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FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly period ended January 3, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _________ to ___________
Commission file number 0-23418
MTI TECHNOLOGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-3601802
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4905 East La Palma Avenue
Anaheim, California 92807
(Address of principal executive offices, zip code)
Registrant's telephone number, including area code: (714) 970-0300
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
The number of shares outstanding of the issuer's common stock, $.001 par
value, as of February 3, 1998 was 27,549,636.
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MTI TECHNOLOGY CORPORATION
INDEX
<TABLE>
<CAPTION>
Page
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<S> <C> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1.Financial Statements
Condensed Consolidated Balance Sheets as of January 3, 1998 and April 5, 1997 3
Condensed Consolidated Statements of Income for the Three Months Ended
January 3, 1998 and January 4, 1997 4
Condensed Consolidated Statements of Income for the Nine Months
Ended January 3, 1998 and January 4, 1997 5
Condensed Consolidated Statements of Cash Flows for the Nine Months Ended
January 3, 1998 and January 4, 1997 6
Notes to Condensed Consolidated Financial Statements 7
Item 2.Management's Discussion and Analysis of Financial Condition and Results of
Operations 10
PART II. OTHER INFORMATION
Item 6.Exhibits and Reports on Form 8-K 15
</TABLE>
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MTI TECHNOLOGY CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
JANUARY 3, APRIL 5,
1998 1997
--------- ---------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 5,201 $ 3,487
Short-term investments - 850
Accounts receivable, net 43,467 31,899
Inventories 18,808 14,637
Deferred income tax benefit 960 960
Prepaid expenses and other receivables 5,325 2,862
--------- ---------
Total current assets 73,761 54,695
Property, plant and equipment, net 13,739 13,220
Intangible assets and goodwill, net 13,213 15,027
Other 935 650
--------- ---------
$ 101,648 $ 83,592
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term borrowings $ 21,591 $ 22,102
Current maturities of long-term debt 1,031 1,851
Accounts payable 20,169 14,347
Accrued liabilities 17,504 15,622
Deferred income 9,892 13,040
--------- ---------
Total current liabilities 70,187 66,962
Long-term debt, less current maturities - 6
Deferred income 55 242
Other 5 5
--------- ---------
Total liabilities 70,247 67,215
--------- ---------
Stockholders' equity:
Preferred stock, $.001 par value; authorized 5,000
shares; issued and outstanding, none - -
Common stock, $.001 par value; authorized 40,000 shares;
issued (including treasury shares) and outstanding
28,202 and 26,537 shares at January 3, 1998
and April 5, 1997, respectively 28 26
Additional paid-in capital 91,820 88,780
Accumulated deficit (55,768) (68,010)
Less cost of treasury stock (731 and 755 shares at
January 3, 1998 and April 5, 1997, respectively) (2,698) (2,788)
Cumulative foreign currency translation adjustments (1,981) (1,631)
--------- ---------
Total stockholders' equity 31,401 16,377
--------- ---------
$ 101,648 $ 83,592
========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
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MTI TECHNOLOGY CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
-----------------------
JANUARY 3, JANUARY 4,
1998 1997
---------- ---------
<S> <C> <C>
Net product revenue $44,773 $30,695
Service revenue 9,216 8,213
------- -------
Total revenue 53,989 38,908
Product cost of revenue 29,691 21,095
Service cost of revenue 5,684 5,155
------- -------
Total cost of revenue 35,375 26,250
Gross profit 18,614 12,658
------- -------
Operating expenses:
Selling, general and administrative 10,489 8,572
Research and development 3,144 2,426
------- -------
Total operating expenses 13,633 10,998
Operating income 4,981 1,660
Other income, net 626 257
------- -------
Income before income taxes 5,607 1,917
Income tax expense 528 150
------- -------
Net income $ 5,079 $ 1,767
======= =======
Net income per share:
Basic $ 0.19 $ 0.07
======= =======
Diluted $ 0.17 $ 0.07
======= =======
Weighted-average shares used in per share computation:
Basic 27,199 25,691
======= =======
Diluted 30,508 26,770
======= =======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
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MTI TECHNOLOGY CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
-----------------------
JANUARY 3, JANUARY 4,
1998 1997
--------- ---------
<S> <C> <C>
Net product revenue $118,014 $ 86,452
Service revenue 26,546 25,144
-------- --------
Total revenue 144,560 111,596
Product cost of revenue 77,694 61,158
Service cost of revenue 15,737 15,057
-------- --------
Total cost of revenue 93,431 76,215
Gross profit 51,129 35,381
-------- --------
Operating expenses:
Selling, general and administrative 29,950 25,321
Research and development 9,007 7,093
-------- --------
Total operating expenses 38,957 32,414
Operating income 12,172 2,967
Other income, net 1,790 788
-------- --------
Income before income taxes 13,962 3,755
Income tax expense 1,700 300
-------- --------
Net income $ 12,262 $ 3,455
======== ========
Net income per share:
Basic $ 0.47 $ 0.13
======== ========
Diluted $ 0.42 $ 0.13
======== ========
Weighted-average shares used in per
share computation:
Basic 26,323 25,597
====== ======
Diluted 29,126 26,220
====== ======
</TABLE>
See accompanying notes to condensed consolidated financial statements.
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MTI TECHNOLOGY CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
-----------------------
JANUARY 3, JANUARY 4,
1998 1997
--------- ---------
<S> <C> <C>
Net cash provided by (used in) operating activities $ 4,064 $ (3,666)
--------- ---------
Cash flows from investing activities:
Capital expenditures for property, plant
and equipment, net (5,391) (2,467)
Maturities of short-term investments 850 -
Payments received on note receivable 135 -
--------- ---------
Net cash used in investing activities (4,406) (2,467)
--------- ---------
Cash flows from financing activities:
Borrowings under notes payable 108,627 86,399
Proceeds from issuance of common stock and
exercise of options and warrants 3,092 448
Repayment of notes payable (109,615) (80,107)
--------- ---------
Net cash provided by financing activities 2,104 6,740
--------- ---------
Effect of exchange rate changes on cash (48) (303)
--------- ---------
Net increase in cash and cash equivalents 1,714 304
Cash and cash equivalents at beginning of period 3,487 4,055
--------- ---------
Cash and cash equivalents at end of period $ 5,201 $ 4,359
========= =========
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest $ 1,871 $ 1,619
Income taxes 661 36
</TABLE>
See accompanying notes to condensed consolidated financial statements.
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MTI TECHNOLOGY CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. The interim condensed consolidated financial statements included herein
have been prepared by MTI Technology Corporation (the "Company") without
audit, pursuant to the rules and regulations of the Securities and
Exchange Commission (the "SEC"). Certain information and footnote
disclosures, normally included in the financial statements prepared in
accordance with generally accepted accounting principles, have been
omitted pursuant to such SEC rules and regulations; nevertheless, the
management of the Company believes that the disclosures herein are
adequate to make the information presented not misleading. These
condensed consolidated financial statements should be read in
conjunction with the consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the fiscal year
ended April 5, 1997. In the opinion of management, the condensed
consolidated financial statements included herein reflect all
adjustments, consisting only of normal recurring adjustments, necessary
to present fairly the condensed consolidated financial position of the
Company as of January 3, 1998, and the condensed consolidated results of
operations and cash flows for the three month and nine month periods
ended January 3, 1998 and January 4, 1997. The results of operations for
the interim periods are not necessarily indicative of the results of
operations for the full year. References to amounts are in thousands,
except share and per share data, unless otherwise specified.
