-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Nw8ddeWG9KRDDBmw/AlvyeWNlq+Tzg/iRBIMApzXlUPf7iJr9GuT+MHjWCx9N0lA 3LIrBrg5R/HjJCUeEAl92Q== 0000912057-02-014835.txt : 20020416 0000912057-02-014835.hdr.sgml : 20020416 ACCESSION NUMBER: 0000912057-02-014835 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20020412 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADAPTEC INC CENTRAL INDEX KEY: 0000709804 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 942748530 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-86098 FILM NUMBER: 02609221 BUSINESS ADDRESS: STREET 1: 691 S MILPITAS BLVD STREET 2: M/S25 CITY: MILPITAS STATE: CA ZIP: 95035 BUSINESS PHONE: 4089458600 MAIL ADDRESS: STREET 1: 691 SOUTH MILPITAS BLVD STREET 2: M/S25 CITY: MILPITAS STATE: CA ZIP: 95035 S-3 1 a2076096zs-3.htm FORM S-3
QuickLinks -- Click here to rapidly navigate through this document

As filed with the Securities and Exchange Commission on April 12, 2002

Registration No. 333-          

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

ADAPTEC, INC.
(Exact name of Registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization)		   94-2748530
(I.R.S. employer
identification no.)

Adaptec, Inc.
691 S. Milpitas Blvd.
Milpitas, California 95035
(408) 945-8600
(Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices)

Robert N. Stephens
President and Chief Executive Officer
691 S. Milpitas Blvd.
Milpitas, California 95035
(408) 945-8600
(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:
Daniel J. Winnike, Esq.
Scott J. Leichtner, Esq.
David O. Watson, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306

        Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective.

        If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  o

        If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.  ý

        If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

        If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o

        If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box.  o

CALCULATION OF REGISTRATION FEE

Title of Each Class of
Securities to be Registered
   Amounts to be
Registered
   Proposed Maximum
Offering Price per Unit(1)
   Proposed Maximum
Aggregate Offering Price(1)
   Amount of
Registration Fee
Common stock, $0.001 par value   150,000 shares   $12.52   $1,878,000   $173
(1)
Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933 and based upon the average of the high and low sales prices for such stock as reported by the Nasdaq National Market on April 8, 2002, which date was within five business days of the date of this filing.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

Subject to Completion, Dated April 12, 2002.

The information in this prospectus is not complete and may be changed. The selling stockholder may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

PROSPECTUS

LOGO

150,000 SHARES

COMMON STOCK

        All of the 150,000 shares of common stock of Adaptec, Inc. are being sold by International Business Machines Corporation. We will not receive any proceeds from the sale of shares offered by the selling stockholder. See "Selling Stockholder" and "Plan of Distribution."

        Our common stock is listed on the Nasdaq National Market under the symbol "ADPT." The shares of common stock to be offered under this prospectus will be sold as described under "Plan of Distribution." On April 11, 2002, the closing sale price of our common stock was $13.40 per share.

        Investing in our common stock involves a high degree of risk. Please carefully consider the "Risk Factors" beginning on page 5 of this prospectus.

        Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

The date of this prospectus is            , 2002.


TABLE OF CONTENTS

 
   Page
FORWARD-LOOKING STATEMENTS   2
SUMMARY   3
RISK FACTORS   5
USE OF PROCEEDS   16
SELLING STOCKHOLDER   17
PLAN OF DISTRIBUTION   18
LEGAL MATTERS   20
EXPERTS   20
INCORPORATION OF DOCUMENTS BY REFERENCE   20
WHERE YOU CAN FIND MORE INFORMATION   21

        In connection with this offering, no person is authorized to give any information or to make any representations not contained or incorporated by reference in this prospectus. If information is given or representations are made, you may not rely on that information or representations as having been authorized by us. This prospectus is neither an offer to sell nor a solicitation of an offer to buy any securities other than those registered by this prospectus, nor is it an offer to sell or a solicitation of an offer to buy securities where an offer or solicitation would be unlawful. You may not imply from the delivery of this prospectus, nor from any sale made under this prospectus, that our affairs are unchanged since the date of this prospectus or that the information contained in this prospectus is correct as of any time after the date of this prospectus. The information in this prospectus speaks only as of the date of this prospectus unless the information specifically indicates that another date applies.


FORWARD-LOOKING STATEMENTS

        This prospectus and the documents incorporated by reference in the prospectus contain "forward-looking statements" within the meaning of the securities laws. These forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond our control. All statements other than statements of historical facts included or incorporated by reference in this prospectus, including the statements under "Summary" and elsewhere in this prospectus regarding our strategy, future operations, financial position, estimated revenues, projected costs, prospects, plans and objectives of management are forward-looking statements. When used in this prospectus, the words "will," "believe," "anticipate," "plan," "intend," "estimate," "expect," "project" and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. Although we believe that our plans, intentions and expectations reflected in or suggested by the forward-looking statements we make in this prospectus are reasonable, we cannot assure you that these plans, intentions or expectations will be achieved. Actual results may differ materially from those stated in these forward-looking statements due to a variety of factors, including those described under "Risk Factors." All forward-looking statements speak only as of the date of this prospectus. We do not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. The cautionary statements qualify all forward-looking statements attributable to us or persons acting on our behalf.

2



SUMMARY

        This summary highlights information contained elsewhere in this prospectus. You should carefully read the entire prospectus, including "Risk Factors" beginning on page 5, before investing in our common stock. When we use the terms "Adaptec," "we," "us," or "our," we are referring to Adaptec, Inc. and its subsidiaries, unless the context requires otherwise or we expressly state otherwise in this prospectus.


Adaptec, Inc.

        We design, manufacture and market intelligent storage access solutions that reliably move, manage and protect critical data and digital content. Our storage solutions are used in high-performance networks, servers, workstations and desktops from the world's leading manufacturers of computer and networking products. Our solutions are sold through original equipment manufacturers, or OEMs, and distribution channels to a wide variety of end users, ranging from large scale enterprises to retail consumers.

        We currently operate in three business segments:

    •
    Storage Solutions Group ("SSG"): SSG's interface products enable the movement, storage and protection of data across a range of server platforms, network attached storage, or NAS, devices and storage subsystems. These products bring small computer system interface, or SCSI, technology and redundant array of independent disks, or RAID, solutions to storage applications. We have recently introduced our DuraStor external RAID products, and we are currently providing samples of our Ultra320 SCSI products to our OEM customers for testing and evaluation.

    •
    Desktop Solutions Group ("DSG"): DSG provides high-performance input/output, or I/O, connectivity solutions for personal computing platforms, including notebook and desktop computers and consumer electronic devices. These products provide USB 2.0, FireWire/1394 and SCSI connectivity. In fiscal 2002, we introduced several USB 2.0 host adapter and hub products.

    •
    Storage Networking Group ("SNG"): SNG provides storage fabric solutions for servers, storage devices, switches and NAS devices. Our products incorporate fibre channel, ethernet and SCSI technology, and we are developing products that will provide Internet Protocol SCSI, or iSCSI, and TCP/IP offload engine, or TOE, functionality. We are currently providing samples of iSCSI and TOE products to our OEM customers for testing and evaluation.

        For the nine months ended December 31, 2001, our SSG, DSG and SNG segments accounted for $254.5 million, $47.1 million and $9.8 million of our net revenues, respectively.

        Approximately one-third of our employees are engineers focused on product development and enhancement. As of February 25, 2002, we had 211 patents issued. Our products are marketed and sold directly to leading OEMs such as Compaq, Dell, Fujitsu-Siemens, Hewlett-Packard and IBM, as well as through distributors, including Ingram-Micro, Synnex and Tech Data.


Strategic Advantages

        We believe that we benefit from strategic advantages in our markets on the basis of the following core competencies:

    •
    Accelerating time to market. We strive to lead the storage market in technology transitions (such as the move to Ultra320 SCSI and iSCSI) as a way to generate OEM design wins.

    •
    Designing innovative ASICs. We decide on a product-by-product basis how best to invest in application specific integrated circuits, or ASICs, that will provide competitive advantages to our

3

      customers. For example, we introduced the leading ASICs for the SCSI market, and we are introducing ASICs for the iSCSI market.

    •
    Delivering value-added software. We provide software drivers, basic input/output system, or BIOS, integration, graphical user interfaces, RAID firmware, protocol stacks and compatibility testing that we believe offer value to OEM customers and reduce support costs for OEM and distribution partners.

    •
    Enhancing brand equity. We believe that our brand conveys value to customers seeking pre-tested compatibility and the direct benefits of a worldwide support organization.


Recent Transactions

        3% Convertible Subordinated Notes due 2007.    In March 2002, we sold $250,000,000 of 3% Convertible Subordinated Notes due 2007 in a private placement transaction. The notes are convertible into shares of our common stock at a conversion price of approximately $15.31 per share

        Platys.    In August 2001, we purchased Platys, a developer of iSCSI and TOE solutions. The Platys team was integrated into SNG and is accelerating our development of connectivity solutions for iSCSI markets.

        Roxio.    In May 2001, we completed the spin-off of our software division, Roxio. The spin-off was effected to allow us to concentrate on improving access and protection of information stored on servers, networks and desktops.

        We were incorporated in California in 1981 and reincorporated in Delaware in 1998. Our principal executive offices are located at 691 South Milpitas Blvd., Milpitas, California 95035. Our telephone number is (408) 945-8600.


The Offering

        This prospectus relates to the sale of up to 150,000 shares of our common stock that are issuable upon the exercise of an outstanding warrant that we issued on March 24, 2002 to International Business Machines Corporation, or IBM. We issued the warrant in connection with entering into certain licensing and OEM agreements with IBM under which we will provide RAID products for IBM's xSeries servers and license IBM's ServeRAID™ technology for use in our PCI RAID and external RAID products. The prices at which IBM may sell the shares underlying the warrant will be determined by the prevailing market for the shares or in negotiated transactions. See "Selling Stockholder."

        IBM will receive all of the proceeds from the sale of the common stock pursuant to this prospectus. We will not receive any of the proceeds from sales by IBM of the offered shares of common stock. We may receive proceeds from exercise of the outstanding warrant by IBM, and any proceeds we receive from the exercise of this warrant will be used for our general corporate purposes.

4



RISK FACTORS

        An investment in our common stock involves significant risks. In addition to reviewing other information in this prospectus, you should carefully consider the following factors before deciding to purchase the shares of our common stock. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not currently known to us or that we currently deem immaterial may impair our business operations. If any of the following risks actually occur, our business, results of operations and financial condition could be materially adversely affected and you might lose all or part of your investment.


Risks Related to Our Business

Our future operating results are subject to fluctuation.

        Our operating results may fluctuate as a result of a wide variety of factors, including, but not limited to, the following:

    •
    cancellations or postponements of orders;

    •
    shifts in the mix of our products and sales channels;

    •
    changes in pricing policies by our suppliers;

    •
    shortages of components or wafer fabrication capacity affecting us, our customers or our suppliers;

    •
    market acceptance of new and enhanced versions of our products;

    •
    product obsolescence;

    •
    shortage of skilled labor;

    •
    future accounting pronouncements and changes in accounting policies;

    •
    timing of acquisitions, integration of acquired businesses and any associated charges;

    •
    restructuring actions or other involuntary terminations;

    •
    general economic trends;

    •
    international political instability; and

    •
    pending legal proceedings.

        Operating results for the first nine months of fiscal 2002 were materially affected by unusual charges, including the following:

    •
    excess inventory charges due to the economic slowdown;

    •
    amortization of deferred compensation in connection with our Platys acquisition;

    •
    write-off of acquired in-process technology from Platys;

    •
    restructuring charges; and

    •
    asset impairment charges.

        Fiscal 2001 operating results were materially affected by unusual charges, including the following:

    •
    accrued minimum royalty fees to Agilent;

    •
    restructuring charges; and

    •
    asset impairment charge.

5

        Fluctuations in our operating results may adversely affect the trading price of our common stock.

Our sales have been negatively affected by the current economic slowdown, and if these conditions persist or deteriorate, they may continue to adversely affect our results of operations and financial position.

        Since the second half of fiscal 2001, our operating results have been significantly affected by the continuing slowdown in information technology investments and consumer spending. Many of our customers announced workforce reductions and delayed capital spending in response to the economic slowdown. In addition, recent international terrorist activities have further dampened the economic recovery. If current global economic and political conditions continue to persist or deteriorate, our customers will likely further postpone spending, which would continue to adversely affect our financial results.

If we do not meet our restructuring objectives or if the economic slowdown continues, we may have to implement additional plans in order to reduce our operating costs.

        As a result of the economic slowdown, in the fourth quarter of fiscal 2001 and the first quarter of fiscal 2002, we implemented restructuring plans to reduce our operating costs to match the current business environment. The plans included primarily the reduction of our workforce and the consolidation of our manufacturing operations in Singapore. The goals of the plans are to support future growth opportunities, focus on investments that grow revenues and increase operating margins. If we do not meet our restructuring objectives or if the economic slowdown continues, we may have to implement additional plans in order to reduce our operating costs, which could have an adverse effect on our financial results.

If demand in the server, network storage and desktop markets declines, our revenues may decline.

        Historically, our growth has been supported by increasing demand for systems that support:

    •
    client/server applications;

    •
    computer-aided engineering;

    •
    Internet/intranet applications;

    •
    data storage and digital content; and

    •
    multimedia and video.

