rights with respect to said shares or any of them, the shares specified shall
be transferred accordingly.
In respect of these provisions with respect to the transfer of shares of
capital stock, the corporation may act by its board of directors. Any notice
or demand under said provisions shall be deemed to have been sufficiently given
if in writing delivered by hand or addressed by mail postpaid, to the
corporation at its principal office or to the owner (as above defined) or to
the holder registered on the books of the corporation (or his legal
representative) of the share or shares in question at the address stated in his
notice or at his address appearing on the books of the corporation.
Nothing herein contained shall prevent the pledging of shares, if there is
neither a transfer of the legal title thereto nor a transfer on the books of
the corporation into the name of the pledgee, but no pledgee or person claiming
thereunder shall be entitled to make or cause to be made any transfer of
pledged shares by sale thereof or otherwise (including in this prohibition
transfer on the books of the corporation into the name of the pledges) except
upon compliance herewith and any such pledge shall be subject to those
conditions and restrictions.
The provisions contained in this Article XX (a) shall not apply to any
transfer to or in trust for the benefit of any stockholder of the corporation,
any partner of any stockholder of the corporation, or any member of the
immediate family of any such stockholder or partner, and (b) shall terminate
upon the occurrence of the initial public offering of the corporation's capital
stock (registered pursuant to the Securities Act of 1933 or successor statute,
or exempt from registration by reason of Regulation A, or successor regulation,
thereunder).
ARTICLE XXI.
Loss of Certificate
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the directors may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify it against any claim that may be made against it
on account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate in its place and upon such other terms or
without any such bond as the board of directors shall prescribe.
<PAGE>
ARTICLE XXII.
Seal
The corporate seal shall, subject to alteration by the board of directors,
consist of a flat-faced circular die with the word "Delaware" together with the
name of the corporation and the year of its organization cut or engraved
thereon. The corporate seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE XXIII.
Execution of Papers
Except as otherwise provided in these by-laws or as the board of directors
may generally or in particular cases authorize the execution thereof in some
other manner, all deeds, leases, transfers, contracts, bonds, notes, checks,
drafts and other obligations made, accepted or endorsed by the corporation,
shall be signed by the president or by the treasurer.
ARTICLE XXIV.
Fiscal Year
Except as from time to time otherwise provided by the board of directors,
the fiscal year of the corporation shall consist of 52 weeks ending on the last
Sunday of March or the first Sunday of April.
ARTICLE XXV.
Amendments
Except as otherwise provided by law or by the certificate of
incorporation, these by-laws, as from time to time altered or amended, may be
made, altered or amended at any annual or special meeting of the stockholders
called for the purpose, of which the notice shall specify the subject matter of
the proposed alteration or amendment or new by-law or the article or articles
to be affected thereby. If the certificate of incorporation so provides, these
by-laws may also be made, altered or amended by a majority of the whole number
of directors. Such action may be taken at any meeting of the board of
directors, of which notice shall have been given as for a meeting of
stockholders.
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