<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): JANUARY 5, 1998
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ENCAD, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION)
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0-23034
(COMMISSION FILE NUMBER)
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95-3672088
(EMPLOYER IDENTIFICATION NO.)
6059 CORNERSTONE COURT WEST 92121
SAN DIEGO, CA 92121
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICE) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (619) 452-0882
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ITEM 5. OTHER EVENTS
On January 5, 1998 (the "Effective Date of the Merger"), ENCAD, Inc., a
California corporation ("ENCAD California") merged into ENCAD, Inc., a
Delaware corporation (the "Company") for the purpose of changing ENCAD
California's state of incorporation from California to Delaware.
Pursuant to the Agreement and Plan of Merger between the Company and ENCAD
California, as of the Effective Date of the Merger (i) each share of ENCAD
California's Common Stock, no par value (the "ENCAD California Common
Stock"), issued and outstanding immediately prior to the Effective Date of
the Merger, was automatically converted into one share of the Company's
common stock, $0.001 par value (the "Common Stock") and (ii) each
outstanding and unexercised option or other right to purchase ENCAD
California Common Stock became an option or right to purchase the Company's
Common Stock on the basis of one share of the Company's Common Stock for each
share of ENCAD California Common Stock issuable pursuant to any such option
or stock purchase right, on the same terms and conditions and at an exercise
price per share equal to the exercise price applicable to any such ENCAD
California option or stock purchase right as of the Effective Date of the
Merger.
Pursuant to the Agreement and Plan of Merger between the Company and ENCAD
California, the Company assumed and continued all employee benefits plans
and succeeded to all of the assets and liabilities of ENCAD California.
The forgoing description is a summary only and is qualified by reference in
its entirety to the documents filed.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
a. Financial Statements: not applicable
b. Pro Forma Financial Information: not applicable.
c. Exhibits:
2.1 Agreement and Plan of Merger between the Company and ENCAD
California, dated January 5, 1998.
3.1 Certificate of Incorporation of the Company, as filed with the
Secretary of State of the State of Delaware on January 5, 1998.
3.2 Bylaws of the Company.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENCAD, INC.
Date: January 16, 1998 By: /s/ David A. Purcell
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David A. Purcell
Chief Executive Officer
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EXHIBIT INDEX
The following Exhibits are filed herewith:
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
2.1 Agreement and Plan of Merger, dated January 5, 1998, by and between
the Company and ENCAD California.
3.1 Certificate of Incorporation of the Company as filed with the
Secretary of State of the State of Delaware on January 5, 1998.
3.2 Bylaws of the Company.
<PAGE>
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF
ENCAD, INC.
(A DELAWARE CORPORATION)
AND
ENCAD, INC.
(A CALIFORNIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER dated as of January 5, 1998 (this
"Agreement") is between ENCAD, Inc., a Delaware corporation ("ENCAD
Delaware"), and ENCAD, Inc., a California corporation ("ENCAD California").
ENCAD Delaware and ENCAD California are sometimes referred to herein as the
"Constituent Corporations."
R E C I T A L S
- - - - - - - -
A. ENCAD Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has a total authorized capital stock of
Sixty-Five Million (65,000,000) shares. The number of shares of Preferred
Stock authorized to be issued is Five Million (5,000,000), par value $.001.
No shares of Preferred Stock were outstanding as of the date hereof and prior
to giving effect to the transactions contemplated hereby. The number of
shares of Common Stock authorized to be issued is Sixty Million (60,000,000),
par value $.001. As of the date hereof, and before giving effect to the
transactions contemplated hereby, One Thousand (1,000) shares of Common Stock
were issued and outstanding, all of which were held by ENCAD California.
B. ENCAD California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital stock of
Twenty Million (20,000,000) shares. The number of shares of Preferred Stock
authorized to be issued is Five Million (5,000,000), no par value, none of which
are currently outstanding. The number of shares of Common Stock authorized to
be issued is Fifteen Million (15,000,000), no par value.
C. The Board of Directors of ENCAD California has determined that, for
the purpose of effecting the reincorporation of ENCAD California in the State of
Delaware, it is advisable and in the best interests of ENCAD California that
ENCAD California merge with and into ENCAD Delaware upon the terms and
conditions herein provided.
D. The respective Boards of Directors of ENCAD Delaware and ENCAD
California approved this Agreement and directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers. Upon submission to their respective stockholders, this
merger was duly approved by both a majority of the shareholders of ENCAD
California and the sole stockholder of ENCAD Delaware in accordance with the
requirements of the General Corporation Law of the State of California and
the Delaware General Corporation Law.
E. ENCAD Delaware is a wholly-owned subsidiary of ENCAD California.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, ENCAD Delaware and ENCAD California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the General Corporation Law of the State of
California, ENCAD California shall be merged with and into ENCAD Delaware (the
"Merger"), the separate existence of ENCAD California shall cease and ENCAD
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be ENCAD, Inc.
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1.2 FILING AND EFFECTIVENESS. The Merger shall not become effective until
the following actions shall be completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the stockholders of ENCAD California and the sole stockholder
of ENCAD Delaware in accordance with the requirements of the Delaware
General Corporation Law and the General Corporation Law of the State of
California;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation
Law shall have been filed with the Secretary of State of the State of
Delaware; and
(d) An executed counterpart of this Agreement, a Certificate of
Ownership or any other document filed with the Secretary of State of the
State of Delaware pursuant to section (c) above, shall have been filed with
the Secretary of State of the State of California.
