<PAGE> 1
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THIS PAPER DOCUMENT IS BEING SUBMITTED PURSUANT TO RULE 901(d) OF
REGULATION S-T.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________ TO ________ .
COMMISSION FILE NUMBER 0-26146
- --------------------------------------------------------------------------------
HNC SOFTWARE INC.
(Exact name of registrant as specified in its charter)
- --------------------------------------------------------------------------------
DELAWARE 33-0248788
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5930 CORNERSTONE COURT WEST
SAN DIEGO, CA 92121
(Address of principal executive offices)
(619) 546-8877
(Registrant's telephone number, including area code)
--------------------------------
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS
REQUIRED TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE
REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS) YES X NO ___ AND (2) HAS BEEN
SUBJECT TO SUCH FILING REQUIREMENTS FOR THE PAST 90 DAYS: YES X NO
--- ---
AS OF JULY 31, 1996 THERE WERE 15,583,911 SHARES OF $0.001 PAR VALUE COMMON
STOCK OUTSTANDING.
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<PAGE> 2
INDEX LISTING
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<TABLE>
<CAPTION>
Page
Number
------
<S> <C> <C>
PART I FINANCIAL INFORMATION
- ------
Item 1: FINANCIAL STATEMENTS
--------------------
Consolidated Balance Sheet at June 30, 1996 (unaudited) 3
and December 31, 1995
Consolidated Statement Of Income (unaudited) for the 4
three month and six month periods ended
June 30, 1996 and 1995
Consolidated Statement Of Cash Flows (unaudited) for 5
the six month periods ended June 30, 1996
and 1995
Notes To Consolidated Financial Statements (unaudited) 6
Item 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 9
-------------------------------------------------
PART II OTHER INFORMATION
- -------
Item 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS 15
---------------------------------------------------
Item 6: EXHIBITS AND REPORTS ON FORM 8-K 19
--------------------------------
PART III EXHIBITS
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RESTATED CERTIFICATE OF INCORPORATION OF THE COMPANY FILED
JUNE 13, 1996
----------------------------------------------------------
BYLAWS OF THE COMPANY, AS AMENDED
---------------------------------
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
-----------------------------------------------------
</TABLE>
2
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PART I - FINANCIAL INFORMATION
- --------------------------------------------------------------------------------
Item 1: FINANCIAL STATEMENTS
HNC SOFTWARE INC.
CONSOLIDATED BALANCE SHEET
(in thousands, except per share data)
ASSETS
<TABLE>
<CAPTION>
June 30, December 31,
1996 1995
----------- ------------
(Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 1,184 $19,929
Short-term investments 13,617 14,590
Trade accounts receivable, net 7,419 4,597
Current portion of deferred income 2,338 1,702
Other current assets 1,572 1,150
------- -------
Total current assets 26,130 41,968
Property and equipment, net 3,477 2,593
Deferred income taxes, less current portion 3,364 346
Other assets 454 187
Long-term investments 27,001 8,336
------- -------
$60,426 $53,430
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 721 $ 669
Accrued liabilities 2,060 2,451
Deferred revenue 2,006 2,041
------- -------
Total current liabilities 4,787 5,161
Common stock, $0.001 par value - 50,000 and 20,000 shares authorized:
15,461 and 14,719 shares issued and outstanding, respectively 15 15
Paid-in capital 54,714 49,124
Retained earnings (accumulated deficit) 910 (870)
------- -------
Total stockholders' equity 55,639 48,269
------- -------
$60,426 $53,430
======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE> 4
HNC SOFTWARE INC.
CONSOLIDATED STATEMENT OF INCOME
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
------------------------------ ------------------------------
June 30, 1996 June 30, 1995 June 30, 1996 June 30, 1995
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues:
Software license and installation $ 5,659 $ 3,820 $10,448 $ 6,808
Contracts and other 3,051 2,100 6,030 4,200
------- ------- ------- -------
Total revenues 8,710 5,920 16,478 11,008
------- ------- ------- -------
Operating expenses:
Software license and installation 1,162 739 2,126 1,304
Contracts and other 1,930 1,493 4,009 3,080
Research and development 2,013 1,154 3,602 2,063
Sales and marketing 1,667 1,245 3,169 2,262
General and administrative 888 597 1,734 1,100
------- ------- ------- -------
Total operating expenses 7,660 5,228 14,640 9,809
------- ------- ------- -------
Operating income 1,050 692 1,838 1,199
Other income, net 555 57 1,116 91
------- ------- ------- -------
Income before income tax provision 1,605 749 2,954 1,290
Income tax provision 638 232 1,174 400
------- ------- ------- -------
Net income $ 967 $ 517 $ 1,780 $ 890
======= ======= ======= =======
Net income per share $ 0.06 $ 0.11
======= =======
Pro forma net income per share $ 0.04 $ 0.07
======= =======
Shares used in computing
net income per share 16,989 16,870
======= =======
Shares used in computing pro forma
net income per share 13,070 12,870
======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE> 5
HNC SOFTWARE INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
Six Months Ended
-------------------------------
June 30, 1996 June 30, 1995
------------- -------------
<S> <C> <C>
Cash flows from operating activities:
Net Income $ 1,780 $ 890
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 685 321
Changes in assets and liabilities:
Accounts receivable, net (2,822) (332)
Other assets (689) 424
Deferred tax assets 1,139 (48)
Accounts payable 52 (142)
Accrued liabilities (391) 355
Deferred revenue (35) 1,932
-------- -------
Net cash (used in) provided by operating activities (449) 3,400
-------- -------
Cash flows from investing activities:
Purchases of investments (21,164) (101)
Maturities of investments 1,655 1,182
Proceeds from sale of investments 1,649 --
Acquisitions of property and equipment (1,569) (787)
Net cash (used in) provided by investing activities (19,429) 294
-------- -------
Cash flows from financing activities:
Net proceeds from issuance of common stock 965 15,601
Charges against issuance of common stock (476)
Repayments of bank notes payable -- (687)
-------- -------
Net cash provided by financing activities 965 14,438
-------- -------
Net (decrease) increase in cash and cash equivalents (18,745) 18,132
Cash and cash equivalents at beginning of period 19,929 4,786
-------- -------
Cash and cash equivalents at end of period $ 1,184 $22,918
======== =======
Supplemental cash flow disclosure:
Unrealized tax benefit from stock option plans $ 4,793 $ --
======== =======
Interest paid $ -- $ 16
======== =======
Income taxes paid $ 30 $ 20
======== =======
</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE> 6
HNC SOFTWARE INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
- --------------------------------------------------------------------------------
NOTE 1 GENERAL
In management's opinion, the accompanying unaudited consolidated
financial statements for HNC Software Inc. (the "Company") for the three months
and six months ended June 30, 1996 and 1995 have been prepared in accordance
with generally accepted accounting principles for interim financial statements
and include all adjustments (consisting only of normal recurring accruals) that
the Company considers necessary for a fair presentation of its financial
position, results of operations, and cash flows for such periods. Accordingly,
they do not contain all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. All such
financial statements are unaudited except the December 31, 1995 balance sheet.
This report and the accompanying unaudited and audited financial statements
should be read in conjunction with the Company's audited financial statements
and notes thereto presented in its 1995 Annual Report and Form 10-K for fiscal
year ended December 31, 1995. Footnotes and other disclosures for the fiscal
year ended December 31, 1995, which would substantially duplicate the
disclosures in the Company's audited financial statements for Fiscal Year 1995
contained in the 1995 Annual Report and Form 10-K for fiscal year ended
December 31, 1995, have been omitted. The interim financial information herein
is not necessarily indicative of the results to be expected for the full fiscal
year ending December 31, 1996.
Note 2 TERMINATED ACQUISITION
On May 23, 1996, the Company announced that it had terminated the
previously announced proposed acquisition of Credit and Risk Management
Associates because the transaction did not qualify for 'pooling of interests'
accounting treatment. In connection with this terminated acquisition, the
Company incurred transaction costs of approximately $99,000.
