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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 3, 1997
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HEALTHDYNE TECHNOLOGIES, INC.
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(Exact name of registrant as specified in its charter)
Georgia 0-21776 52-1756497
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
1255 Kennestone Circle, Marietta, Georgia 30066
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (770) 499-1212
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On August 14, 1997, Healthdyne Technologies, Inc. (the "Company")
announced that the independent inspectors of election for the 1997 Annual
Meeting of Shareholders of the Company (the "Annual Meeting") certified that
certain shareholder proposals to amend the By-Laws of the Company were approved
at the Annual Meeting. These amendments to the Company's By-Laws (i) fix the
size of the Company's Board of Directors at seven members, (ii) repeal certain
by-law provisions and (iii) allow special shareholder meetings to be called by
the holders of 10% or more of the Company's common stock. Effective September
3, 1997, the Board of Directors of the Company further amended the By-Laws of
the Company and authorized the filing of Amended and Restated By-Laws with the
Securities and Exchange Commission. The Amended and Restated By-Laws of the
Company are attached hereto as Exhibit 99.1 and are hereby incorporated by
reference into this Report.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits.
99.1 Amended and Restated By-Laws of Healthdyne
Technologies, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
Healthdyne Technologies, Inc.
Registrant
By: /s/ M. Wayne Boylston
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M. Wayne Boylston
Vice President - Finance, Chief Financial
Officer and Treasurer
Date: September 5, 1997
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
99.1 Amended and Restated By-Laws of Healthdyne Technologies, Inc.
</TABLE>
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EXHIBIT 99.1
AMENDED AND RESTATED
BY-LAWS OF HEALTHDYNE TECHNOLOGIES, INC.
ARTICLE l
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders
for the election of Directors and for the transaction of such other business as
may properly come before the meeting shall be held at such place, either within
or without the State of Georgia, on such date and at such time as the Board of
Directors may by resolution provide. The Board of Directors may specify by
resolution prior to any special meeting of shareholders held within the year
that such meeting shall be in lieu of the annual meeting.
Section 2. Special Meeting; Call and Notice of Meetings. Special
meetings of the shareholders may be called at any time by the Board of
Directors, the Chairman of the Board of Directors or the President. The
Corporation shall call and hold a special meeting of shareholders upon the
written demand (the "Demand") of the beneficial owners (the provisions of
Section 3 of Article IV of these By-Laws notwithstanding) and/or record holders
of at least ten percent (10%) of the outstanding Common Stock. Any meeting to
be held pursuant to a Demand (a "Demand Meeting") shall be held only at such
time and place as is stated in the Demand; provided, that the time of the
meeting specified in the Demand shall in no event be less than forty-five (45)
calendar days from the date the Demand is delivered to the Corporation.
Notwithstanding the provisions of Section 4 of Article IV of the By-Laws, the
record date for the purposes of determining the shareholders who may validly
make a Demand shall be the date as of which the first shareholder executes such
Demand and the record date for the Demand Meeting shall be the record date
specified in the Demand, provided,
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that the record date for the Demand Meeting shall in no event be less than 10
days after the date such Demand is delivered to the Corporation and shall
otherwise be in compliance with the Georgia Business Corporation Code (without
reference to any other provision of these By-Laws or the Articles of
Incorporation). The only business to be conducted at any Demand Meeting shall
be the business set forth in the Demand. Any Demand which on its face appears
to have been validly made by record holders, or by beneficial owners providing
documentation which on its face establishes their beneficial ownership
(including a certificate of their record holder nominee), shall be accepted and
not challenged by the Corporation unless the Board of Directors determines by
written resolution that there is an affirmative reasonable basis on which such
validity should be questioned. The Corporation shall use its best efforts to
resolve any disputes regarding Demand Meetings as expeditiously as possible.
Written notice of each meeting of shareholders, stating the time and
place of the meeting, and the purpose of any special meeting, shall be mailed
to each shareholder entitled to vote at or to notice of such meeting at his
address shown on the books of the Corporation (i) in the case of a Demand
Meeting, at the earliest possible time following the record date for such
Demand Meeting consistent with the requirements of the Georgia Business
Corporation Code, and (ii) in the case of any other meeting, not less than ten
(10) nor more than fifty (50) days prior to such meeting, unless such
shareholder waives notice of the meeting.