The date and time when the Merger shall become effective as aforesaid,
is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of ENCAD California shall cease and ENCAD Delaware, as the
Surviving Corporation (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
ENCAD California's Board of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of ENCAD California
in the manner more fully set forth in Section 259 of the General Corporation Law
of the State of Delaware, (iv) shall continue to be subject to all of the debts,
liabilities and obligations of ENCAD Delaware as constituted immediately prior
to the Effective Date of the Merger, and (v) shall succeed, without other
transfer, to all of the debts, liabilities and obligations of ENCAD California
in the same manner as if ENCAD Delaware had itself incurred them, all as more
fully provided under the applicable provisions of the General Corporation Law of
the State of Delaware and the General Corporation Law of the State of
California.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
ENCAD Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of ENCAD Delaware as in effect immediately prior
to the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of ENCAD Delaware
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
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III. MANNER OF CONVERSION OF STOCK
3.1 ENCAD CALIFORNIA COMMON SHARES. Upon the Effective Date of the
Merger, each share of ENCAD California Common Stock, no par value, issued and
outstanding immediately prior thereto shall by virtue of the Merger and
without any action by the Constituent Corporations, the holder of such share
or any other person, be converted into and exchanged for one (1) fully paid
and nonassessable share of Common Stock, par value $.001 per share, of the
Surviving Corporation.
3.2 ENCAD CALIFORNIA OPTIONS AND STOCK PURCHASE RIGHTS. Upon the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue the employee benefits plans (including the 401(k) Plan, the Deferred
Compensation Plan, the 1993 Employee Stock Purchase Plan and the 1993 Stock
Option/Stock Issuance Plan) and all other employee benefit plans of ENCAD
California. Each outstanding and unexercised option, or other right to
purchase ENCAD California Common Stock shall become an option, or right to
purchase the Surviving Corporation's Common Stock on the basis of one (1)
share of the Surviving Corporation's Common Stock for each share of ENCAD
California Common Stock issuable pursuant to any such option, or stock
purchase right on the same terms and conditions and at an exercise price per
share equal to the exercise price per share applicable to any such ENCAD
California option or stock purchase right at the Effective Date of the
Merger. There are no options or purchase rights for Preferred Stock of ENCAD
California.
A number of shares of the Surviving Corporation's Common Stock shall
be reserved for issuance upon the exercise of options and stock purchase rights
equal to the number of shares of ENCAD California Common Stock so reserved
immediately prior to the Effective Date of the Merger.
3.3 ENCAD DELAWARE COMMON STOCK. Upon the Effective Date of the
Merger, each share of Common Stock, par value $.001 per share, of ENCAD
Delaware issued and outstanding immediately prior thereto shall, by virtue of
the Merger and without any action by ENCAD Delaware, the holder of such
shares or any other person, be cancelled and returned to the status of
authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of
ENCAD California Common Stock may be asked to surrender the same for
cancellation to an exchange agent, whose name will be delivered to such
holders prior to any requested exchange (the "Exchange Agent"), and each such
holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the Surviving Corporation's
Common Stock into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of ENCAD California Common Stock shall be deemed for all
purposes to represent the number of shares of the Surviving Corporation's
Common Stock into which such shares of ENCAD California Common Stock were
converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion
or otherwise accounted for to the Surviving Corporation or the Exchange
Agent, have and be entitled to exercise any voting and other rights with
respect to and to receive dividends and other distributions upon the shares
of Common Stock of the Surviving Corporation represented by such outstanding
certificate as provided above.
Each certificate representing Common Stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transferability as the certificates of ENCAD
California so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in
compliance with applicable laws, or other such additional legends as agreed
upon by the holder and the Surviving Corporation.
If any certificate for shares of ENCAD Delaware stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise
in proper form for transfer, that such transfer otherwise be proper and
comply with applicable securities laws and that the person requesting such
transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other
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<PAGE>
than that of the registered holder of the certificate surrendered or
establish to the satisfaction of ENCAD Delaware that such tax has been paid
or is not payable.
IV. GENERAL
4.1 COVENANTS OF ENCAD DELAWARE. ENCAD Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
4.1.1 Qualify to do business as a foreign corporation in the
State of California.
4.1.2 File any and all documents with the California Franchise
Tax Board necessary for the assumption by ENCAD Delaware of all of the
franchise tax liabilities of ENCAD California.
4.1.3 Take such other actions as may be required by the General
Corporation Law of the State of California.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
ENCAD Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of ENCAD California such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other
actions as shall be appropriate or necessary in order to vest or perfect in
or conform of record or otherwise by ENCAD Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of ENCAD California and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of ENCAD Delaware are fully authorized in the name and on behalf of
ENCAD California or otherwise to take any and all such action and to execute
and deliver any and all such deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either ENCAD California or of
ENCAD Delaware, or of both, notwithstanding the approval of this Agreement by
the shareholders of ENCAD California.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement
(or certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Agreement by the stockholder or shareholders of either Constituent
Corporation shall not: (1) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation, (2) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger or
(3) alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or
series of capital stock of any Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is 1209 Orange Street, City of
Wilmington and the registered agent of the Surviving Corporation at such
address is The Corporation Trust Company.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 6059 Cornerstone
Court West, San Diego, CA 92121, and copies thereof will be furnished to any
stockholder or shareholder of either Constituent Corporation, upon request
and without cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
General Corporation Law of the State of California.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
A-4
<PAGE>
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of ENCAD, Inc., a Delaware corporation,
and ENCAD, Inc., a California corporation, is hereby executed on behalf of
each of such two corporations and attested by their respective officers
thereunto duly authorized.