Note 3 PENDING ACQUISITION
On July 22, 1996, the Company announced that it had signed a
definitive agreement to acquire Risk Data Corporation, an insurance information
technology product and services firm located in Irvine, California. This
transaction has not yet been consummated and remains subject to the
satisfaction of certain conditions, including qualification of the transaction
for 'pooling of interests' accounting treatment. Under the terms of the
transaction, the consideration to be paid by the Company will
6
<PAGE> 7
consist of a number of shares of the Company's common stock and options to
purchase shares of the Company's Common Stock determined by dividing
$61,000,000 by the average closing price of the Company's common stock for the
ten days preceding the closing of the transaction. Accordingly, under the
current terms of the proposed acquisition, the maximum aggregate number of
shares of Common Stock to be issued outright and to be subject to stock options
issued in the transaction would be approximately 2,140,000 shares.
Note 4 STOCK SPLIT
On March 5, 1996, the Company announced that its Board of Directors
approved a two-for-one stock split effected in the form of a common stock
dividend. This stock dividend was paid to the corporation's stockholders of
record as of the close of business on March 18, 1996. Such stockholders of
record received stock certificates representing one additional share of HNC
Software Inc. common stock for each outstanding share of common stock then
held. Distribution of shares issued pursuant to the stock dividend occurred on
April 3, 1996. All references in the accompanying interim financial
information to share and per share amounts have been adjusted to give
retroactive effect to the stock split.
Note 5 NET INCOME PER SHARE
Net income per share is computed based on the weighted average number
of common shares and common stock equivalents, using the treasury stock method,
outstanding during the respective periods.
Pro forma net income per share is computed based on the weighted
average number of common shares and common stock equivalents, using the
treasury stock method, outstanding during the respective periods after giving
retroactive effect to the conversion of all outstanding shares of preferred
stock into 4,478,332 shares of common stock which occurred upon the closing of
the Company's initial public offering on June 26, 1995. Pursuant to Securities
and Exchange Commission Staff Accounting Bulletin No. 83, all stock options
granted since May 5, 1994 and through May 5, 1995 have been included as
outstanding for all periods prior to June 26, 1995 using the treasury stock
method.
7
<PAGE> 8
Note 6 STOCK-BASED COMPENSATION
In October 1995, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards (FAS) No. 123, "Accounting for
Stock-Based Compensation." FAS 123 was adopted by the Company as required for
its fiscal 1996 financial statements and did not have a material effect on the
Company's financial position or results of operations. The Company continues
to measure compensation expense for its stock-based employee compensation plans
using the intrinsic value method prescribed by APB Opinion No. 25, "Accounting
for Stock Issued to Employees," and will provide pro forma disclosures of net
income and earnings per share in its annual financial statements as if the fair
value-based method prescribed by FAS 123 had been applied in measuring
compensation expense.
8
<PAGE> 9
HNC SOFTWARE INC.
- --------------------------------------------------------------------------------
Item 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
This Item 2 contains certain forward-looking statements regarding the
Company, its business, prospects and results of operations that are subject to
certain risks and uncertainties posed by many factors and events that could
cause the Company's actual business, prospects and results of operations to
differ materially from those that may be anticipated by such forward-looking
statements. Factors that may affect such forward-looking statements include,
without limitation: the Company's ability to successfully develop new products
for new markets; the Company's loss of a large customer; the Company's
inability to secure new government contracts for technology development; the
impact of competition on the Company's revenues, market share or ability to
maintain its premium usage-based pricing terms and to generate recurring
revenue; the availability to the Company, at reasonable cost, of data required
to operate or update its intelligent decision software products; changes in law
or regulatory requirements that adversely affect or preclude customers from
using the Company's products for certain applications; delays in the Company's
introduction of new products; and failure by the Company to keep pace with
emerging technologies.
THREE MONTHS ENDED JUNE 30, 1996 AND 1995
REVENUES. Revenues for the three months ended June 30, 1996 were $8.7
million, an increase of 47% over revenues of $5.9 million for the same period
in the prior year. This increase was primarily due to greater software license
and installation revenues which were $5.7 million for the quarter ended June
30, 1996, an increase of 48% from $3.8 million for the comparable quarter in
1995. This increase in software license and installation revenues resulted
primarily from an increase in revenues from the Company's Falcon credit card
fraud detection product and to a lesser extent from the Colleague automated
mortgage underwriting product, SkuPLAN, the demand forecasting product for the
retail market and the AREAS property valuation product. The Company's software
license and installation revenues are derived from monthly license fees,
perpetual license fees, annual maintenance fees and installation fees. The
Company typically licenses its products for a monthly usage fee under long-term
contracts that include software licenses, decision model updates, application
consulting, on-line or on-site support and maintenance.
Contracts and other revenues for the three months ended June 30, 1996 were
$3.0 million, an increase of 45% as compared to $2.1 million for the same
period in the prior year. The increase in contracts and other revenues was due
primarily to increased commercial contract revenues for new product pilots
including Eagle (a merchant risk management system), ProfitMax (a credit card
profitability management system) and
9
<PAGE> 10
Capstone (a credit card application processing system). Contracts and other
revenues are derived primarily from development and consulting contracts with
commercial customers and research contracts with the United States Government.
Revenues from contract services are generally recognized as the services are
performed using the percentage of completion method based on costs incurred to
date compared to total estimated costs at completion. All revenues for new
product pilots are reported as contract revenues.
In 1996 the Company has a significant number of new product development
projects and new product pilot installations in process which it expects to
begin shipping in production versions primarily in 1997. However, there can be
no assurance that these product development projects or pilot installations
will be successful or that the customers who serve as pilot installation sites
for these new products will be satisfied with these products or agree to
license them. If the Company's new product development efforts are
unsuccessful or are not well received by pilot customers, the Company may be
compelled to delay or entirely discontinue the release of production versions
of these products, which would have a material adverse effect on the Company's
results of operations.
The Company's success depends upon its ability to enter new markets by
developing new products on a timely and cost-effective basis. The Company's
products often require customer data for decision model development and system
installation. As a result, completion of new products may be delayed while the
Company extracts sufficient amounts of statistically relevant data and develops
the models. During this development process, the Company relies on its
potential customers in the new market to provide data and to help train Company
personnel in the use and meaning of the data in the specific industry. These
relationships also assist the Company in establishing presence and credibility
in the new market. There can be no assurance that these companies, most of
which have significantly greater financial and marketing resources than the
Company, will not compete with the Company in the future or will not otherwise
discontinue their relationships with or support of the Company, either during
development of the Company's products or thereafter.
The Company's success will depend upon its ability to maintain competitive
technologies, enhance its current products and develop new products in a timely
and cost-effective manner that meet changing market conditions, including
evolving customer needs, new competitive product offerings, emerging industry
standards and changing technology.
The sales cycle associated with the purchase of the Company's products is
typically lengthy and subject to a number of significant risks, including
customers' budgetary constraints and internal acceptance reviews, over which
the Company has little or no control.
10
<PAGE> 11
SOFTWARE LICENSE AND INSTALLATION EXPENSES. Software license and
installation expense primarily consists of the Company's expenses for personnel
engaged in installation and support and related costs. Software license and
installation expenses for the second quarter of 1996 were $1.2 million and
constituted 21% of software and installation revenues for the quarter, whereas
such expenses were $739,000 and represented 19% of software and installation
revenues in the second quarter of 1995. The primary reason for the increase in
these expenses was increased staffing and associated costs in client services
to support the increased volume of business.
CONTRACTS AND OTHER EXPENSES. Contracts and other expenses consist
primarily of personnel-related expenses associated with the Company's
performance of such contracts. Contracts and other expenses in the second
quarter of 1996 were $1.9 million or 63% of contracts and other revenues as
compared to $1.5 million or 71% of such revenues in the second quarter of 1995.
The reduction in expenses as a percent of revenues is due to increased pricing
on certain contracts.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses in
the second quarter of 1996 were $2.0 million and 23% of total revenues compared
to $1.2 million and 19% of total revenues in the second quarter of the prior
year. The increase in expenses was due primarily to increases in staffing and
related costs to support increased new product development activities,
including the expenses for the Company's new text analysis products, which the
Company began commercial development of in January of 1996.
SALES AND MARKETING EXPENSES. Sales and marketing expenses were $1.7
million or 19% of total revenues in the second quarter of 1996 compared to $1.2
million and 21% of total revenues in the second quarter of 1995. The increase
in sales and marketing expenses was due primarily to increased staffing and
product promotion activities to support higher sales volumes and new product
introductions, including the Company's new text analysis products.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
were $888,000 and 10% of total revenues in the second quarter of 1996, compared
to $597,000 and 10% of total revenues in the prior year. The primary reason for
the increase in these costs was increased staffing and related expenses to
support higher levels of sales and development activity of the Company.