        Our business or operating results would be adversely affected by a decline in demand for our products. For example, for the first time in several years, the demand in the server market declined slightly in fiscal 2002, which contributed to a decline in our net revenues. We cannot predict when and if server sales growth will increase. In addition, other technologies may replace the technologies used in our existing products and the acceptance of our products using new technologies in the market may not be widespread, which could adversely affect our revenues.

We expect that the products we are developing for the network storage marketplace will be an important component of our future growth, and these products may not be accepted by the market or reach the market in a timely fashion.

        We expect that the products we are developing for the network storage marketplace will be an important component of our future growth. In August 2001, we acquired Platys, a development stage company with no revenues, to enhance our technologies for this market. The marketplace for advanced storage products is highly competitive and our technology may never be broadly adopted. In addition, there are substantial risks that known and unknown challenges to successful deployment of our

6


products, and of products incorporating our products, will cause delays in their reaching the market. We do not expect to begin shipping commercial quantities of our network storage products earlier than the second half of fiscal 2003. If our network storage products, and our customers' products using our technology, do not achieve a broad level of market acceptance, or if we encounter substantial delays in entering the market, our growth will likely be impaired.

If demand for our customers' products declines or if our customers do not control their inventories effectively, our revenues may be adversely affected.

        The volume and timing of orders received during a quarter are difficult to forecast. Our customers generally order based on their forecasts, and they frequently encounter uncertain and changing demand for their products. If demand falls below such forecasts or if our customers do not control their inventories effectively, they may cancel or reschedule shipments previously ordered from us. Historically, backlog has not been a significant factor for us, and we have set our operating budget based on forecasts of future revenues. Because much of our operating budget is relatively fixed in the short-term, if revenues do not meet our expectations, then our financial results will be adversely affected.

If we do not provide adequate support during our customers' design and development stage, or if we are unable to provide such support in a timely manner, we may lose revenues to our competition.

        Certain of our products are designed to meet our customers' specifications and, to the extent we are not able to meet these expectations in a timely manner or provide adequate support during our customers' design and development stage, our customers may choose to buy similar products from another company. For example, we are currently in the design and development stage with potential customers for our products with iSCSI functionality. If we are unsuccessful in designing these products to meet our customers' needs, our financial results could be adversely affected.

Our reliance on industry standards and technological changes in the marketplace may cause our revenues to fluctuate or decline.

        The computer industry is characterized by various, evolving standards and protocols. We design our products to conform to certain industry standards and protocols such as the following:

Technologies:

    •
    ATA;

    •
    Serial ATA;

    •
    Fibre channel;

    •
    FireWire/1394;

    •
    InfiniBand;

    •
    iSCSI;

    •
    PCI;

    •
    PCI-X;

    •
    RAID;

    •
    SCSI;

    •
    Serial Attached SCSI;

7

    •
    Ultra-DMA; and

    •
    USB.

Operating Systems:

    •
    Linux;

    •
    Macintosh;

    •
    Netware;

    •
    OS/2;

    •
    UNIX; and

    •
    Windows.

        In particular, a majority of our revenues are currently derived from products based on the SCSI standards. If consumer acceptance of these standards declines, or if new standards emerge, and if we do not anticipate these changes and develop new products, these changes could adversely affect our business and financial results. For example, we believe that changes in consumers' perceptions of the relative merits of SCSI-based products and competing products incorporating lower cost solutions adversely affected our sales beginning in fiscal 1998 and are likely to affect our future sales. In addition, we are beginning to provide samples of our Ultra320 SCSI products to our OEM customers for testing and evaluation as we transition our SCSI products to meet the next generation industry standard. If we are unsuccessful in these efforts, our business and financial results will be negatively impacted.

If our products do not operate effectively with other products, it could negatively affect our revenues.

        We must design our products to operate effectively with a variety of hardware and software products supplied by other manufacturers, including the following:

    •
    microprocessors;

    •
    peripherals; and

    •
    operating system software.

        We depend on significant cooperation with these manufacturers to achieve our design objectives and develop products that operate successfully with their products. We believe that we generally have good relationships with leading system, peripheral, and microprocessor suppliers; however, these suppliers may, from time to time, make it more difficult for us to design our products for successful operability with their products. In addition, these suppliers may decide to compete with us. If any of these events were to occur, our revenues could be adversely affected.

Our dependence on new products may cause our revenues to fluctuate or decline.

        Our future success significantly depends upon our completing and introducing new products at competitive prices and performance levels in a timely manner. The success of new product introductions depends on several factors, including the following:

    •
    designing products to meet customer needs;

    •
    product costs;

    •
    timely completion and introduction of new product designs;

    •
    quality of new products;

8

    •
    differentiation of new products from those of our competitors; and

    •
    market acceptance of our products.

        As a result, we believe that we will continue to incur significant expenditures for research and development in the future. We may fail to identify new product opportunities and may not develop and bring new products to market in a timely manner. In addition, products or technologies developed by others may render our products or technologies obsolete or noncompetitive, or our targeted customers may not select our products for design or integration into their products. The failure of any of our new product development efforts could have an adverse effect on our business and financial results.

If we are unable to compete effectively, our revenues could be adversely affected.

        The markets for all of our products are intensely competitive and are characterized by the following:

    •
    rapid technological advances;

    •
    frequent new product introductions;

    •
    evolving industry standards; and

    •
    price erosion.

        As we continue to broaden our product offerings into the server, network storage and desktop environments, we have experienced, and expect to experience in the future, significantly increased competition both from existing competitors and from additional companies that may enter our markets. For example, a number of companies are pursuing network storage solutions and we expect to encounter intense competition as we develop and release our iSCSI network storage products. We may also encounter new competitors in the emerging USB 2.0 market. Some of these companies have greater technical, marketing, manufacturing and financial resources than we do. We cannot assure you that we will have sufficient resources to accomplish any of the following:

    •
    meet growing product demand;

    •
    make timely introductions of new products;

    •
    compete successfully in the future against existing or potential competitors;

    •
    provide OEMs with design specifications in a timely manner; and

    •
    prevent price competition from eroding margins.

Costs associated with acquisitions or strategic alliances may adversely affect our results of operations, which could be exacerbated if we are unable to integrate the acquired companies, products or technologies.

        In August 2001, we completed our acquisition of Platys, a developer of Internet Protocol, or IP, storage solutions. In December 1999, we acquired Distributed Processing Technology Corp., or DPT, to strengthen our position in the RAID market. In addition, we enter into strategic alliances from time to time with other companies. As part of our overall strategy, we may continue to acquire or invest in complementary companies, products or technologies and enter into strategic alliances with other companies. In order to be successful in these activities, we must:

    •
    assimilate the operations and personnel of the combined companies;

    •
    minimize the potential disruption of our ongoing business;

    •
    retain key technical and managerial personnel;

9

    •
    integrate the acquired company into our strategic and financial plans;

    •
    accurately assess the value of potential target businesses, products or technologies;

    •
    harmonize standards, controls, procedures and policies; and

    •
    minimize the impairment of relationships with employees and customers.

        The benefits of acquisitions or strategic alliances may prove to be less than anticipated and may not outweigh the costs reported in our financial statements. Completing any potential future acquisitions or strategic alliances could cause significant diversions of management time and resources. If we acquire new businesses, products or technologies in the future, we may be required to assume contingent liabilities and amortize significant amounts of other intangible assets and, over time, recognize significant charges for impairment of goodwill. If we consummate any potential future acquisitions in which the consideration consists of stock or other securities, our existing stockholders' ownership may be significantly diluted. If we proceed with any potential future acquisitions in which the consideration is cash, we may be required to use a substantial portion of our available cash. We may not be successful in overcoming these risks or any other problems encountered in connection with these or other business combinations, investments or strategic alliances. These transactions may adversely affect our business, financial position and operating results.

If there is a shortage of components used in our customers' products, our sales may decline, which could adversely affect our results of operations and financial position.

        If our customers are unable to purchase certain components which are embedded into their products, their demand for our products may decline. For example, beginning in the fourth quarter of fiscal 2000, we experienced the impact of other companies' chip supply shortages, which reduced the demand for some of our SSG products. This negatively affected our revenues in the first half of fiscal 2001. Similar shortages of components used in our customers' products could adversely affect our revenues and financial results in future periods.

We depend on wafer suppliers whose failure to meet our manufacturing needs could negatively affect our operations.

        Independent foundries manufacture to our specifications all of the finished silicon wafers used for our products. We currently purchase all of our wafers through our agreements with Taiwan Semiconductor Manufacturing Corporation, or TSMC. The manufacture of semiconductor devices is sensitive to a wide variety of factors, including the following:

    •
    the availability of raw materials;

    •
    the availability of manufacturing capacity;

    •
    the level of contaminants in the manufacturing environment;

    •
    impurities in the materials used; and

    •
    the performance of personnel and equipment.

        While we have been satisfied with the quality, yield and timeliness of wafer deliveries to date, we cannot assure you that manufacturing problems may not occur in the future. A shortage of raw materials or production capacity could lead our wafer suppliers to allocate available capacity to other customers. Any prolonged inability to obtain wafers with competitive performance and cost attributes, adequate yields or timely deliveries would delay our production and our product shipments, and could have an adverse effect on our business and financial results. We expect that wafer suppliers will continually seek to convert their fabrication process arrangements to smaller wafer geometries and to more advanced process technologies. Such conversions entail inherent technological risks that can affect

10


yields and delivery times. If for any reason TSMC, or any other wafer supplier we may use, is unable or unwilling to satisfy our wafer needs, we will be required to identify and qualify additional foundries. Additional wafer foundries may be unavailable, may take significant amounts of time to qualify or may be unable to satisfy our requirements on a timely basis.

If our manufacturing demand for silicon wafers falls below our projections, we may not be able to fully utilize our prepayments to TSMC, which could adversely affect our results of operations and financial position.

        From time to time, we have entered into "take or pay" contracts that have committed us to purchase specific wafer quantities over extended periods based on our projected needs. In addition, we have made prepayments to TSMC in order to secure guaranteed wafer capacity. If our demand for wafer units falls below our projections, we may not be able to fully utilize our prepayments. The unused portion of the prepayments may be impaired and written off as an asset impairment charge, which would adversely affect our financial results.

We depend on subcontractors, and if they fail to meet our manufacturing needs, it could negatively affect our results of operations.

        We rely on subcontractors for the assembly and packaging of the integrated circuits included in our products. We have no long-term agreements with our assembly and packaging subcontractors. We have, from time to time, used board subcontractors to better balance production runs and capacity. We cannot assure that such subcontractors will continue to be able and willing to meet our requirements for such components or services. Any significant disruption in supplies from, or degradation in the quality of components or services supplied by, such subcontractors could delay shipments and result in the loss of customers or revenues, which could have an adverse effect on our financial results.

We depend on the efforts of our distributors, which if reduced, would negatively affect our business and our results of operations.

        Our distributors generally offer a diverse array of products from several different manufacturers. Accordingly, we are at risk that these distributors may give higher priority to selling products from other suppliers. A reduction in sales efforts by our current distributors could adversely affect our business and financial results. Our distributors build inventories in anticipation of future sales, and if, as has been the case from the second half of fiscal 2001 through fiscal 2002, such sales do not occur as rapidly as they anticipate, our distributors will decrease the size of their product orders. If we decrease our price protection or distributor-incentive programs, our distributors may also decrease their orders from us. In addition, we have from time to time taken actions to reduce levels of products at distributors and may do so in the future. These actions reduce our revenues and negatively affect our financial results.

Our operations depend on key personnel, the loss of whom could affect our business and reduce our future revenues.

        Our future success depends in large part on the continued service of our key technical, marketing and management personnel, and on our ability to continue to attract and retain qualified employees, particularly those highly skilled engineers who are involved in the design enhancement and manufacturing of existing products and the development of new ones. The loss of key employees could adversely affect our business. Our continued growth and future operating results will depend upon our ability to attract, hire and retain significant numbers of qualified employees.

11


Our international operations involve risks, and may negatively affect our revenues and results of operations.

        Many of our subcontractors are primarily located in Asia and we have sales offices and customers located throughout Europe, Japan and other countries. Our international operations and sales are subject to political and economic risks, including political instability, currency controls, exchange rate fluctuations, and changes in import/export regulations, tariffs and freight rates. We may use forward exchange contracts to manage any exposure associated with certain foreign currency-denominated commitments. In addition, because our primary wafer supplier, TSMC, is located in Taiwan, we may be subject to certain risks resulting from political instability in Taiwan, including conflicts between Taiwan and the People's Republic of China. These and other international risks could negatively affect our business and financial results.

If the carrying value of our long-lived assets is not recoverable, an impairment loss must be recognized which could adversely affect our results of operations and financial position.

        Certain events or changes in circumstances would mandate us to assess the recoverability of the carrying amount of our long-lived assets. In addition, the Financial Accounting Standards Board, or FASB, issued SFAS No. 141 and SFAS No. 142 in July 2001, whereby goodwill must be evaluated annually and whenever events or circumstances occur which indicate that goodwill might be impaired. For acquisitions consummated prior to July 1, 2001, we adopted SFAS No. 142 on April 1, 2002. We will continue to evaluate the recoverability of the carrying amount of our long-lived assets, and we may incur substantial impairment charges which could adversely affect our financial results.

If we are unable to protect and enforce our intellectual property rights, we may be unable to compete effectively.

        Although we actively maintain and defend our intellectual property rights, we may be unable to adequately protect our proprietary rights. In addition, the laws of certain territories in which our products are or may be developed, manufactured or sold, including Asia and Europe, may not protect our products and intellectual property rights to the same extent as the laws of the United States.