ENCAD, INC., a Delaware corporation
By: /s/ DAVID A. PURCELL
------------------------------------
David A. Purcell,
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ THOMAS L. GREEN
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Thomas L. Green,
Secretary
ENCAD, INC., a California corporation
By: /s/ DAVID A. PURCELL
------------------------------------
David A. Purcell,
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ THOMAS L. GREEN
- ---------------------------
Thomas L. Green,
Secretary
[COUNTERPART SIGNATURE PAGE
TO AGREEMENT AND PLAN OF MERGER]
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF ENCAD, INC.
The undersigned, a natural person (the "Sole Incorporator"), for the
purpose of organizing a corporation to conduct the business and promote the
purposes hereinafter stated, under the provisions and subject to the
requirements of the laws of the State of Delaware hereby certifies that:
ARTICLE I
The name of this corporation is ENCAD, Inc.
ARTICLE II
The address of this corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington. The name of its
registered agent at such address is The Corporation Trust Company.
ARTICLE III
The purpose of this corporation is to engage in any lawful act or
activity for which a corporation may now or hereafter be organized under the
Delaware General Corporation Law.
ARTICLE IV
(A) CLASSES OF STOCK. This corporation is authorized to issue two
classes of stock, denominated Common Stock and Preferred Stock. The Common
Stock shall have a par value of $0.001 per share and the Preferred Stock
shall have a par value of $0.001 per share. The total number of shares of
Common Stock which the Corporation is authorized to issue is Sixty Million
(60,000,000), and the total number of shares of Preferred Stock which the
Corporation is authorized to issue is Five Million (5,000,000), which shares
of Preferred Stock shall be undesignated as to series.
(B) ISSUANCE OF PREFERRED STOCK. The Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is hereby
authorized, by filing one or more certificates pursuant to the Delaware
General Corporation Law (each, a "Preferred Stock Designation"), to fix or
alter from time to time the designations, powers, preferences and rights of
each such series of Preferred Stock and the qualifications, limitations or
restrictions thereof, including without limitation the dividend rights,
dividend rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or prices,
and the liquidation preferences of any wholly-unissued series of Preferred
Stock, and to establish from time to time the number of shares constituting
any such series and the designation thereof, or any of them; and to increase
or decrease the number of shares of any series subsequent to the issuance of
shares of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be decreased
in accordance with the foregoing sentence, the shares constituting such
decrease shall resume the status that they had prior to the adoption of the
resolution originally fixing the number of shares of such series.
(C) RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS OF COMMON STOCK.
1. DIVIDEND RIGHTS. Subject to the prior or equal rights of
holders of all classes of stock at the time outstanding having prior or equal
rights as to dividends, the holders of the Common Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of any assets of
the corporation legally available therefor, such dividends as may be declared
from time to time by the Board of Directors.
<PAGE>
2. REDEMPTION. The Common Stock is not redeemable upon demand of
any holder thereof or upon demand of this corporation.
3. VOTING RIGHTS. The holder of each share of Common Stock shall
have the right to one vote, and shall be entitled to notice of any
stockholders' meeting in accordance with the Bylaws of this corporation, and
shall be entitled to vote upon such matters and in such manner as may be
provided by law.
ARTICLE V
(A) EXCULPATION. A director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to further reduce or to authorize, with
the approval of the corporation's stockholders, further reductions in the
liability of the corporation's directors for breach of fiduciary duty, then a
director of the corporation shall not be liable for any such breach to the
fullest extent permitted by the Delaware General Corporation Law as so
amended.
(B) INDEMNIFICATION. To the extent permitted by applicable law, this
corporation is also authorized to provide indemnification of (and advancement
of expenses to) such agents (and any other persons to which Delaware law
permits this corporation to provide indemnification) through bylaw
provisions, agreements with such agents or other persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the
Delaware General Corporation Law, subject only to limits created by
applicable Delaware law (statutory or non-statutory), with respect to actions
for breach of duty to the corporation, its stockholders, and others.
(C) EFFECT OF REPEAL OR MODIFICATION. Any repeal or modification of any
of the foregoing provisions of this Article V shall be prospective and shall
not adversely affect any right or protection of a director, officer, agent or
other person existing at the time of, or increase the liability of any
director of the corporation with respect to any acts or omissions of such
director occurring prior to, such repeal or modification.
ARTICLE VI
Elections of directors need not be by written ballot except and to the
extent provided in the Bylaws of the corporation. The number of directors
shall be as specified in the Bylaws of the corporation. In no event will the
number of directors be less than three. Directors need not be stockholders.
