<PAGE>
SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. )
Filed by the Registrant [X]
Filed by a Party other than the Registrant [_]
Check the appropriate box:
[_] Preliminary Proxy Statement [_] Confidential, for Use of the
Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[_] Definitive Additional Materials
[_] Soliciting Material Pursuant to (S)240.14a-11(c) or (S)240.14a-12
MAPINFO CORPORATION
------------------------------------------------
(Name of Registrant as Specified In Its Charter)
MAPINFO CORPORATION
------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if
other than the Registrant)
Payment of Filing Fee (check the appropriate box):
[X] No fee required
[_] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
________________________________________________________________________
(2) Aggregate number of securities to which transaction applies:
________________________________________________________________________
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the
filing fee is calculated and state how it was determined):
________________________________________________________________________
(4) Proposed maximum aggregate value of transaction:
________________________________________________________________________
(5) Total fee paid:
________________________________________________________________________
[_] Fee paid previously with preliminary materials.
[_] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
________________________________________________________________________
(2) Form, Schedule or Registration Statement No.:
________________________________________________________________________
(3) Filing Party:
________________________________________________________________________
(4) Date Filed:
________________________________________________________________________
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[MAPINFO LOGO APPEARS HERE]
August 8, 1997
Dear Shareholders:
Enclosed you will find a proxy concerning the Special Meeting of Shareholders to
be held at the Company's corporate headquarters, One Global View, Troy, New York
on Wednesday, September 24, 1997 for the described purpose of voting on
MapInfo's reincorporation in Delaware.
We ask that you act now on this mailing, and vote, directly or through
instruction to your broker, in favor of the reincorporation.
Sincerely,
/s/ Michael D. Marvin /s/ John C. Cavalier
- --------------------- ---------------------
Michael D. Marvin John C. Cavalier
Chairman President & Chief Executive Officer
One Global View Troy, NY 12180-8399 518.285.6000 Fax: 518.285.6060
<PAGE>
MAPINFO CORPORATION
ONE GLOBAL VIEW
TROY, NEW YORK 12180
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS TO BE HELD
ON WEDNESDAY, SEPTEMBER 24, 1997
A Special Meeting of Stockholders of MapInfo Corporation, a New York
corporation (the "Company"), will be held at MapInfo Corporation, One Global
View, Troy, New York on September 24, 1997 at 4:00 p.m., local time, to
consider and act upon the following matters:
1. To approve the reincorporation of the Company in the State of
Delaware (the "Reincorporation"), to be effected pursuant to an
Agreement and Plan of Merger (the "Merger Agreement"), by and
between the Company and MapInfo Corporation, a Delaware corporation
and a wholly-owned subsidiary of the Company ("MapInfo Delaware"),
pursuant to which the Company will merge with and into MapInfo
Delaware (the "Merger"), and MapInfo Delaware will survive the
Merger.
2. To transact such other business as may properly come before the
meeting or any adjournment thereof.
Stockholders of record at the close of business on August 6, 1997 will be
entitled to notice of and to vote at the meeting or any adjournment(s)
thereof. The stock transfer books of the Company remain open.
All stockholders are cordially invited to attend the meeting.
By Order of the Board of Directors,
JOHN F. HALLER,
Secretary
Troy, New York
August 8, 1997
WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETING, PLEASE COMPLETE, DATE AND
SIGN THE ENCLOSED PROXY AND MAIL IT PROMPTLY IN THE ENCLOSED ENVELOPE IN ORDER
TO ENSURE REPRESENTATION OF YOUR SHARES. NO POSTAGE NEED BE AFFIXED IF THE
PROXY IS MAILED IN THE UNITED STATES.
<PAGE>
MAPINFO CORPORATION
ONE GLOBAL VIEW
TROY, NEW YORK 12180
PROXY STATEMENT FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON WEDNESDAY, SEPTEMBER 24, 1997
This Proxy Statement is furnished in connection with the solicitation of
proxies by the Board of Directors of MapInfo Corporation (the "Company") for
use at a Special Meeting of Stockholders (the "Special Meeting") to be held on
Wednesday, September 24, 1997 at the offices of the Company, One Global View,
Troy, New York, at 4:00 p.m., local time, and at any adjournment(s) of the
Special Meeting. All proxies will be voted in accordance with the
stockholders' instructions, and if no choice is specified, the proxies will be
voted in favor of the matter set forth in the accompanying Notice of Meeting.
Any proxy may be revoked by a stockholder at any time before its exercise by
delivery of written revocation or a subsequently dated proxy to the Secretary
of the Company or by voting in person at the Special Meeting.
At the close of business on August 6, 1997, the record date for the
determination of stockholders entitled to vote at the Special Meeting (the
"Record Date"), there were outstanding and entitled to vote an aggregate of
5,879,621 shares of common stock, $.002 par value per share, of the Company
(the "New York Common Stock"). Stockholders are entitled to one vote per
share.
The Notice of Special Meeting, this Proxy Statement and the enclosed proxy
are being mailed to stockholders on or about August 8, 1997.
VOTES REQUIRED
The holders of a majority of the number of shares of New York Common Stock
issued, outstanding and entitled to vote on any matter shall constitute a
quorum at the Special Meeting. Shares of New York Common Stock present in
person or represented by proxy (including shares which abstain or do not vote
with respect to the matters presented for stockholder approval) will be
counted for purposes of determining whether a quorum is present.
The approval of the Reincorporation proposal requires the affirmative votes
of the holders of two-thirds of the outstanding shares of New York Common
Stock.
Shares which abstain from voting, and shares held in street name by brokers
or nominees who indicate on their proxy that they do not have discretionary
authority to vote such shares as to the Reincorporation proposal, will not be
counted as votes in favor of such matter. Accordingly, abstentions and "broker
non-votes" with respect to voting on the Reincorporation proposal will have
the effect of a vote against the proposal.
SOLICITATION OF PROXIES
All expenses of the Company's solicitation of proxies, including the cost of
preparing and mailing this Proxy Statement to stockholders, will be borne by
the Company. In addition to solicitation by use of the mails, proxies may be
solicited from stockholders by directors, officers and employees of the
Company in person or by telephone, fax or other means of communication. Such
directors, officers and employees will not be additionally compensated, but
may be reimbursed for reasonable out-of-pocket expenses in connection with
such solicitation. The Company also has retained Corporate Investor
Communications, Inc., a proxy solicitation firm, for assistance in connection
with the solicitation of proxies for the Special Meeting at a cost of
approximately $6,000 plus reimbursement of reasonable
<PAGE>
out-of-pocket expenses. Arrangements will also be made with brokerage houses,
custodians, nominees and fiduciaries for forwarding of proxy solicitation
materials to beneficial owners of shares held of record by such brokerage
houses, custodians, nominees and fiduciaries, and the Company will reimburse
such brokerage houses, custodians, nominees and fiduciaries for their
reasonable expenses incurred in connection therewith.
BENEFICIAL OWNERSHIP OF COMMON STOCK
The following table sets forth certain information, as of June 30, 1997,
with respect to the beneficial ownership of the Company's Common Stock by (i)
each person known by the Company to beneficially own more than 5% of the
outstanding shares of Common Stock, (ii) each director of the Company, (iii)
the Company's current Chief Executive Officer and the former Chief Executive
Officer and each of the four other most highly compensated executive officers
for the fiscal year ended September 30, 1996 and (iv) all directors and
executive officers of the Company as a group:
<TABLE>
<CAPTION>
NUMBER OF
SHARES PERCENTAGE OF
BENEFICIALLY COMMON STOCK
BENEFICIAL OWNER OWNED(1) OUTSTANDING(2)
---------------- ------------ --------------
<S> <C> <C>
John F. Haller.................................... 387,130 6.6%
c/o MapInfo Corporation
One Global View
Troy, New York 12180
George C. McNamee (3)............................. 311,323 5.3%
c/o First Albany Corporation
Key Corp. Plaza
30 South Pearl Street
Albany, New York 12201
Laszlo C. Bardos (4).............................. 177,345 3.0%
John F. Burton (5)................................ 1,322 *
John C. Cavalier.................................. -- *
Michael D. Marvin (6)............................. 230,309 3.9%
Brian D. Owen..................................... 983 *
James A. Perakis (7).............................. 2,433 *
D. Joseph Gersuk (8).............................. 22,893 *
Elizabeth A. Ireland (9).......................... 24,433 *
F. Steven Weick (10).............................. 13,333 *
All directors and executive officers as a group
(10 persons) (11)................................ 1,170,521 19.6%
</TABLE>
- --------
* Less than 1%
(1) The inclusion herein of any shares of Common Stock deemed beneficially
owned does not constitute an admission of beneficial ownership of those
shares. Unless otherwise indicated, each person listed above has sole
voting and investment power with respect to the shares listed. Any
reference in the footnotes below to stock options held by the person in
question relates to stock options which are currently exercisable or
exercisable within 60 days after June 30, 1997.
2
<PAGE>
(2) Number of shares deemed outstanding includes 5,866,079 shares outstanding
as of June 30, 1997 plus any shares subject to options held by the person
or entity in question which are currently exercisable or exercisable
within 60 days after June 30, 1997.
(3) Includes 5,918 shares subject to stock options held be Mr. McNamee. Also
includes 288,305 shares held by First Albany Corporation. Mr. McNamee
shares voting and investment power with respect to the shares held by
First Albany Corporation and disclaims beneficial ownership of such
shares except as to his proportionate pecuniary interest therein.
(4) Includes 25,000 shares held by Mr. Bardos' wife, as to which shares Mr.
Bardos disclaims beneficial ownership.
(5) Consists of 1,322 shares subject to stock options held by Mr. Burton.
(6) Includes 49,500 shares subject to stock options held by Mr. Marvin.
(7) Includes 2,433 shares subject to stock options held by Mr. Perakis.
(8) Includes 20,334 shares subject to stock options held by Mr. Gersuk.
(9) Includes 18,600 shares subject to stock options held by Ms. Ireland.