        Despite our efforts, we may be unable to prevent third parties from infringing upon or misappropriating our intellectual property, which could harm our business and ability to compete effectively. We have from time to time discovered counterfeit copies of our products being manufactured or sold by others. Although we have programs to detect and deter the counterfeiting of our products, significant availability of counterfeit products could reduce our revenues and damage our reputation and goodwill with customers.

Third parties may assert infringement claims against us, which may be expensive to defend and could adversely affect our business and results of operations.

        From time to time, third parties assert exclusive patent, copyright and other intellectual property rights to our key technologies, which we expect to continue in the future. For example, we entered into a patent cross-license agreement with a third party in May 2000. Under this agreement, which was amended in March 2002, we received a release from infringement claims prior to January 1, 2000 and received the right to use certain of the third party's patents through June 30, 2007. In consideration, we are paying, in annual installments, an aggregate patent fee of $13.3 million, and we granted the third party a license to use all of our patents for the same period. The risks of our receiving additional claims from third parties may be enhanced in periods such as the one that we are currently entering where we are beginning to offer product lines employing new technologies relative to our existing products.

12


        We cannot assure you that third parties will not assert other infringement claims against us in the future, that assertions by third parties will not result in costly litigation or that we would prevail in such litigation or be able to license any valid and infringed patents from third parties on commercially reasonable terms. In addition to claims brought against us by third parties, we may also bring litigation against others to protect our rights. Intellectual property litigation, regardless of the outcome, could result in substantial costs to us and diversion of our resources, and could adversely affect our business and financial results.

We may be engaged in legal proceedings that could negatively affect our business operations or financial position.

        From time to time we are subject to litigation or claims that could negatively affect our business operations and financial position. For instance, a class action lawsuit was filed during 1998 in the United States District Court for the Northern District of California against us and certain of our current and former officers and directors. This lawsuit alleged that we made false and misleading statements at various times during the period between April 1997 and January 1998 in violation of Federal securities laws. Our motion to dismiss the complaint was granted with prejudice in September 2001. The plaintiffs appealed that decision to the Ninth Circuit Court of Appeals in October 2001, and in March 2002, the Court dismissed the appeal. Any similar disputes in the future could cause us to incur unforeseen expenses, could occupy a significant amount of our management's time and attention, and could negatively affect our business operations and financial position.

If we repatriate cash from our foreign subsidiaries, we will incur additional income taxes which would negatively affect our results of operations and financial condition.

        Our cash and cash equivalents are held principally in our subsidiary in Singapore and, to a lesser extent, in our U.S. parent company. From time to time we may need to repatriate our cash from Singapore to the United States. We will incur additional income taxes from the repatriation, which would negatively affect our results of operations and financial condition.

We may be subject to a higher effective tax rate that could negatively affect our results of operations and financial position.

        Our effective tax rate is benefited by a Singapore tax holiday relating to certain of our products. The terms of the tax holiday provide that profits derived from certain products will be exempt from tax through fiscal 2005, subject to certain conditions. If we do not continue to meet the conditions and requirements of the tax holiday in Singapore, our effective tax rate will increase, which would adversely affect our financial results.

We may be required to pay additional federal income taxes which could negatively affect our results of operations and financial position.

        On June 27, 2000, we received a statutory notice of deficiency from the Internal Revenue Service, or IRS, with respect to our Federal income tax returns for fiscal 1994 through 1996. In December 2001, our 1994 through 1996 tax audits were resolved and settlement agreements were filed with the U.S. Tax Court. On December 15, 2000, we received a statutory notice of deficiency from the IRS with respect to our Federal income tax return for fiscal 1997. We filed a Petition with the United States Tax Court on March 14, 2001 contesting the asserted deficiencies. The IRS is currently auditing our Federal income tax returns for fiscal 1998 and 1999. While we believe we have meritorious defenses against the asserted deficiencies and any proposed adjustments and that sufficient taxes have been provided, we cannot predict the final outcome of these matters, and the final resolution could adversely affect our results of operations and financial position.

13


We hold minority interests in certain non-public companies, and if these companies face financial difficulties in their operations, our investments could be impaired.

        We continue to hold minority interests in certain privately held companies. These investments are inherently risky because these companies are still in the development stage and depend on third parties for financing to support their ongoing operations. In addition, the markets for their technologies or products are typically in the early stages and may never develop. If these companies do not have adequate cash funding to support their operations, or if they encounter difficulties developing their technologies or products, especially in the current economic downturn, our investments in these companies may be impaired, which could adversely affect our financial results. For example, we recorded impairment charges in the first and third quarters of fiscal 2002 related to a decline in the values of certain minority investments deemed to be other than temporary.

Our spin-off of Roxio requires us to perform certain obligations under the transitional service agreement, which, if not satisfactorily performed, could cause us to be held liable for resulting losses suffered by Roxio.

        In May 2001, we completed the spin-off of Roxio, our Software segment. As part of the separation, we entered into a transitional service agreement with Roxio to support ongoing Roxio operations relating to information technology systems, supply chain management, product order administration, and finance and accounting. These services generally have a term of one year following the separation. If we do not satisfactorily perform our obligations under the agreement, we may be held liable for any resulting losses suffered by Roxio.

There may be potential subsequent tax liabilities that could negatively affect our results of operations.

        Pursuant to our distribution of the Roxio common stock, we have received an opinion from PricewaterhouseCoopers LLP, or PwC, regarding the tax-free nature of the transaction to us and to our stockholders under Section 355 of the Internal Revenue Code. IRS regulations provide that if another entity acquires a controlling interest in Roxio or our common stock within two years of the distribution, a presumption will arise that the acquisition was made in connection with the distribution, potentially causing the distribution to become taxable to us. The validity of the PwC opinion relating to the qualification of the distribution as a tax-free transaction is subject to factual representations and assumptions. We are not aware of any facts or circumstances that would cause such representations and assumptions to be untrue. In addition, the opinion of PwC is not binding on the IRS. If we or Roxio fail to conform to the requirements set forth in the IRS regulations, it could cause the distribution to be taxable to us and to our stockholders, and our financial results could be adversely affected.

We may have potential business conflicts of interest with Roxio with respect to our past and ongoing relationships, and we may not resolve these conflicts on terms favorable to us.

        Conflicts of interest may arise between Roxio and us in a number of areas relating to our past and ongoing relationship, including:

    •
    labor, tax, employee benefits, indemnification and other matters arising from the separation;

    •
    intellectual property matters;

    •
    employee retention and recruiting;

    •
    the nature, quality and pricing of transitional services we have agreed to provide to Roxio; and

    •
    business opportunities that may be attractive to both Roxio and us.

        These and other business conflicts could adversely affect the growth of our business in the future.

14


We may encounter natural disasters, which may negatively affect our results of operations and financial position.

        Our corporate headquarters in California is located near major earthquake faults. Any damage to our facilities as a result of an earthquake, fire or any other natural disasters could have an adverse effect on our business and financial results. Additionally, our primary wafer supplier, TSMC, is located in Taiwan, which has experienced significant earthquakes in the past. A severe earthquake could interrupt the manufacturing process, which could affect its ability to supply wafers to us, which could negatively affect our business and financial results.


Risks Related to Our Common Stock

Future sales of our common stock may depress our stock price.

        Sales of a substantial number of shares of our common stock in the public market, or the appearance that such shares are available for sale, could adversely affect the market price for our common stock. As of March 31, 2002, we had 106,292,656 shares of common stock outstanding. As of March 31, 2002, we also had options to purchase 17,725,300 shares of our common stock outstanding, an aggregate of 13,532,728 additional shares of our common stock reserved for issuance under our stock option plans and employee stock purchase plan, 1,310,000 shares of common stock issuable upon exercise of outstanding warrants, 5,325,807 shares of common stock issuable upon potential conversion of our 43/4% Convertible Subordinated Notes due 2004 and 16,327,064 shares of common stock issuable upon potential conversion of our 3% Convertible Subordinated Notes due 2007.

Anti-takeover effects of our preferred share rights plan, the convertible note indentures, our charter documents and Delaware law could discourage, delay or prevent a change in control of Adaptec.

        We have a preferred share rights plan. Under the plan, each holder of shares of our common stock will receive a right to buy one one-thousandth of a share of our Series A preferred stock at an exercise price of $180.00, subject to adjustment, if a person or group were to acquire, or to announce the intention to acquire, 20% or more of our outstanding shares of common stock. Each share of our Series A preferred stock will have 1,000 votes. In the event of a merger or other transaction in which shares of our common stock are changed or exchanged, each share of Series A preferred stock will be entitled to receive 1,000 times the amount received per share of common stock. This plan could have the effect of discouraging, delaying or rendering more difficult an acquisition of us.

        The indentures relating to the 43/4% Convertible Notes due 2004 and the 3% Convertible Subordinated Notes due 2007 provides that in the event of certain changes in control, each holder of the notes will have the right to require us to repurchase such holder's notes at a premium over the principal amount of the notes.

        Our certificate of incorporation provides that our board of directors may issue, without stockholder action, up to 1,000,000 shares of preferred stock with voting or other rights. As described above, our board of directors has designated 250,000 shares of preferred stock as Series A preferred stock in connection with our preferred share rights plan. Our certificate of incorporation also provides that our stockholders do not have cumulative voting rights, and, therefore, stockholders representing a majority of the shares of common stock outstanding are able to elect all of our directors. Our bylaws provide that a special meeting of stockholders may only be called by our board of directors, the Chairman of our board of directors, our chief executive officer, our president or by one or more stockholders holding at least 10% of our outstanding capital stock. Our stockholders may not take action by written consent.

        In addition, the Delaware General Corporation Law, to which we are subject, prohibits, except under specified circumstances, us from engaging in any mergers, significant sales of stock or assets or business combinations with any stockholder or group of stockholders who own at least 15% of our common stock.

15


USE OF PROCEEDS

        We will not receive any proceeds from the sale of shares by IBM. The aggregate exercise price for the warrant is approximately $2.3 million. If IBM exercises the warrant by paying cash, any proceeds we receive will be used for general corporate purposes. The warrant also contains a "net exercise" provision, pursuant to which IBM may elect to exercise the warrant without paying any cash. Pursuant to that provision, if and to the extent the exercise price per warrant share is less than the market price per share at the time of exercise, IBM can instead pay us by giving up a certain number of the warrant shares. The price spread per share is divided into the aggregate exercise price for the warrant or part of the warrant being exercised, and the resulting number equals the number of shares that IBM would give up to pay the exercise price.

16



SELLING STOCKHOLDER

        The following table sets forth the name of the selling stockholder, the number of shares being registered for sale by the selling stockholder as of the date of this prospectus and the number of shares of common stock known by us to be beneficially owned by the selling stockholder. The selling stockholder may sell an aggregate of 150,000 shares pursuant to this prospectus. All of these shares are issuable upon exercise of a currently outstanding warrant to purchase common stock held by the selling stockholder. We issued the warrant to the selling stockholder in a private transaction on March 24, 2002 in connection with certain licensing and OEM agreements we entered into with the selling stockholder. The shares subject to the warrant were "restricted securities" under the Securities Act prior to this registration.

        We have assumed, for purposes of the table, that the selling stockholder acquires and then sells the maximum number of shares subject to the warrant. The warrant contains a "net exercise" provision, pursuant to which the selling stockholder may elect to exercise the warrant without paying any cash. If the warrant is exercised pursuant to these provisions, the selling stockholder will acquire fewer shares than those indicated below.

        Based on 106,292,656 shares of our common stock outstanding as of March 31, 2002, the selling stockholder will beneficially own less than 1% of our outstanding common stock both prior to and after completion of the offering. The selling stockholder has not, or within the past three years has not had, any position, office or other material relationship with us or any of our predecessors or affiliates. The information in this section of the prospectus regarding share ownership by the selling stockholder and material relationships of the selling stockholder is based on our records and on information provided to us as of April 8, 2002 by our transfer agent. We calculated beneficial ownership according to Rule 13d-3 of the Securities Exchange Act as of that date.

        The selling stockholder may from time to time offer and sell any or all of its shares that are registered under this prospectus. Because the selling stockholder is not obligated to sell its shares, and because the selling stockholder may also acquire publicly traded shares of our common stock, we cannot estimate how many shares the selling stockholder will own after this offering. We may update, amend or supplement this prospectus from time to time to update the disclosure in this section.

Name
   Shares of Common Stock
Beneficially Owned Before
the Offering
   Total Shares That
May be Offered by
Selling Stockholder
International Business Machines Corporation   150,000   150,000

17


PLAN OF DISTRIBUTION

        The selling stockholder will be offering and selling all shares offered and sold with this prospectus. We will not receive any of the proceeds of the sale of these shares. Offers and sales of shares made with this prospectus must comply with the terms of the warrant issued to the selling stockholder. However, the selling stockholder may resell all or a portion of their shares without this prospectus in open market transactions in reliance upon available exemptions under the Securities Act, if any, provided they meet the criteria and confirm to the requirements of one of these exemptions.

Who may sell and applicable restrictions

        The selling stockholder may offer and sell shares with this prospectus directly to purchasers. The selling stockholder may donate or otherwise transfer its shares to any person so long as the transfer complies with applicable securities laws.

        The selling stockholder may from time to time offer shares through brokers, dealers or agents. Brokers, dealers, agents or underwriters participating in transactions may receive compensation in the form of discounts, concessions or commissions from the selling stockholder (and, if they act as agent for the purchaser of the shares, from that purchaser). The discounts, concessions or commissions might be in excess of those customary in the type of transaction involved. Any brokerage commissions and similar selling expenses attributable to the sale of shares covered by this prospectus will be borne by the selling stockholder. In order to comply with some state securities laws, the shares may be sold in those jurisdictions only through registered or licensed brokers or dealers.