ARTICLE VII
No holder of shares of stock of the corporation shall have any preemptive
or other right, except as such rights are expressly provided by contract, to
purchase or subscribe for or receive any shares of any class, or series
thereof, of stock of the corporation, whether now or hereafter authorized, or
any warrants, options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase any share of any
class, or series thereof, of stock; but such additional shares of stock and
such warrants, options, bonds, debentures or other securities convertible
into, exchangeable for or carrying any right to purchase any shares of any
class, or series thereof, of stock may be issued or disposed of by the Board
of Directors to such persons, and on such terms and for such lawful
consideration as in its discretion it shall deem advisable or as the
corporation shall have by contract agreed.
B-2
<PAGE>
ARTICLE VIII
The corporation is to have a perpetual existence.
ARTICLE IX
The corporation reserves the right to repeal, alter, amend or rescind any
provision contained in this Certificate of Incorporation and/or any provision
contained in any amendment to or restatement of this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred on stockholders herein are granted subject to this
reservation.
ARTICLE X
The Board of Directors may from time to time make, amend, supplement or
repeal the Bylaws by the requisite affirmative vote of directors as set forth
in the Bylaws; provided, however, that the stockholders may change or repeal
any bylaw adopted by the Board of Directors by the requisite affirmative vote
of stockholders as set forth in the Bylaws; and, provided further, that no
amendment or supplement to the Bylaws adopted by the Board of Directors shall
vary or conflict with any amendment or supplement thus adopted by the
stockholders.
ARTICLE XI
No action shall be taken by the stockholders of the corporation except at
an annual or special meeting of stockholders called in accordance with the
Bylaws, and no action shall be taken by the stockholders by written consent.
ARTICLE XII
Advance notice of stockholder nominations for the election of directors
and of business to be brought by stockholders before any meeting of the
stockholders of the corporation shall be given in the manner provided in the
Bylaws of the corporation.
ARTICLE XIII
The name and the mailing address of the Sole Incorporator is as follows:
NAME MAILING ADDRESS
---- ---------------
Darlene S. Dunn ENCAD, Inc.
6059 Cornerstone Court West
San Diego, CA 92121
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, this Certificate of Incorporation has been
signed this 5th day of January, 1998 by the undersigned who affirms that the
statements made herein are true and correct.
/s/ DARLENE S. DUNN
----------------------------------------
Darlene S. Dunn, Sole Incorporator
[SIGNATURE PAGE OF CERTIFICATE OF INCORPORATION OF ENCAD, INC.]
<PAGE>
EXHIBIT 3.2
BYLAWS
OF
ENCAD, INC.,
a Delaware corporation
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation 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
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors shall be held in the City of San Diego, State of
California, at such place as may be fixed from time to time by the Board of
Directors, or at such other place either within or without the State of
California as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting. Meetings of stockholders for any
other purpose may be held at such time and place, within or without the State
of California, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. ANNUAL MEETING.
(a) The annual meeting of the stockholders of the
corporation, 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.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be:
(A) specified in the notice of meeting (or any supplement thereto) given by
or at the direction of the Board of Directors, (B) otherwise properly brought
before the meeting by or at the direction of the Board of Directors, or (C)
otherwise properly brought before the meeting by a stockholder. For business
to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary
of the corporation. To be timely, a stockholder's notice must be delivered
to or mailed and received at the principal executive offices of the
corporation no later than the date specified in the corporation's proxy
statement released to stockholders in connection with the previous year's
annual meeting of stockholders, which date shall be not less than one hundred
twenty (120) calendar days in advance of the date of such proxy statement;
provided, however, that in the event that no annual meeting was held in the
previous year or the date of the annual meeting has been changed by more than
thirty (30) days from the date contemplated at the time of the previous
year's proxy statement, notice by the stockholder to be timely must be so
received a reasonable time before the solicitation is made. A stockholder's
notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting: (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and address, as
they appear on the corporation's books, of the stockholder proposing such
business, (iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder, (iv) any material interest of the
stockholder in such business and (v) any other information that is required
to be provided by the stockholder pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), in his capacity
as a proponent to a stockholder proposal. In addition to the foregoing, in
order to include information with respect to a stockholder proposal in the
proxy statement and form of
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proxy for a stockholder's meeting, stockholders must provide notice as
required by the regulations promulgated under the 1934 Act to the extent such
regulations require notice that is different from the notice required above.
Notwithstanding anything in these Bylaws to the contrary, no business shall
be conducted at any annual meeting except in accordance with the procedures
set forth in this paragraph (b) of this Section 2. The chairman of the
annual meeting shall, if the facts warrant, determine and declare at the
meeting that business was not properly brought before the meeting and in
accordance with the provisions of this paragraph (b), and, if he should so
determine, he shall so declare at the meeting that any such business not
properly brought before the meeting shall not be transacted.