General and administrative expenses in the second quarter of 1996 also includes
$99,000 of costs associated with the terminated acquisition of Credit and Risk
Management Associates. Please see Note 2 to the Notes to Consolidated
Financial Statements included in this report.
OPERATING INCOME. The above factors resulted in operating income of $1.1
million and 12% of total revenues for the second quarter of 1996, compared to
an operating income of $692,000 and 12% of total revenues in the same quarter
of the prior year.
11
<PAGE> 12
The Company's quarterly revenues and operating results have varied
significantly in the past and may do so in the future. Although to date a
significant portion of the Company's revenues has come from monthly usage fees
under long-term contracts, there can be no assurance that the Company will
continue to realize such recurring revenues or that customers under such
contracts would not seek to cancel such contracts if the Company's products
were not competitive or did not achieve cost effective results. A significant
portion of the Company's business has been derived from substantial orders
placed by large organizations, and the timing of such orders has caused
material fluctuations in the Company's operating results. The Company's
expense levels are based in part on its expectations regarding future revenues
and in the short term are fixed to a large extent. Operating results also may
fluctuate due to factors such as the demand for the Company's products, product
life cycles, the introduction and acceptance of new products and product
enhancements by the Company or its competitors, changes in the mix of
distribution channels through which the Company's products are offered, changes
in the level of operating expenses, customer order deferrals in anticipation of
new products, competitive conditions in the industry and economic conditions
generally or in various industry segments. The Company has continued to invest
in research and development and sales and marketing in an effort to better
service its customers and markets. The Company expects to continue to increase
absolute dollar spending on both research and development and sales and
marketing in the future.
OTHER INCOME, NET. Other income for the second quarter of 1996 was
$555,000 compared to $57,000 in the second quarter of the prior year. The
increase was due to increased interest income in 1996 from higher cash and
investment balances which consisted primarily of the proceeds from the
Company's initial public offering in June, 1995 and secondary public offering
in December, 1995.
INCOME BEFORE INCOME TAX PROVISION. The resulting income before tax
provision for the second quarter of 1996 was $1.6 million or 18% of total
revenues, compared to income before tax provision of $749,000 or 13% of total
revenues for the comparable quarter of 1995.
SIX MONTHS ENDED JUNE 30, 1996 AND 1995
REVENUES. Revenues for the six months ended June 30, 1996 were $16.5
million, an increase of 50% over revenues of $11.0 million for the same period
in the prior year. This increase was primarily due to greater software license
and installation revenues which were $10.4 million for the six months ended
June 30, 1996, an increase of 53% from $6.8 million for the comparable quarter
in 1995. This increase in software license and installation revenues resulted
primarily from an increase in revenues from the Company's Falcon credit card
fraud detection product and to a lesser extent from the Colleague automated
mortgage underwriting product, SkuPLAN, the demand forecasting product for the
retail market and the AREAS property valuation product.
12
<PAGE> 13
Contracts and other revenues for the six months ended June 30, 1996 were
$6.0 million, compared to $4.2 million for the same period in the prior year, a
44% increase. The increase in contracts and other revenues was due primarily
to increased commercial contract revenues for new product pilots for Eagle (a
merchant risk management system), ProfitMax (a credit card profitability
management system) and Capstone (a credit card application processing system).
SOFTWARE LICENSE AND INSTALLATION EXPENSES. Software license and
installation expense primarily consists of the Company's expenses for personnel
engaged in installation and support and related costs. Software license and
installation expenses for the six months of 1996 were $2.1 million and
constituted 20% of software and installation revenues for the quarter, whereas
such expenses were $1.3 million and represented 19% of software and
installation revenues in the six months of 1995. The primary reason for the
increase in these expenses was increased staffing and associated costs in
client services to support the increased volume of business.
In 1996 the Company has a significant number of new product development
projects in process which it expects to begin installing in a production phase
primarily in 1997. However, there can be no assurance that these product
development projects or pilot installations will be successful or that the
customers who serve as pilot installation sites for these new products will be
satisfied with these products or agree to license them. If the Company's new
product development efforts are unsuccessful or are not well received by pilot
customers, the Company may be compelled to delay or entirely discontinue the
release of production versions of these products, which would have a material
adverse effect on the Company's results of operations.
CONTRACTS AND OTHER EXPENSES. Contracts and other expenses consist
primarily of personnel-related expenses. Contracts and other expenses during
the first six months of 1996 were $4.0 million or 66% of contracts and other
revenues as compared to $3.1 million or 73% of such revenues in the first six
months of 1995. The reduction in expenses as a percent of revenues is due to
increased pricing on certain contracts.
RESEARCH AND DEVELOPMENT EXPENSES. Research and development expenses in
the first six months of 1996 were $3.6 million and 22% of total revenues
compared to $2.1 million and 19% of total revenues in the first six months of
1995. The increase in expenses was due primarily to increases in staffing and
related costs to support increased new product development activities,
including the Company's new text analysis products.
SALES AND MARKETING EXPENSES. Sales and marketing expenses were $3.2
million or 19% of total revenues in the first six months of 1996 compared to
$2.3 million and 21% of total revenues in the second quarter of 1995. The
increase in sales and marketing expenses was due primarily to increased
staffing and product promotion activities to support higher sales volumes and
new product introductions, including the Company's new text analysis products.
13
<PAGE> 14
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
were $1.7 million and 11% of total revenues in the first six months of 1996,
compared to $1.1 million and 10% of total revenues in the prior year. The
primary reason for the increase in these costs was increased staffing and
related expenses to support higher levels of activity of the Company and
includes costs of $99,000 associated with the terminated acquisition of CRMA.
See Note 2 to the Notes to Consolidated Financial Statements included in this
report.
OPERATING INCOME. The above factors resulted in operating income of $1.8
million and 11% of total revenues for the first six months of 1996, compared to
an operating income of $1.2 million and 11% of total revenues in the same
period of the prior year.
OTHER INCOME, NET. Other income for the first six months of 1996 was $1.1
million compared to $91,000 in the first six months of the prior year. The
increase was due to increased interest income in 1996 from higher cash and
investment balances which consisted primarily of the proceeds from the
Company's initial public offering in June, 1995 and secondary public offering
in December, 1995.
INCOME BEFORE INCOME TAX PROVISION. The resulting income before tax
provision for the first six months of 1996 was $3.0 million or 18% of total
revenues, compared to income before tax provision of $1.3 million or 12% of
total revenues for the comparable quarter of 1995.
LIQUIDITY AND CAPITAL RESOURCES
FINANCING ACTIVITIES
During the six months ended June 30, 1996 the Company obtained $965,000 of
cash from financing activities. These funds came primarily from the exercise
of stock options and the purchase of shares under the Company's employee stock
purchase plan. As of June 30, 1996 the Company had $41.8 million in cash, cash
equivalents and investments. Management believes that the Company's cash and
investments and cash generated from operations will be adequate for the
Company's cash requirements for the next twelve months.
OPERATING ACTIVITIES
Cash used by operating activities for the six months ended June 30, 1996
was $449,000 compared to cash provided by operations of $3.4 million for the
first six months of the prior year. The increase in cash used by operating
activities was due primarily to increased accounts receivable balances due to
increased revenues and an increase in the average days outstanding of these
higher receivable balances. The days outstanding have increased largely
because of the increase in new product pilot contracts which generally pay more
slowly.
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<PAGE> 15
INVESTING ACTIVITIES
Cash used in investing activities was $19.3 million for six months ended
June 30, 1996 compared to cash provided by investing activities of $294,000 for
the first six months of the prior year. This was due to net purchases of short
and long term investments of $17.7 million and acquisitions of property and
equipment, primarily computer equipment of $1.6 million.
Item 4: SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The Company held its 1996 Annual Meeting of Stockholders on May 23,
1996 (the "Annual Meeting"). At the Annual Meeting the Company's stockholders
elected the Company's Board of Directors and approved the proposals described
more fully below. Proxies were solicited by the Company pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended.