        The selling stockholder and any brokers, dealers or agents who participate in the distribution of the shares may be deemed to be underwriters, and any profits on the sale of shares by it and any discounts, commissions or concessions received by any broker, dealer or agent may be deemed underwriting discounts and commissions under the Securities Act. The selling stockholder has advised us that, as of the date of this prospectus, it has not entered into any plan, arrangement or understanding with a broker, dealer or underwriter regarding sales of share with this prospectus.

Prospectus delivery

        A prospectus supplement or a post-effective amendment may be filed with the Securities and Exchange Commission to disclose additional information with respect to the distribution of the shares. In particular, if we receive notice from the selling stockholder that a donee, pledgee, transferee or other successor intends to sell more than 500 shares of our common stock, or that the selling stockholder has entered into a material arrangement with an underwriter or broker-dealer for the sale of shares covered by this prospectus, then, to the extent required, we will file a supplement to this prospectus.

Manner of sales

        The selling stockholder will act independently of Adaptec in making decisions with respect to the timing, manner and size of each sale. Sales may be made over the Nasdaq National Market, the over-the-counter market, or any other national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale. The shares may be sold and then prevailing market prices, at prices related to prevailing market prices, at fixed prices or at other negotiated prices.

        The shares may be sold according to one or more of the following methods:

    •
    A block trade in which the broker or dealer so engaged will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

18

    •
    Purchases by a broker or dealer as principal and resale by the broker or dealer for its account as allowed under this prospectus;

    •
    Ordinary brokerage transactions and transactions in which the broker solicits purchasers.

    •
    Pledges of shares to a broker-dealer or other person, who may, in the event of default, purchase or sell the pledged shares;

    •
    An exchange distribution under the rules of the exchange;

    •
    Face-to-face transactions between sellers and purchasers without a broker-dealer; and

    •
    By writing options.

Hedging Transactions

        In addition, the selling stockholder may generally enter into option, derivative or hedging transactions with respect to the shares, and any related offers or sales of shares may be made under this prospectus. The selling stockholder may, for example:

    •
    Enter into transactions involving short sales of the shares by broker-dealers in the course of hedging the positions they assume with the selling stockholder;

    •
    Sell shares short and deliver the shares registered hereby to settle such short sales or to close out stock loans incurred in connection with its short positions;

    •
    Write call options, put options or other derivative instruments (including exchange-traded options or privately negotiated options) with respect to the shares, or which it settles through delivery of the shares;

    •
    Enter into option transactions or other types of transactions that require the selling stockholder to deliver shares to a broker, dealer or other financial institution, who may then resell or transfer the shares under this prospectus; or

    •
    Loan the shares to a broker, dealer or other financial institution, who may sell the loaned shares.

        These options, derivative and hedging transactions may require the delivery to a broker, dealer or other financial institution of shares offered under this prospectus.

Indemnification and contribution

        The selling stockholder and we have agreed to indemnify or provide contribution to each other and specified other persons against some liabilities in connection with the offering of the shares, including liabilities arising under the Securities Act. The selling stockholder may also agree on its own to indemnify any broker-dealer or agent that participates in transactions involving sales of the shares against some liabilities, including liabilities arising under the Securities Act.

Suspension of this offering

        We may suspend the use of this prospectus on a limited basis if we learn of any event that causes this prospectus to include an untrue statement of material fact or omit to state a material fact required to be stated in the prospectus or necessary to make the statements in the prospectus not misleading in light of the circumstances then existing. If this type of event occurs, a prospectus supplement or post-effective amendment, if required, will be distributed to the selling stockholder.

        This prospectus relates to the sale of up to 150,000 shares of our common stock that are issuable upon the exercise of an outstanding warrant. The prices at which the selling stockholder may sell the

19


shares will be determined by the prevailing market for the shares or in negotiated transactions. See "Selling Stockholder."

        The selling stockholder will receive all of the proceeds from the sale of the common stock pursuant to this prospectus. We may receive proceeds from the exercise of the outstanding warrant by the selling stockholder and those proceeds will be used for our general corporate purposes.


LEGAL MATTERS

        The validity of the securities offered under this prospectus will be passed upon for us by Fenwick & West LLP, Palo Alto, California.


EXPERTS

        The consolidated financial statements incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended March 31, 2001, have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting.


INCORPORATION OF DOCUMENTS BY REFERENCE

        This prospectus incorporates by reference some of the reports, proxy and information statements and other information that we have filed with the SEC under the Exchange Act. This means that we are disclosing important business and financial information to you by referring you to those documents. The information that we file later with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below and any future filings made with the SEC under sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until all of the securities offered by this prospectus are sold.

    •
    Annual Report on Form 10-K for the year ended March 31, 2001;

    •
    Quarterly Reports on Form 10-Q for the quarters ended June 30, September 30 and December 31, 2001;

    •
    Definitive proxy statement on Schedule 14A, filed on July 18, 2001 with respect to our annual meeting of stockholders held on August 23, 2001;

    •
    Current Report on Form 8-K, filed on May 4, 2001;

    •
    Current Report on Form 8-K, filed on May 18, 2001;

    •
    Current Report on Form 8-K, filed on July 23, 2001;

    •
    Current Report on Form 8-K, filed on September 7, 2001;

    •
    Current Report on Form 8-K, filed on February 27, 2002;

    •
    Current Report of Form 8-K, filed on February 28, 2002; and

    •
    Items 1 and 2 of our registration statement on Form 8-A filed July 20, 1992 pursuant to the Exchange Act and Exhibit No. 1 to Amendment No. 4 of our registration statement on Form 8-A filed January 14, 1997 amending our Form 8-A filed May 11, 1989.

        Any statement made in a document incorporated by reference in this prospectus is deemed to be modified or superseded for purposes of this prospectus to the extent that a statement in this prospectus or in any other subsequently filed document, which is also incorporated by reference, modifies or supersedes the statement. Any statement made in this prospectus is deemed to be modified or superseded to the extent a statement in any subsequently filed document, which is incorporated by

20


reference in this prospectus, modifies or supersedes such statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.

        In addition, for so long as any of the shares of common stock subject to this prospectus remain outstanding and during any period in which we are not subject to Section 13 or Section 15(d) of the Exchange Act, we will make available to any prospective purchaser or beneficial owner of the securities in connection with the sale thereof that information required by Rule 144A(d)(4) under the Securities Act. The information relating to us contained in this prospectus should be read together with the information in the documents incorporated by reference. In addition, certain information, including financial information, contained in this prospectus or incorporated by reference in this prospectus should be read in conjunction with documents we have filed with the SEC.

        We will provide to each person, including any beneficial holder, to whom a prospectus is delivered, at no cost, upon written or oral request, a copy of any or all of the information that has been incorporated by reference in the prospectus but not delivered with the prospectus. Requests for documents should be directed to Investor Relations, Adaptec, Inc., 691 S. Milpitas Blvd., Milpitas, California 95035, telephone number (408) 945-8600. Exhibits to these filings will not be sent unless those exhibits have been specifically incorporated by reference in those filings.


WHERE YOU CAN FIND MORE INFORMATION

        We are subject to the information requirements of the Exchange Act and file reports, proxy statements and other information with the SEC. We are required to file electronic versions of these documents with the SEC. Our reports, proxy statements and other information can be inspected and copied at prescribed rates at the public reference facilities maintained by the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. The SEC also maintains a website that contains reports, proxy and information statements and other information, including electronic versions of our filings. The website address is http://www.sec.gov.

21


LOGO

150,000 Shares of Common Stock

PROSPECTUS

APRIL    , 2002


PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

ITEM 14. Other Expenses of Issuance and Distribution.

        The following table sets forth the various expenses payable by us in connection with the sale and distribution of the securities being registered hereby. We are paying all of the selling stockholder's expenses related to this offering, except that the selling stockholder will pay any applicable broker's commissions and expenses. All amounts are estimated except the Securities and Exchange Commission registration fee.

Securities and Exchange Commission registration fee   $ 173
Legal fees and expenses     25,000
Accounting fees and expenses     15,000
Printing and engraving fees and expenses     15,000
Miscellaneous     4,827
   
Total   $ 60,000
   

ITEM 15. Indemnification of Directors and Officers.

        Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act").

        As permitted by Section 145 of the Delaware General Corporation Law, our certificate of incorporation includes a provision that eliminates the personal liability of our directors for monetary damages for breach of fiduciary duty as a director, except for liability:

    •
    for any breach of the director's duty of loyalty to us or our stockholders;

    •
    for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of the law;

    •
    under Section 174 of the Delaware General Corporation Law regarding unlawful dividends and stock purchases; and

    •
    for any transaction from which the director derived an improper personal benefit.

        As permitted by the Delaware General Corporation Law, our bylaws provide that:

    •
    we are required to indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;

    •
    we may indemnify our other employees and agents to the extent that we indemnify our officers and directors, unless otherwise required by law, our certificate of incorporation, our bylaws or agreements to which we are a party;

    •
    we are required to advance expenses, as incurred, to our directors and officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and

    •
    the rights conferred in the bylaws are not exclusive.

        We have entered into Indemnity Agreements with each of our current directors and officers to give such directors and officers additional contractual assurances regarding the scope of the indemnification

II-1


set forth in our certificate of incorporation and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving one of our directors, officers or employees regarding which indemnification is sought, nor are we aware of any threatened litigation that may result in claims for indemnification.

        We maintain directors' and officers' liability insurance.

ITEM 16. Exhibits.

        The following exhibits are filed herewith or incorporated by reference herein:

Exhibit
Number
   Exhibit Title
4.01   Certificate of Incorporation of the Registrant filed with Delaware Secretary of State on November 19, 1997 (1)
4.02   Bylaws of the Registrant
4.03   Third Amended and Restated Rights Agreement dated February 1, 2001 between Registrant and Mellon Investor Services LLC, as Rights Agent (2)
4.04   Stock Purchase Warrant, dated March 24, 2002, issued to International Business Machines Corporation
5.01   Opinion of Fenwick & West LLP
23.01   Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02   Consent of PricewaterhouseCoopers LLP, Independent Accountants
24.01   Power of Attorney (included on page II-4)
(1)
Incorporated by reference to Exhibit 3.1 to our Annual Report on Form 10-K for the year ended March 31, 1998.

(2)
Incorporated by reference to Exhibit 4.1 to our Current Report on Form 8-K as filed with the Commission on March 20, 2001.

ITEM 17. Undertakings.

        The undersigned registrant hereby undertakes:

    (1)
    To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement

    (i)
    to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933,

    (ii)
    to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement, and

II-2

      (iii)
      to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.

    (2)
    That, for the purpose of determining any liability under the Securities Act, each post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

    (3)
    To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

        The undersigned hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities as that time shall be deemed to be the initial bona fide offering thereof.

        The undersigned registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information.

        Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

II-3



SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California, on April 12, 2002.

    ADAPTEC, INC.

 
 
By:
/s/  ROBERT N. STEPHENS      
Robert N. Stephens,
 President and Chief Executive Officer


POWER OF ATTORNEY

        KNOW ALL PERSONS BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints Robert N. Stephens, David A. Young and Dana E. Miles, and each of them, his true and lawful attorney-in-fact and agent with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement on Form S-3, and to file the same with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

        Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

Signature
   Title
   Date

 
 
 
 
 
/s/  ROBERT N. STEPHENS      
Robert N. Stephens		   President, Chief Executive Officer and Director   April 12, 2002

/s/  DAVID A. YOUNG      
David A. Young
 
Vice President, Chief Financial Officer and Assistant Secretary
 
April 12, 2002

/s/  KENNETH B. AROLA      
Kenneth B. Arola
 
Vice President, Corporate Controller and Principal Accounting Officer
 
April 12, 2002

/s/  CARL J. CONTI      
Carl J. Conti
 
Chairman of the Board
 
April 12, 2002

/s/  VICTORIA L. COTTEN      
Victoria L. Cotten
 
Director
 
April 12, 2002

/s/  JOHN C. EAST      
John C. East
 
Director
 
April 12, 2002

 
 
 
 
 

II-4


Lucie J. Fjeldstad
 
Director
 
 

Joseph S. Kennedy
 
Director
 
 

/s/  ILENE H. LANG      
Ilene H. Lang
 
Director
 
April 12, 2002

/s/  ROBERT J. LOARIE      
Robert J. Loarie
 
Director
 
April 12, 2002

Douglas E. Von Houweling
 
Director
 
 

II-5


EXHIBIT INDEX

Exhibit
Number
   Exhibit Title
4.02   Bylaws of the Registrant
4.04   Stock Purchase Warrant, dated March 24, 2002, issued to International Business Machines Corporation
5.01   Opinion of Fenwick & West LLP
23.01   Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02   Consent of PricewaterhouseCoopers LLP, Independent Accountants


QuickLinks

TABLE OF CONTENTS
FORWARD-LOOKING STATEMENTS
SUMMARY
Adaptec, Inc.
Strategic Advantages
Recent Transactions
The Offering
RISK FACTORS
Risks Related to Our Business
Risks Related to Our Common Stock
USE OF PROCEEDS
SELLING STOCKHOLDER
PLAN OF DISTRIBUTION
LEGAL MATTERS
EXPERTS
INCORPORATION OF DOCUMENTS BY REFERENCE
WHERE YOU CAN FIND MORE INFORMATION
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
SIGNATURES
POWER OF ATTORNEY
EXHIBIT INDEX
 EX-4.02 3 a2076096zex-4_02.htm EXHIBIT 4.02