(10) Includes 13,333 shares subject to stock options held by Mr. Weick.
(11) Includes an aggregate of 111,440 shares subject to stock options.
3
<PAGE>
PROPOSAL 1--APPROVAL OF THE REINCORPORATION PROPOSAL
GENERAL
The Company has formed MapInfo Delaware, a wholly-owned subsidiary
incorporated under the laws of the State of Delaware, for the purpose of
effecting the Reincorporation through the consummation of the Merger. The
address and phone number of MapInfo Delaware's principal office are the same
as those of the Company. Upon consummation of the Merger, the Company will be
merged with and into MapInfo Delaware and MapInfo Delaware will survive the
Merger. Pursuant to the Merger Agreement, attached to this Proxy Statement as
Annex A, each outstanding share of New York Common Stock will automatically be
converted into a share of Common Stock, $.002 par value per share of MapInfo
Delaware (the "Delaware Common Stock") and each holder of New York Common
Stock will be deemed to hold a number of shares of Delaware Common Stock equal
to the number of shares of New York Common Stock held by such holder prior to
the Reincorporation. It will not be necessary for the Company's stockholders
to exchange their existing share certificates following the Reincorporation.
The Reincorporation will not result in any changes in the business, assets,
liabilities or net worth of the Company. The directors and officers of the
Company immediately prior to Reincorporation will serve as the directors and
officers of MapInfo Delaware following the Reincorporation. Following the
Merger, the Delaware Common Stock will be listed on the Nasdaq National
Market.
Pursuant to the Merger Agreement, MapInfo Delaware will assume all of the
Company's obligations under the Company's Employee Non-Qualified Stock Option
Plan I, Employee Nonqualified Stock Option Plan II, 1993 Stock Incentive Plan,
1993 Employee Stock Purchase Plan and 1993 Director Stock Option Plan, each as
amended to date (the "Company Stock Plans"). Each option to purchase shares
under the Company Stock Plans or under a Company option agreement will be
converted into an option to purchase the same number of shares of Delaware
Common Stock on the same terms and conditions as in effect immediately prior
to the Reincorporation, and options and rights granted under the Company Stock
Plans in the future will be for shares of Delaware Common Stock.
Approval of the Reincorporation will constitute approval of the Merger, the
Merger Agreement, and the assumption of the Company Stock Plans and Company
option agreements by MapInfo Delaware.
EFFECTIVE TIME
The Reincorporation is expected to become effective on September 30, 1997
(the "Effective Time"), assuming stockholder approval has been obtained and
all other conditions to the Merger have been satisfied or waived. Pursuant to
the terms of the Merger Agreement and applicable law, the Reincorporation may
be abandoned by the Board of Directors prior to the Effective Time.
At the Effective Time, the Certificate of Incorporation of MapInfo Delaware
(the "Delaware Certificate of Incorporation") and the By-laws of MapInfo
Delaware (the "Delaware By-laws"), attached to this Proxy Statement as Annexes
B and C, respectively, and the Delaware General Corporation Law (the "DGCL")
will govern the rights of the holders of New York Common Stock. See
"Comparison of Stockholder Rights Under New York and Delaware Law" and
"Material Changes in the Delaware Certificate of Incorporation and Delaware
By-laws from the New York Certificate of Incorporation and New York By-laws."
RECOMMENDATION OF THE BOARD OF DIRECTORS
The Company's Board of Directors has unanimously approved, and for the
reasons described below, unanimously recommends that the Company's
stockholders approve, the Reincorporation proposal for the purpose of changing
the Company's state of incorporation from New York to Delaware.
4
<PAGE>
REASONS FOR THE MERGER
Historically, Delaware has followed a policy of encouraging incorporation in
that state and, in furtherance of that policy, has adopted comprehensive,
modern and flexible corporate laws which are periodically updated and revised
in response to the legal and business needs of corporations organized under
its laws. As a result, many corporations have initially chosen Delaware for
their domicile or have subsequently reincorporated in Delaware in a manner
similar to that proposed by the Company. Because of Delaware's preeminence as
the state of incorporation for many major corporations, both the Delaware
legislature and courts have demonstrated an ability and a willingness to act
quickly to meet changing business needs. The Delaware courts have developed
considerable expertise in dealing with corporate issues and a substantial body
of case law, establishing public policies with respect to corporate legal
affairs. Delaware has a more highly developed body of case law interpreting
its corporate statutes than New York, and this case law advantage gives
Delaware corporate law an added measure of predictability that is useful in a
judicial system based largely on precedent. These factors often provide the
directors and management of Delaware corporations with greater certainty and
predictability in managing the affairs of the corporation. Furthermore, the
Delaware court system provides for the relatively expeditious resolution of
corporate disputes. Delaware has a specialized Court of Chancery which hears
cases involving corporate law and lacks jurisdiction over tort or criminal
cases. Moreover, appeals to the Supreme Court of Delaware in important cases
can be made and decided relatively rapidly.
COMPARISON OF STOCKHOLDER RIGHTS UNDER NEW YORK AND DELAWARE LAW
The reincorporation will effect several changes in the rights of
stockholders as a result of differences between the New York Business
Corporation Law (the "NYBCL") and the DGCL. The provisions of the NYBCL and
the DGCL differ in numerous respects. Summarized below are certain of the
principal differences between the NYBCL and the DGCL affecting the rights of
stockholders. This summary does not purport to be a complete statement of the
differences affecting the stockholders' rights under the NYBCL and the DGCL
and is subject to, and qualified in its entirety by reference to, all the
provisions of these statutes.
Dividends. Under both the NYBCL and the DGCL, a corporation may generally
pay dividends out of surplus. In addition, the DGCL, unlike the NYBCL permits
a corporation, under certain circumstances, to pay dividends, if there is no
surplus, out of its net profits for the fiscal year in which the dividend is
declared and/or the preceding fiscal year.
Rights and Options. The NYBCL requires that holders of a majority of the
outstanding shares approve any incentive plan pursuant to which rights or
options are to be granted to directors, officers or employees. The DGCL does
not require stockholder approval of such incentive plans, although various
other applicable legal and regulatory requirements may make stockholder
approval of rights or option plans of MapInfo Delaware necessary or desirable.
Consideration for Shares. The NYBCL provides that neither obligations of the
subscriber for future payments nor future services shall constitute payment or
partial payment for shares of a corporation. Furthermore, certificates for
shares may not be issued until the full amount of the consideration for the
shares has been paid. The DGCL provides that shares of stock may be issued,
and deemed to be fully paid, if the corporation receives consideration having
a value not less than the par value of such shares and the corporation
receives a binding obligation of the subscriber to pay the balance of the
subscription price.
5
<PAGE>
Dissenter's Rights. The NYBCL provides that a dissenting stockholder has the
right to receive the fair value of his shares if he objects to (i) certain
mergers and consolidations, (ii) certain dispositions of assets requiring
stockholder approval, (iii) a share exchange, or (iv) certain amendments to
the certificate of incorporation which adversely affect the rights of such
stockholder. The DGCL provides such appraisal rights only in the case of a
stockholder objecting to certain mergers or consolidations, and such appraisal
rights do not apply (x) to stockholders of the surviving corporation in a
merger if stockholder approval of the merger is not required, or (y) to any
class of stock which is either (a) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc., or (b) held of
record by more than 2,000 holders, unless stockholders are required to accept
for their shares in the merger or consolidation anything other than common
stock of the surviving corporation, common stock of another corporation that
is so listed or held, cash in lieu of fractional shares or any combination of
the foregoing.
Indemnification of Officers and Directors. The laws of New York and Delaware
regarding indemnification by a corporation of its directors and officers
provide that indemnification may be made in connection with non-derivative
actions and in connection with derivative actions except where the director or
officer is adjudged to be liable to the corporation, unless and only to the
extent that, an appropriate court determines that, in view of all the
circumstances, such director or officer is fairly and reasonably entitled to
such indemnification. The NYBCL additionally provides that indemnification may
not be made in connection with derivative actions where a claim is settled or
otherwise disposed of.
The laws of New York and Delaware regarding indemnification by a corporation
of its directors and officers also provide that the indemnification and
advancements of expenses granted pursuant to, or provided by, such laws is not
exclusive of any other rights to which a director or officer may be entitled.
The NYBCL additionally provides that no indemnification may be made to or on
behalf of any director or officer for liability arising from actions taken in
bad faith, intentional wrongdoing, or where an improper personal benefit was
derived. The DGCL contains no such express limitation.
Limitation of Director Liability. The DGCL permits a corporation to provide
in its certificate of incorporation that directors will have limited or no
personal liability to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for (i) any breach of the
director's duty of loyalty, (ii) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) the
payment of illegal dividends or distributions, or (iv) any transaction from
which the director derived an improper personal benefit.
The NYBCL permits a corporation to provide in its certificate of
incorporation that directors will have limited or no personal liability to the
corporation or its stockholders for damages for any breach of duty in such
capacity, provided that no such provision shall eliminate or limit (i) the
liability of any director if a judgement or other final adjudication adverse
to him establishes that his acts or omissions were in bad faith or involved
intentional misconduct or a knowing violation of law, (ii) that he personally
gained a financial profit or other advantage to which he was not legally
entitled, or (iii) that his acts resulted in an improper dividend, redemption
of shares, distribution of assets or loan to a director.
Loans to Directors. The NYBCL prohibits loans to corporate directors unless
authorized by stockholder vote. The DGCL permits the Board of Directors,
without stockholder approval, to authorize loans to corporate directors who
are also officers.
Vote Required for Merger. The NYBCL requires the affirmative vote of two-
thirds of a corporation's outstanding shares to authorize a merger,
consolidation, dissolution or disposition of substantially all of the assets
of a corporation. The DGCL requires the affirmative vote of a majority of the
outstanding shares to authorize
6
<PAGE>
any such action, unless otherwise expressly provided in the certificate of
incorporation. Also, the DGCL permits a merger without approval of the
stockholders of the surviving corporation if, among other things, no
Certificate of Incorporation amendment is involved and the merger results in
no more than a 20% increase in the number of outstanding shares of common
stock of such corporation. No such provision is contained in the NYBCL.