Any shareholder may execute a waiver of notice, in person or by proxy,
either before or after any meeting, and shall be deemed to have waived notice
if he is present at such meeting in person or by proxy. Neither the business
transacted at, nor the purpose of, any meeting need be stated in the waiver of
notice of such meeting, except that, with respect to a waiver of notice of a
meeting at which a plan of merger or consolidation is considered, information
as required by the Georgia Business Corporation Code must be delivered to the
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shareholder prior to his execution of the waiver of notice or the waiver itself
must conspicuously and specifically waive the right to such information.
Notice of any meeting may be given by the President, the Secretary or
by the person or persons calling such meeting. No notice need be given of the
time and place of reconvening of any adjourned meeting, if the time and place
to which the meeting is adjourned are announced at the adjourned meeting.
Business transacted at any special meeting shall be limited to the purposes set
forth in the notice.
The Board of Directors may not alter, amend or repeal this Section or
adopt any new By-Law provision which is inconsistent in any manner with this
Section.
Section 3. Quorum; Required Shareholder Vote. A quorum for the
transaction of business at any annual or special meeting of shareholders shall
exist when the holders of a majority of the outstanding shares entitled to vote
are represented either in person or by proxy at such meeting. If a quorum is
present, the affirmative vote of the majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
shareholders, unless a greater vote is required by law, by the Articles of
Incorporation or by these By-Laws. When a quorum is once present to organize a
meeting, the shareholders present may continue to do business at the meeting or
at any adjournment thereof notwithstanding the withdrawal of enough
shareholders to leave less than a quorum. The holders of a majority of the
voting shares represented at a meeting, whether or not a quorum is present, may
adjourn such meeting from time to time.
Section 4. Proxies. A shareholder may vote either in person or by a
proxy which he has duly executed in writing. No proxy shall be valid after
eleven (11) months from the date of its execution unless a longer period is
expressly provided in the proxy.
Section 5. Action of Shareholders Without Meeting. Any action required
to be, or which may be, taken at a meeting of the shareholders, may be taken
without a meeting if written consent, setting forth the actions so taken, shall
be
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signed by all of the shareholders entitled to vote with respect to the
subject matter thereof, except that, with respect to approval of a plan of
merger or consolidation by written consent, information required by the Georgia
Business Corporation Code must be delivered to the shareholders prior to their
execution of the consent or the consent must conspicuously and specifically
waive the right to such information. Such consent shall have the same force and
effect as a unanimous affirmative vote of the shareholders and shall be filed
with the minutes of the proceedings of the shareholders.
Section 6. Notice of Business. No business may be transacted at an
annual meeting of shareholders, other than business that is either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (c) otherwise properly brought before the annual meeting by any shareholder
of the Corporation (i) who is a shareholder of record on the date of the giving
of the notice provided for in this Section 6 and on the record date for the
determination of shareholders entitled to vote at such annual meeting and (ii)
who complies with the notice procedures set forth in this Section 6. The
nomination by a shareholder of any person for election as a director, other
than the persons nominated by the Board of Directors or any duly authorized
committee thereof, shall be considered business other than business specified
in clauses (a) and (b) above and shall be permitted only upon compliance with
the requirements of this Section 6.
In addition to any other applicable requirements for business to be
properly brought before an annual meeting by a shareholder, such shareholder
must have given timely notice thereof in proper written form to the Secretary
of the Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the anniversary
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date of the immediately preceding annual meeting of shareholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by
the shareholder in order to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which such
notice of the date of the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the Secretary
must set forth as to each matter such shareholder proposes to bring before the
annual meeting (i) a brief description of the business described to be brought
before the annual meeting arid the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such shareholder, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such shareholder, (iv) a description of
all arrangements or understandings between such shareholder and any other
person or persons (including their names) in connection with the proposal of
such business by such shareholder and any material interest of such shareholder
in such business, (v) a representation that such shareholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting, and (vi) in the case of the nomination of a person as a director, a
brief description of the background and credentials of such person including
(A) the name, age, business address and residence address of such person, (B)
the principal occupation or employment of such person, (C) the class and number
of shares of the Corporation which are beneficially owned by such person, and
(D) any other information relating to such person that is required to be
disclosed in solicitations of proxies for ejection of directors, or as
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including without limitation such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected).