Exhibit 4.02

 

 

 

 

 

 

 

 

 

 

BYLAWS

OF

ADAPTEC, INC.

a Delaware Corporation

 

 

 

 

 

 

 

 

 

Amended as of
February 7, 2002

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

 

 

 

Page

 

 

 

CORPORATE OFFICES

 

 

REGISTERED OFFICE

 

 

OTHER OFFICES

 

MEETINGS OF STOCKHOLDERS

 

 

PLACE OF MEETINGS

 

 

ANNUAL MEETING

 

 

SPECIAL MEETING

 

 

NOTICE OF STOCKHOLDERS’ MEETINGS

 

 

MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE

 

 

QUORUM

 

 

ADJOURNED MEETING; NOTICE

 

 

VOTING

 

 

VALIDATION OF MEETING; WAIVER OF NOTICE

 

 

STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

 

 

RECORD DATE FOR STOCKHOLDER NOTICE; VOTING

 

 

PROXIES

 

 

INSPECTORS OF ELECTION

 

 

LIST OF STOCKHOLDERS ENTITLED TO VOTE

 

 

ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS

 

 

ADVANCE NOTICE OF STOCKHOLDERS BUSINESS

 

 

REPRICING OF STOCK OPTIONS

 

DIRECTORS

 

 

POWERS

 

 

NUMBER OF DIRECTORS

 

 

ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS

 

 

RESIGNATION AND VACANCIES

 

 

PLACE OF MEETINGS; MEETINGS BY TELEPHONE

 

 

FIRST MEETINGS

 

 

REGULAR MEETINGS

 

 

SPECIAL MEETINGS; NOTICE

 

 

QUORUM

 

 

WAIVER OF NOTICE

 

 

ADJOURNMENT

 

 

NOTICE OF ADJOURNMENT

 

 

BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING

 

 

FEES AND COMPENSATION OF DIRECTORS

 

 

APPROVAL OF LOANS TO OFFICERS

 

 

REMOVAL OF DIRECTORS

 

COMMITTEES

 

 

COMMITTEES OF DIRECTORS

 

 

COMMITTEE MINUTES

 

 

MEETINGS AND ACTION OF COMMITTEES

 

OFFICERS

 

 

OFFICERS

 

 

ELECTION OF OFFICERS

 

 

SUBORDINATE OFFICERS

 

 

REMOVAL AND RESIGNATION OF OFFICERS

 

 

 

 

-i-

 

 

TABLE OF CONTENTS
(continued)

 

 

 

 

Page

 

 

 

 

VACANCIES IN OFFICES

 

 

CHAIRMAN OF THE BOARD

 

 

CHIEF EXECUTIVE OFFICER

 

 

PRESIDENT

 

 

CHIEF OPERATING OFFICER

 

 

CORPORATE VICE PRESIDENTS

 

 

SECRETARY

 

 

CHIEF FINANCIAL OFFICER

 

 

TREASURER

 

 

ADMINISTRATIVE VICE PRESIDENTS

 

 

AUTHORITY AND DUTIES OF OFFICERS

 

INDEMNITY

 

 

INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

 

INDEMNIFICATION OF OTHERS

 

 

PAYMENT OF EXPENSES IN ADVANCE

 

 

INDEMNITY NOT EXCLUSIVE

 

 

INSURANCE INDEMNIFICATION

 

RECORDS AND REPORTS

 

 

MAINTENANCE AND INSPECTION OF RECORDS

 

 

MAINTENANCE AND INSPECTION OF BYLAWS

 

 

MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS

 

 

INSPECTION BY DIRECTORS

 

 

REPRESENTATION OF SHARES OF OTHER CORPORATIONS

 

GENERAL MATTERS

 

 

RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING

 

 

CHECKS

 

 

EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS

 

 

STOCK CERTIFICATES; PARTLY PAID SHARES

 

 

SPECIAL DESIGNATION ON CERTIFICATES

 

 

LOST CERTIFICATES

 

 

CONSTRUCTION; DEFINITIONS

 

 

DIVIDENDS

 

 

FISCAL YEAR

 

 

TRANSFER OF STOCK

 

 

STOCK TRANSFER AGREEMENTS

 

 

REGISTERED STOCKHOLDERS

 

EMERGENCY PROVISIONS

 

 

GENERAL

 

 

UNAVAILABLE DIRECTORS

 

 

AUTHORIZED NUMBER OF DIRECTORS

 

 

QUORUM

 

 

CREATION OF EMERGENCY COMMITTEE

 

 

CONSTITUTION OF EMERGENCY COMMITTEE

 

 

POWERS OF EMERGENCY COMMITTEE

 

 

DIRECTORS BECOMING AVAILABLE

 

 

ELECTION OF BOARD OF DIRECTORS

 

 

TERMINATION OF EMERGENCY COMMITTEE

 

AMENDMENTS

 

 

 

-ii-

 

 

TABLE OF CONTENTS
(continued)

 

 

 

Page

 

 

DISSOLUTION

 

CUSTODIAN

 

 

APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES

 

 

DUTIES OF CUSTODIAN

 

 

 

 

 

 

 

 

 

 

 

 

 

-iii-

 

 

BYLAWS
OF
ADAPTEC, INC.

CORPORATE OFFICES

REGISTERED OFFICE

The registered office of the corporation shall be fixed in the certificate of incorporation of the corporation.

OTHER OFFICES

The board of directors may at any time establish other offices at any place or places where the corporation is qualified to do business.

MEETINGS OF STOCKHOLDERS

PLACE OF MEETINGS

Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the board of directors.  In the absence of any such designation, stockholders’ meetings shall be held at the principal executive office of the corporation.

ANNUAL MEETING

The annual meeting of stockholders shall be held each year on a date and at a time designated by the board of directors.  In the absence of such designation, the annual meeting of stockholders shall be held on the fourth Thursday of August in each fiscal year at 9:30 a.m.  However, if such day falls on a legal holiday, then the meeting shall be held at the same time and place on the next succeeding full business day.  At the meeting, directors shall be elected and any other proper business may be transacted.

SPECIAL MEETING

A special meeting of the stockholders may be called at any time by the board of directors, the chairman of the board, the chief executive officer, the president or by one or more stockholders holding shares in the aggregate entitled to cast not less than ten percent (10%) of the votes at that meeting.

If a special meeting is called by any person or persons other than the board of directors, then the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the chief executive officer, the president, the chief operating officer, any corporate vice president or the secretary of the corporation.  The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5 of these bylaws, that a meeting will be held at the time requested by the person or persons calling the meeting, so long as that time is not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request.  If the notice is not given within twenty (20) days after receipt of the request, then the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the board of directors may be held.

 

 

NOTICE OF STOCKHOLDERS’ MEETINGS

All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance with Section 2.5 of these bylaws not less than ten (10) (or, if sent by third-class mail pursuant to Section 2.5 of these bylaws, thirty (30)) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting.  The notice shall specify the place, date, and hour of the meeting, and (I) in the case of a special meeting, the general nature of the business to be transacted (no business other than that specified in the notice may be transacted) or (ii) in the case of the annual meeting, those matters which the board of directors, at the time of giving the notice, intends to present for action by the stockholders (but any proper matter may be presented at the meeting for such action). The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees who, at the time of the notice, management intends to present for election.

MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE

Written notice of any meeting of stockholders shall be given either personally, by first-class mail, by third-class mail, but only if the Corporation has outstanding shares held of record by five hundred (500) or more persons, or by telegraphic or other written communication.  Notices not personally delivered shall be sent postage prepaid and shall be addressed to the stockholder at the address of that stockholder appearing on the books of the corporation or given by the stockholder to the corporation for the purpose of notice.  Notice shall be deemed to have been given at such time as it is delivered personally or deposited in the mail or sent by telegram or other means of written communication.

An affidavit of the mailing or other means of giving any notice of any stockholders’ meeting, executed by the secretary, assistant secretary or any transfer agent of the corporation giving the notice, shall be prima facie evidence of the giving of such notice.

QUORUM

The holders of a majority of the shares entitled to vote, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders, except as otherwise provided by statute or by the certificate of incorporation.  The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.

When a quorum is present at any meeting, the affirmative vote of holders of a the majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the laws of the State of Delaware or of the certificate of incorporation or these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of the question.

ADJOURNED MEETING; NOTICE

Any stockholders’ meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at that meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at that meeting, except as provided in Section 2.6 of these bylaws.

When any meeting of stockholders, either annual or special, is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.  At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting.  If the adjournment is for more than forty-five (45) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Sections 2.4 and 2.5 of these bylaws.

 

 

-2-

 

VOTING

The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to the provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgers and joint owners of stock and to voting trusts and other voting agreements).

Except as provided in the last paragraph of this Section 2.8, or as may be otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.

On any matter other than the election of directors, any stockholder may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but, if the stockholder fails to specify the number of shares which the stockholder is voting affirmatively, it will be conclusively presumed that the stockholder’s approving vote is with respect to all shares which the stockholder is entitled to vote.

If a quorum is present, the affirmative vote of the majority of the shares represented and voting at a duly-held meeting (which shares voting affirmatively also constitute at least a majority of the required quorum) shall be the act of the stockholders, unless the vote of a great number, or voting by classes, is required by law or by the certificate of incorporation.

VALIDATION OF MEETING; WAIVER OF NOTICE

Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof, 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 need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws.

STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

The stockholders of the corporation may not take action by written consent without a meeting but must take any such actions at a duly called annual or special meeting.

RECORD DATE FOR STOCKHOLDER NOTICE; VOTING

For purposes of determining the stockholders entitled to notice of any meeting or to vote thereat, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of any such meeting and in such event only stockholders of record on the date so fixed are entitled to notice and to vote, notwithstanding any transfer of any shares on the books of the corporation after the record date.

If the board of directors does not so fix a record date, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held.

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 unless the board of directors fixes a new record date for the adjourned meeting, but the board of directors shall fix a new record date if the meeting is adjourned for more than thirty (30) days from the date set for the original meeting.

The record date for any other purpose shall be as provided in Section 8.1 of these bylaws.

 

 

-3-

 

PROXIES

Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him by a written or electronic proxy, executed by the stockholder and filed with the secretary of the corporation, but no such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period.  A written proxy shall be deemed executed if the stockholder’s name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact.  An electronic proxy (which may be transmitted via telephone, e-mail, the Internet or such other electronic means as the Board of Directors may determine from time to time) shall be deemed executed if the Company receives an appropriate electronic transmission from the stockholder or the stockholder’s attorney-in-fact along with a pass code or other identifier which reasonably establishes the stockholder or the stockholder’s attorney-in-fact as the sender of such transmission.  The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the General Corporation Law of Delaware.

INSPECTORS OF ELECTION

Before any meeting of stockholders, the board of directors shall appoint one or more inspectors to act at the meeting and make a written report thereof.  The board of directors 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.

Such inspectors shall:

(a)           ascertain the number of shares outstanding and the voting power of each;

(b)           determine the shares represented at a meeting and the validity of proxies and ballots;

(c)           count all votes and ballots;

(d)           determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and

(e)           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 inspectors’ duties.

LIST OF STOCKHOLDERS ENTITLED TO VOTE

The officer who has charge of the stock ledger of a corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held.  The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.

 

 

-4-

 

ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS

Nominations of persons for election to the board of directors of the corporation may be made at a meeting of stockholders by or at the direction of the board of directors or by any stockholder of the corporation entitled to vote in the election of directors at the meeting who complies with the notice procedures set forth in this Section.  Such nominations, other than those made by or at the direction of the board of directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation.  To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than twenty (20) days prior to the meeting; provided, however, that in the event less than thirty (30) days’ notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made.  Such stockholder’s notice shall set forth (a) as to each person, if any, whom the stockholder proposes to nominate for election or re-election as a director:  (i) the name, age, business address and residence address of such person, (ii) the principal occupation or employment of such person, (iii) the class and number of shares of the corporation which are beneficially owned by such person, (iv) any other information relating to such person that is required by law to be disclosed in solicitations of proxies for election of directors, and (v) such person’s written consent to being named as a nominee and to serving as a director if elected; and (b) as to the stockholder giving the notice:  (i) the name and address, as they appear on the corporation’s books, of such stockholder, (ii) the class and number of shares of the corporation which are beneficially owned by such stockholder, and (iii) a description of all arrangements or understandings between such stockholder and each nominee and any other person or persons (naming such person or persons) relating to the nomination.  At the request of the board of directors any person nominated by the board of directors for election as a director shall furnish to the Secretary of the corporation that information required to be set forth in the stockholder’s notice of nomination which pertains to the nominee.  No person shall be eligible for election as a director of the corporation unless nominated in accordance with the procedures set forth in this Section.  The chairman of the meeting shall, if the facts warrant, determine and declare at the meeting that a nomination was not made in accordance with the procedures prescribed by these bylaws, and if he should so determine, he shall so declare at the meeting and the defective nomination shall be disregarded.