As of April 5, 1996, the record date for the Annual Meeting, there
were approximately 15,169,455 shares of the Company's Common Stock outstanding
and entitled to vote, of which 11,386,868 shares were present in person or by
proxy at the Annual Meeting. The directors of the Company who were elected at
the Annual Meeting were: Edward K. Chandler, Oliver D. Curme, Roger L. Evans,
Thomas F. Farb, Charles H. Gaylord, Jr. and Robert L. North.
The proposals considered at the Annual Meeting were voted on as
follows:
1. Election of Directors. Proposal to elect six directors of the
Company, each to serve until the next Annual Meeting of Stockholders
and until his successor is duly elected and qualified or until his
earlier resignation or removal.
<TABLE>
<CAPTION>
VOTES FOR VOTES WITHHELD
--------- --------------
<S> <C> <C>
Nominees
--------
Edward K. Chandler 11,324,807 62,061
Oliver D. Curme 11,324,807 62,061
Roger L. Evans 11,324,607 62,261
Thomas F. Farb 11,323,107 63,761
Charles H. Gaylord, Jr. 11,324,607 62,261
Robert L. North 11,324,807 62,061
</TABLE>
15
<PAGE> 16
2. Amendment of Certificate of Incorporation. Proposal to amend the
Company's Certificate of Incorporation to increase the authorized
number of shares of the Company's Common Stock, $0.001 par value, from
20,000,000 to 50,000,000 shares.
<TABLE>
<CAPTION>
BROKER
VOTES FOR VOTES AGAINST ABSTENTIONS NON-VOTES
--------- ------------- ----------- ---------
<S> <C> <C> <C>
9,888,249 1,161,128 130,380 207,111
</TABLE>
3. Ratification of Auditors. Proposal to ratify the appointment of Price
Waterhouse LLP as the Company's auditors for the Company's fiscal year
ending December 31, 1996.
<TABLE>
<CAPTION>
BROKER
VOTES FOR VOTES AGAINST ABSTENTIONS NON-VOTES
--------- ------------- ----------- ---------
<S> <C> <C> <C>
11,255,261 1,217 130,390 0
</TABLE>
16
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report on Form 10-Q to be signed on its behalf
by the undersigned thereunto duly authorized.
HNC SOFTWARE INC.
Date: August 12, 1996 By: /s/ RAYMOND V. THOMAS
------------------------------------
Raymond V. Thomas
Vice President Finance & Administration and
Chief Financial Officer
(for Registrant as duly authorized officer
and as Principal Financial and Accounting
Officer)
17
<PAGE> 18
Item 6: EXHIBITS AND REPORTS ON FORM 8-K
(a) The following documents are filed as exhibits with this
Report:
Exhibit 3(i).04 Restated Certificate of Incorporation of
the Company filed June 13, 1996.
Exhibit 3(ii).05 Bylaws of the Company, as amended.
Exhibit 11.01 Statement Regarding Computation of Pro
Forma Per Share Earnings.
Exhibit 27 Financial Data Schedule.
(b) Reports on Form 8-K
None
18
<PAGE> 19
INDEX TO EXHIBITS
-----------------
The following exhibits are filed with this Report:
Exhibit 3(i).04 Restated Certificate of Incorporation of the Company filed
June 13, 1996.
Exhibit 3(ii).05 Bylaws of the Company, as amended.
Exhibit 11.01 Statement Regarding Computation of Per Share Earnings.
Exhibit 27 Financial Data Schedule.
19
<PAGE> 1
PART II - EXHIBITS
- --------------------------------------------------------------------------------
EXHIBIT 3(i).04
RESTATED CERTIFICATE OF INCORPORATION
OF
HNC SOFTWARE INC.
(ORIGINALLY INCORPORATED ON APRIL 17, 1995)
ARTICLE I
The name of the corporation is HNC Software Inc.
ARTICLE II
The address of the registered office of the corporation in the State of
Delaware is 15 E. North Street, City of Dover, 19901, County of Kent. The name
of its registered agent at that address is Incorporating Services, Ltd.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the corporation
has authority to issue is Fifty-Four Million (54,000,000) shares, consisting of
two classes: Fifty Million (50,000,000) shares of Common Stock, $0.001 par
value per share, and Four Million (4,000,000) shares of Preferred Stock, $0.001
par value per share.
The Board of Directors is authorized, subject to any limitations
prescribed by the law of the State of Delaware, to provide for the issuance of
the shares of Preferred Stock in one or more series, and, by filing a
certificate of designation pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be included in
each such series, to fix the designation, powers, preferences and rights of the
shares of each such series and any qualifications, limitations or restrictions
thereof, and to increase or decrease the number of shares of any such series
(but not below the number of shares of such series then outstanding). The
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the corporation
entitled to vote, unless a vote of any other holders is required pursuant to a
certificate or certificates establishing a series of Preferred Stock.
Except as expressly provided in any certificate of designation
designating any series of Preferred Stock pursuant to the foregoing provisions
of this Article IV, any new series of Preferred Stock may be designated, fixed
and determined as provided herein by the Board of Directors without approval of
the holders of Common Stock or the holders of Preferred Stock, or any series
thereof, and any such new series may have powers, preferences and rights,
including without limitation, voting rights, dividend rights, liquidation
rights, redemption rights and
1
<PAGE> 2
conversion rights, senior to, junior to or pari passu with the rights of the
Common Stock, the Preferred Stock, or any future class or series of Preferred
Stock or Common Stock.
ARTICLE V
The Board of Directors of the corporation shall have the power to adopt,
amend or repeal the Bylaws of the corporation.
ARTICLE VI
Election of directors need not be by written ballot unless the Bylaws of
the corporation shall so provide.
ARTICLE VII
To the fullest extent permitted by law, no director of the corporation
shall be personally liable for monetary damages for breach of fiduciary duty as
a director. Without limiting the effect of the preceding sentence, if the
Delaware General Corporation Law is hereafter amended to authorize the further
elimination or limitation of the liability of a director, then the liability of
a director of the corporation shall be eliminated or limited to the fullest
extent permitted by the Delaware General Corporation Law, as so amended.
Neither any amendment nor repeal of this Article VII, nor the adoption
of any provision of this Certificate of Incorporation inconsistent with this
Article VII, shall eliminate, reduce or otherwise adversely affect any
limitation on the personal liability of a director of the corporation existing
at the time of such amendment, repeal or adoption of such an inconsistent
provision.
_____________________
HNC Software Inc., a Delaware corporation, hereby certifies that the
foregoing Restated Certificate of Incorporation, which restates, integrates and
further amends the provisions of the Certificate of Incorporation of this
corporation as heretofore amended or supplemented, has been duly adopted by the
corporation's Board of Directors and stockholders in accordance with Sections
242 and 245 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, said corporation has caused this Restated
Certificate of Incorporation to be signed and attested by its duly authorized
officers this 28th day of May, 1996.
HNC SOFTWARE INC.
By: /s/ ROBERT L. NORTH
---------------------------------
Robert L. North, President
ATTEST:
/s/ RAYMOND V. THOMAS
- ----------------------------------
Raymond V. Thomas, Secretary
2
<PAGE> 1
EXHIBIT 3 (ii).05
BYLAWS
OF
HNC SOFTWARE INC.
(a Delaware corporation)
As Adopted April 19, 1995
and Amended March 13, 1996
ARTICLE I
STOCKHOLDERS
Section 1.1: Annual Meetings. An annual meeting of stockholders
shall be held for the election of directors at such date, time and place,
either within or without the State of Delaware, as the Board of Directors shall
each year fix. Any other proper business may be transacted at the annual
meeting.
Section 1.2: Special Meetings. Special meetings of stockholders
for any purpose or purposes may be called at any time by the Chairman of the
Board, the Chief Executive Officer, the President, the holders of shares of the
Corporation that are entitled to cast not less than ten percent (10%) of the
total number of votes entitled to be cast by all shareholders at such meeting,
or by a majority of the members of the Board of Directors. Special meetings
may not be called by any other person or persons. If a special meeting of
stockholders is called by any person or persons other than by a majority of the
members of the Board of Directors, then such person or persons shall call such
meeting by delivering a written request to call such meeting to each member of
the Board of Directors, and the Board of Directors shall then determine the
time, date and place of such special meeting, which shall be held not more than
one hundred twenty (120) nor less than thirty-five (35) days after the written
request to call such special meeting was delivered to each member of the Board
of Directors.