(c) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (c) shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of
the corporation may be made at a meeting of stockholders by or at the
direction of the Board of Directors or by any stockholder of the corporation
entitled to vote in the election of directors at the meeting who complies
with the notice procedures set forth in this paragraph (c). Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the
Secretary of the corporation in accordance with the provisions of paragraph
(b) of this Section 2. Such stockholder's notice shall set forth (i) as to
each person, if any, whom the stockholder proposes to nominate for election
or re-election as a director: (A) the name, age, business address and
residence address of such person, (B) the principal occupation or employment
of such person, (C) the class and number of shares of the corporation that
are beneficially owned by such person, (D) a description of all arrangements
or understandings between the stockholder and each nominee and any other
person or persons (naming such person or persons) pursuant to which the
nominations are to be made by the stockholder, and (E) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the 1934 Act (including without limitation
such person's written consent to being named in the proxy statement, if any,
as a nominee and to serving as a director if elected); and (ii) as to such
stockholder giving notice, the information required to be provided pursuant
to subitems (ii), (iii) and (iv) of paragraph (b) of this Section 2. At the
request of the Board of Directors, any person nominated by a stockholder for
election as a director shall furnish to the Secretary of the corporation that
information required to be set forth in the stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible for
election as a director of the corporation unless nominated in accordance with
the procedures set forth in this paragraph (c). The chairman of the meeting
shall, if the facts warrant, determine and declare at the meeting that a
nomination was not made in accordance with the procedures prescribed by these
Bylaws, and if he should so determine, he shall so declare at the meeting,
and the defective nomination shall be disregarded.
Section 3. NOTICE OF ANNUAL MEETING. Written notice of the annual
meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than sixty (60) days before the date of the meeting.
Section 4. VOTING LIST. The officer who has charge of the stock ledger
of the corporation shall prepare and make, or have prepared and made, at
least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 5. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, as amended from time to time, may only be
called as provided in this Section 5 by the Chief Executive Officer or
Chairman of the Board and shall be called by the President or Secretary at
the request in writing of a majority of the Board of Directors. Such request
shall state the purpose or purposes of the proposed meeting. The place, date
and time of any special meeting shall be determined by the Board of
Directors. Such determination shall include the record date for determining
the stockholders having the right of and to vote at such meeting.
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Section 6. NOTICE OF SPECIAL MEETING. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting.
Section 7. ACTION AT SPECIAL MEETING. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in
the notice.
Section 8. QUORUM AND ADJOURNMENTS.
(a) The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation, as amended. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
(b) When a quorum is present at any meeting, the vote of
the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the Certificate of Incorporation, as amended, a different vote
is required, in which case such express provision shall govern and control
the decision of such question.
Section 9. VOTING RIGHTS. Unless otherwise provided in the Certificate
of Incorporation, as amended, each stockholder shall at every meeting of the
stockholders be entitled to one (1) vote in person or by proxy for each share
of the capital stock having voting power held by such stockholder, but no
proxy shall be voted on after three (3) years from its date, unless the proxy
provides for a longer period.
Section 10. ACTION WITHOUT MEETING. No action shall be taken by the
stockholders of the corporation except at an annual or special meeting of
stockholders called in accordance with these Bylaws, and no action shall be
taken by the stockholders by written consent.
Section 11. INSPECTORS OF ELECTION. Before any meeting of stockholders,
the Board of Directors may appoint any persons other than nominees for office
to act as inspectors of election at the meeting or its adjournment. If no
inspectors of election are so appointed, the chairman of the meeting may, and
on the request of any stockholder or a stockholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be
either one (1) or three (3). If inspectors are appointed at a meeting on the
request of one or more stockholders or proxies, the holders of a majority of
shares or their proxies present at the meeting shall determine whether one
(1) or three (3) inspectors are to be appointed. If any person appointed as
inspector fails to appear or fails or refuses to act, the chairman of the
meeting may, and upon the request of any stockholder or a stockholder's proxy
shall, appoint a person to fill that vacancy.
These inspectors shall:
(A) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, and
the authenticity, validity, and effect of proxies;
(B) Receive votes, ballots, or consents;
(C) Hear and determine all challenges and questions in any way arising
in connection with the right to vote;
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(D) Count and tabulate all votes or consents;
(E) Determine when the polls shall close;
(F) Determine the result; and
(G) Do any other acts that may be proper to conduct the election or vote
with fairness to all stockholders.
ARTICLE III
DIRECTORS
Section 1. NUMBER, TERM OF OFFICE AND QUALIFICATION. The number of
directors which shall constitute the whole Board of Directors shall be fixed
by resolution of the Board of Directors, with the number initially fixed at
seven (7). The number of directors shall be determined by resolution of a
simple majority of the directors then in office and each director elected
shall hold office until his successor is elected and qualified. Directors
need not be stockholders.
Section 2. VACANCIES. Vacancies may be filled only by a majority of the
directors then in office, though less than a quorum, or by a sole remaining
director. Each director so chosen shall hold office until a successor is
duly elected and shall qualify or until his earlier death, resignation or
removal. If there are no directors in office, then an election of directors
may be held in the manner provided by statute. If, at the time of filling
any vacancy, the directors then in office shall constitute less than a
majority of the whole Board of Directors (as constituted immediately prior to
any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies, or to replace the directors chosen by the directors then in office.
Section 3. POWERS. The business of the corporation shall be managed by
or under the direction of its Board of Directors which may exercise all such
powers of the corporation and do all such lawful acts and things as are not
by statute or by the Certificate of Incorporation, as amended, or by these
Bylaws directed or required to be exercised or done by the stockholders.
Section 4. REGULAR AND SPECIAL MEETINGS. The Board of Directors of the
corporation may hold meetings, both regular and special, either within or
without the State of California.
Section 5. ANNUAL MEETING. The annual meeting of each newly elected
Board of Directors shall be held without notice other than this Bylaw
immediately after, and at the same place as, the annual meeting of
stockholders. In the event the annual meeting of any newly elected Board of
Directors shall not be held immediately after, and at the same place as, the
annual meeting of stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors.