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No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 6; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 6 shall be deemed to preclude discussion by
any shareholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE II
DIRECTORS
Section 1. Power of Directors. The Board of Directors shall manage the
business of the Corporation and may exercise all powers of the Corporation,
subject to any restrictions imposed by law, by the Articles of Incorporation or
by these By-Laws.
Section 2. Composition of the Board. The size of the Board of
Directors of the Corporation shall be fixed from time to time by the Board of
Directors and shall consist of not less than three (3) nor more than seven (7)
natural persons of the age of eighteen years or over, except that if all of the
shares of the Corporation are owned beneficially and of record by less than
three (3) shareholders, the number of directors may be less than three (3) but
not less than the number of shareholders. Directors need not be residents of
the State of Georgia or shareholders of the Corporation. At each annual meeting
of the shareholders, the shareholders shall elect Directors who shall serve
until their successors are elected and qualified; provided that the
shareholders may, by the affirmative vote of the holders of a majority of the
shares entitled to vote at an
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election of Directors, increase or reduce the number of Directors or add or
remove Directors with or without cause at any time.
The Board of Directors may not alter, amend or repeal this Section or
adopt any new By-Law provision which is inconsistent in any manner with this
Section.
Section 3. Meetings of the Board; Notice; Notice of Meetings; Waiver
of Notice. The annual meeting of the Board of Directors for the purpose of
electing officers and transacting such other business as may be brought before
the meeting shall be held each year immediately following the annual meeting of
shareholders. The Board of Directors may by resolution provide for the time and
place of other regular meetings and no notice of such regular meetings need be
given. Special meetings of the Board of Directors may be called by the Chairman
of the Board of Directors, by the President or by any two Directors, and
written notice of the time and place of such meetings shall be given to each
Director by first class or air mail at least two (2) days before the meeting or
by telephone, telegraph, cablegram or in person at least one (1) day before the
meeting. Any Director may execute a waiver of notice, either before or after
any meeting, and shall be deemed to have waived notice if he is present at such
meeting. Neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be stated in the notice or waiver of
notice of such meeting. Any meeting may be held at any place within or without
the State of Georgia.
Section 4. Quorum; Vote Requirement. A majority of the Directors in
office at any time shall constitute a quorum for the transaction of business at
any meeting. When a quorum is present, the vote of a majority of the Directors
present shall be the act of the Board of Directors, unless a greater vote is
required by law, by the Articles of Incorporation or by these By-Laws.
Section 5. Action of Board Without Meeting. Any action required or
permitted to be taken at a meeting of the Board of Directors or any committee
thereof may be taken without a meeting if written consent, setting forth the
action so taken, is signed by all the Directors or committee members and flied
with the minutes of the proceedings of the Board of Directors or committee.
Such consent
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shall have the same force and effect as a unanimous affirmative vote of the
Board of Directors or committee, as the case may be.
Section 6. Committees. The Board of Directors, by resolution adopted
by a majority of all of the Directors, may designate from among its members an
Executive Committee, and/or other committees, each composed of two (2) or more
Directors, which may exercise such authority as is delegated by the Board of
Directors, provided that no committee shall have the authority of the Board of
Directors in reference to (1) an amendment to the Articles of Incorporation or
By-Laws of the Corporation, (2) the adoption of a plan of merger or
consolidation, (3) the sale, lease, exchange or other disposition of all or
substantially all of the property and assets of the Corporation, or (4) a
voluntary dissolution of the Corporation or a revocation thereof.
Section 7. Vacancies. A vacancy occurring in the Board of Directors by
reason of the removal of a Director by the shareholders shall be filled by the
shareholders, or, if authorized by the shareholders, by the remaining
Directors. Any other vacancy occurring in the Board of Directors may be filled
by the affirmative vote of a majority of the remaining Directors though less
than a quorum of the Board of Directors, or by the sole remaining Director, as
the case may be, or, if the vacancy is not so filled, or if no director
remains, by the shareholders. A Director elected to fill a vacancy shall serve
for the unexpired term of his predecessor in office.