2. Inventories consist of the following:
<TABLE>
<CAPTION>
JANUARY 3, APRIL 5,
1998 1997
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<S> <C> <C>
Raw Materials $ 8,334 $5,788
Work in Process 173 10
Finished Goods 10,301 8,839
------- -------
$18,808 $14,637
======= =======
</TABLE>
3. The Company has adopted Statement of Financial Accounting Standards No.
("Statement") 128, "Earnings Per Share." In accordance with Statement
128, primary earnings per share have been replaced with basic earnings
per share and fully diluted earnings per share have been replaced with
diluted earnings per share which includes potentially dilutive
securities such as outstanding options and warrants. Prior periods have
been restated to conform to Statement 128.
Basic earnings per share is computed by dividing income available to
common shareholders by the weighted-average number of common shares
outstanding during the period. Diluted earnings per share is computed by
dividing income available to common shareholders by the weighted-average
number of common shares outstanding during the period increased to
include the number of additional common shares that would have been
outstanding if the dilutive potential common shares
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had been issued. The dilutive effect of outstanding options and
warrants is reflected in diluted earnings per share by application of
the treasury stock method. The following tables sets forth the
computation of basic and diluted earnings per share (in thousands,
except per share amounts):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
--------------------
JANUARY 3, JANUARY 4,
1998 1997
------- --------
<S> <C> <C>
Numerator:
Net income $ 5,079 $ 1,767
====== ======
Denominator:
Denominator for basic earnings per share -
weighted-average shares outstanding 27,199 25,691
Effect of dilutive securities:
Dilutive options outstanding 3,309 926
Dilutive warrants outstanding - 153
------- --------
Dilutive potential common shares 3,309 1,079
------- --------
Denominator for diluted earnings per share -
adjusted weighted-average shares 30,508 26,770
====== ======
Basic earnings per share $ 0.19 $ 0.07
===== =====
Diluted earnings per share $ 0.17 $ 0.07
===== =====
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED
JANUARY 3, JANUARY 4,
1998 1997
------- --------
<S> <C> <C>
Numerator:
Net income $12,262 $ 3,455
======= =======
Denominator:
Denominator for basic earnings per share -
weighted-average shares outstanding 26,323 25,597
Effect of dilutive securities:
Dilutive options outstanding 2,803 572
Dilutive warrants outstanding - 51
------- --------
Dilutive potential common shares 2,803 623
------- --------
Denominator for diluted earnings per share
- adjusted weighted-average shares 29,126 26,220
====== ======
Basic earnings per share $ 0.47 $ 0.13
===== =====
Diluted earnings per share $ 0.42 $ 0.13
===== =====
</TABLE>
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Options to purchase 90,000 shares of common stock and warrants to purchase
250,000 shares of common stock at prices in excess of $2.57 per share were
outstanding at January 4, 1997, but were not included in the computation of
diluted earnings per share for the three and nine months ended January 4,
1997, because the options' and warrants' exercise price was greater than
the average market price of the common shares during the period, and
therefore, the effect would be antidilutive.
Options to purchase 1,062,700 shares of common stock at prices in excess of
$8.91 per share were outstanding at January 3, 1998, but were not included
in the computation of diluted earnings per share for the nine months ended
January 3, 1998 because the options' exercise price was greater than the
average market price of the common shares during the period, and therefore,
the effect would be antidilutive.
4. On October 21, 1997, warrants to purchase 500,000 shares of the Company's
common stock at a price of $2.00 per share were exercised by an entity
affiliated with the Company's major stockholder and Chairman of the Board.
On October 21, 1997, warrants to purchase 508,824 shares of the Company's
common stock at a price of $2.25 per share were exercised by an entity
affiliated with the Company's major stockholder and Chairman of the Board.
On October 15, 1997, 161,830 shares of the Company's common stock were
issued to AXENT Technologies, Inc. (formally Raxco, Inc.), in exchange for
the surrender of warrants to purchase 250,000 shares of the Company's
common stock at a price of $6.00 per share. Pursuant to the terms of the
warrants, in lieu of exercising the warrants for cash, the holder elected
to have withheld from the number of shares otherwise deliverable, shares
having a fair market value equal to the aggregate warrant exercise price.
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PART 1 - ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
OVERVIEW
MTI's historic revenue growth has been achieved through introductions of new or
updated products, expansion of the Company's international operations, and
through acquisitions. The Company has attempted to increase its focus on
expanding its product and service offerings for the Open Systems computing
environment and decrease its historic dependence on sales and service from the
Digital Equipment Corporation ("DEC") computing environment. Product revenue
from the Open Systems marketplace (as compared to DEC) increased from
approximately 21% of net product revenue for fiscal 1995, to approximately 76%
of net product revenue for fiscal 1997, and to approximately 94% of net product
revenue for the third quarter of fiscal 1998, reflecting the Company's
commitment to its strategy of expanding the revenue contribution from sales to
the Open Systems data storage market.
Effective April 2, 1995, the Company acquired National Peripherals, Inc.
("NPI"), a privately-held provider of cross-platform RAID based storage
solutions for the Open Systems computing environment. Consideration paid in the
NPI acquisition included: (a) payments of $2.6 million in cash to NPI and its
stockholders, (b) promissory notes in the aggregate amount of $2.0 million
bearing 6% interest per annum and payable in two equal annual installments
beginning April 1996, (c) guaranteed earnout payments in the aggregate amount of
$3.0 million and payable in three equal annual installments beginning in April
1996, and (d) acquisition costs of $0.4 million. In addition, the acquisition
agreement provides for contingent payments of up to $1.0 million payable in
April 1998 based on certain performance criteria. The Board of Directors
approved the payment of the contingent $1.0 million payment during the fourth
quarter of fiscal 1997. The accelerated timing of the payment was based on the
over-achievement of the performance criteria as set forth in the amended NPI
stock purchase agreement. As a result of the NPI acquisition, MTI increased its
presence in the Open Systems marketplace by adding approximately 18 salespeople
at the time of acquisition who were exclusively focused on Open Systems sales
opportunities. The NPI acquisition was part of the Company's strategy to expand
its product lines and increase revenue from the non-DEC marketplace.
Effective February 9, 1996, the Company entered into an agreement with EMC
Corporation ("EMC"), whereby the Company sold to EMC substantially all of the
Company's existing patents, patent applications and rights thereof. The
consideration the Company will receive for these rights includes: (a) $30.0
million to be received in six equal annual installments of $5.0 million, the
first three of which were received in February 1996, January 1997 and January
1998. The remaining payments are to be received in each of the subsequent three
years beginning January 1999; and (b) royalty payments in the aggregate of up to
a maximum of $30.0 million over the term of the agreement, of which a minimum of
$10.0 million will be received in five annual installments, beginning within
thirty days of the first anniversary of the effective date of the agreement, and
within thirty days of each subsequent anniversary thereof. The first annual
installment of minimum royalty payments equal to $2.0 million was received in
March 1997. In addition, the Company also received an irrevocable,
non-cancelable, perpetual and royalty-free license to exploit, market and sell
the technology protected under the aforementioned patents. Pursuant to the terms
and conditions of the agreement, this license will terminate in the event of a
change of control of the Company involving certain identified acquirers. As part
of the agreement, the Company and EMC granted to each other the license to
exploit, market and sell the technology associated with each of their respective
existing and future patents arising from any patent applications in existence as
of the effective date of the agreement for a period of five years.
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The Company's primary reasons for entering into this agreement with EMC were to
realize a guaranteed minimum return on its historical research and development
investment, and to do so in such a manner as to provide the Company with a
predictable stream of both revenue and cash over several years. Pursuant to the
terms and conditions of this agreement, the Company records a quarterly benefit
to income of $1.8 million, and receives a minimum of $7.0 million cash on an
annual basis, which includes $2.0 million of royalty payments and $5.0 million
from the sale of patents and associated rights.