Section 1.3: Notice of Meetings. Written notice of all meetings
of stockholders shall be given stating the place, date and time of the meeting
and, in the case of a special meeting, the purpose or purposes for which the
meeting is called. Unless otherwise required by applicable law or the
Certificate of Incorporation of the Corporation, such notice shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting.
Section 1.4: Adjournments. Any meeting of stockholders may
adjourn from time to time to reconvene at the same or another place, and notice
need not be given of any such adjourned meeting if the time, date and place
thereof are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than thirty (30)
1
<PAGE> 2
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, then a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At the adjourned
meeting the Corporation may transact any business that might have been
transacted at the original meeting.
Section 1.5: Quorum. At each meeting of stockholders the holders
of a majority of the shares of stock entitled to vote at the meeting, present
in person or represented by proxy, shall constitute a quorum for the
transaction of business, except if otherwise required by applicable law. If a
quorum shall fail to attend any meeting, the chairman of the meeting or the
holders of a majority of the shares entitled to vote who are present, in person
or by proxy, at the meeting may adjourn the meeting. Shares of the
Corporation's stock belonging to the Corporation (or to another corporation, if
a majority of the shares entitled to vote in the election of directors of such
other corporation are held, directly or indirectly, by the Corporation), shall
neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation or any
other corporation to vote any shares of the Corporation's stock held by it in a
fiduciary capacity.
Section 1.6: Organization. Meetings of stockholders shall be
presided over by such person as the Board of Directors may designate, or, in
the absence of such a person, the Chairman of the Board, or, in the absence of
such person, the President of the Corporation, or, in the absence of such
person, such person as may be chosen by the holders of a majority of the shares
entitled to vote who are present, in person or by proxy, at the meeting. Such
person shall be chairman of the meeting and, subject to Section 1.11 hereof,
shall determine the order of business and the procedure at the meeting,
including such regulation of the manner of voting and the conduct of discussion
as seems to him or her to be in order. The Secretary of the Corporation shall
act as secretary of the meeting, but in his or her absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 1.7: Voting; Proxies. Unless otherwise provided by law or
the Certificate of Incorporation, and subject to the provisions of Section 1.8
of these Bylaws, each stockholder shall be entitled to one (1) vote for each
share of stock held by such stockholder. Each stockholder entitled to vote at
a meeting of stockholders, or to express consent or dissent to corporate action
in writing without a meeting, may authorize another person or persons to act
for such stockholder by proxy. Such a proxy may be prepared, transmitted and
delivered in any manner permitted by applicable law. Voting at meetings of
stockholders need not be by written ballot unless such is demanded at the
meeting before voting begins by a stockholder or stockholders holding shares
representing at least one percent (1%) of the votes entitled to vote at such
meeting, or by such stockholder's or stockholders' proxy; provided, however,
that an election of directors shall be by written ballot if demand is so made
by any stockholder at the meeting before voting begins. If a vote is to be
taken by written ballot, then each such ballot shall state the name of the
stockholder or proxy voting and such other information as the chairman of the
meeting deems appropriate. Directors shall be elected by a plurality of the
votes of the shares present in person or represented by proxy at the meeting
and entitled to vote on the election of directors. Unless otherwise provided
by applicable law, the Certificate of Incorporation or these Bylaws, every
matter other than the election of directors shall be decided by the affirmative
vote of the holders of a majority of the shares of stock entitled to vote
thereon
2
<PAGE> 3
that are present in person or represented by proxy at the meeting and are voted
for or against the matter.
Section 1.8: Fixing Date for Determination of Stockholders of
Record.
(a) Generally. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and which shall not be more
than sixty (60) nor less than ten (10) days before the date of such meeting,
nor more than sixty (60) days prior to any other action. If no record date is
fixed by the Board of Directors, then the record date shall be as provided by
applicable law. 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.
(b) Stockholder Request for Action by Written Consent. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the Secretary of the Corporation, request the Board of Directors to fix a
record date for such consent. Such request shall include a brief description
of the action proposed to be taken. The Board of Directors shall, within ten
(10) days after the date on which such a request is received, adopt a
resolution fixing the record date. Such record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. If
no record date has been fixed by the Board of Directors within ten (10) days
after the date on which such a request is received, then the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required
by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, to
its principal place of business, or to any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable law, then the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 1.9: List of Stockholders Entitled to Vote. A complete
list of stockholders entitled to vote at any meeting of stockholders, arranged
in alphabetical order and showing the address of each stockholder and the
number of shares registered in the name of each stockholder, shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at
3
<PAGE> 4
a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present at the meeting.
Section 1.10: Action by Written Consent of Stockholders.
(a) Procedure. Unless otherwise provided by the Certificate of
Incorporation, and except as set forth in Section 1.8(b) above, any action
required or permitted to be taken at any annual or special meeting of the
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
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.
Written stockholder consents shall bear the date of signature of each
stockholder who signs the consent and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, to its principal
place of business or to any officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. No written consent
shall be effective to take the action set forth therein unless, within sixty
(60) days of the earliest dated consent delivered to the Corporation in the
manner provided above, written consents signed by a sufficient number of
stockholders to take the action set forth therein are delivered to the
Corporation in the manner provided above.
(b) Notice of Consent. Prompt notice of the taking of corporate
action by stockholders without a meeting by less than unanimous written consent
of the stockholders shall be given to those stockholders who have not consented
thereto in writing and, in the case of a Certificate Action (as defined below),
if the Delaware General Corporation Law so requires, such notice shall be given
prior to filing of the certificate in question. If the action which is
consented to requires the filing of a certificate under the Delaware General
Corporation Law (a "Certificate Action"), then if the Delaware General
Corporation Law so requires, the certificate so filed shall state that written
stockholder consent has been given in accordance with Section 228 of the
Delaware General Corporation Law and that written notice of the taking of
corporate action by stockholders without a meeting as described herein has been
given as provided in such section.
Section 1.11: Inspectors of Elections.
(a) Applicability. Unless otherwise provided in the Corporation's
Certificate of Incorporation or required by the Delaware General Corporation
Law, the following provisions of this Section 1.11 shall apply only if and when
the Corporation has a class of voting stock that is: (i) listed on a national
securities exchange; (ii) authorized for quotation on an interdealer quotation
system of a registered national securities association; or (iii) held of record
by more than 2,000 stockholders; in all other cases, observance of the
provisions of this Section 1.11 shall be optional, and at the discretion of the
Corporation.
4
<PAGE> 5
(b) Appointment. The Corporation shall, in advance of any meeting
of stockholders, appoint one or more inspectors of election to act at the
meeting and make a written report thereof. The Corporation may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of stockholders,
the person presiding at the meeting shall appoint one or more inspectors to act
at the meeting.
(c) Inspector's Oath. Each inspector of election, before entering
upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his ability.
(d) Duties of Inspectors. At a meeting of stockholders, the
inspectors of election shall (i) ascertain the number of shares outstanding and
the voting power of each share, (ii) determine the shares represented at a
meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period of time a record of
the disposition of any challenges made to any determination by the inspectors,
and (v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint
or retain other persons or entities to assist the inspectors in the performance
of the duties of the inspectors.
(e) Opening and Closing of Polls. The date and time of the
opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced by the inspectors at the
meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery upon application by a stockholder shall determine
otherwise.
(f) Determinations. In determining the validity and counting of
proxies and ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, any information provided
in connection with proxies in accordance with Section 212(c)(2) of the Delaware
General Corporation Law, ballots and the regular books and records of the
Corporation, except that the inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent
more votes than the holder of a proxy is authorized by the record owner to cast
or more votes than the stockholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification of their determinations
pursuant to this Section 1.11 shall specify the precise information considered
by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
Section 1.12: Notice of Stockholder Business; Nominations.
(a) Annual Meeting of Stockholders.
(i) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the stockholders
shall be made at an annual meeting of
5
<PAGE> 6
stockholders (A) pursuant to the Corporation's notice of such meeting, (B) by
or at the direction of the Board of Directors or (C) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of the notice
provided for in this Section 1.12, who is entitled to vote at such meeting and
who complies with the notice procedures set forth in this Section 1.12.