Stockholder Consent to Action without a Meeting. The NYBCL provides that any
action by stockholders may be taken without a meeting only with the written
consent of all stockholders who would be entitled to vote at a meeting held
for such purpose. Under the DGCL, unless the corporation's certificate of
incorporation provides otherwise, any action that could be taken at an annual
or special meeting of stockholders may be taken without prior notice and
without a vote if a consent in writing setting forth the action to be taken is
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.
This difference between the NYBCL and the DGCL will not immediately affect the
interests of stockholders of the Company because the Delaware Certificate of
Incorporation provides that stockholders may act without a meeting only with
the written consent of all stockholders who would be entitled to vote at a
meeting held for such purpose.
Approval of Transactions with Interested Directors. The NYBCL provides
several methods for establishing the validity of transactions between a
corporation and interested directors. One method requires a vote that would be
sufficient for such purpose without counting the vote of such interested
director, or, if the votes of the disinterested directors are insufficient to
constitute an act of the board, by unanimous vote of the disinterested
directors. The comparable provision of the DGCL requires only the affirmative
vote of a majority of the disinterested directors, without requiring that such
vote be sufficient alone to be the act of the board or committee.
Notices and Record Date. Under the DGCL, the Board of Directors of a
corporation may fix a record date for stockholder meetings and may give
notices for such meetings which shall not be more than sixty nor less than ten
days before the date of a meeting. The NYBCL allows for a period of between
ten and fifty days for notices or determinations of a record date.
Classification of the Board of Directors. The NYBCL permits a classified
board with as many as four classes but forbids fewer than three directors in
any class. The DGCL permits a classified board of directors with as many as
three classes, but does not specify a minimum number of directors for each
class. Neither the Delaware Certificate of Incorporation nor the Company's
Certificate of Incorporation (the "New York Certificate of Incorporation")
provides for a classified board.
Number of Directors. Under the DGCL, a corporation may have as few as one
director and there is no statutory upper limit on the number of directors. The
specific number may be fixed in the by-laws or in the certificate of
incorporation, but if fixed in the certificate of incorporation, may be
changed only by amendment of the certificate of incorporation. If the
certificate of incorporation is silent as to the number of directors, the
board of directors may fix or change the authorized number of directors
pursuant to a provision of the by-laws. The MapInfo Delaware By-laws provide
that the number of directors shall be determined by the Board.
Under the NYBCL, the number of directors may not be less than three, and any
higher number may be fixed by the By-laws or by action of the stockholders or
of the board of directors under the specific provisions of the By-laws adopted
by the stockholders. The number of directors may be increased or decreased by
amendment of the By-laws or by action of the stockholders or of the board of
directors under the specific provisions of a by-law adopted by the
stockholders, subject to certain limitations.
7
<PAGE>
Business Combination Statutes. The NYBCL prohibits any "business
combination" (as therein defined) between a domestic corporation and an
"interested stockholder" for five years after the date that the interested
stockholder became an interested stockholder unless prior to that date the
board of directors of the domestic corporation approved the business
combination or the transaction that resulted in the interested stockholder
becoming an interested stockholder. After five years, such a business
combination is permitted only if (a) it is approved by a majority of the
shares not owned by, or by an affiliate of, the interested stockholder or (b)
certain statutory fair price requirements are met. An "interested stockholder"
is any person who beneficially owns, directly or indirectly, 20% or more of
the outstanding voting shares of the corporation.
The DGCL prohibits any "business combination" (as therein defined) between a
Delaware corporation and an "interested stockholder" for three years following
the date that the interested stockholder became an interested stockholder
unless (i) prior to that time the board of directors approved the business
combination or the transaction that resulted in the interested stockholder
becoming an interested stockholder, (ii) upon consummation of the transaction
that resulted in the interested stockholder becoming an interested
stockholder, the interested stockholder held at least 85% of the outstanding
voting stock of the corporation (not counting shares owned by officers and
directors and certain shares in employee stock plans), or (iii) on or
subsequent to such time the business combination is approved by the board of
directors and at least two-thirds of the outstanding shares of voting stock
not owned by the interested stockholder. The DGCL defines "interested
stockholder" as any person who beneficially owns, directly or indirectly, 15%
or more of the outstanding voting stock of the corporation.
Inspection of Stockholder's List. With respect to the inspection of
stockholder's lists, the NYBCL provides a right of inspection on at least 5
days' written demand to (i) any person who shall have been a stockholder for
at least 6 months immediately preceding the demand or (ii) any person holding,
or authorized in writing by, at least 5% of any class of outstanding shares.
The corporation has certain rights calculated to assure itself that the demand
for inspection is not for a purpose or interest other than that of the
corporation. The DGCL permits any stockholder, upon written request, to
inspect the stockholder's list at any time for a purpose reasonably related to
such person's interest as a stockholder and, during the 10 days preceding the
stockholder's meeting, for any purpose germane to that meeting.
Redemption of Shares. The NYBCL generally permits redemption of shares of
common stock only at the option of the corporation. The DGCL permits
redeemable shares to be subject to redemption, in accordance with the terms
thereof, by the corporation at its option or at the option of the holders
thereof, provided that at the time of such redemption the corporation has
outstanding shares of at least one class or series with full voting powers
that is not subject to redemption.
Holding Company Reorganization. While no analogous provision exists under
the NYBCL, Section 251(g) of the DGCL permits a Delaware corporation to
reorganize as a holding company without stockholder approval. The
reorganization contemplated by the statute is accomplished by merging the
subject corporation with or into a direct or indirect wholly owned subsidiary
of the corporation and converting the stock of the corporation into stock of
another direct or indirect wholly owned subsidiary of the corporation, which
would be the new holding company. The statute eliminates the requirement for a
stockholder vote on such a merger but contains several provisions designed to
ensure that the rights of stockholders are not changed by or as a result of
the merger, except and to the extent that such rights could be changed without
such stockholder approval under existing law.
8
<PAGE>
MATERIAL CHANGES IN THE DELAWARE CERTIFICATE OF INCORPORATION AND DELAWARE BY-
LAWS FROM THE NEW YORK CERTIFICATE OF INCORPORATION AND NEW YORK BY-LAWS
The Delaware Certificate of Incorporation and Delaware By-laws, attached as
Annexes B and C, respectively, to this Proxy Statement, will be in effect at
the Effective Time of the Merger and will govern the rights of stockholders in
the event the Reincorporation proposal is approved. Set forth below is a
summary of the material changes in the Delaware Certificate of Incorporation
and Delaware By-laws from the New York Certificate of Incorporation and the
Company's By-laws (the "New York By-laws"). The following summary does not
purport to be a complete statement of such changes or of the Delaware
Certificate of Incorporation and the Delaware By-laws and is qualified in its
entirety by reference to such documents. Copies of the New York Certificate of
Incorporation and New York By-laws are available for inspection from the
Company and copies will be sent to stockholders upon written request addressed
to the Secretary of the Company.
Purpose Clause. The purpose clause of the Delaware Certificate of
Incorporation permits MapInfo Delaware "to engage in any lawful acts or
activities for which corporations may be organized under the General
Corporation Law of Delaware." The purpose clause in the New York Certificate
of Incorporation makes reference to the NYBCL.
Special Meetings. The New York By-laws contain provisions that state that
special meetings of stockholders may be called in writing by the Chairman of
the Board of Directors, the President or by a resolution of the Board of
Directors. The Delaware Certificate of Incorporation provides that a special
meeting of stockholders may only be called by the Board of Directors, the
Chairman of the Board of Directors or the Chief Executive Officer (or, if
there is none, the President).
Indemnification and Limitation of Liability. As described above, the NYBCL
and the DGCL differ with respect to indemnification of directors and officers
and the limitation of such individual's liability. The Delaware Certificate of
Incorporation provides for indemnification of directors and officers to the
fullest extent permitted by the DGCL. Provisions relating to indemnification
of directors and officers of the Company are included in the New York By-laws
rather than in the New York Certificate of Incorporation. The New York By-laws
provide for indemnification of directors and officers to the fullest extent
permitted by the NYBCL.
The Delaware Certificate of Incorporation provides that, notwithstanding
other provisions of the Delaware Certificate of Incorporation, indemnification
will be made if the indemnitee is successful in the defense of an action. An
individual seeking indemnification must make such request to the corporation.
Indemnification will be made within 60 days of such request unless the
corporation determines, by clear and convincing evidence, that the individual
did not meet the applicable standard of conduct necessary for indemnification.
Such determination may be made by (i) a majority vote of disinterested
directors, although less than a quorum, (ii) a majority vote of a quorum of
outstanding shares of Common Stock (excluding interested stockholders), (iii)
independent legal counsel or (iv) a court of competent jurisdiction. Any
individual seeking indemnification may enforce the right to indemnification in
any court of competent jurisdiction.
The New York By-laws provide that indemnification is available where an
officer or director has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or certain types of proceedings. Any
other indemnification, unless awarded by a court, is available only if
authorized by the corporation in the specific case (i) by the Board of
Directors acting by a quorum of directors who are not parties to such action
or proceeding upon a finding that the director or officer has met the
specified standard of conduct, or (ii) if such a quorum is not obtainable or,
even if obtainable, if a quorum of disinterested directors so directs, (a) by
the Board of Directors upon the opinion in writing of independent legal
counsel that indemnification is proper because the
9
<PAGE>
specified standard of conduct has been met or (b) by the stockholders upon a
finding that such officer or director has met the specified standard of
conduct. The relevant New York By-law provisions also require that, if a
person is indemnified otherwise than by court order or action of the
stockholders, the corporation notify the stockholders within a specified time
period of certain facts relating to such indemnification.
The Delaware Certificate of Incorporation authorizes the corporation to
purchase and maintain directors and officers liability insurance to insure
against liabilities or losses incurred in such capacities whether or not the
corporation would have the power to indemnify the individual under the DGCL.