Section 6. NOTICE OF REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.
Section 7. NOTICE OF SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chief Executive Officer or President on no
less than forty-eight (48) hours notice to each director either personally,
or by telephone, mail, telegram or facsimile; special meetings shall be
called by the Chief Executive Officer, President or Secretary in like manner
and on like notice on the written request of two directors unless the Board
of Directors consists of only one director, in which case special meetings
shall be called by the Chief Executive Officer, President or Secretary in
like manner and on like notice on the written request of the sole director.
A written waiver of notice, signed by the person entitled thereto, whether
before or after the time of the meeting stated therein, shall be deemed
equivalent to notice.
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Section 8. QUORUM. At all meetings of the Board of Directors a majority
of the directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board of Directors, except as may
be otherwise specifically provided by statute or by the Certificate of
Incorporation, as amended. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 9. ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation, as amended, 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 of Directors or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 10. MEETINGS BY TELEPHONE CONFERENCE CALLS. Unless otherwise
restricted by the Certificate of Incorporation, as amended, or these Bylaws,
members of the Board of Directors, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at the meeting.
Section 11. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. 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.
In the absence of disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; but no such committee shall
have the power or authority in reference to amending the Certificate of
Incorporation, as amended, adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, recommending to
the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the Bylaws of the corporation; and, unless the
resolution or the Certificate of Incorporation, as amended, expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 12. FEES AND COMPENSATION. Unless otherwise restricted by the
Certificate of Incorporation, as amended, or these Bylaws, the Board of
Directors shall have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attendance at each meeting
of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
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Section 13. REMOVAL. Subject to any limitations imposed by law or the
Certificate of Incorporation, as amended, the Board of Directors, or any
individual director, may be removed from office at any time only with cause
by the affirmative vote of the holders of at least a majority of shares
entitled to vote at an election of directors.
ARTICLE IV
NOTICES
Section 1. NOTICE. Whenever, under the provisions of the statutes or of
the Certificate of Incorporation, as amended, or of these Bylaws, notice is
required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing,
by mail, addressed to such director or stockholder, at his address as it
appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Notice to directors may also be given
by telephone, telegram and facsimile.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the statutes or of the Certificate of
Incorporation, as amended, 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.
ARTICLE V
OFFICERS
Section 1. ENUMERATION. The officers of the corporation shall be chosen
by the Board of Directors and shall be a Chief Executive Officer, a Chief
Financial Officer and a Secretary. The Board of Directors may elect from
among its members a Chairman of the Board. The Board of Directors may also
choose a President, one or more Vice Presidents and one or more Assistant
Secretaries. Any number of offices may be held by the same person, unless the
Certificate of Incorporation, as amended, or these Bylaws otherwise provide.
The compensation of all officers and agents of the corporation
shall be fixed by the Board of Directors, and no officer shall be prevented
from receiving such compensation by virtue of his also being a director of
the corporation.
Section 2. ELECTION OR APPOINTMENT. The Board of Directors at its first
meeting after each annual meeting of stockholders shall choose a Chief
Executive Officer, Chief Financial Officer and a Secretary and may choose a
President, one or more Vice Presidents and one or more Assistant Secretaries.
The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.
Section 3. TENURE, REMOVAL AND VACANCIES. The officers of the
corporation shall hold office until their successors are chosen and
qualified. Any officer elected or appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the corporation shall be
filled by the Board of Directors.
Section 4. CHAIRMAN OF THE BOARD. The Chairman of the Board, if any,
shall preside at all meetings of the Board of Directors and of the
stockholders at which he shall be present. He shall have and may exercise
such powers as are, from time to time, assigned to him by the Board of
Directors and as may be provided by law.
Section 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer of the
corporation shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and the officers
of the corporation. He shall preside at all meetings of the stockholders
and, in the absence or nonexistence of a
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Chairman of the Board at all meetings of the Board of Directors. He shall
have the general powers and duties of management usually vested in the Chief
Executive Officer of a corporation, including general supervision, direction
and control of the business and supervision of other officers of the
corporation, and shall have such other powers and duties as may be prescribed
by the Board of Directors or these Bylaws.
The Chief Executive Officer shall, without limitation, have the authority
to execute bonds, mortgages and other contracts requiring a seal, under the
seal of the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation.
Section 6. PRESIDENT. Subject to such supervisory powers as may be
given by these Bylaws or the Board of Directors to the Chairman of the Board
or the Chief Executive Officer, if there be such officers, the President
shall have general supervision, direction and control of the business and
supervision of other officers of the corporation, and shall have such other
powers and duties as may be prescribed by the Board of Directors or these
Bylaws. In the event a Chief Executive Officer shall not be appointed, the
President shall have the duties of such office.
Section 7. VICE PRESIDENTS. The Vice President, or if there shall be
more than one, the Vice Presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the President, act with all
of the powers and be subject to all the restrictions of the President. The
Vice Presidents shall also perform such other duties and have such other
powers as the Board of Directors, the President or these Bylaws may, from
time to time, prescribe.