(ii) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (C) of
subparagraph (a)(i) of this Section 1.12, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation and such
other business must otherwise be a proper matter for stockholder action. To be
timely, a stockholder's notice must be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the sixtieth (60th) day nor earlier than the close of business on
the ninetieth (90th) day prior to the first anniversary of the preceding year's
annual meeting (except in the case of the 1995 annual meeting, for which such
notice shall be timely if delivered in the same time period as if such meeting
were a special meeting governed by subparagraph (b) of this Section 1.12);
provided, however, that in the event that the date of the annual meeting is
more than thirty (30) days before or more than sixty (60) days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the ninetieth (90th) day prior to
such annual meeting and not later than the close of business on the later of
the sixtieth (60th) day prior to such annual meeting or the close of business
on the tenth (10th) day following the day on which public announcement of the
date of such meeting is first made by the Corporation. Such stockholder's
notice shall set forth: (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest
in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made (1) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, and (2) the class and number
of shares of the Corporation that are owned beneficially and held of record by
such stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of
subparagraph (a)(ii) of this Section 1.12 to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased
board of directors at least seventy (70) days prior to the first anniversary of
the preceding year's annual meeting (or, if the annual meeting is held more
than thirty (30) days before or sixty (60) days after such anniversary date, at
least seventy (70) days prior to such annual meeting), a stockholder's notice
required by this Section 1.12 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary of the Corporation at the principal executive
office of the Corporation not later than the
6
<PAGE> 7
close of business on the tenth (10th) day following the day on which such
public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of such meeting.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant
to the Corporation's notice of such meeting (i) by or at the direction of the
Board of Directors or (ii) provided that the Board of Directors has determined
that directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice of
the special meeting, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 1.12. In the
event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by subparagraph (a)(ii) of this Section 1.12
shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not earlier than the ninetieth (90th) day
prior to such special meeting and not later than the close of business on the
later of the sixtieth (60th) day prior to such special meeting or the tenth
(10th) day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
(c) General.
(i) Only such persons who are nominated in accordance
with the procedures set forth in this Section 1.12 shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 1.12. Except as otherwise provided by
law or these bylaws, the chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 1.12 and, if any proposed nomination or
business is not in compliance herewith, to declare that such defective proposal
or nomination shall be disregarded.
(ii) For purposes of this Section 1.12, the term "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in
a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section 1.12, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth herein. Nothing in this Section 1.12 shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
7
<PAGE> 8
ARTICLE II
BOARD OF DIRECTORS
Section 2.1: Number; Qualifications. The Board of Directors shall
consist of one or more members. The current number of directors shall be six
(6), and thereafter shall be fixed from time to time by resolution of the Board
of Directors. No decrease in the authorized number of directors constituting
the Board of Directors shall shorten the term of any incumbent director.
Directors need not be stockholders of the Corporation.
Section 2.2: Election; Resignation; Removal; Vacancies. The Board
of Directors shall initially consist of the person or persons elected by the
incorporator or named in the Corporation's initial Certificate of
Incorporation. Each director shall hold office until the next annual meeting
of stockholders and until his or her successor is elected and qualified, or
until his or her earlier death, resignation or removal. Any director may
resign at any time upon written notice to the Corporation. Subject to the
rights of any holders of Preferred Stock then outstanding: (i) any director or
the entire Board of 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 and (ii) any vacancy occurring in the Board of Directors for any
cause, and any newly created directorship resulting from any increase in the
authorized number of directors to be elected by all stockholders having the
right to vote as a single class, may be filled by the stockholders, by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
Section 2.3: Regular Meetings. Regular meetings of the Board of
Directors may be held at such places, within or without the State of Delaware,
and at such times as the Board of Directors may from time to time determine.
Notice of regular meetings need not be given if the date, times and places
thereof are fixed by resolution of the Board of Directors.
Section 2.4: Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or a
majority of the members of the Board of Directors then in office and may be
held at any time, date or place, within or without the State of Delaware, as
the person or persons calling the meeting shall fix. Notice of the time, date
and place of such meeting shall be given, orally or in writing, by the person
or persons calling the meeting to all directors at least four (4) days before
the meeting if the notice is mailed, or at least twenty-four (24) hours before
the meeting if such notice is given by telephone, hand delivery, telegram,
telex, mailgram, facsimile or similar communication method. Unless otherwise
indicated in the notice, any and all business may be transacted at a special
meeting.
Section 2.5: Telephonic Meetings Permitted. Members of the Board
of Directors, or any committee of the Board, may participate in a meeting of
the Board 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 in a meeting pursuant to
conference telephone or similar communications equipment shall constitute
presence in person at such meeting.
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Section 2.6: Quorum; Vote Required for Action. At all meetings of
the Board of Directors a majority of the total number of authorized directors
shall constitute a quorum for the transaction of business. Except as otherwise
provided herein or in the Certificate of Incorporation, or required by law, the
vote of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7: Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, or in his or her absence
by the President, or in his or her absence by a chairman chosen at the meeting.
The Secretary shall act as secretary of the meeting, but in his or her absence
the chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.8: Written Action by Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board
or such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board or
committee, respectively.
Section 2.9: Powers. The Board of Directors may, except as
otherwise required by law or the Certificate of Incorporation, exercise all
such powers and do all such acts and things as may be exercised or done by the
Corporation.
Section 2.10: Compensation of Directors. Directors, as such, may
receive, pursuant to a resolution of the Board of Directors, fees and other
compensation for their services as directors, including without limitation
their services as members of committees of the Board of Directors.
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ARTICLE III
COMMITTEES
Section 3.1: Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. In the absence or disqualification of a member
of the committee, the member or members thereof present at any meeting of such
committee who are not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in place of any such absent or disqualified
member. Any such committee, to the extent provided in a resolution of the
Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed to all
papers that may require it; but no such committee shall have the power or
authority in reference to amending the Certificate of Incorporation (except
that a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors
as provided in subsection (a) of Section 151 of the Delaware General
Corporation Law, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation, or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the
same or any other class or classes of stock of the Corporation, or fix the
number of shares of any series of stock or authorize the increase or decrease
of the shares of any series), adopting an agreement of merger or consolidation
under Sections 251 or 252 of the Delaware General Corporation Law, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
the Bylaws of the Corporation; and unless the resolution of the Board of
Directors expressly so provides, no such committee shall have the power or
authority to declare a dividend, authorize the issuance of stock or adopt a
certificate of ownership and merger pursuant to section 253 of the Delaware
General Corporation Law.
Section 3.2: Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board may make, alter and
repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
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ARTICLE IV
OFFICERS
Section 4.1: Generally. The officers of the Corporation shall
consist of a Chief Executive Officer and/or a President, one or more Vice
Presidents, a Secretary, a Treasurer and such other officers, including a
Chairman of the Board of Directors and/or Chief Financial Officer, as may from
time to time be appointed by the Board of Directors. All officers shall be
elected by the Board of Directors; provided, however, that the Board of
Directors may empower the Chief Executive Officer of the Corporation to appoint
officers other than the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or the Treasurer. Each officer shall
hold office until his or her successor is elected and qualified or until his or
her earlier resignation or removal. Any number of offices may be held by the
same person. Any officer may resign at any time upon written notice to the
Corporation. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2: Chief Executive Officer. Subject to the control of
the Board of Directors and such supervisory powers, if any, as may be given by
the Board of Directors, the powers and duties of the Chief Executive Officer of
the Corporation are:
(a) To act as the general manager and, subject to the control of
the Board of Directors, to have general supervision, direction and control of
the business and affairs of the Corporation;
(b) To preside at all meetings of the stockholders;
(c) To call meetings of the stockholders to be held at such times
and, subject to the limitations prescribed by law or by these Bylaws, at such
places as he or she shall deem proper; and
(d) To affix the signature of the Corporation to all deeds,
conveyances, mortgages, guarantees, leases, obligations, bonds, certificates
and other papers and instruments in writing which have been authorized by the
Board of Directors or which, in the judgment of the Chief Executive Officer,
should be executed on behalf of the Corporation; to sign certificates for
shares of stock of the Corporation; and, subject to the direction of the Board
of Directors, to have general charge of the property of the Corporation and to
supervise and control all officers, agents and employees of the Corporation.