The New York By-laws also provide for such insurance. However, if the
indemnitee could not be indemnified under the New York By-laws, the contract
of insurance must provide, in a manner acceptable to the Superintendent of
Insurance, for a retention amount and for co-insurance. In addition, the
insurance may not provide for any payment (i) other than cost of defense, to
any director or officer if a judgment or other final adjudication adverse to
the insured director or officer establishes that his acts of active and
deliberate dishonesty were material to the cause of action so adjudicated, or
that he gained in fact a financial profit or other advantage to which he was
not legally entitled, or (ii) in relation to any risk the insurance of which
is prohibited under the insurance law of the State of New York.
The Delaware Certificate of Incorporation provides that except to the extent
that the DGCL prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the Company shall be
personally liable for any monetary damages for breaches of fiduciary duty as a
director. The DGCL currently provides that this provision shall not eliminate
or limit the liability of a director (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) for any transaction from which the director derived an
improper personal benefit, or (iv) under Section 174 of the DGCL, which
relates to the unlawful payment of dividend or unlawful stock purchase or
redemption.
The New York Certificate of Incorporation provides that the personal
liability of the Company's directors for breach of duty as a director shall be
eliminated to the fullest extent permitted by the NYBCL, provided that no
liability shall be eliminated or limited if a judgment or other final
adjudication adverse to the director establishes that (i) his acts or
omissions were in bad faith or involved intentional misconduct, (ii) he
personally gained a financial profit or other advantage to which such director
was not legally entitled or (iii) his acts violated Section 719 of the NYBCL,
which relates to the improper payment of a dividend, an invalid purchase of
shares or distribution of assets, and unauthorized loans to directors.
Transactions with Interested Parties. The Delaware By-laws provide that no
contract or transaction between the corporation and one or more of the
directors or officers, or between the corporation and any other organization
in which one or more of the directors or officers are directors or officers,
or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his or her or their votes are counted for such purpose, if (i) the
material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum, (ii) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders or (iii) the
contract or transaction is fair as to the corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee of
the Board of Directors, or the stockholders.
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The New York Certificate of Incorporation and New York By-laws do not
contain a similar provision, but transactions with interested parties are
governed by the NYBCL. See "Comparison of Stockholder Rights Under New York
and Delaware Law--Approval of Transactions with Interested Directors."
Other Changes to Reflect Technical Differences between the DGCL and the
NYBCL. In addition to the changes described above, certain technical changes
have been made in the Delaware Certificate of Incorporation and Delaware By-
laws from the New York Certificate of Incorporation and New York By-laws to
reflect differences between the DGCL and the NYBCL. Such technical changes
include: designation of a registered office and registered agent in the State
of Delaware; changes in the maximum number of days applicable for giving
notice of meetings and for setting record dates; and changing references in
the By-laws to places (for example, the place for certain meetings) or to
applicable law from New York to Delaware.
FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER
The following discussion addresses the material federal income tax
consequences of the Merger that are applicable to holders of New York Common
Stock. The discussion does not deal with all federal income tax consequences
that may be relevant to a particular holder of New York Common Stock or any
foreign, state or local tax considerations. ACCORDINGLY, HOLDERS OF NEW YORK
COMMON STOCK ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE SPECIFIC
FEDERAL, FOREIGN, STATE AND LOCAL TAX CONSEQUENCES TO THEM OF THE MERGER.
The following discussion is based upon the Company's interpretation of the
Internal Revenue Code of 1986, as amended (the "Code"), applicable Treasury
Regulations, judicial authority and administrative rulings and practice, all
as of the date hereof. The Company has not and will not request a ruling from
the Internal Revenue Service regarding the tax consequences of the Merger.
The Company believes that the Merger will constitute a reorganization within
the meaning of Section 368(a) of the Code (a "Reorganization"). As a result of
the Merger constituting a Reorganization: (i) no gain or loss will be
recognized by the holders of New York Common Stock or the Company upon
consummation of the Merger; (ii) the aggregate tax basis of the Delaware
Common Stock received in the Merger will be the same as the aggregate tax
basis of the New York Common Stock exchanged in the Merger; and (iii) the
holding period of the Delaware Common Stock received in the Merger will
include the period for which the New York Common Stock was held.
ACCOUNTING TREATMENT OF THE MERGER
In accordance with generally accepted accounting principles, the Company
expects that the Merger will be accounted for as a reorganization of entities
under common control at historical cost.
REGULATORY APPROVAL
The consummation of the Merger is conditioned upon the Company obtaining all
required consents of governmental authorities. To the Company's knowledge, the
only required governmental consent to the consummation of the Merger will be
the filing of a Certificate of Merger by the Tax Commissioner of the State of
New York with the Secretary of State of the State of New York.
APPRAISAL RIGHTS
New York law does not provide for appraisal rights for dissenting
stockholders of the Company in connection with the Merger.
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OTHER MATTERS
The Board of Directors does not know of any other matters which may come
before the Special Meeting. However, if any other matters are properly
presented to the Special Meeting, it is the intention of the persons named in
the accompanying proxy to vote, or otherwise act, in accordance with their
judgment on such matters.
STOCKHOLDER PROPOSALS
Proposals of stockholders intended to be presented at the 1998 Annual
Meeting of Stockholders must be received by the Company at its principal
office in Troy, New York no later than September 12, 1997 for inclusion in the
proxy statement for that meeting.
By Order of the Board of Directors,
JOHN F. HALLER,
Secretary
August 8, 1997
THE BOARD OF DIRECTORS HOPES THAT STOCKHOLDERS WILL ATTEND THE MEETING.
WHETHER OR NOT YOU PLAN TO ATTEND, YOU ARE URGED TO COMPLETE, DATE, SIGN AND
RETURN THE ENCLOSED PROXY IN THE ACCOMPANYING ENVELOPE. PROMPT RESPONSE WILL
GREATLY FACILITATE ARRANGEMENTS FOR THE SPECIAL MEETING AND YOUR COOPERATION
WILL BE APPRECIATED. STOCKHOLDERS WHO ATTEND THE MEETING MAY VOTE THEIR STOCK
PERSONALLY EVEN THOUGH THEY HAVE SENT IN THEIR PROXIES.
12
<PAGE>
ANNEX A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of August 1, 1997 (the "Merger
Agreement"), between MapInfo Corporation, a New York corporation originally
incorporated under the name Navigational Technologies Incorporation ("MapInfo
New York"), and MapInfo Corporation, a Delaware corporation and wholly-owned
subsidiary of MapInfo New York ("MapInfo Delaware").
WHEREAS, on the date hereof, MapInfo New York has authority to issue
25,000,000 shares of Common Stock, par value $.002 per share (the "New York
Common Stock"), of which 5,879,621 shares are issued and outstanding, 22,000
shares are held in treasury and options to purchase 1,143,486 shares are
outstanding and 1,000,000 shares of Preferred Stock, par value $.01 per share,
of which no shares are issued and outstanding and no shares are held in
treasury;
WHEREAS, on the date hereof MapInfo Delaware has authority to issue
25,000,000 shares of Common Stock, par value $.002 per share (the "Delaware
Common Stock"), of which 1,000 shares are issued and outstanding and no shares
are held in treasury, and 1,000,000 shares of Preferred Stock, par value $.01
per share, of which no shares are issued and outstanding and no shares are
held in treasury;
WHEREAS, the respective Boards of Directors of MapInfo New York and MapInfo
Delaware have determined that it is advisable and in the best interests of
each of such corporations that MapInfo New York merge with and into MapInfo
Delaware upon the terms and subject to the conditions set forth herein for the
purpose of effecting the change of the state of incorporation of MapInfo New
York from New York to Delaware;
WHEREAS, the respective Boards of Directors of MapInfo New York and MapInfo
Delaware have by resolutions duly adopted, approved this Merger Agreement;
WHEREAS, MapInfo New York has approved this Merger Agreement in its capacity
as the sole stockholder of MapInfo Delaware; and
WHEREAS, the Board of Directors of MapInfo New York has directed that this
Merger Agreement be submitted to a vote of its stockholders at a Special
Meeting of stockholders to be held on September 24, 1997, or at any and all
adjournments thereof;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
herein contained, MapInfo New York and MapInfo Delaware hereby agree as
follows:
1. Merger. MapInfo New York shall be merged with and into MapInfo Delaware
(the "Merger"), and MapInfo Delaware shall be the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation"). The Merger
shall become effective upon the date and time of filing an appropriate
certificate of merger, providing for the Merger, with the Secretary of State
of the State of New York and an appropriate certificate of merger, providing
for the Merger, with the Secretary of State of the State of Delaware,
whichever later occurs (the "Effective Time").
2. Governing Documents. The Certificate of Incorporation of MapInfo
Delaware, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation without change or
amendment until thereafter amended in accordance with the provisions thereof
and applicable law. The By-laws of MapInfo Delaware, as in effect immediately
prior to the Effective Time, shall be the By-laws of the Surviving Corporation
without change or amendment unless and until thereafter amended in accordance
with the provisions thereof, the Certificate of Incorporation of the Surviving
Corporation and applicable law.
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3. Succession. At the Effective Time, the separate corporate existence of
MapInfo New York shall cease, and MapInfo Delaware shall succeed to all of the
assets and property (whether real, personal or mixed), rights, privileges,
franchises, immunities and powers of MapInfo New York, and MapInfo Delaware
shall assume and be subject to all of the duties, liabilities, obligations and
restrictions of every kind and description of MapInfo New York, including,
without limitation, all outstanding indebtedness of MapInfo New York, all in
the manner and as more fully set forth in Section 259 of the General
Corporation Law of the State of Delaware.
4. Directors. The directors and the members of the various committees of the
Board of Directors of MapInfo New York immediately prior to the Effective Time
shall be the directors and members of such committees of the Surviving
Corporation at and after the Effective Time to serve until the expiration of
their respective terms and until their successors are duly elected and
qualified.