ADVANCE NOTICE OF STOCKHOLDERS BUSINESS

At the annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting.  To be properly brought before an annual meeting, business must be:  (a) as specified in the notice of meeting (or any supplement thereto) given by or at the direction of the board of directors, (b) otherwise properly brought before the meeting by or at the direction of the board of directors, or (c) otherwise properly brought before the meeting by a stockholder.  Business to be brought before the meeting by a stockholder shall not be considered properly brought if the stockholder has not given timely notice thereof in writing to the Secretary of the corporation.  To be timely, a stockholder’s notice must be delivered to the principal executive offices of the corporation not less than forty five (45) days prior to the date on which the corporation first mailed proxy materials for the prior year’s annual meeting; provided, however, that if the corporation’s annual meeting of stockholders occurs on a date more than thirty (30) days earlier or later than the corporation’s prior year’s annual meeting, then the corporation’s board of directors shall determine a date a reasonable period prior to the corporation’s annual meeting of stockholders by which date the stockholders notice must be delivered and publicize such date in a filing pursuant to the Securities Exchange Act of 1934, as amended, or via press release.  Such publication shall occur at least ten (10) days prior to the date set by the Board of Directors.  A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting: (i) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address of the stockholder proposing such business, (iii) the class and number of shares of the corporation, which are beneficially owned by the stockholder, (iv) any material interest of the stockholder in such business, and (v) any other information that is required by law to be provided by the stockholder in his capacity as proponent of a stockholder proposal.  Notwithstanding anything in these bylaws to the contrary, no business shall be conducted at any annual meeting except in accordance with the procedures set forth in this Section.  The chairman of the annual meeting shall, if the facts warrant, determine and declare at the meeting that business was not properly brought before the meeting and in accordance with the provisions

 

 

-5-

 

of this Section, and, if he should so determine, he shall so declare at the meeting that any such business not properly brought before the meeting shall not be transacted.

REPRICING OF STOCK OPTIONS

The Company shall not reprice to a lower exercise price any issued and outstanding stock option granted to any employee, consultant or director of the Company at any time during the term of such option(other than adjustments for stock splits, stock dividends, recapitalizations and the like events as provided for in the documents governing the grant), without the prior approval of the Company’s stockholders.  This section may be repealed, modified or amended only by the affirmative vote of the holders of a majority of the Company’s outstanding stock.

DIRECTORS

POWERS

Subject to the provisions of the General Corporation Law of Delaware and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors.

NUMBER OF DIRECTORS

The authorized number of directors shall be nine (9).  This number may be changed by a duly adopted amendment to the certificate of incorporation, or by an amendment to this bylaw adopted by the vote or written consent of the holders of a majority of the stock issued and outstanding and entitled to vote or by resolution of a majority of the board of directors.

No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.

ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS

Except as provided in Section 3.4 of these bylaws, directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting.  Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws, wherein other qualifications for directors may be prescribed.  Each director, including a director elected to fill a vacancy, shall hold office until his successor is elected and qualified or until his earlier resignation or removal.

Elections of directors need not be by written ballot.

RESIGNATION AND VACANCIES

Any director may resign effective on giving written notice to the chairman of the board, the president, the secretary or the board of directors, unless the notice specifies a later time for that resignation to become effective.  If the resignation of a director is effective at a future time, the board of directors may elect a successor to take office when the resignation becomes effective.

Vacancies in the board of directors may be filled by a majority of the remaining directors, even if less than a quorum, or by a sole remaining director; provided, a vacancy created by the removal of a director by the vote of the stockholders or by court order may be filled only by the affirmative vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting affirmatively also constitute a majority of the required quorum).  Each director so elected shall hold office until the next annual meeting of the stockholders and until a successor has been elected and qualified.

A vacancy or vacancies in the board of directors shall be deemed to exist in the event of the death, resignation or removal of any director, or if the board of directors by resolution declares vacant the office of a director who has been declared of unsound mind by an order of court or convicted of a felony, or if the authorized number of directors is

 

 

-6-

 

increased, or if the stockholders fail, at any meeting of stockholders at which any director of directors are elected, to elect the number of directors to be elected at that meeting.

The stockholders may elect a director or directors at any time to fill any vacancy or vacancies not filled by the directors.

If at any time, by reason of death or resignation or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the General Corporation Law of Delaware.

If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten (10) percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211 of the General Corporation Law of Delaware as far as applicable.

PLACE OF MEETINGS; MEETINGS BY TELEPHONE

Regular meetings of the board of directors may be held at any place within or outside the State of Delaware that has been designated from time to time by resolution of the board.  In the absence of such a designation, regular meetings shall be held at the principal executive office of the corporation.  Special meetings of the board may be held at any place within or outside the State of Delaware that has been designated in the notice of the meeting or, if not stated in the notice or if there is no notice, at the principal executive office of the corporation.

Any meeting of the board, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in the meeting can hear one another; and all such directors shall be deemed to be present in person at the meeting.

FIRST MEETINGS

The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors.

REGULAR MEETINGS

Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board.

SPECIAL MEETINGS; NOTICE

Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board, the chief executive officer, the president, the chief operating officer or any two (2) directors.

Notice of the date, time and place of special meetings shall be delivered personally, by telephone, facsimile, telegram, electronic mail or other comparable communication equipment to each director or sent by first-class mail, charges prepaid, addressed to each director at that director’s address as it is shown on the records of the corporation.  If the notice is mailed, it shall be deposited in the United States mail at least four (4) days before the time of the holding of the

 

 

-7-

 

meeting.  If the notice is delivered personally or by telephone, facsimile, telegram, electronic mail or other comparable communication equipment, it shall be delivered at least twelve (12) hours before the time of the holding of the meeting.  Any notice given personally or by telephone, facsimile, telegram, electronic mail or other comparable communication equipment may be communicated either to the director or to a person at the office of the director who the person giving the notice has reason to believe will promptly communicate it to the director.  The notice need not specify the purpose or the place of the meeting, if the meeting is to be held at the principal executive office of the corporation.

QUORUM

A majority of the authorized number of directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 3.11 of these bylaws.  Every act or decision done or made by a majority of the directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the board of directors, subject to the provisions of the certificate of incorporation and applicable law.

A meeting at which a quorum is initially present may continue to transact business notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting.

WAIVER OF NOTICE

Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof, 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 directors, or members of a committee of directors, need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws.

ADJOURNMENT

A majority of the directors present, whether or not constituting a quorum, may adjourn any meeting to another time and place.

NOTICE OF ADJOURNMENT

Notice of the time and place of holding an adjourned meeting need not be given, unless the meeting is adjourned for more than twenty-four (24) hours, in which case notice of the time and place shall be given before the time of the adjourned meeting, in the manner specified in Section 3.8 of these bylaws, to the directors who were not present at the time of the adjournment.

BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING

Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be taken at any meeting of the board of directors, or of any committee thereof, may be taken without a meeting if all members of the board or committee, as the case may be, shall individually or collectively consent thereto in writing.  Such action by written consent shall have the same force and effect as a unanimous vote of the board of directors.  Such written consent and any counterparts thereof shall be filed with the minutes of the proceedings of the board.

FEES AND COMPENSATION OF DIRECTORS

Directors and members of committees may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors.  This Section 3.14 shall not be construed to preclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services.

 

 

-8-

 

APPROVAL OF LOANS TO OFFICERS

The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation.  The loan, guaranty or other assistance may be with or without interest and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation.  Nothing in this section contained shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute.

REMOVAL OF DIRECTORS

Unless otherwise restricted by statute, by the certificate of incorporation or by these bylaws, 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.

No reduction of the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s term of office.

COMMITTEES

COMMITTEES OF DIRECTORS

The board of directors may, by resolution adopted by a majority of the authorized number of directors, designate one (1) or more committees, each consisting of two (2) or more directors, to serve at the pleasure of the board.  The board may designate one (1) or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee.  The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors.  Any committee, to the extent provided in the resolution of the board, shall have all the authority of the board, except with respect to (I) amend 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 Section 151(a) of the General Corporation Law of Delaware, fix 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), (ii) adopt an agreement of merger or consolidation under Sections 251 or 252 of the General Corporation Law of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets, (iv) recommend to the stockholders a dissolution of the corporation or a revocation of a dissolution, or (v) adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law of Delaware.

COMMITTEE MINUTES

Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.

MEETINGS AND ACTION OF COMMITTEES

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Article III of these bylaws, Section 3.5 (place of meetings and meetings by telephone), Section 3.7 (regular meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournment), Section 3.12 (notice of adjournment), and Section 3.13 (action without a meeting), with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members; provided, however, that the time of regular meetings of committees may also be called by resolution of the board of directors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.

 

 

-9-

 

OFFICERS

OFFICERS

The officers of the corporation shall be a president, a secretary, and a chief financial officer.  The corporation may also have, at the discretion of the board of directors, a chairman of the board, a chief executive officer, a chief operating officer, a treasurer, one or more corporate vice presidents, one or more assistant secretaries, one or more assistant treasurers, and any such other officers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws.  Any number of offices may be held by the same person.

In addition to the officers of the corporation described above, there may also be such administrative vice presidents of the corporation as may be designated and appointed from time to time by the chief executive officer of the corporation in accordance with the provisions of Section 5.14 of these bylaws.

ELECTION OF OFFICERS

The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shall be chosen by the board of directors, subject to the rights, if any, of an officer under any contract of employment.

SUBORDINATE OFFICERS

The board of directors may appoint, or empower the president to appoint, such other officers and agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the board of directors may from time to time determine.

REMOVAL AND RESIGNATION OF OFFICERS

Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the board of directors at any regular or special meeting of the board or, except in the case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred by the board of directors.

Any officer may resign at any time by giving written notice to the corporation.  Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.

VACANCIES IN OFFICES

A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these bylaws for regular appointments to that office.

CHAIRMAN OF THE BOARD

The chairman of the board, if such an officer be elected, shall, if present, preside at meetings of the board of directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the board of directors or as may be prescribed by these bylaws.  If there is no chief executive officer, then the chairman of the board shall also have the powers and duties prescribed in Section 5.7 of these bylaws.

CHIEF EXECUTIVE OFFICER

Subject to such supervisory powers, if any, as may be given by the board of directors to the chairman of the board, if there be such an officer, the chief executive officer of the corporation shall, subject to the control of the board of directors, have general supervision, direction, and control of the business and the officers of the corporation.  He shall preside at all meetings of the stockholders and, in the absence of the chairman of the board, or if there be none, at all meetings of the board of directors.  He shall have the general powers and duties of management usually vested in the

 

 

-10-

 

office of president of a corporation and shall have such other powers and duties as may be prescribed by the board of directors or these bylaws.

PRESIDENT

The president of the corporation shall have such powers and perform such duties as prescribed by the board of directors or these bylaws.  In the absence or disability of the chief executive officer or if there be no such officer, then the president shall have the same powers and be subject to the same restrictions set forth in Section 5.7.

CHIEF OPERATING OFFICER

The chief operating officer shall have such powers and perform such duties as prescribed by the board of directors or these bylaws.  In the absence or disability of the chief executive officer, if there be such an officer, the president and the chairman of the board, the chief operating officer shall perform the duties of chief executive officer and president, and when so acting shall have all the powers, and be subject to all the restrictions set forth in Section 5.7.

CORPORATE VICE PRESIDENTS

In the absence or disability of the chief executive officer,  if there be such an officer, the president, the chairman of the board and the chief operating officer, if there be such an officer, the corporate vice presidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a corporate vice president designated by the board of directors, shall perform all the duties of the chief executive officer and president and when so acting shall have all the powers of, and be subject to all the restrictions upon, the chief executive officer and president.  The corporate vice presidents shall also have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors or these bylaws.

SECRETARY

The secretary shall keep or cause to be kept, at the principal executive office of the corporation, or such other place as the board of directors may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders, with the time and place of holding, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings or committee meetings, the number of shares present or represented at stockholders’ meetings, and the proceedings thereof.

The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the board of directors, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date of cancellation of every certificate surrendered for cancellation.

The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the board of directors required by these bylaws or by law to be given, and he shall keep the seal of the corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by these bylaws.

CHIEF FINANCIAL OFFICER

The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings and shares.  The books of account shall at all reasonable times be open to inspection by any director.

The chief financial officer shall deposit all money and other valuables in the name and to the credit of the corporation with such depositories as may be designated by the board of directors.  He shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever they request it, an account

 

 

-11-

 

of all of his transactions as chief financial officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws.

TREASURER

In the absence or disability of the chief financial officer, the treasurer shall perform all the duties of the chief financial officer and when so acting shall have all the powers of, and be subject to all the restrictions upon, the chief financial officer.  The treasurer shall have such other powers and perform such other duties as from time to time may be prescribed respectively by the board of directors or these bylaws.

ADMINISTRATIVE VICE PRESIDENTS

In addition to the corporate vice presidents of the corporation as provided in Section 5.10 of these bylaws and such subordinate officers as may be appointed in accordance with section 5.3 of these bylaws, there may also be such administrative vice presidents of the corporation as may be designated and appointed from time to time by the chief executive officer of the corporation.  Administrative vice presidents shall perform such duties and have such powers as from time to time may be determined by the chief executive officer or the board of directors in order to assist the officers of the corporation in the furtherance of their duties.  In the performance of such duties and the exercise of such powers, however, such administrative vice presidents shall have limited authority to act on behalf of the corporation as the board of directors shall establish, including but not limited to limitations on the dollar amount and on the scope of the agreements or commitments that may be made by such administrative vice presidents on behalf of the corporation, which limitations may not be exceeded by such individuals or altered by the chief executive officer without further approval by the board of directors.

AUTHORITY AND DUTIES OF OFFICERS

In addition to the foregoing authority and duties, all officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the board of directors or the stockholders.

INDEMNITY

INDEMNIFICATION OF DIRECTORS AND OFFICERS

The corporation shall, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware as the same now exists or may hereafter be amended, indemnify any person against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred in connection with any threatened, pending or completed action, suit, or proceeding in which such person was or is a party or is threatened to be made a party by reason of the fact that such person is or was a director or officer of the corporation.  For purposes of this Section 6.1, a “director” or “officer” of the corporation shall mean any person (I) who is or was a director or officer of the corporation, (ii) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or officer of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.