The Company has experienced significant quarterly fluctuations in operating
results and anticipates that these fluctuations may continue in the future.
These fluctuations have been and may continue to be caused by a number of
factors, including competitive pricing pressures, the timing of customer orders
(a large majority of which have historically been placed in the last month of
each quarter), the introduction of new products and new versions of the
Company's products, shifts in product mix and the timing of sales and marketing
and research and development expenditures. Future operating results may
fluctuate as a result of these and other factors, including the Company's
ability to continue to develop innovative products, the introduction of new
products by the Company's competitors and decreases in gross profit margin for
mature products. There can be no assurance that the Company will be profitable
on a quarter-to-quarter or annual basis.
The Company has operated historically without a significant backlog of orders
and, as a result, net product revenue in any quarter is dependent on orders
booked and products shipped during that quarter. A significant portion of the
Company's operating expenses are relatively fixed in nature and planned
expenditures are based primarily on sales forecasts. If revenue does not meet
the Company's expectations in any given quarter, the adverse impact on the
Company's liquidity position and net income may be magnified by the Company's
inability to reduce expenditures quickly enough to compensate for the revenue
shortfall. Further, as is common in the computer industry, the Company
historically has experienced an increase in the number of orders and shipments
in the latter part of each quarter and the Company expects this pattern to
continue in the future. The Company's failure to receive anticipated orders or
to complete shipments in the latter part of a quarter could have a material
adverse effect on the Company's results of operations for that quarter.
The non-historical information in this Form 10-Q includes forward-looking
statements which involve risks and uncertainties. The actual results for the
Company may differ materially from those described in any forward-looking
statement. Factors that might cause such a difference include, but are not
limited to, those discussed in this Form 10-Q including those described in the
preceding two paragraphs. Additional information on potential factors that could
affect the Company's financial results are included in the Company's Annual
Report on Form 10-K for the year ended April 5, 1997.
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RESULTS OF OPERATIONS
The following table sets forth selected items from the Condensed Consolidated
Statements of Income as a percentage of net revenues for the periods indicated,
except for product gross profit and service gross profit, which are expressed as
a percentage of the related revenue. This information should be read in
conjunction with the Condensed Consolidated Financial Statements included
elsewhere herein:
<TABLE>
<CAPTION>
FOR THE THREE MONTHS ENDED FOR THE NINE MONTHS ENDED
------------------------- -------------------------
JANUARY 3, JANUARY 4, JANUARY 3, JANUARY 4,
1998 1997 1998 1997
------ ------ ------ -----
<S> <C> <C> <C> <C>
Net product revenue 82.9% 78.9% 81.6% 77.5%
Service revenue 17.1 21.1 18.4 22.5
----- ------ ------ -----
Total revenue 100.0 100.0 100.0 100.0
Product gross profit 33.7 31.3 34.2 29.3
Service gross profit 38.3 37.2 40.7 40.1
------ ----- ----- -----
Gross profit 34.5 32.5 35.4 31.7
Selling, general and
administrative 19.5 22.1 20.7 22.6
Research and development 5.8 6.2 6.2 6.4
------- ------- ---- ----
Operating income 9.2 4.2 8.5 2.7
Other income, net 1.2 0.7 1.2 0.7
Income tax expense 1.0 0.4 1.2 0.3
------- ------- ---- ----
Net income 9.4% 4.5% 8.5% 3.1%
======= ======= ==== ====
</TABLE>
Net Product Revenue: Net product revenue for the third quarter of fiscal 1998
increased $14.1 million, or 45.9% over the same quarter of the prior year. This
increase was primarily due to increased revenue of $8.7 million from
optical/tape products, primarily the mid-range 1500 series of automated DLT tape
libraries. In addition, software revenue and server revenue increased $1.9
million and $3.5 million, respectively, over the same period of the prior year.
Net product revenue for the first nine months of fiscal 1998 increased $31.6
million, or 36.5% over the comparable period of the prior year. This increase
was primarily due to increased revenue of $21.7 million from optical/tape
products, primarily the mid-range 1500 series of automated DLT tape libraries.
In addition, software revenue and server revenue increased $5.1 million and $4.8
million, respectively, over the same period of the prior year.
Service Revenue: Service revenue for the third quarter of fiscal 1998 increased
$1.0 million, or 12.2% over the same quarter of the prior year. Service revenue
increased $1.4 million, or 5.6% for the first nine months of fiscal 1998 over
the comparable period of the prior year. These increases are primarily due to
the increased volume on service contracts.
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Product Gross Profit: Product gross profit was $15.1 million for the third
quarter of fiscal 1998, an increase of $5.5 million, or 57.1% over the same
quarter of the preceding year, and the gross profit percentage of net product
sales was 33.7% for the third quarter of fiscal 1998 as compared to 31.3% for
the same period of the prior year. Product gross profit was $40.3 million for
the first nine months of fiscal 1998, an increase of $15.0 million, or 59.4%
over the comparable period of the previous year, and the gross profit percentage
of net product sales was 34.2% for the first nine months of fiscal 1998 as
compared to 29.3% for the same period of the prior year. These increases in the
product gross profit percentage were primarily due to increased operating
efficiencies in the manufacturing process as a result of improved inventory
management and increased product throughput.
Service Gross Profit: Service gross profit was $3.5 million for the third
quarter of fiscal 1998, an increase of $0.5 million, or 15.5% over the same
period of the previous year. The gross profit percentage of service revenue
increased to 38.3% in the third quarter of fiscal 1998 as compared to 37.2% in
the same quarter of the preceding year.
Service gross profit was $10.8 million for the first nine months of fiscal 1998,
an increase of $0.7 million, or 7.2% over the same period of the previous year.
The gross profit percentage of service revenue increased to 40.7% for the first
nine months of fiscal 1998 as compared to 40.1% for the comparable period of the
preceding year.
Selling, General and Administrative: Selling, general and administrative
expenses for the third quarter of fiscal 1998 increased $1.9 million, or 22.4%
from the same quarter of the preceding year, although as a percentage of
revenue, selling, general and administrative expenses decreased. Selling,
general and administrative expenses for the first nine months of fiscal 1998
increased $4.6 million, or 18.3% from the same period of the preceding year,
although as a percentage of revenue, selling, general and administrative
expenses decreased. These increases were primarily due to increased
compensation-related sales costs resulting from increased staff and increased
revenues.
Research and Development: Research and development expenses for the third
quarter of fiscal 1998 increased $0.7 million, or 29.6% from the same quarter of
the preceding year, although as a percentage of revenue, research and
development expenses decreased. This increase was primarily due to
non-refundable research and development funding of $0.3 million received in the
third quarter of fiscal 1997, increased project costs of $0.2 million and an
increase in other expenses of $0.2 million.
Research and development expenses for the first nine months of fiscal 1998
increased $1.9 million, or 27.0% from the comparable period of the preceding
year. This increase was primarily due to non-refundable research and development
funding of $1.2 million received in the first nine months of fiscal 1997,
increased project costs of $0.2 million and an increase in other expenses of
$0.5 million.
Other Income, Net: Other income, net, for the third quarter of fiscal 1998
increased $0.4 million, or 143.6% over the same period of the prior year. Other
income, net, for the first nine months of fiscal 1998 increased $1.0 million, or
127.2% over the comparable period of the prior year. These increases were
primarily due to reduced interest expense in the third quarter and the first
nine months of fiscal 1998 as compared to the same periods of the prior year as
a result of decreased credit line balances and debt repayment.