5. Officers. The officers of MapInfo New York immediately preceding the
Effective Time shall be the officers of the Surviving Corporation at and after
the Effective Time until their successors are duly elected and qualified.
6. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of MapInfo New York such deeds and other instruments,
and there shall be taken or caused to be taken by it all such further and
other action, as shall be appropriate, advisable or necessary in order to
vest, perfect or conform, of record or otherwise, in the Surviving
Corporation, the title to and possession of all property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of MapInfo
New York, and otherwise to carry out the purposes of this Merger Agreement,
and the officers and directors of the Surviving Corporation are fully
authorized, in the name and on behalf of MapInfo New York or otherwise, to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
7. Conversion of Securities. At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof:
(a) each share of New York Common Stock issued and outstanding
immediately prior to the Effective Time shall be changed and converted into
and shall be one fully paid and nonassessable share of Delaware Common
Stock;
(b) each share of New York Common Stock held in the treasury of MapInfo
New York immediately prior to the Effective Time shall be automatically
converted into one share of Delaware Common Stock, which shares shall
continue to be retained and held by the Surviving Corporation in the
treasury thereof;
(c) each option, warrant, purchase right, unit or other security of
MapInfo New York issued and outstanding immediately prior to the Effective
Time shall be changed and converted into and shall be an identical security
of MapInfo Delaware, and the same number of shares of Delaware Common Stock
shall be reserved for purposes of the exercise of such options, warrants,
purchase rights, units or other securities as is equal to the number of
shares of New York Common Stock so reserved as of the Effective Time; and
(d) each share of Delaware Common Stock issued and outstanding in the
name of MapInfo New York immediately prior to the Effective Time shall be
cancelled and retired and resume the status of authorized and unissued
shares of Delaware Common Stock, and no shares of Delaware Common Stock or
other securities of MapInfo Delaware shall be issued in respect thereof.
A-2
<PAGE>
8. Employee Option and Benefit Plans. Each option or other right to purchase
or otherwise acquire shares of New York Common Stock evidenced by an option
agreement (an "Option") or granted under any employee option, stock purchase
or other benefit plan of MapInfo New York (collectively, the "Plans") which is
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become an option or right to acquire (and MapInfo Delaware hereby
assumes the obligation to deliver) the same number of shares of Delaware
Common Stock, at the same price per share, and upon the same terms, and
subject to the same conditions, as set forth in the respective Plan as in
effect immediately prior to the Effective Time. The same number of shares of
Delaware Common Stock shall be reserved for purposes of the Plans as is equal
to the number of shares of New York Common Stock so reserved immediately prior
to the Effective Time. MapInfo Delaware hereby assumes, as of the Effective
Time, (i) the Plans and all obligations of MapInfo New York under the Plans,
including the outstanding options, stock purchase rights or awards or portions
thereof granted pursuant to the Plans and the right to grant additional
options and stock purchase rights thereunder, (ii) all obligations of MapInfo
New York under all other benefit plans in effect as of the Effective Time with
respect to which employee rights or accrued benefits are outstanding as of the
Effective Time and (iii) all obligations of MapInfo New York under any
Options.
9. Dividends and Distributions. In the event that any dividend or other
distribution shall hereafter be declared by the Board of Directors of MapInfo
New York in respect of the outstanding shares of New York Common Stock payable
subsequent to the Effective Time, the obligation to make payment of such
dividend or other distribution shall, by virtue of the Merger, become the
obligation of the Surviving Corporation and shall be satisfied in the manner
specified in such declaration, except that, to the extent that such dividend
or other distributions shall have been declared payable in whole or in part in
shares of New York Common Stock, the Surviving Corporation shall issue, in
place thereof, to the persons entitled thereto, the identical number of shares
of Delaware Common Stock.
10. Conditions to the Merger.
(a) The consummation of the Merger and the other transactions herein
provided is subject to receipt prior to the Effective Time of the requisite
approval of the Merger by the holders of New York Common Stock pursuant to
the New York Business Corporation Law.
(b) MapInfo New York shall have received a response to its letter to the
Securities and Exchange Commission (the "Commission") dated June 17, 1997
indicating that the Commission will take "no-action" if the Delaware Common
Stock to be issued in the Merger is not registered under the Securities Act
of 1933, as amended.
11. Certificates. At and after the Effective Time, all of the outstanding
certificates which immediately prior thereto represented shares of New York
Common Stock or warrants, units or other securities of MapInfo New York shall
be deemed for all purposes to evidence ownership of and to represent the
shares of Delaware Common Stock or warrants, units or other securities of
MapInfo Delaware, as the case may be, into which the shares of New York Common
Stock or warrants, units or other securities of MapInfo New York represented
by such certificates have been converted as herein provided and shall be so
registered on the books and records of the Surviving Corporation or its
transfer agent. The registered owner of any such outstanding certificate
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to the Surviving Corporation or its transfer agent,
have and be entitled to exercise any voting and other rights with respect to,
and to receive any dividends and other distributions upon, the shares of
Delaware Common Stock or warrants, units or other securities of MapInfo
Delaware, as the case may be, evidenced by such outstanding certificate, as
above provided.
A-3
<PAGE>
12. Amendment. The parties hereto, by mutual consent of their respective
boards of directors, may amend, modify or supplement this Merger Agreement
prior to the Effective Time; provided, however, that no amendment,
modification or supplement may be made after the adoption of this Merger
Agreement by the stockholders of MapInfo New York which changes this Merger
Agreement in a way which, in the judgment of the Board of Directors of MapInfo
New York, would have a material adverse effect on the stockholders of MapInfo
New York, unless such amendment, modification or supplement is approved by
such stockholders.
13. Termination. This Merger Agreement may be terminated, and the Merger and
the other transactions provided for herein may be abandoned, at any time prior
to the Effective Time, whether before or after approval of this Merger
Agreement by the stockholders of MapInfo New York, by action of the Board of
Directors of MapInfo if:
(a) the conditions specified in Section 10 hereof shall not have been
satisfied or waived; or
(b) the Board of Directors of MapInfo New York determines for any reason,
in its sole judgment and discretion, that the consummation of the merger
would be inadvisable or not in the best interests of MapInfo New York and
its stockholders.
14. Counterparts. This Merger Agreement may be executed in one or more
counterparts, and each such counterpart hereof shall be deemed to be an
original instrument, but all such counterparts together shall constitute but
one agreement.
15. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Merger Agreement.
16. New York Appointment. The surviving Corporation hereby agrees that it
may be served with process in the State of New York in any action or special
proceeding for enforcement of any liability or obligation of MapInfo New York,
MapInfo Delaware or the Surviving Corporation arising from the Merger. The
Surviving Corporation appoints the Secretary of State of the State of New York
as its agent to accept service of process of any such suit or other proceeding
and a copy of such process shall be mailed by the Secretary of State of the
State of New York to the Surviving Corporation at One Global View, Troy, New
York, 12180, Attention: General Counsel.
17. Governing Law. This Merger Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
A-4
<PAGE>
IN WITNESS WHEREOF, MapInfo New York and MapInfo Delaware have caused this
Merger Agreement to be executed and delivered as of the date first above
written.
MAPINFO CORPORATION
a New York corporation
By: /s/ John C. Cavalier
-----------------------------------------
Name: John C. Cavalier
----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
MAPINFO CORPORATION
a Delaware corporation
By: /s/ John C. Cavalier
-----------------------------------------
Name: John C. Cavalier
----------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
A-5
<PAGE>
ANNEX B
CERTIFICATE OF INCORPORATION
OF
MAPINFO CORPORATION
FIRST. The name of the Corporation is:
MapInfo Corporation
SECOND. The address of its registered office in the State of Delaware is 30
Old Rudnick Lane, in the City of Dover, County of Kent. The name of its
registered agent at such address is CorpAmerica, Inc.
THIRD. The nature of the business or purposes to be conducted or promoted by
the Corporation are as follows:
To engage in any lawful acts or activities for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is twenty-six million (26,000,000)
shares, consisting of (i) twenty-five million (25,000,000) shares of Common
Stock, $.002 par value per share ("Common Stock"), and (ii) one million
(1,000,000) shares of Preferred Stock, $.01 par value per share ("Preferred
Stock"), which may be issued from time to time in one or more series as set
forth in Part B of this Article FOURTH.
The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of
the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by the Board of
Directors upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock are entitled to one vote for each
share held at all meetings of stockholders. There shall be no cumulative
voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the aggregate number of shares thereof then
outstanding or reserved for issuance pursuant to any stock plan of the
Corporation) by the affirmative vote of the holders of a majority of the stock
of the Corporation entitled to vote, irrespective of the provisions of Section
242(b)(2) of the General Corporation Law of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock from
funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
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B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series, each
of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issuance of such series adopted by
the Board of Directors of the Corporation as hereinafter provided. Any shares
of Preferred Stock which may be redeemed, purchased or acquired by the
Corporation may be reissued except as otherwise provided by law. Different
series of Preferred Stock shall not be construed to constitute different
classes of shares for the purposes of voting by classes unless expressly
provided.
Authority is hereby expressly granted to the Board of Directors from time to
time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing
for the issuance of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred Stock may
provide that such series shall be superior or rank equally or be junior to the
Preferred Stock of any other series to the extent permitted by law. Except as
otherwise provided in this Certificate of Incorporation, no vote of the
holders of the Preferred Stock or Common Stock shall be a prerequisite to the
designation or issuance of any shares of any series of the Preferred Stock
authorized by and complying with the conditions of this Certificate of
Incorporation, the right to have such vote being expressly waived by all
present and future holders of the capital stock of the Corporation.
FIFTH. The name and mailing address of the sole incorporator are as follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
---- ---------------
<S> <C>
Miriam M. Netter, Esq................................ MapInfo Corporation
One Global View
Troy, NY 12180
</TABLE>
SIXTH. In furtherance of and not in limitation of powers conferred by
statute, it is further provided that the Board of Directors is expressly
authorized to adopt, amend or repeal the By-Laws of the Corporation.