The President shall be the Chief Executive Officer of the Corporation unless
the Board of Directors shall designate another officer to be the Chief
Executive Officer. If there is no President, and the Board of Directors has
not designated any other officer to be the Chief Executive Officer, then the
Chairman of the Board shall be the Chief Executive Officer.
Section 4.3: Chairman of the Board. The Chairman of the Board
shall have the power to preside at all meetings of the Board of Directors and
shall have such other powers and duties as provided in these bylaws and as the
Board of Directors may from time to time prescribe.
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Section 4.4: President. The President shall be the Chief
Executive Officer of the Corporation unless the Board of Directors shall have
designated another officer as the Chief Executive Officer of the Corporation.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors, and subject to the supervisory powers of the Chief Executive Officer
(if the Chief Executive Officer is an officer other than the President), and
subject to such supervisory powers and authority as may be given by the Board
of Directors to the Chairman of the Board and/or to any other officer, the
President shall have the responsibility for the general management the control
of the business and affairs of the Corporation and the general supervision and
direction of all of the officers, employees and agents of the Corporation
(other than the Chief Executive Officer, if the Chief Executive Officer is an
officer other than the President) and shall perform all duties and have all
powers that are commonly incident to the office of President or that are
delegated to the President by the Board of Directors.
Section 4.5: Vice President. Each Vice President shall have all
such powers and duties as are commonly incident to the office of Vice
President, or that are delegated to him or her by the Board of Directors or the
Chief Executive Officer. A Vice President may be designated by the Board to
perform the duties and exercise the powers of the Chief Executive Officer in
the event of the Chief Executive Officer's absence or disability.
Section 4.6: Chief Financial Officer. Subject to the direction of
the Board of Directors and the President, the Chief Financial Officer shall
perform all duties and have all powers that are commonly incident to the office
of chief financial officer.
Section 4.7: Treasurer. The Treasurer shall have custody of all
monies and securities of the Corporation. The Treasurer shall make such
disbursements of the funds of the Corporation as are authorized and shall
render from time to time an account of all such transactions. The Treasurer
shall also perform such other duties and have such other powers as are commonly
incident to the office of Treasurer, or as the Board of Directors or the
President may from time to time prescribe.
Section 4.8: Secretary. The Secretary shall issue or cause to be
issued all authorized notices for, and shall keep, or cause to be kept, minutes
of all meetings of the stockholders and the Board of Directors. The Secretary
shall have charge of the corporate minute books and similar records and shall
perform such other duties and have such other powers as are commonly incident
to the office of Secretary, or as the Board of Directors or the President may
from time to time prescribe.
Section 4.9: Delegation of Authority. The Board of Directors may
from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding any provision hereof.
Section 4.10: Removal. Any officer of the Corporation shall serve
at the pleasure of the Board of Directors and may be removed at any time, with
or without cause, by the Board of Directors. Such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation.
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ARTICLE V
STOCK
Section 5.1: Certificates. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the Corporation by
the Chairman or Vice-Chairman of the Board of Directors, or the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, of the Corporation, certifying the number
of shares owned by such stockholder in the Corporation. Any or all of the
signatures on the certificate may be a facsimile.
Section 5.2: Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificates. The Corporation may issue a new certificate of
stock in the place of any certificate previously issued by it, alleged to have
been lost, stolen or destroyed, and the Corporation may require the owner of
the lost, stolen or destroyed certificate, or such owner's legal
representative, to agree to indemnify the Corporation and/or to give the
Corporation a bond sufficient to indemnify it, against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 5.3: Other Regulations. The issue, transfer, conversion
and registration of stock certificates shall be governed by such other
regulations as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
Section 6.1: Indemnification of Officers and Directors. Each
person who was or is made a party to, or is threatened to be made a party to,
or is involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), by reason of the fact that he
or she (or a person of whom he or she is the legal representative), is or was a
director or officer of the Corporation or a Reincorporated Predecessor (as
defined below) or is or was serving at the request of the Corporation or a
Reincorporated Predecessor (as defined below) as a director or officer of
another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, shall be
indemnified and held harmless by the Corporation to the fullest extent
permitted by the Delaware General Corporation Law, against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that the Corporation shall indemnify any
such person seeking indemnity in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. As used herein, the
term "Reincorporated
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Predecessor" means a corporation that is merged with and into the Corporation
in a statutory merger where (a) the Corporation is the surviving corporation of
such merger; (b) the primary purpose of such merger is to change the corporate
domicile of the Reincorporated Predecessor to Delaware.
Section 6.2: Advance of Expenses. The Corporation shall pay all
expenses (including attorneys' fees) incurred by such a director or officer in
defending any such proceeding as they are incurred in advance of its final
disposition; provided, however, that if the Delaware General Corporation Law
then so requires, the payment of such expenses incurred by such a director or
officer in advance of the final disposition of such proceeding shall be made
only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be
determined ultimately that such director or officer is not entitled to be
indemnified under this Article VI or otherwise; and provided, further, that the
Corporation shall not be required to advance any expenses to a person against
whom the Corporation directly brings a claim, in a proceeding, alleging that
such person has breached his or her duty of loyalty to the Corporation,
committed an act or omission not in good faith or that involves intentional
misconduct or a knowing violation of law, or derived an improper personal
benefit from a transaction.
Section 6.3: Non-Exclusivity of Rights. The rights conferred on
any person in this Article VI shall not be exclusive of any other right that
such person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaw, agreement, vote or consent of stockholders
or disinterested directors, or otherwise. Additionally, nothing in this
Article VI shall limit the ability of the Corporation, in its discretion, to
indemnify or advance expenses to persons whom the Corporation is not obligated
to indemnify or advance expenses pursuant to this Article VI.
Section 6.4: Indemnification Contracts. The Board of Directors is
authorized to cause the Corporation to enter into indemnification contracts
with any director, officer, employee or agent of the Corporation, or any person
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including employee benefit plans, providing indemnification rights
to such person. Such rights may be greater than those provided in this Article
VI.
Section 6.5: Effect of Amendment. Any amendment, repeal or
modification of any provision of this Article VI shall be prospective only, and
shall not adversely affect any right or protection conferred on a person
pursuant to this Article VI and existing at the time of such amendment, repeal
or modification.
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ARTICLE VII
NOTICES
Section 7.1: Notice. Except as otherwise specifically provided
herein or required by law, all notices required to be given pursuant to these
Bylaws shall be in writing and may in every instance be effectively given by
hand delivery (including use of a delivery service), by depositing such notice
in the mail, postage prepaid, or by sending such notice by prepaid telegram,
telex, overnight express courier, mailgram or facsimile. Any such notice shall
be addressed to the person to whom notice is to be given at such person's
address as it appears on the records of the Corporation. The notice shall be
deemed given (i) in the case of hand delivery, when received by the person to
whom notice is to be given or by any person accepting such notice on behalf of
such person, (ii) in the case of delivery by mail, upon deposit in the mail,
(iii) in the case of delivery by overnight express courier, on the first
business day after such notice is dispatched, and (iv) in the case of delivery
via telegram, telex, mailgram, or facsimile, when dispatched.
Section 7.2: Waiver of Notice. Whenever notice is required to be
given under any provision of these bylaws, a written waiver of notice, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the stockholders, directors or
members of a committee of directors need be specified in any written waiver of
notice.
ARTICLE VIII
INTERESTED DIRECTORS
Section 8.1: Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership,
association or other organization in which one or more of its 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 or committee thereof
that authorizes the contract or transaction, or solely because his, her or
their votes are counted for such purpose, if: (i) the material facts as to his,
her or their 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; (ii) the material facts as to
his, her or their 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
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committee thereof, 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.
ARTICLE IX
MISCELLANEOUS
Section 9.1: Fiscal Year. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors.
Section 9.2: Seal. The Board of Directors may provide for a
corporate seal, which shall have the name of the Corporation inscribed thereon
and shall otherwise be in such form as may be approved from time to time by the
Board of Directors.
Section 9.3: Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on, or be in the form of,
magnetic tape, diskettes, photographs, microphotographs or any other
information storage device, provided that the records so kept can be converted
into clearly legible form within a reasonable time. The Corporation shall so
convert any records so kept upon the request of any person entitled to inspect
the same.