Section 8. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors, all meetings of the committees thereof and all meetings
of the stockholders and record all the proceedings of the meetings in a book
or books to be kept for that purpose. Under the Chief Executive Officer's or
President's supervision, the Secretary shall give, or cause to be given, all
notices required to be given by these Bylaws or by law; shall have such
powers and perform such duties as the Board of Directors, the Chief Executive
Officer, the President or these Bylaws may, from time to time, prescribe; and
shall have custody of the seal of the corporation. The Secretary, or an
Assistant Secretary, shall have authority to affix the seal of the
corporation to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such Assistant
Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by
his or her signature.
Section 9. ASSISTANT SECRETARY. The Assistant Secretary, if any, or if
there be more than one, the Assistant Secretaries in the order determined by
the Board of Directors, shall, in the absence, disability or refusal to act
of the Secretary, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board
of Directors, the Chief Executive Officer, the President, the Secretary or
these Bylaws may, from time to time, prescribe.
Section 10. CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
act as Treasurer and shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
He shall disburse the funds of the corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an
account of all his transactions as Treasurer and of the financial condition
of the corporation.
If required by the Board of Directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control
belonging to the corporation.
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Section 11. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENTS. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these Bylaws, shall have such authority and perform such
duties as may from time to time be prescribed by the Board of Directors, the
Chief Executive Officer or the President.
Section 12. ABSENCE OR DISABILITY OF OFFICERS. In the case of the
absence or disability of any officer of the corporation and of any person
hereby authorized to act in such officer's place during such officer's
absence or disability, the Board of Directors may delegate the powers and
duties of such officer to any officer or to any director, or to any other
person who it may select.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. CERTIFICATES OF STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the
name of the corporation by, the Chairman of the Board of Directors, or the
President or a Vice President and the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the corporation, certifying the
number of shares owned by him in the corporation.
Certificates may be issued for partly paid shares and in such
case upon the face or back of the certificates issued to represent any such
partly paid shares, the total amount of the consideration to be paid
therefor, and the amount paid thereon shall be specified.
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 represent such class or
series of stock, provided that, except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
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. EXECUTION OF CERTIFICATES. Any or all of the signatures on
the certificate may be 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 by the corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
Section 3. 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,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen 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, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the corporation a bond
in such sum 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, stolen or destroyed.
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Section 4. TRANSFER OF STOCK. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 5. FIXING RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholder or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 6. 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 to hold
liable for calls and assessments a person registered on its books as the
owner of shares 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
INDEMNIFICATION
Section 1. INDEMNIFICATION OF DIRECTORS AND EXECUTIVE OFFICERS. The
corporation shall indemnify its directors and executive officers to the
fullest extent not prohibited by the Delaware General Corporation Law;
provided, however, that the corporation may limit the extent of such
indemnification by individual contracts with its directors and executive
officers; and, provided, further, that the corporation shall not be required
to indemnify any director or executive officer in connection with any
proceeding (or part thereof) initiated by such person or any proceeding by
such person against the corporation or its directors, officers, employees or
other agents unless (i) such indemnification is expressly required to be made
by law, (ii) the proceeding was authorized by the Board of Directors of the
corporation, and (iii) such indemnification is provided by the corporation,
in its sole discretion, pursuant to the powers vested in the corporation
under the Delaware General Corporation Law.
Section 2. INDEMNIFICATION OF OTHER OFFICERS, EMPLOYEES AND OTHER
AGENTS. The corporation shall have power to indemnify its other officers,
employees and other agents as set forth in the Delaware General Corporation
Law.
Section 3. GOOD FAITH.
(a) For purposes of any determination under this Bylaw, a
director or executive officer shall be deemed to have acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe that his conduct was
unlawful, if his action is based on information, opinions, reports and
statements, including financial statements and other financial data, in each
case prepared or presented by:
(1) one or more officers or employees of the corporation
whom the director or executive officer believed to be reliable
and competent in the matters presented;
(2) counsel, independent accountants or other persons as to
matters which the director or executive officer believed to be
within such person's professional competence; and
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(3) with respect to a director, a committee of the Board of
Directors upon which such director does not serve, as to matters
within such committee's designated authority, which committee the
director believes to merit confidence; so long as, in each case,
the director or executive officer acts without knowledge that
would cause such reliance to be unwarranted.
(b) The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal proceeding, that he had reasonable cause to believe that his consent
was unlawful.
(c) The provisions of this Section 3 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth by the
Delaware General Corporation Law.
Section 4. EXPENSES. The corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all
expenses incurred by any director or executive officer in connection with
such proceeding upon receipt of an undertaking by or on behalf of such person
to repay said amounts if it should be determined ultimately that such person
is not entitled to be indemnified under this Bylaw or otherwise.
Notwithstanding the foregoing, unless otherwise determined
pursuant to Section 4 of this Bylaw, no advance shall be made by the
corporation if a determination is reasonably and promptly made (i) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to the proceeding, or (ii) if such quorum is not obtainable,
or, even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, that the facts known to the
decision-making party at the time such determination is made demonstrate
clearly and convincingly that such person acted in bad faith or in a manner
that such person did not believe to be in or not opposed to the best
interests of the corporation.