SEVENTH. Except to the extent that the General Corporation Law of the State
of Delaware prohibits the elimination or limitation of liability of directors
for breaches of fiduciary duty, no director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages
for any breach of fiduciary duty as a director, notwithstanding any provision
of law imposing such liability. No amendment to or repeal of this provision
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
EIGHTH. 1. Action, Suits and Proceedings Other than by or in the Right of
the Corporation. The Corporation shall indemnify each person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation),
by reason of the fact that he or she is or was, or has agreed to become, a
director or officer of the Corporation, or is or was serving, or has agreed to
serve, at the request of the Corporation, as a director, officer or trustee
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan) (all
such
B-2
<PAGE>
persons being referred to hereafter as an "Indemnitee"), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) judgment, fines and amounts paid in
settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination
of any action, suit or 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 or she reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful. Notwithstanding anything to the contrary in this Article, except as
set forth in Section 6 below, the Corporation shall not indemnify an
Indemnitee seeking indemnification in connection with a proceeding (or part
thereof) initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation.
2. Actions or Suits by or in the Right of the Corporation. The Corporation
shall indemnify any Indemnitee who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust
or other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and amounts paid in settlement actually
and reasonably incurred by him or her or on his or her behalf in connection
with such action, suit or proceeding and any appeal therefrom, if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of Delaware shall
determine upon application that, despite the adjudication of such liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including attorneys' fees)
which the Court of Chancery of Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding the
other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of
any claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he or she shall be indemnified against all expenses (including
attorneys' fees) actually and reasonably incurred by him or her or on his or
her behalf in connection therewith. Without limiting the foregoing, if any
action, suit or proceeding is disposed of, on the merits or otherwise
(including a disposition without prejudice), without (i) the disposition being
adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable
to the Corporation, (iii) a plea of guilty or nolo contendere by the
Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and (v) with respect to any criminal
proceeding, an adjudication that the Indemnitee had reasonable cause to
believe his or her conduct was unlawful, the Indemnitee shall be considered
for the purposes hereof to have been wholly successful with respect thereto.
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<PAGE>
4. Notification and Defense of Claim. As a condition precedent to his or her
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him or her for which indemnity will or could be sought. With respect
to any action, suit, proceeding or investigation of which the Corporation is
so notified, the Corporation will be entitled to participate therein at its
own expense and/or to assume the defense thereof at its own expense, with
legal counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such
claim, other than as provided below in this Section 4. The Indemnitee shall
have the right to employ his or her own counsel in connection with such claim,
but the fees and expenses of such counsel incurred after notice from the
Corporation of its assumption of the defense thereof shall be at the expense
of the Indemnitee unless (i) the employment of counsel by the Indemnitee has
been authorized by the Corporation, (ii) counsel to the Indemnitee shall have
reasonably concluded that there may be a conflict of interest or position on
any significant issue between the Corporation and the Indemnitee in the
conduct of the defense of such action or (iii) the Corporation shall not in
fact have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel for the Indemnitee shall be at
the expense of the Corporation, except as otherwise expressly provided by this
Article. The Corporation shall not be entitled, without the consent of the
Indemnitee, to assume the defense of any claim brought by or in the right of
the Corporation or as to which counsel for the Indemnitee shall have
reasonably made the conclusion provided for in clause (ii) above.
5. Advance of Expenses. Subject to the provisions of Section 6 below, in the
event that the Corporation does not assume the defense pursuant to Section 4
of this Article of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be
paid by the Corporation in advance of the final disposition of such matter;
provided, however, that the payment of such expense incurred by an Indemnitee
in advance of the final disposition of such matter shall be made only upon
receipt of an undertaking by or on behalf of the Indemnitee to repay all
amounts so advanced in the event that it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified by the Corporation as
authorized in this Article. Such undertaking shall be accepted without
reference to the financial ability of the Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in
such request such documentation and information as is reasonably available to
the Indemnitee and is reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification or advancement of
expenses. Any such indemnification or advancement of expenses shall be made
promptly, and in any event within 60 days after receipt by the Corporation of
the written request of the Indemnitee, unless with respect to requests under
Section 1, 2 or 5 the Corporation determines, by clear and convincing
evidence, within such 60-day period that the Indemnitee did not meet the
applicable standard of conduct set forth in Section 1 or 2, as the case may
be. Such determination shall be made in each instance by (a) a majority vote
of the directors of the Corporation consisting of persons who are not at that
time parties to the action, suit or proceeding in question ("disinterested
directors"), even though less than a quorum, (b) a majority vote of a quorum
of the outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit or
proceeding in question, (c) independent legal counsel (who may be regular
legal counsel to the Corporation), or (d) a court of competent jurisdiction.
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<PAGE>
7. Remedies. The right to indemnification or advances as granted by this
Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the Corporation denies such request, in whole or in part, or
if no disposition thereof is made within the 60-day period referred to above
in Section 6. Unless otherwise provided by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advanced of expenses under
this Article shall be on the Corporation. Neither the failure of the
Corporation to have made a determination prior to the commencement of such
action that indemnification is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation pursuant to Section 6 that the Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the Indemnitee has not met the applicable
standard of conduct. The Indemnitee's expenses (including attorneys' fees)
incurred in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
8. Subsequent Amendment or Legislation. No amendment, termination or repeal
of this Article or of the relevant provisions of the General Corporation Law
of Delaware or any other applicable laws shall affect or diminish in any way
the rights of any Indemnitee to indemnification under the provisions hereof
with respect to any action, suit, proceeding or investigation arising out of
or relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal. If the General Corporation
Law of Delaware is amended after adoption of this Article to expand further
the indemnification permitted to Indemnitees, then the Corporation shall
indemnify such persons to the fullest extent permitted by the General
Corporation Law of Delaware, as so amended.
9. Other Rights. The indemnification and advancement of expenses provided by
this Article shall not be deemed exclusive of any other rights to which an
Indemnitee seeking indemnification or advancement of expenses may be entitled
under any law (common or statutory), agreement or vote of stockholders or
disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time
to time by its Board of Directors, grant indemnification rights to other
employees or agents of the Corporation or other persons serving the
Corporation and such rights may be equivalent to, or greater or less than,
those set forth in this Article.
10. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by him or her or
on his or her behalf in connection with any action, suit, proceeding or
investigation and any appeal, therefrom but not, however, for the total amount
thereof, the Corporation shall nevertheless indemnify the Indemnitee for the
portion of such expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement to which the Indemnitee is entitled.
11. Insurance. The Corporation may purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by him
B-5
<PAGE>
or her in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the General Corporation law of
Delaware.
12. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees) judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent
permitted by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h) and Section
145(i) of the General Corporation Law of Delaware shall have the respective
meanings assigned to such terms in such Section 145(h) and Section 145(i).
NINTH. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by statute and this Certificate of Incorporation,
and all rights conferred upon stockholders herein are granted subject to this
reservation.
TENTH. Any action required or permitted to be taken at any meeting of
shareholders may be taken without a meeting, if, prior to such action, a
written consent or consents thereto setting forth such action, is signed by
the holders of record of all of the shares of the stock of the Corporation
issued and outstanding and entitled to vote.
ELEVENTH. Special meetings of stockholders may be called at any time by only
the Chairman of the Board of Directors, the Chief Executive Officer (or if
there is no Chief Executive Officer, the President) or the Board of Directors.
Business transacted at any special meeting of stockholders shall be limited to
matters relating to the purpose or purposes stated in the notice of meeting.
EXECUTED at Troy, New York, on July 1, 1997.
/s/ Miriam M. Netter
_____________________________________
Incorporator
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<PAGE>
ANNEX C
BY- LAWS
OF
MAPINFO CORPORATION
(A DELAWARE CORPORATION)
<PAGE>
BY-LAWS
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1--Stockholders.................................................... C-1
1.1 Place of Meetings................................................... C-1
1.2 Annual Meeting...................................................... C-1
1.3 Special Meetings.................................................... C-1
1.4 Notice of Meetings.................................................. C-1
1.5 Voting List......................................................... C-1
1.6 Quorum.............................................................. C-1
1.7 Adjournments........................................................ C-2
1.8 Voting and Proxies.................................................. C-2
1.9 Action at Meeting................................................... C-2
1.10 Nomination of Directors............................................. C-2
1.11 Notice of Business at Annual Meetings............................... C-3
1.12 Action without Meeting.............................................. C-3
1.13 Organization........................................................ C-3
ARTICLE 2--Directors....................................................... C-4
2.1 General Powers...................................................... C-4
2.2 Number; Election and Qualification.................................. C-4
2.3 Tenure.............................................................. C-4
2.4 Vacancies........................................................... C-4
2.5 Resignation......................................................... C-4
2.6 Regular Meetings.................................................... C-4
2.7 Special Meetings.................................................... C-4
2.8 Notice of Special Meetings.......................................... C-4
2.9 Meetings by Telephone Conference Calls.............................. C-5
2.10 Quorum.............................................................. C-5
2.11 Action at Meeting................................................... C-5
2.12 Action by Consent................................................... C-5
2.13 Removal............................................................. C-5
2.14 Committees.......................................................... C-5
2.15 Compensation of Directors........................................... C-6
ARTICLE 3--Officers........................................................ C-6
3.1 Enumeration......................................................... C-6
3.2 Election............................................................ C-6
3.3 Qualification....................................................... C-6
3.4 Tenure.............................................................. C-6
3.5 Resignation and Removal............................................. C-6
3.6 Vacancies........................................................... C-6
3.7 Chairman of the Board and Vice Chairman of the Board................ C-6
3.8 President........................................................... C-7
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
3.9 Vice Presidents..................................................... C-7
3.10 Secretary and Assistant Secretaries................................. C-7
3.11 Treasurer and Assistant Treasurers.................................. C-7
3.12 Salaries............................................................ C-8
ARTICLE 4--Capital Stock................................................... C-8
4.1 Issuance of Stock................................................... C-8
4.2 Certificates of Stock............................................... C-8
4.3 Transfers........................................................... C-8
4.4 Lost, Stolen or Destroyed Certificates.............................. C-8
4.5 Record Date......................................................... C-8
ARTICLE 5--General Provisions.............................................. C-9
5.1 Fiscal Year......................................................... C-9
5.2 Corporate Seal...................................................... C-9
5.3 Waiver of Notice.................................................... C-9
5.4 Voting of Securities................................................ C-9
5.5 Evidence of Authority............................................... C-9
5.6 Certificate of Incorporation........................................ C-9
5.7 Transactions with Interested Parties................................ C-9
5.8 Severability........................................................ C-10
5.9 Pronouns............................................................ C-10
ARTICLE 6--Amendments...................................................... C-10
6.1 By the Board of Directors........................................... C-10
6.2 By the Stockholders................................................. C-10
</TABLE>
ii
<PAGE>
BY-LAWS
OF
MAPINFO CORPORATION
ARTICLE 1--Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time
to time by the Board of Directors or the President or, if not so designated,
at the registered office of the corporation.