The corporation shall be required to indemnify a director or officer in connection with an action, suit, or proceeding (or part thereof) initiated by such director or officer only if the initiation of such action, suit, or proceeding (or part thereof) by the director or officer was authorized by the board of Directors of the corporation.

Any repeal or modification of the foregoing provisions of this Article shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

INDEMNIFICATION OF OTHERS

The corporation shall have the power, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware as the same now exists or may hereafter be amended, to indemnify each of its employees and agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, and amounts paid in

 

 

-12-

 

settlement actually and reasonably incurred in connection with any threatened, pending or completed action, suit, or proceeding, in which such person was or is a party or is threatened to be made a party by reason of the fact that such person is or was an employee or agent of the corporation.  For purposes of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or officer) shall mean any person (I) who is or was an employee or agent of the corporation, (ii) who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation.

PAYMENT OF EXPENSES IN ADVANCE

The corporation shall pay the expenses (including attorney’s fees) incurred by a director or officer of the corporation entitled to indemnification hereunder in defending any action, suit or proceeding referred to in this Section 6.1 in advance of its final disposition; provided, however, that payment of expenses incurred by a director or officer of the corporation in advance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should ultimately be determined that the director or officer is not entitled to be indemnified under this Section 6.1 or otherwise.

INDEMNITY NOT EXCLUSIVE

The rights conferred on any person by this Article shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the corporation’s Certificate of Incorporation, these bylaws, agreement, vote of the stockholders or disinterested directors or otherwise.

INSURANCE INDEMNIFICATION

The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of the General Corporation Law of Delaware.

RECORDS AND REPORTS

MAINTENANCE AND INSPECTION OF RECORDS

The corporation shall, either at its principal executive office or at such place or places as designated by the board of directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder.

Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger and a list of its stockholders and to make copies or extracts therefrom.  A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder.  In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at its registered office in Delaware or at its principal place of business.

The officer who has charge of the stock ledger of a corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place

 

 

-13-

 

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.

The record of stockholders shall also be open to inspection on the written demand of any stockholder or holder of a voting trust certificate, at any time during usual business hours, for a purpose reasonably related to the holder’s interests as a stockholder or as the holder of a voting trust certificate.

Any inspection and copying under this Section 7.1 may be made in person or by an agent or attorney of the stockholder or holder of a voting trust certificate making the demand.

MAINTENANCE AND INSPECTION OF BYLAWS

The corporation shall keep at its principal executive office, or if its principal executive office is not in the State of California, at its principal business office in such state, the original or a copy of these bylaws as amended to date, which bylaws shall be subject to inspection by the stockholders at all reasonable times during office hours.  If the principal executive office of the corporation is outside the State of California and the corporation has no principal business office in such state, the secretary shall, upon the written request of any stockholder, furnish to that stockholder a copy of these bylaws as amended to date.

MAINTENANCE AND INSPECTION OF OTHER CORPORATE RECORDS

The accounting books and records, and the minutes of proceedings of the stockholders and the board of directors and any committee or committees of the board of directors, shall be kept at such place or places designated by the board of directors or, in absence of such designation, at the principal executive office of the corporation.  The minutes shall be kept in written form and the accounting books and records shall be kept either in written form or in any other form capable of being converted into written form.

The minutes and accounting books and records shall be open to inspection upon the written demand of any stockholder or holder of a voting trust certificate, at any reasonable time during usual business hours, for a purpose reasonably related to the holder’s interests as a stockholder or as the holder of a voting trust certificate.  The inspection may be made in person or by an agent or attorney, and shall include the right to copy and make extracts.  Such rights of inspection shall extend to the records of each subsidiary corporation of the corporation.

INSPECTION BY DIRECTORS

Every director shall have the absolute right at any reasonable time to inspect all books, records and documents of every kind and the physical properties of the corporation and each of its subsidiary corporations.  Such inspection by a director may be made in person or by an agent or attorney, and the right of inspection includes the right to copy and make extracts of documents.

The corporation shall also, on the written request of any stockholder, mail to the stockholder a copy of the last annual, semi-annual or quarterly income statement which it has prepared, and a balance sheet as of the end of that period.

The quarterly income statements and balance sheets referred to in this section shall be accompanied by the report, if any, of any independent accountants engaged by the corporation or the certificate of an authorized officer of the corporation that the financial statements were prepared without audit from the books and records of the corporation.

REPRESENTATION OF SHARES OF OTHER CORPORATIONS

The chairman of the board, the chief executive officer, the president, the chief operating officer, any corporate vice president, the treasurer, the secretary or the chief financial officer of this corporation, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent, and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation.  The authority granted herein may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority.

 

 

-14-

 

 

GENERAL MATTERS

RECORD DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING

For purposes of determining the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any  other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) days before any such action.  In that case, only stockholders of record at the close of business on the date so fixed are entitled to receive the dividend, distribution or allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided by law.

If the board of directors does not so fix a record date, then the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the board adopts the applicable resolution, or the sixtieth (60th) day before the date of that action, whichever is later.

CHECKS

From time to time, the board of directors shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments.

EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS

The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation; such authority may be general or confined to specific instances.  Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

STOCK CERTIFICATES; PARTLY PAID SHARES

The shares of a corporation shall be represented by certificates, provided that the board of directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares.  Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the corporation.  Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares 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 vice-president, and by the chief financial officer or an assistant treasurer, or the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form.  Any or all of the signatures on the certificate may be a facsimile.  In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.

The corporation may issue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor.  Upon the face or back of each stock certificate issued to represent any such partly paid shares, upon the books and records of the corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated.  Upon the declaration of any dividend on fully paid shares, the corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.

SPECIAL DESIGNATION ON CERTIFICATES

If the corporation is authorized to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth

 

 

-15-

 

 

in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

LOST CERTIFICATES

Except as provided in this Section 8.6, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to the corporation and canceled at the same time.  The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore 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 his legal representative, 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 or uncertificated shares.

CONSTRUCTION; DEFINITIONS

Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the Delaware General Corporation Law shall govern the construction of these bylaws.  Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person.

DIVIDENDS

The directors of the corporation, subject to any restrictions contained in the certificate of incorporation, may declare and pay dividends upon the shares of its capital stock pursuant to the General Corporation Law of Delaware.  Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock.

The directors of the corporation may set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation, and meeting contingencies.

FISCAL YEAR

The fiscal year of the corporation shall be fixed by resolution of the board of directors and may be changed by the board of directors.

TRANSFER OF STOCK

Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction in its books.

STOCK TRANSFER AGREEMENTS

The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one or more classes owned by such stockholders in any manner not prohibited by the General Corporation Law of Delaware.

REGISTERED STOCKHOLDERS

The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner, shall be entitled to hold liable for calls and assessments the person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or

 

 

-16-

 

interest in such share or shares on the part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

EMERGENCY PROVISIONS

GENERAL

The provisions of this Article shall be operative only during a national emergency declared by the President of the United States or the person performing the President’s functions, or in the event of a nuclear, atomic, or other attack on the United States or a disaster making it impossible or impracticable for the corporation to conduct its business without recourse to the provisions of this Article.  The provisions of this Article in that event shall override all other Bylaws of the corporation in conflict with any provisions of this Article, and shall remain operative so long as it remains impossible or impracticable to continue the business of the corporation otherwise, but thereafter shall be inoperative; provided that all actions taken in good faith pursuant to such provisions shall thereafter remain in full force and effect unless and until revoked by action taken pursuant to the provisions of the bylaws other than those contained in this Article.

UNAVAILABLE DIRECTORS

All directors of the corporation who are not available to perform their duties as directors by reason of physical or mental incapacity or for any other reason or who are unwilling to perform their duties or whose whereabouts are unknown shall automatically cease to be directors, with like effect as if they had resigned as directors, so long as such unavailability continues.

AUTHORIZED NUMBER OF DIRECTORS

The authorized number of directors shall be the number of directors remaining after eliminating those who have ceased to be directors pursuant to Section 9.2 of these bylaws, or the minimum number required by law, whichever number is greater.

QUORUM

The number of  directors necessary to constitute a quorum shall be one-third of the authorized number of directors as specified in Section 9.3 of these bylaws, or such other minimum number as, pursuant to the law or lawful decree then in force, it is possible for the bylaws of a corporation to specify.

CREATION OF EMERGENCY COMMITTEE

If the number of directors remaining after eliminating those who have ceased to be directors pursuant to Section 9.2 of these bylaws is less than the minimum number of authorized directors required by law, then until the appointment of additional directors to make up such required minimum, all the powers and authority which the board of directors could by law delegate, including all powers and authority which the board of directors could delegate to a committee, shall be automatically  vested in an emergency committee, and the emergency committee shall thereafter manage the affairs of the corporation pursuant to such powers and authority and shall have all such other powers and authority as law or lawful decree may confer on any person or body of persons during a period of emergency.

CONSTITUTION OF EMERGENCY COMMITTEE

The emergency committee shall consist of all the directors remaining after eliminating those who have ceased to be directors pursuant to Section 9.2 of these bylaws,  provided that those remaining directors are not less than three in number.  If the remaining directors number less than three, the emergency committee shall consist of three persons, who shall be the remaining director or directors and either one or two officers or employees of the corporation, as the remaining director or directors may in writing designate.  If there is no remaining director, the emergency committee shall consist of the three most senior officers of the corporation who are available to serve, and if and to the extent that officers are not available, the most senior employees of the corporation.  Seniority shall be determined in accordance with any designation of seniority in the minutes of the proceedings of the board of directors, and in the absence of such designation, shall be determined by rate of remuneration.  If there are no remaining directors and no officers or

 

 

-17-

 

employees of the corporation available, the emergency committee shall consist of three persons designated in writing by the stockholder owning the largest number of shares of record as of the date of the last record date.

POWERS OF EMERGENCY COMMITTEE

The emergency committee, once appointed, shall govern its own procedures and shall have power to increase the number of members thereof beyond the original number, and if a vacancy or vacancies therein arises at any time, the remaining member or members of the emergency committee shall have the power to fill such vacancy or vacancies.  If, at any time after its appointment, all members of the emergency committee shall die or resign or become unavailable to act for any reason whatsoever, a new emergency committee shall be appointed in accordance with the foregoing provisions of this Article.

DIRECTORS BECOMING AVAILABLE

Any person who has ceased to be a director pursuant to the provisions of Section 9.2 of these bylaws and who thereafter becomes available to serve as a director shall automatically become a member of the emergency committee.

ELECTION OF BOARD OF DIRECTORS

The emergency committee shall, as soon after its appointment as is practicable, take all requisite action to secure the election of a board of directors, and, upon such election, all the powers and authorities of the emergency committee shall cease.

TERMINATION OF EMERGENCY COMMITTEE

If after the appointment of an emergency committee, a sufficient number of persons who ceased to be directors pursuant to Section 9.2 of these bylaws become available to serve as directors, so that if they had not ceased to be directors as aforesaid, there would be enough directors to constitute the minimum number of directors required by law, then all such persons shall automatically be deemed to be reappointed as directors and the powers and authorities of the emergency committee shall be at an end.

AMENDMENTS

The original or other bylaws of the corporation may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal bylaws upon the directors.  The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.

DISSOLUTION

If it should be deemed advisable in the judgment of the board of directors of the corporation that the corporation should be dissolved, the board, after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose, shall cause notice to be mailed to each stockholder entitled to vote thereon of the adoption of the resolution and of a meeting of stockholders to take action upon the resolution.

At the meeting a vote shall be taken for and against the proposed dissolution.  If a majority of the outstanding stock of the corporation entitled to vote thereon votes for the proposed dissolution, then a certificate stating that the dissolution has been authorized in accordance with the provisions of Section 275 of the General Corporation Law of Delaware and setting forth the names and residences of the directors and officers shall be executed, acknowledged, and filed and shall become effective in accordance with Section 103 of the General Corporation Law of Delaware.  Upon such certificate’s becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved.

Whenever all the stockholders entitled to vote on a dissolution consent in writing, either in person or by duly authorized attorney, to a dissolution, no meeting of directors or stockholders shall be necessary.  The consent shall be filed and shall become effective in accordance with Section 103 of the General Corporation Law of Delaware.  Upon such consent’s becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall

 

 

-18-

 

be dissolved.  If the consent is signed by an attorney, then the original power of attorney or a photocopy thereof shall be attached to and filed with the consent.  The consent filed with the Secretary of State shall have attached to it the affidavit of the secretary or some other officer of the corporation stating that the consent has been signed by or on behalf of all the stockholders entitled to vote on a dissolution; in addition, there shall be attached to the consent a certification by the secretary or some other officer of the corporation setting forth the names and residences of the directors and officers of the corporation.

CUSTODIAN

APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES

The Court of Chancery, upon application of any stockholder, may appoint one or more persons to be custodians and, if the corporation is insolvent, to be receivers, of and for the corporation when:

at any meeting held for the election of directors the stockholders are so divided that they have failed to elect successors to directors whose terms have expired or would have expired upon qualification of their successors; or

the business of the corporation is suffering or is threatened with irreparable injury because the directors are so divided respecting the management of the affairs of the corporation that the required vote for action by the board of directors cannot be obtained and the stockholders are unable to terminate this division; or

the corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve, liquidate or distribute its assets.