Section 8. Telephone Conference Meetings. Unless the Articles of
Incorporation otherwise provide, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board or committee by means of telephone conference or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section 8 shall constitute presence in person at such meeting.
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ARTICLE III
OFFICERS
Section 1. Executive Structure of the Corporation. The officers of the
Corporation shall consist of a President, a Secretary, a Treasurer and such
other officers or assistant officers, including Vice Presidents, as may be
elected by the Board of Directors. Each officer shall hold office for the term
for which he has been elected or appointed and until his successor has been
elected or appointed and has qualified, or until his earlier resignation,
removal from office or death. Any two or more offices may be held by the same
person, except that the same person shall not be both Chairman of the Board of
Directors and Secretary, or President and Secretary. The Board of Directors may
designate a Vice President as an Executive Vice President and may designate the
order in which other Vice Presidents may act.
Section 2. President. The President shall be the chief operating
officer of the Corporation and shall be in charge of the day-to-day affairs of
the Corporation, subject to the direction of the Board of Directors. He shall
preside all meetings of the shareholders.
Section 3. Vice President. The Vice President shall act in the case of
absence or disability of the President.
Section 4. Secretary. The Secretary shall keep the minutes of the
proceedings of the shareholders and of the Board of Directors, and shall have
custody of and attest the seal of the Corporation.
Section 5. Treasurer. The Treasurer shall be responsible for the
maintenance of proper financial books and records of the Corporation.
Section 6. Other Duties and Authority. Each officer, employee and
agent of the Corporation shall have such other duties and authority as may be
conferred upon him by the Board of Directors or delegated to him by the
President.
Section 7. Removal of Officers. Any officer may be removed at any time
by the Board of Directors, and such vacancy may be filled by the Board of
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Directors. This provision shall not prevent the making of a contract of
employment for a definite term with any officer and shall have no effect upon
any cause of action which any officer may have as a result of removal in breach
of a contract of employment.
Section 8. Compensation. The salaries of the officers shall be fixed
from time to time by the Board of Directors. No officer shall be prevented from
receiving such salary by reason of the fact that he is also a Director of the
Corporation.
ARTICLE IV
STOCK
Section 1. Stock Certificates. The shares of stock of the Corporation
shall be represented by certificates in such form as may be approved by the
Board of Directors, which certificates shall be issued to the shareholders of
the Corporation in numerical order from the stock book of the Corporation, and
each of which shall bear the name of the shareholder, the number of shares
represented, and the date of issue; and which shall be signed by the Chairman
of the Board of Directors or President and the Secretary or an Assistant
Secretary of the Corporation; and which shall be sealed with the seal of the
Corporation. No share certificate shall be issued until the consideration for
the shares represented thereby has been fully paid.
Section 2. Transfer of Stock. Shares of stock of the Corporation shall
be transferred only on the books of the Corporation upon surrender to the
Corporation of the certificates or certificates representing the shares to be
transferred accompanied by an assignment in writing of such shares properly
executed by the shareholder of record or his duly authorized attorney-in-fact
and with all taxes on the transfer having been paid. The Corporation may refuse
any requested transfer until furnished evidence satisfactory that such transfer
is proper. Upon the surrender of a certificate for transfer of stock, such
certificate
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shall at once be conspicuously marked on its face "Canceled" and filed with the
permanent stock records of the Corporation. The Board of Directors may make
such additional rules concerning the issuance, transfer and registration of
stock and requirements regarding the establishment of lost, destroyed or
wrongly taken stock certificates (including any requirement of an indemnity
bond prior to issuance of any replacement certificate) as it deems appropriate.
Section 3. Registered Shareholders. The Corporation may deem and treat
the holder of record of any stock as the absolute owner for all purposes and
shall not be required to take any notice of any right or claim of right of any
other person.