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NEW ACCOUNTING STANDARDS
In June 1997, the Financial Accounting Standards Board ("FASB") issued Statement
130, "Reporting Comprehensive Income." The new statement is effective for both
interim and annual periods beginning after December 15, 1997. The Company has
not yet determined the impact of adopting this new standard on the consolidated
financial statements.
In June 1997, the FASB issued Statement 131, "Disclosure about Segments of an
Enterprise and Related Information." The new statement is effective for fiscal
years beginning after December 15, 1997. The Company has not yet determined the
impact of adopting this new standard on the consolidated financial statements.
The American Institute of Certified Public Accountants issued Statement of
Position ("SOP") 97-2, "Software Revenue Recognition," in October 1997. SOP 97-2
supersedes SOP 91-1, "Software Revenue Recognition." SOP 97-2 is effective for
transactions entered into in fiscal years beginning after December 15, 1997. The
Company has not yet determined the impact of adopting SOP 97-2 on the
consolidated financial statements.
LIQUIDITY AND CAPITAL RESOURCES
Cash and cash equivalents were $5.2 million at January 3, 1998, an increase of
$1.7 million as compared to April 5, 1997, the prior fiscal year end. Net
operating activities provided $4.1 million for the first nine months of fiscal
1998, primarily due to net income adjusted for non-cash items of $17.4 million
and increased accounts payable and accrued liabilities of $7.7 million primarily
due to increased trade purchases, partially offset by increased inventories of
$6.0 million and increased accounts receivable of $12.5 million primarily due to
increased volume. Cash provided by financing activities was $2.1 million,
primarily as a result of proceeds received from the exercise of warrants and
options.
The Company's average days sales outstanding were 73 days at the end of the
third quarter of fiscal 1998, as compared to 69 days at the end of the same
quarter of fiscal 1997. The increase was primarily due to European operations
recognizing a higher percentage of revenue in the latter part of the third
quarter of fiscal 1998 as compared to the same quarter of the prior year. The
Company's average days sales outstanding at January 3, 1998 decreased from 76
days at April 5, 1997, the prior fiscal year end.
Stockholders' equity at the end of the third quarter of fiscal 1998 was $31.4
million as compared to $16.4 million at the end of fiscal 1997. The increase was
primarily due to net income of $12.3 million and net proceeds from the exercise
of options and warrants of $3.0 million.
On October 21, 1997, warrants to purchase 500,000 shares of the Company's common
stock at a price of $2.00 per share and warrants to purchase 508,824 shares of
the Company's common stock at a price of $2.25 per share were exercised by an
entity affiliated with the Company's major stockholder and Chairman of the
Board. As a result, the Company received net proceeds of $2.1 million.
Effective June 12, 1997, the Company entered into an agreement with Greyrock
Business Credit whereby under an asset secured domestic line of credit, the
Company may borrow up to $30.0 million limited by the value of pledged
collateral. The agreement allows the Company to borrow at a blended rate of
prime rate plus 1.67%. The initial term of the agreement is for one year and
automatically and continuously renews for a subsequent year, unless terminated
by either party pursuant to the agreement. Borrowings outstanding under this
agreement were $21.6 million and $17.0 million at January 3, 1998 and February
3, 1998, respectively. The bank line of credit contains certain restrictive
covenants. At January 3, 1998, the Company was in compliance with all such
covenants.
14
<PAGE> 15
Effective February 9, 1996, the Company entered into an agreement with EMC,
whereby the Company sold to EMC substantially all of the Company's existing
patents, patent applications and rights thereof. The consideration the Company
will receive for these rights includes: (a) $30.0 million to be received in six
equal annual installments of $5.0 million each, the first three of which were
received in February 1996, January 1997 and January 1998. The remaining payments
are to be received in each of the subsequent three years beginning January 1999;
and (b) royalty payments in the aggregate of up to a maximum of $30.0 million
over the term of the agreement, of which a minimum of $10.0 million will be
received in five annual installments, beginning within thirty days of the first
anniversary of the effective date of the agreement, and within thirty days of
each subsequent anniversary thereof. The first annual installment of minimum
royalty payments equal to $2.0 million was received in March 1997.
Management believes that the Company's working capital, bank lines of credit and
cash flow from operating activities will be sufficient to meet the Company's
operating and capital expenditure requirements for the next twelve months;
however, in the longer term, the Company may require additional funds to support
its working capital requirements including financing of accounts receivable and
inventory, or for other purposes, and may seek to raise such funds through
public or private equity financing, bank lines of credit or from other sources.
No assurance can be given that additional financing will be available or that,
if available, such financing will be on terms favorable to the Company.
PART II - OTHER INFORMATION
ITEM 6 - EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
10.51 Restated Bylaws
27 Financial Data Schedule
(b) Reports on Form 8-K:
None.
15
<PAGE> 16
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, thereunto duly authorized, on the 9th day of February, 1998.
MTI TECHNOLOGY CORPORATION
By: /s/ DALE R. BOYD
--------------------------------------------
Dale R. Boyd
Vice President and Chief Financial Officer
(Principal Financial Officer)
By: /s/ STEPHANIE M. BRAUN
--------------------------------------------
Stephanie M. Braun
Corporate Controller, Chief Accounting Officer
(Principal Accounting Officer)
16
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Page
- -------------- ----------- ----
<S> <C> <C>
10.51 Restated Bylaws 18
27 Financial Data Schedule 42
</TABLE>
17
<PAGE> 1
EXHIBIT 10.51
RESTATED
BYLAWS
OF
MTI TECHNOLOGY CORPORATION,
A DELAWARE CORPORATION
<PAGE> 2
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C> <C>
ARTICLE I Offices......................................................................1
Section 1 Registered Office............................................................1
Section 2 Other Offices................................................................1
ARTICLE II Stockholders'Meetings........................................................1
Section 1 Place of Meetings............................................................1
Section 2 Annual Meetings..............................................................1
Section 3 Special Meetings.............................................................1
Section 4 Notice of Meetings...........................................................2
Section 5 Quorum and Voting............................................................2
Section 6 Voting Rights................................................................3
Section 7 Voting Procedures and Inspectors of Elections................................4
Section 8 List of Stckholders..........................................................5
Section 9 Stockholer Proposals at Annual Meetings......................................5
Section 10 Nominatons of Persons for Election to the Board of Directors.................6
Section 11 Action Without Meeting.......................................................6
ARTICLE III Directors....................................................................7
Section 1 Number and Term of Office....................................................7
Section 2 Powers.......................................................................8
Section 3 Vacancies....................................................................8
Section 4 Resignations and Removals....................................................8
Section 5 Meetings.....................................................................8
Section 6 Quorum and Voting............................................................9
Section 7 Action Without Meeting.......................................................9
Section 8 Fees and Compensation........................................................10
Section 9 Committees...................................................................10
Section 10 Duties of the Chairman of the Board of Directors.............................11
ARTICLE IV Officers.....................................................................11
Section 1 Officers Designated..........................................................11
Section 2 Tenure and Duties of Officers................................................11
ARTICLE V Execution of Corporate Instruments, and Voting of
Securities Owned by the Corporation............................................12
Section 1 Execution of Corporate Instruments...........................................12
Section 2 Voting of Securities Owned by Corporation....................................13
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VI Shares of Stock..............................................................13
Section 1 Form and Execution of Certificates...........................................13
Section 2 Lost Certificates............................................................14
Section 3 Transfers....................................................................14
Section 4 Fixing Record Dates..........................................................14
Section 5 Registered Stockholders......................................................15
ARTICLE VII Other Securities of the Corporation..........................................15
ARTICLE VIII Corporate Seal...............................................................16
ARTICLE IX Indemnification of Officers, Directors, Employees and Agents.................16
Section 1 Right to Indemnification.....................................................16
Section 2 Authority to Advance Expenses................................................16
Section 3 Right of Claimant to Bring Suit..............................................17
Section 4 Provisions Nonexclusive......................................................17
Section 5 Authority to Insure..........................................................17
Section 6 Survival of Rights...........................................................17
Section 7 Settlement of Claims.........................................................17
Section 8 Effect of Amendment..........................................................18
Section 9 Subrogation..................................................................18
Section 10 No Duplication of Payments...................................................18
ARTICLE X Notices......................................................................18
ARTICLE XI Amendments...................................................................19
</TABLE>
ii
<PAGE> 4
RESTATED BYLAWS
OF
MTI TECHNOLOGY CORPORATION
ARTICLE I
Offices
Section 1. Registered Office. The registered office of the corporation
in the State of Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices. The corporation shall also have and maintain
an office or principal place of business at 4905 E. La Palma, Anaheim,
California 92807, and may also have offices at such other places, both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the corporation may require.