1.2 Annual Meeting. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held within six months after the end of
each fiscal year of the corporation on a date to be fixed by the Board of
Directors or the President (which date shall not be a legal holiday in the
place where the meeting is to be held) at the time and place to be fixed by
the Board of Directors or the President and stated in the notice of the
meeting. If no annual meeting is held in accordance with the foregoing
provisions, the Board of Directors shall cause the meeting to be held as soon
thereafter as convenient. If no annual meeting is held in accordance with the
foregoing provisions, a special meeting may be held in lieu of the annual
meeting, and any action taken at that special meeting shall have the same
effect as if it had been taken at the annual meeting, and in such case all
references in these By-Laws to the annual meeting of the stockholders shall be
deemed to refer to such special meeting.
1.3 Special Meetings. Special meetings of stockholders may be called at any
time by the Chairman of the Board of Directors, the Chief Executive Officer
(or, if there is no Chief Executive Officer, the President) or the Board of
Directors. Business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the notice of
meeting.
1.4 Notice of Meetings. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notices of all meetings
shall state the place, date and hour of the meeting. The notice of a special
meeting shall state, in addition, the purpose or purposes for which the
meeting is called. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his or her
address as it appears on the records of the corporation.
1.5 Voting List. The officer who has charge of the stock ledger of the
corporation shall prepare, at least 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 10 days prior to the meeting, at a place within the city
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 of the meeting, and
may be inspected by any stockholder who is present.
1.6 Quorum. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote
at the meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business.
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<PAGE>
1.7 Adjournments. Any meeting of stockholders may be adjourned to any other
time and to any other place at which a meeting of stockholders may be held
under these By-Laws by the stockholders present or represented at the meeting
and entitled to vote, although less than a quorum, or, if no stockholder is
present, by any officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of any
adjournment of less than 30 days if the time and place of the adjourned
meeting are announced at the meeting at which adjournment is taken, unless
after the adjournment a new record date is fixed for the adjourned meeting. At
the adjourned meeting, the corporation may transact any business which might
have been transacted at the original meeting.
1.8 Voting and Proxies. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise
provided by the General Corporation Law of the State of Delaware, the
Certificate of Incorporation or these By-Laws. Each stockholder of record
entitled to vote at a meeting of stockholders, or to express consent or
dissent to corporate action in writing without a meeting, may vote or express
such consent or dissent in person or may authorize another person or persons
to vote or act for him or her by written proxy executed by the stockholder or
his or her authorized agent and delivered to the Secretary of the corporation.
No such proxy shall be voted or acted upon after three years from the date of
its execution, unless the proxy expressly provides for a longer period.
1.9 Action at Meeting. When a quorum is present at any meeting, the holders
of a majority of the stock present or represented and voting on a matter (or
if there are two or more classes of stock entitled to vote as separate
classes, then in the case of each such class, the holders of a majority of the
stock of that class present or represented and voting on a matter) shall
decide any matter to be voted upon by the stockholders at such meeting, except
when a different vote is required by express provision of law, the Certificate
of Incorporation or these By-Laws. Any election by stockholders shall be
determined by a plurality of the votes cast by the stockholders entitled to
vote at the election.
1.10 Nomination of Directors. Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors.
Nomination for election to the Board of Directors of the corporation at a
meeting of stockholders may be made by the Board of Directors or by any
stockholder of the corporation entitled to vote for the election of directors
at such meeting who complies with the notice procedures set forth in this
Section 1.10. Such nominations, other than those made by or on behalf of the
Board of Directors, shall be made by notice in writing delivered or mailed by
first class United States mail, postage prepaid, to the Secretary, and
received not less than 60 days nor more than 90 days prior to such meeting;
provided, however, that if less than 70 days' notice or prior public
disclosure of the date of the meeting is given to stockholders, such
nomination shall have been mailed or delivered to the Secretary not later than
the close of business on the 10th day following the date on which the notice
of the meeting was mailed or such public disclosure was made, whichever occurs
first. Such notice shall set forth (a) as to each proposed nominee (i) the
name, age, business address and, if known, residence address of each such
nominee, (ii) the principal occupation or employment of each such nominee,
(iii) the number of shares of stock of the corporation which are beneficially
owned by each such nominee, and (iv) any other information concerning the
nominee that must be disclosed as to nominees in proxy solicitations pursuant
to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including such person's written consent to be named as a nominee and to serve
as a director if elected); and (b) as to the stockholder giving the notice (i)
the name and address, as they appear on the corporation's books, of such
stockholder and (ii) the class and number of shares of the corporation which
are beneficially owned by
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<PAGE>
such 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.
The chairman of the meeting may, 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 or she should so determine, he or she shall so declare to
the meeting and the defective nomination shall be disregarded.
1.11 Notice of Business 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 (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 an annual
meeting by a stockholder. For business to be properly brought before an annual
meeting by a stockholder, if such business relates to the election of
directors of the corporation, the procedures in Section 1.10 must be complied
with. If such business relates to any other matter, the stockholder must have
given timely notice thereof in writing to the Secretary. 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 60 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 70 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 date on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever occurs first. A
stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (a) 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, (b) the
name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding
anything in these By-Laws to the contrary, no business shall be conducted at
any annual meeting except in accordance with the procedures set forth in this
Section 1.11 and except that any stockholder proposal which complies with Rule
14a-8 of the proxy rules (or any successor provision) promulgated under the
Securities Exchange Act of 1934, as amended, and is to be included in the
corporation's proxy statement for an annual meeting of stockholders shall be
deemed to comply with the requirements of this Section 1.11.
The chairman of the 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 1.11, and if he or
she should so determine, the chairman shall so declare to the meeting that any
such business not properly brought before the meeting shall not be transacted.
1.12 Action without Meeting. Any action required or permitted to be taken at
any meeting of shareholders may be taken without a meeting, if, prior to such
action, a written consent or consents thereto setting forth such action, is
signed by the holders of record of all of the shares of the stock of the
corporation issued and outstanding and entitled to vote.
1.13 Organization. The Chairman of the Board, or in his or her absence the
Vice Chairman of the Board designated by the Chairman of the Board, or the
President, in the order named, shall call meetings of the stockholders to
order, and shall act as chairman of such meeting; provided, however, that the
Board of Directors
C-3
<PAGE>
may appoint any stockholder to act as chairman of any meeting in the absence
of the Chairman of the Board. The Secretary of the corporation shall act as
secretary at all meetings of the stockholders; but in the absence of the
Secretary at any meeting of the stockholders, the presiding officer may
appoint any person to act as secretary of the meeting.
ARTICLE 2--Directors
2.1 General Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise
all of the powers of the corporation except as otherwise provided by law or
the Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and Qualification. The number of directors which shall
constitute the whole Board of Directors shall be determined by resolution of
the Board of Directors, but in no event shall be less than one. The number of
directors may be increased or decreased at any time and from time to time by a
majority of the directors then in office, provided, however, that any such
decrease shall only eliminate vacancies existing by reason of the death,
resignation, removal or expiration of the term of one or more directors. The
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors need not be
stockholders of the corporation.
2.3 Tenure. Each director shall hold office until the next annual meeting
and until his or her successor is elected and qualified, or until his or her
earlier death, resignation or removal.
2.4 Vacancies. Unless and until filled by the stockholders, any vacancy in
the Board of Directors, however occurring, including a vacancy resulting from
an enlargement of the Board, may be filled by vote of a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. A director elected to fill a vacancy shall be elected for the
unexpired term of his or her predecessor in office, and a director chosen to
fill a position resulting from an increase in the number of directors shall
hold office until the next annual meeting of stockholders and until his or her
successor is elected and qualified, or until the earlier death, resignation or
removal of such director.
2.5 Resignation. Any director may resign by delivering a written resignation
to the corporation at its principal office or to the President or Secretary.
Such resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
2.6 Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and place, either within or without the State of
Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made
shall be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place
as the annual meeting of stockholders.
2.7 Special Meetings. Special meetings of the Board of Directors may be held
at any time and place, within or without the State of Delaware, designated in
a call by the Chairman of the Board, President, two or more directors, or by
one director in the event that there is only a single director in office.
2.8 Notice of Special Meetings. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of
the directors calling the meeting. Notice shall be duly given to each
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director (i) by giving notice to such director in person or by telephone at
least 24 hours in advance of the meeting, (ii) by sending written notice via
facsimile, or delivering written notice by hand or by overnight courier, to
his or her last known business or home address at least 24 hours in advance of
the meeting, or (iii) by mailing written notice to his or her last known
business or home address at least 72 hours in advance of the meeting. A notice
or waiver of notice of a meeting of the Board of Directors need not specify
the purposes of the meeting.
2.9 Meetings by Telephone Conference Calls. Directors or any members of any
committee designated by the directors may participate in a meeting of the
Board of Directors or such 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 participation by such means shall
constitute presence in person at such meeting.