Section 5. ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to directors and
executive officers under this Bylaw shall be deemed to be contractual rights
and be effective to the same extent and as if provided for in a contract
between the corporation and the director or executive officer. Any right to
indemnification or advances granted by this Bylaw to a director or executive
officer shall be enforceable by or on behalf of the person holding such right
in any court of competent jurisdiction if (i) the claim for indemnification
or advances is denied, in whole or in part, or (ii) no disposition of such
claim is made within ninety (90) days of request therefor. The claimant in
such enforcement action, if successful in whole or in part, shall be entitled
to be paid also the expense of prosecuting his claim. The corporation shall
be entitled to raise as a defense to any such action 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. 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 in 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
has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 6. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Bylaw shall not be exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, as amended, Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding
office. The corporation is specifically authorized to enter into individual
contracts with any or all of its directors, officers, employees or agents
respecting indemnification and advances, to the fullest extent not prohibited
by the Delaware General Corporation Law.
Section 7. SURVIVAL OF RIGHTS. The rights conferred on any person by
this Bylaw shall continue as to a person who has ceased to be a director,
officer, employee or other agent and shall inure to the benefit of the heirs,
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executors and administrators of such a person.
Section 8. INSURANCE. To the fullest extent permitted by the Delaware
General Corporation Law, the corporation, upon approval by the Board of
Directors, may purchase insurance on behalf of any person required or
permitted to be indemnified pursuant to this Bylaw.
Section 9. AMENDMENTS. Any repeal or modification of this Bylaw shall
only be prospective and shall not affect the rights under this Bylaw in
effect at the time of the alleged occurrence of any action or omission to act
that is the cause of any proceeding against any agent of the corporation.
Section 10. SAVING CLAUSE. If this Bylaw or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each director and executive officer
to the full extent not prohibited by any applicable portion of this Bylaw
that shall not have been invalidated, or by any other applicable law.
Section 11. CERTAIN DEFINITIONS. For the purposes of this Bylaw, the
following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of the
testimony in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative.
(b) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees,
fines, amounts paid in settlement or judgment and any other costs and
expenses of any nature or kind incurred in connection with any proceeding.
(c) The term the "corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Bylaw with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(d) References to a "director," "officer," "employee," or
"agent" of the corporation shall include, without limitation, situations
where such person is serving at the request of the corporation as a director,
officer, employee, trustee or agent of another corporation, partnership,
joint venture, trust or other enterprise.
(e) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed
on a person with respect to an employee benefit plan; and references to
"serving at the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which imposes duties
on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and
a person who acted in good faith and in a manner he reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this Bylaw.
ARTICLE VIII
LOANS TO OFFICERS
Section 1. LOANS TO OFFICERS. The corporation may lend money to, or
guarantee any obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiaries, including any officer or
employee who is a director of the corporation or its subsidiaries, whenever,
in the judgment of the Board of Directors, such loan, guarantee or assistance
may reasonably be expected to benefit the corporation. The loan,
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guarantee or other assistance may be with or without interest and may be
unsecured, or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the
corporation. Nothing in this Bylaw shall be deemed to deny, limit or restrict
the powers of guaranty or warranty of the corporation at common law or under
any statute.
ARTICLE IX
EXCESSIVE COMPENSATION
If the Internal Revenue Service disallows as a business deduction to the
corporation any part of the salary or other compensation paid by it to any
officer, director or employee, as being excessive compensation, that part
disallowed shall be repaid to the corporation by the officer, director or
employee.
ARTICLE X
GENERAL PROVISIONS
Section 1. DECLARATION OF DIVIDENDS. Dividends upon the capital stock
of the corporation, subject to the provisions of the Certificate of
Incorporation, as amended, if any, may be declared by the Board of Directors
at any regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation, as amended.
Section 2. DIVIDEND RESERVE. Before payment of any dividend, there may
be set aside out of any funds of the corporation available for dividends such
sum or sums as the directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purposes as the directors shall think
conducive to the interest of the corporation, and the directors may modify or
abolish any such reserve in the manner in which it was created.
Section 3. EXECUTION OF CORPORATE INSTRUMENTS. All checks or demands
for money and notes of the corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may from
time to time designate.
Section 4. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 5. CORPORATE SEAL. The Board of Directors may adopt a corporate
seal having inscribed thereon the name of the corporation, the year of its
organization and the words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise.
ARTICLE XI
AMENDMENTS
Section 1. AMENDMENTS.
(a) Except as otherwise set forth in Section 9 of Article
VII of these Bylaws, the Bylaws may be altered or amended or new Bylaws
adopted by the affirmative vote of a majority of the voting power of all of
the then-outstanding shares of capital stock of the corporation entitled to
vote generally in the election of Directors (the "Voting Stock"). The Board
of Directors shall also have the power, if such power is conferred upon the
Board of Directors by the Certificate of Incorporation, as amended, to adopt,
amend or repeal Bylaws by a vote of the majority of the Board of Directors
unless a greater or different vote is required pursuant to the provisions of
the Bylaws, the Certificate of Incorporation or any applicable provision of
law.
(b) Notwithstanding any other provisions of these Bylaws
or any provision of law which
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might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the
Voting Stock required by law, the Certificate of Incorporation, as amended,
or any Preferred Stock Designation (as the term is defined in the Certificate
of Incorporation, as amended), the affirmative vote of the holders of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all
of the then-outstanding shares of the Voting Stock, voting together as a
single class, shall be required to alter, amend or repeal this paragraph (b)
or Section 2, Section 9 or Section 10 of Article II or Section 1, Section 2
or Section 13 of Article III or Article VIII or Article IX of these Bylaws.
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