ARTICLE II
Stockholders' Meetings
Section 1. Place of Meetings. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof.
Section 2. Annual Meetings. The annual meetings of the stockholders of
the corporation, commencing with the year 1993, for the purpose of election of
directors and for such other business as may lawfully come before it, shall be
held on such date and at such time as may be designated from time to time by the
Board of Directors, or, if not so designated, then at 10:00 a.m. on the second
Wednesday in September in each year if not a legal holiday, and, if a legal
holiday, at the same hour and place on the next succeeding day not a holiday.
Section 3. Special Meetings. Special Meetings of the stockholders of the
corporation may be called, for any purpose or purposes, by the Chairman of the
Board or the President or the Board of Directors at any time. Upon written
request of any stockholder or stockholders holding in the aggregate ten percent
(10%) of the voting power of all stockholders delivered in person or sent by
registered mail to the Chairman of the Board, President or Secretary of the
Corporation, the Secretary shall call a special meeting of stockholders to be
held at the office of the corporation required to be maintained pursuant to
Section 2 of Article I hereof at such time as the Secretary may fix, such
meeting to be held not less than ten nor more than sixty days after the receipt
of such request, and if the Secretary shall neglect or refuse to call such
meeting, within seven days after the receipt of such request, the stockholder
making such request may do so.
1
<PAGE> 5
Section 4. Notice of Meetings.
(a) Except as otherwise provided by law or the Certificate of
Incorporation, written notice of each meeting of stockholders, specifying the
place, date and hour and purpose or purposes of the meeting, shall be given not
less than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote thereat, directed to his address as it appears upon
the books of the corporation; except that where the matter to be acted on is a
merger or consolidation of the Corporation or a sale, lease or exchange of all
or substantially all of its assets, such notice shall be given not less than
twenty (20) nor more than sixty (60) days prior to such meeting.
(b) If at any meeting action is proposed to be taken which, if taken,
would entitle shareholders fulfilling the requirements of section 262(d) of the
Delaware General Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of that purpose and
to that effect and shall be accompanied by a copy of that statutory section.
(c) 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 unless the
adjournment is for more than thirty days, or unless after the adjournment a new
record date is fixed for the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting.
(d) Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, either before or after such meeting, and to the extent
permitted by law, will be waived by any stockholder by his attendance thereat,
in person or by proxy. Any stockholder so waiving notice of such meeting shall
be bound by the proceedings of any such meeting in all respects as if due notice
thereof had been given.
(e) Unless and until voted, every proxy shall be revocable at the
pleasure of the person who executed it or of his legal representatives or
assigns, except in those cases where an irrevocable proxy permitted by statute
has been given.
Section 5. Quorum and Voting.
(a) At all meetings of stockholders, except where otherwise provided by
law, the Certificate of Incorporation, or these Bylaws, the presence, in person
or by proxy duly authorized, of the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum for the transaction
of business. Shares, the voting of which at said meeting have been enjoined, or
which for any reason cannot be lawfully voted at such meeting, shall not be
counted to determine a quorum at said meeting. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, by vote of the
holders of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. At such adjourned meeting at which a quorum
is present or represented any business may be transacted which might have been
transacted at the original meeting. The stockholders present at a duly
2
<PAGE> 6
called or convened meeting, at which a quorum is present, may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
(b) Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, all action taken by the holders of a majority of
the voting power represented at any meeting at which a quorum is present shall
be valid and binding upon the corporation.
(c) Where a separate vote by a class or classes is required, a majority
of the outstanding shares of such class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter and the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class.
Section 6. Voting Rights.
(a) Except as otherwise provided by law, only persons in whose names
shares entitled to vote stand on the stock records of the corporation on the
record date for determining the stockholders entitled to vote at said meeting
shall be entitled to vote at such meeting. Shares standing in the names of two
or more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of such persons
is present in person or represented by proxy, such person shall have the right
to vote such shares and such shares shall be deemed to be represented for the
purpose of determining a quorum.
(b) Every person entitled to vote or execute consents shall have the
right to do so either in person or by an agent or agents authorized by a written
proxy executed by such person or his duly authorized agent, which proxy shall be
filed with the Secretary of the corporation at or before the meeting at which it
is to be used. Said proxy so appointed need not be a stockholder. No proxy shall
be voted on after three years from its date unless the proxy provides for a
longer period.
(c) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him as proxy pursuant to subsection (b) of
this section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another
person or persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent signing such
writing or causing his or her signature to be affixed to such writing by any
reasonable means including, but not limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to
act for him as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person
3
<PAGE> 7
who will be the holder of the proxy to receive such transmission, provided that
any such telegram, cablegram or other means of electronic transmission must
either set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic transmission was
authorized by the stockholder. Such authorization can be established by the
signature of the stockholder on the proxy, either in writing or by a signature
stamp or facsimile signature, or by a number or symbol from which the identity
of the stockholder can be determined, or by any other procedure deemed
appropriate by the inspectors or other persons making the determination as to
due authorization. If it is determined that such telegrams, cablegrams or other
electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied.
(d) Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission created pursuant to subsection (c) of this
section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 7. Voting Procedures and Inspectors of Elections.
(a) The corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding
and the voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors, and (v) certify their
determination of the number of shares represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
(c) The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the Inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 212(c)(2) of the Delaware General
4
<PAGE> 8
Corporation Law, ballots and the regular books and records of the corporation,
except that the inspectors may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for the limited purpose permitted herein, the inspectors at
the time they make their certification pursuant to subsection (b)(v) of this
section shall specify the precise information considered by them including the
person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for
the inspectors' belief that such information is accurate and reliable.
Section 8. List of Stockholders. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
said meeting, arranged in alphabetical order, showing the address of 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 where the meeting is to be
held and which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 9. Stockholder Proposals at Annual Meetings. At an annual
meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an
annual meeting, business must be specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors,
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or otherwise properly brought before the meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the corporation, not less
than 30 days nor more than 60 days prior to the meeting; provided, however, that
in the event that less than 40 days notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so received not later than the close of business on the
10th day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting, (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares of the
corporation which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 9,
5
<PAGE> 9
provided, however, that nothing in this Section 9 shall be deemed to preclude
discussion by any stockholder of any business properly brought before the annual
meeting in accordance with said procedure.
The Chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 9, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Section 10. Nominations of Persons for Election to the Board of
Directors. In addition to any other applicable requirements, only persons who
are nominated in accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed by the Board of Directors or by any stockholder of the corporation
entitled to vote for the election of directors at the meeting who complies with
the notice procedures set forth in this Section 10. Such nominations, other than
those made by or at the direction of the Board of Directors, shall be made
pursuant to timely notice in writing to the Secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 30 days nor
more than 60 days prior to the meeting; provided, however, that in the event
that less than 40 days notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on the 10th day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made. Such stockholder's notice shall set forth (a)
as to each person whom the stockholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class and number of shares of the corporation which are
beneficially owned by the person, and (iv) any other information relating to the
person that is required to be disclosed in solicitations for proxies for
election of directors pursuant to Regulation 14a under the Securities Exchange
Act of 1934; and (b) as to the stockholder giving the notice, (i) the name and
record address of the stockholder, and (ii) the class and number of shares of
the corporation which are beneficially owned by the stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation. No person shall be
eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein. These provisions shall not
apply to nomination of any persons entitled to be separately elected by holders
of preferred stock.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Section 11. Action Without Meeting. Unless otherwise provided in the
Certificate of
6
<PAGE> 10
Incorporation, any action required by statute to be taken at any annual or
special meeting of stockholders of the corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or
consents in writing, setting forth the action so taken, are 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 thereon were present and voted. To be effective, a
written consent must be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be effective
to take the corporate action referred to therein unless, within sixty days of
the earliest dated consent delivered in the manner required by this Section to
the corporation, written consents signed by a sufficient number of holders to
take action are delivered to the corporation in accordance with this Section.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
Directors
Section 1. Number and Term of Office.
(a) The number of directors constituting the entire Board of Directors
shall not be less than three (3) nor more than seven (7) as fixed from time to
time by vote of a majority of the entire Board of Directors, provided, however,
that the number of directors shall not be reduced so as to shorten the term of
any director at the time in office, and provided further, that the number of
directors constituting the entire Board of Directors shall be six (6) until
otherwise fixed by a majority of the entire Board.
(b) The directors shall be divided into three classes, as nearly equal
in number as reasonably possible, with the term of office of the first class to
expire at the 1993 annual meeting of stockholders, the term of office of the
second class to expire at the 1994 annual meeting of stockholders and the term
of office of the third class to expire at the 1995 annual meeting of
stockholders. At each annual meeting of stockholders following such initial
classification and election, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders after their election. The directors to
be elected shall be elected by a plurality vote of the shares represented, in
person or by proxy, at the stockholders' annual meeting in each year and
entitled to vote on the election of directors. Elected directors shall hold
office until the next election of the class for which such directors shall have
been chosen and until their successors shall be duly elected and qualified.
Directors need not be stockholders. Notwithstanding the foregoing, and except as
otherwise required by law, whenever the holders of any one or more series of
Preferred Stock
7
<PAGE> 11
shall have the right, voting separately as a class, to elect one or more
directors of the Corporation, the terms of the director or directors elected by
such holders shall expire at the next succeeding annual meeting of stockholders.
Subject to the foregoing, at each annual meeting of stockholders, the successors
to the class of directors whose term shall then expire shall be elected to hold
office for a term expiring at the second succeeding annual meeting. If, for any
cause, the successors to the class of directors whose term shall then expire
shall not have been elected at an annual meeting, they may be elected as soon
thereafter as convenient at a special meeting of the stockholders called for
that purpose in the manner provided in these Bylaws.
Section 2. Powers. The powers of the corporation shall be exercised, its
business conducted and its property controlled by or under the direction of the
Board of Directors.
Section 3. Vacancies. Vacancies 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, although less than a quorum, or
by a sole remaining director, and each director so elected shall hold office
until the next election of the class for which such director shall have been
chosen, and until his successor shall have been duly elected and qualified. A
vacancy in the Board of Directors shall be deemed to exist under this section in
the case of the death, removal or resignation of any director, or if the
stockholders fail at any meeting of stockholders at which directors are to be
elected (including any meeting referred to in Section 4 below) to elect the
number of directors then constituting the whole Board.
Section 4. Resignations and Removals.
(a) Any director may resign at any time by delivering his written
resignation to the Secretary, such resignation to specify whether it will be
effective at a particular time, upon receipt by the Secretary or at the pleasure
of the Board of Directors. If no such specification is made it shall be deemed
effective at the pleasure of the Board of Directors. When one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office for the unexpired portion of the term of the director whose
place shall be vacated and until his successor shall have been duly elected and
qualified.
(b) At a special meeting of stockholders called for the purpose in the
manner hereinabove provided, the Board of Directors, or any individual director,
may be removed from office, with or without cause, and a new director or
directors elected by a vote of stockholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
Section 5. Meetings.
(a) The annual meeting of the Board of Directors shall be held
immediately after the annual stockholders' meeting and at the place where such
meeting is held or at the place announced by the Chairman at such meeting. No
notice of an annual meeting of the Board of Directors shall be necessary and
such meeting shall be held for the purpose of electing officers
8
<PAGE> 12
and transacting such other business as may lawfully come before it.
(b) Except as hereinafter otherwise provided, regular meetings of the
Board of Directors shall be held in the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof. Regular meetings of the
Board of Directors may also be held at any place within or without the State of
Delaware which has been designated by resolutions of the Board of Directors or
the written consent of all directors.
(c) Special meetings of the Board of Directors may be held at any time
and place within or without the State of Delaware whenever called by the
Chairman of the Board or, if there is no Chairman of the Board, by the
President, or by a majority of the directors then in office.
(d) Written notice of the time and place of all regular and special
meetings of the Board of Directors shall be delivered personally to each
director or sent by telegram or facsimile transmission at least 48 hours before
the start of the meeting, or sent by first class mail at least 120 hours before
the start of the meeting. Notice of any meeting may be waived in writing at any
time before or after the meeting and will be waived by any director by
attendance thereat.
Section 6. Quorum and Voting.
(a) A quorum of the Board of Directors shall consist of a majority of
the exact number of directors fixed from time to time in accordance with Section
I of Article III of these Bylaws, but not less than one; provided, however, at
any meeting whether a quorum be present or otherwise, a majority of the
directors present may adjourn from time to time until the time fixed for the
next regular meeting of the Board of Directors, without notice other than by
announcement at the meeting.
(b) At each meeting of the Board at which a quorum is present all
questions and business shall be determined by a vote of a majority of the
directors present, unless a different vote be required by law, the Certificate
of Incorporation, or these Bylaws.
(c) Any member of the Board of Directors, or of any committee thereof,
may participate in a meeting by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of Directors, or any
committee thereof, however called or noticed, or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present and if, either before or after the meeting, each of the
directors not present shall sign a written waiver of notice, or a consent to
holding such meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Section 7. Action Without Meeting. Unless otherwise restricted by the
Certificate of
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Incorporation or these Bylaws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or 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.
Section 8. Fees and Compensation. Directors and members of committees
may receive such compensation, if any, for their services, and such
reimbursement for expenses, as may be fixed or determined by resolution of the
Board of Directors.
Section 9. Committees.
(a) Executive Committee: The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Executive Committee of not
less than one member, each of whom shall be a director. The Executive Committee,
to the extent permitted by law, shall have and may exercise when the Board of
Directors is not in session all powers of the Board in the management of the
business and affairs of the corporation, including, without limitation, the
power and authority to declare a dividend or to authorize the issuance of stock,
except such committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement or merger or consolidation,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to recommend to the
stockholders of the Corporation a dissolution of the Corporation or a revocation
of a dissolution, or to amend these Bylaws.
(b) Other Committees: The Board of Directors may, by resolution passed
by a majority of the whole Board, from time to time appoint such other
committees as may be permitted by law. Such other committees appointed by the
Board of Directors shall have such powers and perform such duties as may be
prescribed by the resolution or resolutions creating such committee, but in no
event shall any such committee have the powers denied to the Executive Committee
in these Bylaws.