Section 9.4: Reliance Upon Books and Records. A member of the
Board of Directors, or a member of any committee designated by the Board of
Directors shall, in the performance of his or her duties, be fully protected in
relying in good faith upon records of the Corporation and upon such
information, opinions, reports or statements presented to the Corporation by
any of the Corporation's officers or employees, or committees of the Board of
Directors, or by any other person as to matters the member reasonably believes
are within such other person's professional or expert competence and who has
been selected with reasonable care by or on behalf of the Corporation.
Section 9.5: Certificate of Incorporation Governs. In the event
of any conflict between the provisions of the Corporation's Certificate of
Incorporation and Bylaws, the provisions of the Certificate of Incorporation
shall govern.
Section 9.6: Severability. If any provision of these Bylaws shall
be held to be invalid, illegal, unenforceable or in conflict with the
provisions of the Corporation's Certificate of Incorporation, then such
provision shall nonetheless be enforced to the maximum extent possible
consistent with such holding and the remaining provisions of these Bylaws
(including without limitation, all portions of any section of these Bylaws
containing any such provision held to be invalid, illegal, unenforceable or in
conflict with the Certificate of Incorporation, that are not themselves
invalid, illegal, unenforceable or in conflict with the Certificate of
Incorporation) shall remain in full force and effect.
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ARTICLE X
AMENDMENT
Section 10.1: Amendments. Stockholders of the Corporation holding
a majority of the Corporation's outstanding voting stock shall have the power
to adopt, amend or repeal Bylaws. To the extent provided in the Corporation's
Certificate of Incorporation, the Board of Directors of the Corporation shall
also have the power to adopt, amend or repeal Bylaws of the Corporation, except
insofar as Bylaws adopted by the stockholders shall otherwise provide.
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____________________________________________________________________
BYLAWS
OF
HNC SOFTWARE INC.
(A DELAWARE CORPORATION)
AS ADOPTED APRIL 19, 1995
AND AMENDED MARCH 13, 1996
_____________________________________________________________________
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BYLAWS
OF
HNC SOFTWARE INC.
(a Delaware corporation)
TABLE OF CONTENTS
<TABLE>
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<S> <C>
ARTICLE I - STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1: Annual Meetings . . . . . . . . . . . . . . . . . . . . 1
Section 1.2: Special Meetings . . . . . . . . . . . . . . . . . . . . 1
Section 1.3: Notice of Meetings . . . . . . . . . . . . . . . . . . . 1
Section 1.4: Adjournments . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.5: Quorum . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.6: Organization . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.7: Voting; Proxies . . . . . . . . . . . . . . . . . . . . 2
Section 1.8: Fixing Date for Determination of Stockholders
of Record . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.9: List of Stockholders Entitled to Vote . . . . . . . . . 3
Section 1.10: Action by Written Consent of Stockholders . . . . . . . 4
Section 1.11: Inspectors of Elections . . . . . . . . . . . . . . . . 4
Section 1.12: Notice of Stockholder Business; Nominations . . . . . . 5
ARTICLE II - BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1: Number; Qualifications . . . . . . . . . . . . . . . . . 8
Section 2.2: Election; Resignation; Removal; Vacancies . . . . . . . 8
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C>
Section 2.3: Regular Meetings . . . . . . . . . . . . . . . . . . . . 8
Section 2.4: Special Meetings . . . . . . . . . . . . . . . . . . . . 8
Section 2.5: Telephonic Meetings Permitted . . . . . . . . . . . . . 8
Section 2.6: Quorum; Vote Required for Action . . . . . . . . . . . . 9
Section 2.7: Organization . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.8: Written Action by Directors . . . . . . . . . . . . . . 9
Section 2.9: Powers . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.10: Compensation of Directors . . . . . . . . . . . . . . . 9
ARTICLE III - COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.1: Committees . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.2: Committee Rules . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.1: Generally . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.2: Chief Executive Officer . . . . . . . . . . . . . . . . 11
Section 4.3: Chairman of the Board . . . . . . . . . . . . . . . . . 11
Section 4.4: President . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.5: Vice President . . . . . . . . . . . . . . . . . . . . . 12
Section 4.6: Chief Financial Officer . . . . . . . . . . . . . . . . 12
Section 4.7: Treasurer . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.8: Secretary . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.9: Delegation of Authority . . . . . . . . . . . . . . . . 12
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C>
Section 4.10: Removal . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V - STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.l: Certificates . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.2: Lost, Stolen or Destroyed Stock Certificates;
Issuance of New Certificate . . . . . . . . . . . . . . 13
Section 5.3: Other Regulations . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6.1: Indemnification of Officers and Directors . . . . . . . 13
Section 6.2: Advance of Expenses . . . . . . . . . . . . . . . . . . 14
Section 6.3: Non-Exclusivity of Rights . . . . . . . . . . . . . . . 14
Section 6.4: Indemnification Contracts . . . . . . . . . . . . . . . 14
Section 6.5: Effect of Amendment . . . . . . . . . . . . . . . . . . 14
ARTICLE VII - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.l: Notice . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 7.2: Waiver of Notice . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VIII - INTERESTED DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 8.1: Interested Directors; Quorum . . . . . . . . . . . . . . 15
ARTICLE IX - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 9.1: Fiscal Year . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
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<TABLE>
<CAPTION>
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Section 9.2: Seal . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 9.3: Form of Records . . . . . . . . . . . . . . . . . . . . 16
Section 9.4: Reliance Upon Books and Records . . . . . . . . . . . . 16
Section 9.5: Certificate of Incorporation Governs . . . . . . . . . . 16
Section 9.6: Severability . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE X - AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 10.1: Amendments . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
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CERTIFICATION OF BYLAWS
OF
HNC SOFTWARE INC.
(A DELAWARE CORPORATION)
KNOW ALL BY THESE PRESENTS:
I, Raymond V. Thomas, certify that I am Secretary of HNC Software
Inc., a Delaware corporation (the "Company"), that I am duly authorized to make
and deliver this certification, that the attached Bylaws are a true and correct
copy of the Bylaws of the Company in effect as of the date of this certificate.
Dated: April 19, 1995
/s/ RAYMOND V. THOMAS
----------------------------
Raymond V. Thomas, Secretary
23
<PAGE> 1
EXHIBIT 11.01
HNC SOFTWARE INC.
STATEMENT REGARDING
COMPUTATION OF PER SHARE EARNINGS
(in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
--------------------------- -------------------------
1996 1995 1996 1995
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net Income $ 967 $ 517 $ 1,780 $ 890
======= ======= ======= =======
Shares (1)
Weighted average common shares outstanding 15,365 2,261 15,167 2,119
Weighted average common stock options
and warrant as determined by application
of the treasury stock method (2) 1,624 1,852 1,703 1,794
Weighted average preferred shares
outstanding assuming conversion to
common stock -- 8,957 -- 8,957
------- ------- ------- -------
Weighted average common and common
equivalent shares outstanding 16,989 13,070 16,870 12,870
======= ======= ======= =======
Net income per share of common stock $ 0.06 $ 0.04 $ 0.11 $ 0.07
======= ======= ======= =======
</TABLE>
- ------------------
(1) All share and per share amounts have been adjusted to give retroactive
effect to the stock split, which occurred on April 3, 1996.
(2) Includes an adjustment for options pursuant to SAB No. 83 using the
treasury stock method at the initial public offering price of $14.00 per
share for shares issued prior to June 26, 1995.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> JUN-30-1996
<CASH> 1,184
<SECURITIES> 13,617
<RECEIVABLES> 7,419
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 26,130
<PP&E> 3,477
<DEPRECIATION> 0
<TOTAL-ASSETS> 60,426
<CURRENT-LIABILITIES> 4,787
<BONDS> 0
0
0
<COMMON> 54,729
<OTHER-SE> 910
<TOTAL-LIABILITY-AND-EQUITY> 60,426
<SALES> 16,478
<TOTAL-REVENUES> 16,478
<CGS> 6,135
<TOTAL-COSTS> 6,135
<OTHER-EXPENSES> 8,505
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (1,116)
<INCOME-PRETAX> 2,954
<INCOME-TAX> 1,174
<INCOME-CONTINUING> 1,780
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,780
<EPS-PRIMARY> 0.11
<EPS-DILUTED> 0.11
</TABLE>