2.10 Quorum. A majority of the total number of the whole Board of Directors
shall constitute a quorum at all meetings of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any
meeting, then the required quorum shall be reduced by one for each such
director so disqualified; provided, however, that in no case shall less than
one-third ( 1/3) of the number so fixed constitute a quorum. In the absence of
a quorum at any such meeting, a majority of the directors present may adjourn
the meeting from time to time without further notice other than announcement
at the meeting, until a quorum shall be present.
2.11 Action at Meeting. At any meeting of the Board of Directors at which a
quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the
Certificate of Incorporation or these By-Laws.
2.12 Action by Consent. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the
written consents are filed with the minutes of proceedings of the Board or
committee.
2.13 Removal. Except as otherwise provided by the General Corporation Law of
Delaware, any one or more or all of the directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to
vote at an election of directors, except that the directors elected by the
holders of a particular class or series of stock may be removed without cause
only by vote of the holders of a majority of the outstanding shares of such
class or series.
2.14 Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member
of a committee, the member or members of the committee present at any meeting
and not disqualified from voting, whether or not he or she 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 and subject to the provisions of the General Corporation Law of the
State of Delaware, 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. Each such committee shall keep minutes and make
such reports as the Board of Directors may from time to time request. Except
as the Board of Directors may otherwise determine, any committee may make
rules
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for the conduct of its business, but unless otherwise provided by the
directors or in such rules, its business shall be conducted as nearly as
possible in the same manner as is provided in these By-laws for the Board of
Directors.
2.15 Compensation of Directors. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent
or subsidiary corporations in any other capacity and receiving compensation
for such service.
ARTICLE 3--Officers
3.1 Enumeration. The officers of the corporation shall consist of a
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chairman of the
Board, a Vice-Chairman of the Board, and one or more Vice Presidents,
Assistant Treasurers, and Assistant Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.
3.2 Election. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 Qualification. No officer need be a stockholder. Any two or more offices
may be held by the same person.
3.4 Tenure. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, each officer shall hold office until his or
her successor is elected and qualified, unless a different term is specified
in the vote choosing or appointing him, or until his or her earlier death,
resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering his or her
written resignation to the corporation at its principal office or to the
President or Secretary. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the
happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer
for any period following his or her resignation or removal, or any right to
damages on account of such removal, whether his or her compensation be by the
month or by the year or otherwise, unless such compensation is expressly
provided in a duly authorized written agreement with the corporation.
3.6 Vacancies. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President,
Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of his or her predecessor and until his or her successor is
elected and qualified, or until his or her earlier death, resignation or
removal.
3.7 Chairman of the Board and Vice Chairman of the Board. The Board of
Directors may appoint a Chairman of the Board. If the Board of Directors
appoints a Chairman of the Board, he or she shall perform such duties and
possess such powers as are assigned to him or her by the Board of Directors.
Unless otherwise provided by the Board of Directors, he or she shall preside
at all meetings of the stockholders and at all meetings of the Board of
Directors. If the Board of Directors appoints a Vice Chairman of the Board, he
or she shall, in
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the absence or disability of the Chairman of the Board, perform the duties and
exercise the powers of the Chairman of the Board and shall perform such other
duties and possess such other powers as may from time to time be vested in him
or her by the Board of Directors.
3.8 President. The President shall, subject to the direction of the Board of
Directors, have general charge and supervision of the business of the
corporation. Unless the Board of Directors has designated the Chairman of the
Board or another officer as Chief Executive Officer, the President shall be
the Chief Executive Officer of the corporation. The President shall perform
such other duties and shall have such other powers as the Board of Directors
may from time to time prescribe.
3.9 Vice Presidents. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the President may from time
to time prescribe. In the event of the absence, inability or refusal to act of
the President, the Vice President (or if there shall be more than one, the
Vice Presidents in the order determined by the Board of Directors) shall
perform the duties of the President and when so performing shall have all the
powers of and be subject to all the restrictions upon the President. The Board
of Directors may assign to any Vice President the title of Executive Vice
President, Senior Vice President or any other title selected by the Board of
Directors.
3.10 Secretary and Assistant Secretaries. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the President
may from time to time prescribe. In addition, the Secretary shall perform such
duties and have such powers as are incident to the office of the secretary,
including without limitation the duty and power to give notices of all
meetings of stockholders and special meetings of the Board of Directors, to
attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on
documents.
Any Assistant Secretary shall perform such duties and possess such powers as
the Board of Directors, the President or the Secretary may from time to time
prescribe. In the event of the absence, inability or refusal to act of the
Secretary, the Assistant Secretary (or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors) shall
perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting of
stockholders or directors, the person presiding at the meeting shall designate
a temporary secretary to keep a record of the meeting.
3.11 Treasurer and Assistant Treasurers. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned to him
or her by the Board of Directors or the President. In addition, the Treasurer
shall perform such duties and have such powers as are incident to the office
of treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds
of the corporation in properly selected depositories, to properly disburse
such funds, to make proper accounts of such funds, and to render as required
by the Board of Directors statements of all such transactions and of the
financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to
time prescribe. In the event of the absence, inability or refusal to act of
the Treasurer, the Assistant Treasurer (or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Treasurer.
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3.12 Salaries. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 4--Capital Stock
4.1 Issuance of Stock. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any balance of the authorized capital
stock of the corporation held in its treasury may be issued, sold, transferred
or otherwise disposed of by vote of the Board of Directors in such manner, for
such consideration and on such terms as the Board of Directors may determine.
4.2 Certificates of Stock. Every holder of stock of the corporation shall be
entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him or her in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman or Vice Chairman, if any, 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. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock which are subject to any restriction on
transfer pursuant to the Certificate of Incorporation, the By-Laws, applicable
securities laws or any agreement among any number of stockholders or among
such holders and the corporation shall have conspicuously noted on the face or
back of the certificate either the full text of the restriction or a statement
of the existence of such restriction.
4.3 Transfers. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to
the corporation or its transfer agent of the certificate representing such
shares properly endorsed or accompanied by a written assignment or power of
attorney properly executed, and with such proof of authority or the
authenticity of signature as the corporation or its transfer agent may
reasonably require. Except as may be otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the corporation shall be
entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any transfer,
pledge or other disposition of such stock until the shares have been
transferred on the books of the corporation in accordance with the
requirements of these By-Laws.
4.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity
as the Board of Directors may require for the protection of the corporation or
any transfer agent or registrar.
4.5 Record Date. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other
lawful action. Such record date shall not be more than 60 nor less than 10
days before the date of such meeting, nor more than 60 days prior to any other
action to which such record date relates.
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If no record date is fixed, 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 before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders for any
other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
ARTICLE 5--General Provisions
5.1 Fiscal Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the
first day of October in each year and end on the last day of September in each
year.
5.2 Corporate Seal. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 Waiver of Notice. Whenever any notice whatsoever is required to be given
by law, by the Certificate of Incorporation or by these By-Laws, a waiver of
such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telegraph, cable or any other
available method, whether before, at or after the time stated in such waiver,
or the appearance of such person or persons at such meeting in person or by
proxy, shall be deemed equivalent to such notice.
5.4 Voting of Securities. Except as the directors may otherwise designate,
the President or Treasurer may waive notice of, and act as, or appoint any
person or persons to act as, proxy or attorney-in-fact for this corporation
(with or without power of substitution) at, any meeting of stockholders or
shareholders of any other corporation or organization, the securities of which
may be held by this corporation.
5.5 Evidence of Authority. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith
be conclusive evidence of such action.
5.6 Certificate of Incorporation. All references in these By-Laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7 Transactions with Interested Parties. No contract or transaction between
the corporation and one or more of the directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely
for this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his or her or their votes are counted for such purpose, if:
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(1) The material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum;
(2) The material facts as to his or her relationship or interest and as
to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence of
a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
5.8 Severability. Any determination that any provision of these By-Laws is
for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
5.9 Pronouns. All pronouns used in these By-Laws shall be deemed to refer to
the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE 6--Amendments
6.1 By the Board of Directors. These By-Laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of a majority
of the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2 By the Stockholders. These By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of the holders of a
majority of the shares of the capital stock of the corporation issued and
outstanding and entitled to vote at any regular or special meeting of
stockholders, provided notice of such alteration, amendment, repeal or
adoption of new by-laws shall have been stated in the notice of such regular
or special meeting.
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MAPINFO CORPORATION
PROXY SOLICITED BY THE BOARD OF DIRECTORS
Special Meeting of Stockholders -- September 24, 1997
The undersigned, revoking all prior proxies, hereby appoint(s) John C.
Cavalier and John F. Haller, or either of them with full power of substitution,
as proxies for the undersigned to act and vote at the Special Meeting of
Stockholders of MapInfo Corporation and at any adjournment(s) thereof as
indicated upon all matters referred to on the reverse side and described in the
Proxy Statement for the Meeting, and in their discretion, upon any other matters
which may properly come before the Meeting.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED BY
THE UNDERSIGNED STOCKHOLDER(S). IF NO DIRECTION IS MADE, THE PROXIES SHALL VOTE
FOR PROPOSAL 1.
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
SEE REVERSE SIDE
<PAGE>
X Please mark votes as in this example.
- ---
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR PROPOSAL 1.
1. To approve the reincorporation of the Company in the State of Delaware,
to be effected pursuant to an Agreement and Plan of Merger by and between the
Company and MapInfo Corporation, a Delaware corporation and a wholly-owned
subsidiary of the Company ("MapInfo Delaware"), pursuant to which the Company
will merge with and into MapInfo Delaware (the "Merger"), and MapInfo Delaware
will survive the Merger.
For Against Abstain
--- --- ---
MARK HERE FOR ADDRESS CHANGE AND NOTE AT LEFT
---
MARK HERE IF YOU PLAN TO ATTEND THE MEETING ---
Please sign exactly as name appears
hereon. Joint owners should each sign.
When signing as attorney, executor,
administrator, trustee or guardian,
please give full title as such. If a
corporation, please sign in full
corporate name by an authorized officer.
If a partnership, please sign in the
partnership name by an authorized
person.
Signature: Date:
-------------------------- --------
Signature: Date:
-------------------------- --------