(c) Term: The members of all committees of the Board of Directors shall
serve a term coexistent with that of the Board of Directors which shall have
appointed such committee. The Board, subject to the provisions of subsections
(a) or (b) of this Section 9, may at any time increase or decrease the number of
members of a committee or terminate the existence of a committee; provided, that
no committee shall consist of less than one member. The membership of a
committee member shall terminate on the date of his death or voluntary
resignation, but the Board may at any time for any reason remove any individual
committee member and the Board may fill any committee vacancy created by death,
resignation, removal or increase in the number of members of the committee. The
Board of Directors 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, in addition, in the absence or disqualification of any
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.
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(d) Meetings: Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee appointed
pursuant to this Section 9 shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need be given thereafter; special meetings of any such
committee may be held at the principal office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof; or at any place which has
been designated from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director who is a
member of such committee, upon written notice to the members of such committee
of the time and place of such special meeting given in the manner provided for
the giving of written notice to members of the Board of Directors of the time
and place of special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time after the meeting
and will be waived by any director by attendance thereat. A majority of the
authorized number of members of any such committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such committee.
Section 10. Duties of the Chairman of the Board of Directors. The
Chairman of the Board of Directors shall, when present, preside at all meetings
of the shareholders and the Board of Directors. The Chairman of the Board of
Directors shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
ARTICLE IV
Officers
Section 1. Officers Designated. The officers of the corporation shall be
a President, and one or more Vice-Presidents, a Secretary, and a Treasurer. The
order of the seniority of the Vice Presidents shall be in the order of their
nomination, unless otherwise determined by the Board of Directors. The Board of
Directors or the President may also appoint one or more assistant secretaries,
assistant treasurers, and such other officers and agents with such powers and
duties as it or he shall deem necessary. The Board of Directors may assign such
additional titles to one or more of the officers as they shall deem appropriate.
Any one person may hold any number of offices of the corporation at any one time
unless specifically prohibited therefrom by law. The salaries and other
compensation of the officers of the corporation shall be fixed by or in the
manner designated by the Board of Directors.
Section 2. Tenure and Duties of Officers.
(a) General: All officers shall hold office at the pleasure of the Board
of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors. Nothing in these Bylaws shall be construed as creating any
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kind of contractual right to employment with the corporation.
(b) Duties of President: The President shall be the chief executive
officer of the corporation and shall preside at all meetings of the shareholders
and at all meetings of the Board of Directors, unless the Chairman of the Board
of Directors has been appointed and is present. The President shall perform such
other duties and have such other powers as the Board of Directors shall
designate from time to time.
(c) Duties of Vice-Presidents: The Vice-Presidents, in the order of
their seniority, may assume and perform the duties of the President in the
absence or disability of the President or whenever the office of the President
is vacant. The Vice-President shall perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time.
(d) Duties of Secretary: The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and any committee thereof, and shall
record all acts and proceedings thereof in the minute book of the corporation.
The Secretary shall give notice, in conformity with these Bylaws, of all
meetings of the shareholders, and of all meetings of the Board of Directors and
any Committee thereof requiring notice. The Secretary shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time. The President may direct any Assistant Secretary to assume and
perform the duties of the Secretary in the absence or disability of the
Secretary, and each Assistant Secretary shall perform such other duties and have
such other powers as the Board of Directors or the President shall designate
from time to time.
(e) Duties of Treasurer: The Treasurer shall keep or cause to be kept
the books of account of the corporation in a thorough and proper manner, and
shall render statements of the financial affairs of the corporation in such form
and as often as required by the Board of Directors or the President. The
Treasurer, subject to the order of the Board of Directors, shall have the
custody of all funds and securities of the corporation. The Treasurer shall
perform all other duties commonly incident to his office and shall perform such
other duties and have such other powers as the Board of Directors or the
President shall designate from time to time. The President may direct any
Assistant Treasurer to assume and perform the duties of the Treasurer in the
absence or disability of the Treasurer, and each Assistant Treasurer shall
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
ARTICLE V
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
Section 1. Execution of Corporate Instruments.
(a) The Board of Directors may, in its discretion, determine the method
and designate
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the signatory officer or officers, or other person or persons, to execute any
corporate instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such execution or
signature shall be binding upon the corporation.
(b) Unless otherwise specifically determined by the Board of Directors
or otherwise required by law, formal contracts of the corporation, promissory
notes, deeds of trust, mortgages and other evidences of indebtedness of the
corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the Board (if there be
such an officer appointed) or by the President; such documents may also be
executed by any Vice-President and by the Secretary or Treasurer or any
Assistant Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal, may be
executed as aforesaid or in such other manner as may be directed by the Board of
Directors.
(c) All checks and drafts drawn on banks or other depositaries on funds
to the credit of the corporation, or in special accounts of the corporation,
shall be signed by such person or persons as the Board of Directors shall
authorize so to do.
Section 2. Voting of Securities Owned by Corporation. All stock and
other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chairman of the Board (if there be such an officer appointed), or by the
President, or by any Vice-President.
ARTICLE VI
Shares of Stock
Section 1. Form and Execution of Certificates. Certificates for the
shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. 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 of the Board (if there be such an
officer appointed), or by the President or any Vice-President and by the
Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the corporation. Any or all of
the signatures on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent, or registrar before such certificate is issued, it may be issued with the
same effect as if he were such officer, transfer agent, or registrar 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 powers, 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 certificate which the corporation shall
issue to
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represent such class or series of stock, provided that, except as otherwise
provided in section 202 of the Delaware General Corporation Law, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate 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 powers, 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.
Section 2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost or destroyed certificate or certificates, or his legal representative, to
indemnify the corporation in such manner as it shall require and/or to give the
corporation a surety bond in such form and amount as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 3. Transfers. Transfers of record of shares of stock of the
corporation shall be made only upon its books by the holders thereof, in person
or by attorney duly authorized, and upon the surrender of a certificate or
certificates for a like number of shares, properly endorsed.
Section 4. Fixing Record Dates.
(a) 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, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be more
than sixty nor less than ten days before the date of such meeting. If no record
date is fixed by the Board of Directors, 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 date on which the meeting is held. A determination of stockholders
of record entitled 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.
(b) In order that the corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior
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action by the Board of Directors is required by the Delaware General Corporation
Law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the corporation by delivery
to its registered office in Delaware, its principal place of business, or an
officer or agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to a
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action.
(c) In order that the corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 5. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
Other Securities of the Corporation
All bonds, debentures and other corporate securities of the corporation,
other than stock certificates, may be signed by the Chairman of the Board (if
there be such an officer appointed), or the President or any Vice-President or
such other person as may be authorized by the Board of Directors and the
corporate seal impressed thereon or a facsimile of such seal imprinted thereon
and attested by the signature of the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer; provided, however, that where any such
bond, debenture or other corporate security shall be authenticated by the manual
signature of a trustee under an indenture pursuant to which such bond, debenture
or other corporate security shall be issued, the signature of the persons
signing and attesting the corporate seal on such bond, debenture or other
corporate security may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid, shall be signed by
the Treasurer or an Assistant Treasurer of the corporation, or such other person
as may be authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall have signed or
attested any bond, debenture or other corporate security, or whose facsimile
signature shall appear thereon or
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before the bond, debenture or other corporate security so signed or attested
shall have been delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the corporation and issued and delivered as
though the person who signed the same or whose facsimile signature shall have
been used thereon had not ceased to be such officer of the corporation.