Section 4. Record Date. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or entitled to receive payment of any dividend, or in
order to make a determination of shareholders for any other purpose, the Board
of Directors of the Corporation may fix in advance a date as the record date
for any such determination of shareholders, such date in any case to be not
more than fifty (50) days, and in the case of a meeting of shareholders, not
less than ten (10) days prior to the date on which the particular action,
requiring such determination of shareholders, is to be taken.
ARTICLE V
DEPOSITORIES, SIGNATURES AND SEAL
Section 1. Depositories. All funds of the Corporation shall be
deposited in the name of the Corporation in such bank, banks, or other
financial institutions as the Board of Directors may from time to time
designate and shall be drawn out on checks, drafts or other orders signed on
behalf of the Corporation by such person or persons as the Board of Directors
may from time to time designate.
Section 2. Contracts and Deeds. All contracts, deeds and other
instruments shall be signed on behalf of the Corporation by the President or by
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such other officer, officers, agent or agents as of the Board of Directors may
from time to time by resolution provide.
Section 3. Seal. The seal of the Corporation shall be as follows:
If the seal is affixed to a document, the signature of the Secretary
or an Assistant Secretary shall attest the seal. The seal and its attestation
may be lithographed or otherwise printed on any document and shall have, to the
extent permitted by law, the same force and effect as if it had been affixed
and attested manually.
ARTICLE VI
INDEMNITY
Any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (including any action by or in
the right of the Corporation), by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, shall be indemnified by the
Corporation against expenses (including reasonable attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, if he acted in good faith and
In a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation (and with respect to any criminal action or
proceeding, if he had no reasonable cause to believe his conduct was unlawful),
to the maximum extent permitted by, and in the manner provided by, the Georgia
Business Corporation Code.
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ARTICLE VII
AMENDMENT OF BY-LAWS
Except as otherwise provided in Article I, Section 2, Article II,
Section 2 and Article X of these By-Laws, the Board of Directors shall have the
power to alter, amend or repeal the By-Laws or adopt new by-laws, but any
by-laws adopted by the Board of Directors may be altered, amended or repealed
and new by-laws may be adopted by the shareholders. The shareholders may
prescribe that any by-law or by-laws adopted by them shall not be altered,
amended or repealed by the Board of Directors. Action by the Directors with
respect to the By-Laws shall be taken by an affirmative vote of a majority of
all of the Directors then in office. Action by the shareholders with respect to
the By-Laws shall be taken by an affirmative vote of a majority of all shares
outstanding and entitled to vote.
ARTICLE VIII
BUSINESS COMBINATlONS WITH INTERESTED SHAREHOLDERS
In addition to any other provisions of law as may be applicable,
notwithstanding any other provisions of these By-Laws or the Corporation's
Articles of Incorporation to the contrary, the provisions of Section 14-2-1131
through 14-2-1133 of the Georgia Business Corporation Code (the "Code"), as the
same may be amended or supplemented from time to time, shall apply to and
govern those transactions of the Corporation which constitute "business
combinations" (as that term is defined in Section 14-2-1131 of the Code). The
provisions of this Article VIII of the By-Laws may not be repealed except in
the manner set forth in Section 14-2-1133 of the Code.
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ARTICLE IX
FAIR PRICE REQUIREMENTS
In addition to any other provisions of law as may be applicable,
notwithstanding any other provisions of these By-Laws or the Corporation's
Articles of Incorporation to the contrary, the provisions of Sections 14-2-1110
through 14-2-1113 of the Georgia Business Corporation Code (the "Code"), as the
same may be amended or supplemented from time to time, shall apply to and
govern those transactions of the Corporation which constitute "business
combinations" (as that term is defined in Section 14-2-1110 of the Code). The
provisions of this Article IX of the By-Laws may not be repealed except in the
manner set forth in Section 14-2-1113 of the Code.
ARTICLE X
The Board of Directors may not, without the approval of the
shareholders of the Corporation, (a) adopt, alter, amend or repeal any By-Law
which relates to a special meeting of the shareholders, (b) alter, amend or
repeal this Article X, or (c) adopt, alter, amend or repeal any other By-Law of
the Corporation if such action would have the effect of reinstating any By-Law
repealed by the shareholders of the Corporation at the 1997 Annual Meeting of
the Shareholders or any similar By-Law.
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