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ARTICLE VIII
Corporate Seal
The corporate seal shall consist of a die bearing the name of the
corporation and the state and date of its incorporation. Said seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE IX
Indemnification of
Officers, Directors, Employees and Agents
Section 1. Right to Indemnification. Each person who was or is a party
or is threatened to be made a party to or is involved (as a party, witness, or
otherwise), in any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative
(hereinafter a "Proceeding"), by reason of the fact that he, or a person of whom
he is the legal representative, is or was a director, officer, employee, or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, including service with
respect to employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as a director, officer, employee, or
agent or in any other capacity while serving as a director, officer, employee,
or agent (hereafter an "Agent"), shall be indemnified and held harmless by the
corporation to the fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or interpreted (but, in the
case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against all expenses,
liability, and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal, state,
local, or foreign taxes imposed on any Agent as a result of the actual or deemed
receipt of any payments under this Article) reasonably incurred or suffered by
such person in connection with investigating, defending, being a witness in, or
participating in (including on appeal), or preparing for any of the foregoing
in, any Proceeding (hereinafter "Expenses"); provided, however, that except as
to actions to enforce indemnification rights pursuant to Section 3 of this
Article, the corporation shall indemnify any Agent seeking indemnification in
connection with a Proceeding (or part thereof) initiated by such person only if
the Proceeding (or part thereof) was authorized by the Board of Directors of the
corporation. The right to indemnification conferred in this Article shall be a
contract right.
Section 2. Authority to Advance Expenses. Expenses incurred by an
officer or director (acting in his capacity as such) in defending a Proceeding
shall be paid by the corporation in advance of the final disposition of such
Proceeding, provided, however, that such Expenses shall be advanced only upon
delivery to the corporation of an undertaking by or on behalf of such director
or officer to repay such amount if it shall ultimately be determined that he is
not entitled
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to be indemnified by the corporation as authorized in this Article or otherwise.
Expenses incurred by other Agents of the corporation (or by the directors or
officers not acting in their capacity as such, including service with respect to
employee benefit plans) may be advanced upon such terms and conditions as the
Board of Directors deems appropriate. Any obligation to reimburse the
corporation for Expense advances shall be unsecured and no interest shall be
charged thereon.
Section 3. Right of Claimant to Bring Suit. If a claim under Section 1
or 2 of this Article is not paid in full by the corporation within 60 days after
a written claim has been received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense (including attorneys' fees) of prosecuting
such claim. The burden of proof of such proceeding shall be on the claimant to
establish that he is entitled to be indemnified under this Article. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending a Proceeding in advance of its final
disposition where the required undertaking has been tendered to the corporation)
that the claimant has not met the standards of conduct that make it permissible
under the Delaware General Corporation Law for the corporation to indemnify the
claimant for the amount claimed. The burden of proving such a defense shall be
on the corporation. Neither the failure of the corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper under the circumstances because he has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the claimant had not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that claimant has not met the applicable standard of conduct.
Section 4. Provisions Nonexclusive. The rights conferred on any person
by this Article shall not be exclusive of any other rights that such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. To the extent that any provision of the
Certificate, agreement, or vote of the stockholders or disinterested directors
is inconsistent with these bylaws, the provision, agreement, or vote shall take
precedence.
Section 5. Authority to Insure. The corporation may purchase and
maintain insurance to protect itself and any Agent against any Expense, whether
or not the corporation would have the power to indemnify the Agent against such
Expense under applicable law or the provisions of this Article.
Section 6. Survival of Rights. The rights provided by this Article shall
continue as to a person who has ceased to be an Agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
Section 7. Settlement of Claims. The corporation shall not be liable to
indemnify any
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Agent under this Article (a) for any amounts paid in settlement of any action or
claim effected without the corporation's written consent, which consent shall
not be unreasonably withheld; or (b) for any judicial award if the corporation
was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
Section 8. Effect of Amendment. Any amendment, repeal, or modification
of this Article shall not adversely affect any right or protection of any Agent
existing at the time of such amendment, repeal, or modification.
Section 9. Subrogation. In the event of payment under this Article, the
corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation effectively to
bring suit to enforce such rights.
Section 10. No Duplication of Payments. The corporation shall not be
liable under this Article to make any payment in connection with any claim made
against the Agent to the extent the Agent has otherwise actually received
payment (under any insurance policy, agreement, vote, or otherwise) of the
amounts otherwise indemnifiable hereunder.
ARTICLE X
Notices
Whenever, under any provisions of these Bylaws, notice is required to be
given to any stockholder, the same shall be given in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his last
known post office address as shown by the stock record of the corporation or its
transfer agent. Any notice required to be given to any director may be given by
the method hereinabove stated, or by telegram or other means of electronic
transmission, except that such notice other than one which is delivered
personally, shall be sent to such address or (in the case of facsimile
telecommunication) facsimile telephone number as such director shall have filed
in writing with the Secretary of the corporation, or, in the absence of such
filing, to the last known post office address of such director. If no address of
a stockholder or director be known, such notice may be sent to the office of the
corporation required to be maintained pursuant to Section 2 of Article I hereof.
An affidavit of mailing, executed by a duly authorized and competent employee of
the corporation or its transfer agent appointed with respect to the class of
stock affected, specifying the name and address or the names and addresses of
the stockholder or stockholders, director or directors, to whom any such notice
or notices was or were given, and the time and method of giving the same, shall
be conclusive evidence of the statements therein contained. All notices given by
mail, as above provided, shall be deemed to have been given as at the time of
mailing and all notices given by telegram or other means of electronic
transmission shall be deemed to have been given as at the sending time recorded
by the telegraph company or other electronic transmission equipment operator
transmitting the same. It shall not be necessary that the same method of giving
be employed in respect of all directors, but one permissible method may be
employed in respect of
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any one or more, and any other permissible method or methods may be employed in
respect of any other or others. The period or limitation of time within which
any stockholder may exercise any option or right, or enjoy any privilege or
benefit, or be required to act, or within which any director may exercise any
power or right, or enjoy any privilege, pursuant to any notice sent him in the
manner above provided, shall not be affected or extended in any manner by the
failure of such a stockholder or such director to receive such notice. Whenever
any notice is required to be given under the provisions of the statutes or of
the Certificate of Incorporation, or of these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to said notice, whether before
or after the time stated therein, shall be deemed equivalent thereto. Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the corporation is
such as to require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if such is the
fact and if notice is required, that notice was given to all persons entitled to
receive notice except such persons with whom communication is unlawful.
ARTICLE XI
Amendments
These Bylaws may be repealed, altered or amended or new Bylaws adopted
by written consent of stockholders in the manner authorized by Section 8 of
Article II, or at any meeting of the stockholders, either annual or special, by
the affirmative vote of a majority of the stock entitled to vote at such
meeting. The Board of Directors shall also have the authority to repeal, alter
or amend these Bylaws or adopt new Bylaws (including, without limitation, the
amendment of any Bylaws setting forth the number of directors who shall
constitute the whole Board of Directors) by unanimous written consent or at any
annual, regular, or special meeting by the affirmative vote of a majority of the
whole number of directors, subject to the power of the stockholders to change or
repeal such Bylaws and provided that the Board of Directors shall not make or
alter any Bylaws fixing the qualifications, classifications, or term of office
of directors.
20
<PAGE> 24
CERTIFICATE OF SECRETARY
The undersigned, Secretary of MTI Technology Corporation, a Delaware
corporation, hereby certifies that the foregoing is a full, true and correct
copy of the Bylaws of said Corporation, with all amendments to date of this
Certificate.
WITNESS the signature of the undersigned and the seal of the Corporation
this ___ day of _________________, 1998.
------------------------------------------
Secretary
21
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