DUTIES OF CUSTODIAN

The custodian shall have all the powers and title of a receiver appointed under Section 291 of the General Corporation Law of Delaware, but the authority of the custodian shall be to continue the business of the corporation and not to liquidate its affairs and distribute its assets, except when the Court of Chancery otherwise orders and except in cases arising under Sections 226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.

 

 

 

 

 

 

 

 

 

 

 

 

-19-

EX-4.04 4 a2076096zex-4_04.htm EXHIBIT 4.04

Exhibit 4.04

 

STOCK PURCHASE WARRANT

 

Neither this Warrant nor the Warrant Shares as defined herein have been registered under the Securities Act of 1933, as amended, or any applicable state securities laws.  Neither this Warrant nor the Warrant Shares may be sold or transferred in the absence of such registration or any exemption from such registration.

 

 

 

Right to Purchase One Hundred Fifty Thousand (150,000) Shares of Common Stock

 

Dated as of March 24, 2002

 

 

                ADAPTEC, INC., a Delaware corporation (the “Company”), grants INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation (“IBM” and each of its successors and assigns, a “Holder”) a warrant (this “Warrant”) to purchase the Warrant Shares at the Purchase Price.  Capitalized terms not otherwise defined have the definitions set forth in Appendix A.

 

                1.   Exercise and Expiration of Warrant.

 

                (a)  This Warrant is immediately exercisable and will expire upon the fifth anniversary of the date hereof.  “Exercise Period” shall mean the period of time between the date hereof and the expiration of this Warrant in accordance with the terms hereof.

 

                (b)  This Warrant may be exercised during the Exercise Period by the Holder, in whole or in part, by delivering this Warrant to the Company with payment of the Purchase Price in U.S. dollars.  In addition, in lieu of such cash payment, the Holder may exercise the Warrant by delivery to the Company of a written notice of an election to effect a cashless exercise for Warrant Shares pursuant to this Section 1(b) (“Cashless Exercise”). To effect a Cashless Exercise, the Holder will surrender this Warrant for that number of shares of Common Stock determined by multiplying the number of Warrant Shares to which it would otherwise be entitled by a fraction, the numerator of which shall be the difference between (i) the then current Market Price of a share of the Common Stock on the date of exercise and (ii) the Purchase Price, and the denominator of which shall be the then current Market Price per share of Common Stock.  In the event that this Warrant is not exercised in full immediately prior to the end of the Exercise Period and the then current Market Price of a share of the Common Stock is greater than the Purchase Price, this Warrant shall be deemed automatically exercised as to the remaining Warrant Shares at such time by Cashless Exercise without the delivery of any written notice from the Holder.

 

                (c)  Upon exercise of this Warrant, the Company will issue to the Holder (i) a certificate or certificates for the number of full Warrant Shares to which the Holder shall be entitled upon such exercise (any fractional shares shall be rounded up to the next whole share), and (ii) in case such exercise is in part only, a new warrant or warrants representing the remaining Warrant Shares.

 

                (d)  Each exercise of this Warrant shall be deemed to have been effected immediately prior to the close of business on the day on which this Warrant shall have been surrendered pursuant to Section 1(b).

 

                2.  Representations.

 

                (a)  By the Holder.  The Holder represents and warrants to the Company as follows:

 

                                (i)  It is an “accredited investor” within the meaning of Rule 501 of the Securities Act.   This Warrant is acquired for the Holder’s own account for investment purposes and not with a view to any offering or distribution within the meaning of the Securities Act and any applicable state securities laws.  The Holder has no present intention of selling or otherwise disposing of the Warrant or the Warrant Shares in violation of such laws; and

 

 

1

 

                                (ii)  The Holder has sufficient knowledge and expertise in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Company.  The Holder understands that this investment involves a high degree of risk and could result in a substantial or complete loss of its investment.  The Holder is capable of bearing the economic risks of such investment.

 

The Holder acknowledges that the Company has indicated that the Warrant and the Warrant Shares have not been registered under the Securities Act by reason of their issuance in a transaction exempt from the registration requirements thereof, and that the Warrant Shares will bear a legend stating that such securities have not been registered under the Securities Act and may not be sold or transferred in the absence of such registration or an exemption from such registration.

 

 

                (b)  By the Company.  The Company represents and warrants that:

 

                                (i)  It (A) is a corporation duly organized, validly existing and in good standing under the laws of the state of its organization, (B) has all requisite power and authority to conduct its business as now conducted and as presently contemplated and to consummate the transactions contemplated hereby and (C) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary.

 

                                (ii)  It has outstanding as of the date hereof but before giving effect to this Warrant approximately 109,000,000 shares of Common Stock, calculated on a fully diluted basis, giving effect to the conversion of all options, warrants, rights and other securities convertible into, or exchangeable for, Common Stock.

 

                                (iii)  The execution, delivery and performance by the Company of this Warrant (A) has been duly authorized by all necessary corporate action, (B) does not and will not contravene the Company’s charter or bylaws or any other organizational document, and (C) does not and will not contravene any applicable law or any contractual restriction binding on or otherwise affecting the Company or any of its properties or result in a default under any agreement or instrument to which the Company is a party or by which the Company or its properties may be subject.

 

                                (iv)  This Warrant has been duly executed and delivered by the Company, and is a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, moratorium and other laws affecting the rights of creditors generally and general principles of equity.

 

                                (v)  Assuming the accuracy of the representations made by the Holder in Section 2(a) hereof, no authorization, consent, approval, license, exemption or other action by, and no registration, qualification, designation, declaration or filing with, any governmental authority is or will be necessary in connection with the execution and delivery by the Company of this Warrant, the issuance by the Company of the Warrant Shares, the consummation of the transactions contemplated hereby, the performance of or compliance with the terms and conditions hereof, or to ensure the legality, validity, and enforceability hereof.

 

                                (vi)  The Company has reserved solely for issuance and delivery upon the exercise of this Warrant, such number of shares of Common Stock to provide for the exercise in full of this Warrant.

 

                                (vii)  Neither the Company, nor any of its Affiliates, nor any person acting on its or their behalf, has directly or indirectly made any offers or sales of any security or solicited any offers to buy any security under circumstances that would require registration, or the filing of a prospectus qualifying the distribution, of this Warrant being issued hereby under the Securities Act or cause the issuance of this Warrant to be integrated with any prior offering of securities of the Company for purposes of the Securities Act.

 

                3.  Certain Agreements of the Company.  The Company agrees as follows:

 

 

2

 

                (a)  Shares to be Fully Paid.  All Warrant Shares will, upon issuance in accordance with the terms of this Warrant, be validly issued, fully paid, and nonassessable and free from all taxes, liens, claims and encumbrances.

 

                (b)  Authorization and Reservation of  Shares.  During the Exercise Period, the Company shall have duly authorized a sufficient number of shares of Common Stock, free from preemptive rights and from any other restrictions imposed by the Company without the consent of the Holder, to provide for the exercise in full of this Warrant.  The Company shall at all times during the Exercise Period reserve and keep available out of such authorized but unissued shares of Common Stock such number of shares to provide for the exercise in full of this Warrant.

 

                (c)  Listing.  In connection with the Holder’s exercise of Registration Rights hereunder, the Company shall use its best efforts to promptly secure the listing of the shares of Common Stock issuable upon exercise of this Warrant upon each national securities exchange or automated quotation system, if any, upon which shares of Common Stock are then listed or become listed (subject to official notice of issuance upon exercise of this Warrant) and shall maintain such listing for  so long as any other shares of Common Stock shall be so listed.

 

                (d)  Certain Actions Prohibited.  The Company will not, by amendment of its charter or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but will at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Holder of this Warrant in order to protect the exercise privilege of the Holder of this Warrant against impairment, consistent with the tenor and purpose of this Warrant.

 

                (e)  Successors and Assigns.  Except as expressly provided otherwise herein, this Warrant will be binding upon any entity succeeding to the Company by merger, consolidation, or acquisition of all or substantially all of the Company’s assets.

 

                (f)  Blue Sky Laws.  The Company shall, on or before the date of issuance of any Warrant Shares, take such actions as the Company shall reasonably determine are necessary to qualify the Warrant Shares for, or obtain exemption for the Warrant Shares for, sale to the Holder of this Warrant upon the exercise hereof  under applicable securities or “blue sky” laws of the states of the United States, and shall provide written evidence of any such action so taken to the Holder of this Warrant prior to such date;  provided, however, that the Company shall not be required to  qualify as a foreign corporation or file a general consent to service of process in any such jurisdiction.

 

                (g)  Rule 144 Reports.  For so long as the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act the Company shall take all actions reasonably necessary to enable the Holder to sell the Registrable Securities without registration under the Securities Act within the limitations of the exemptions provided by Rule 144 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC, including filing on a timely basis all reports required to be filed by the Exchange Act.  Upon the request of the Holder, the Company shall deliver to the Holder a written statement as to whether it has complied with such requirements.

 

                4.   Antidilution Adjustments.  The Purchase Price and the number of Warrant Shares may be adjusted from time to time as set forth in Appendix B.

 

                5.  Registration Rights.  The Warrant shall have the Registration Rights set forth in Appendix C.

 

                6.   Treatment of Warrant in the Event of an Acquisition Transaction.  If the Company undertakes an Acquisition Transaction then the Company shall give prompt notice of such transaction to the Holder and cause the Company Acquiror to assume this Warrant and cause provision to be made so that the Holder shall thereafter be entitled to receive, upon exercise of this Warrant, the Warrant Shares (as such term is modified in accordance with this Section 6), whereupon the Company shall be released from this Warrant.  This Warrant shall remain outstanding in accordance with its terms and all references to the “Company” shall apply to the Company Acquiror and all references to the “Warrant Shares” shall apply to the common stock of the Company Acquiror, and appropriate

 

 

3

 

modifications to the other terms of this Warrant, including without limitation the amount of Warrant Shares and the Purchase Price, shall be made to take into account the Warrant Value as of the date of the Acquisition Transaction.

 

                7.  Transfer,  Exchange, Replacement, Underwriter’s Lockup

 

                (a)  Transferability.  (i)  The Holder covenants not to transfer this Warrant or the Warrant Shares except in compliance with this Section 7(a). Subject to compliance with the transfer restrictions set forth in clause (ii) of this Section 7(a), this Warrant, the Warrant Shares and the rights granted to the Holder hereof are freely transferable, in whole or in part, upon surrender of this Warrant, together with an assignment form, at the office or agency of the Company referred to in Section 8 below.

 

                                (ii)  The Holder shall not effect any transfer except pursuant to a transaction either registered, or exempt from registration, under the Securities Act.  Prior to any transfer in reliance upon an exemption from such registration other than Rule 144 of the Securities Act, the Holder shall provide to the Company an opinion letter from counsel to the Holder (which counsel may include in-house counsel), reasonably satisfactory to the Company, opining that such transfer does not require registration under the Securities Act.  The transferee, by acceptance of this Warrant, acknowledges that it takes such warrant subject to the terms and conditions hereof.  Until due presentment for registration of transfer on the books of the Company, the Company may treat the registered Holder hereof as the owner hereof  for all purposes, and the Company shall not be affected by any notice to the contrary.

 

                (b)  Warrant Exchangeable for Different Denominations.  This Warrant is exchangeable, upon the surrender hereof by the Holder hereof at the office or agency of the Company referred  to in Section 8 below, for new warrants of like tenor of different denominations representing in the aggregate the right to purchase the number of shares of Common Stock which may be purchased hereunder, each of such new warrants to represent the right to purchase such number of shares as shall be designated by the Holder hereof at the time of such surrender.

 

                (c)  Replacement of Warrant.  Upon receipt of evidence reasonably  satisfactory to the Company of the loss, theft, destruction, or mutilation of this Warrant and, in the case of any  such loss, theft, or destruction, upon delivery of an indemnity agreement reasonably satisfactory in form and amount to the Company, or, in the case of any such mutilation, upon surrender and cancellation of this Warrant, the Company, at its expense, will execute and deliver, in lieu thereof, a new Warrant of like tenor.

 

                (d)  Cancellation; Payment of  Expenses.  Upon the surrender of this Warrant in connection with any transfer, exchange, or replacement as provided in this Section 7, this Warrant shall be promptly canceled by the Company.  The Company shall pay all taxes (other than securities transfer taxes) and all other expenses (other than legal expenses, if any, incurred by  the  Holder or transferees) and charges payable in connection with the preparation,  execution, and delivery of warrants pursuant to this Section 8.  The Company shall indemnify and reimburse the Holder of this Warrant for all costs and expenses (including legal fees) incurred by such Holder in connection with the enforcement of its rights hereunder.

 

                (e)  Warrant Register.  The Company shall maintain, at its principal executive offices (or such other office or agency of the Company as it may designate by notice to the Holder hereof), a register for this Warrant, in which the Company shall record the name and address of the person in whose name this Warrant has been issued, as well as the name and address of each transferee and each prior owner of this Warrant.

 

                8.  Notices.  Any notices required or permitted to be given under the terms of this Warrant shall be sent by certified or registered mail (return receipt requested) or delivered personally or by courier or by confirmed telecopy, and shall be effective five days after being placed in the mail, if mailed, or upon receipt or refusal of receipt, if delivered personally or by courier, or by confirmed telecopy, in each case addressed to a party.  The addresses for such communications shall be:

 

 

If to the Company:

Adaptec, Inc.

691 S. Milpitas Boulevard

Milpitas, California 95035

Attention:  Chris Dentiste, Director of Finance

 

 

If to IBM:

IBM Corporation

New Orchard Road

Armonk, New York 10504

Attention:  David L. Johnson, VP, Corporate Development

 

 

 

4

 

 

If to any other Holder, at such address as such Holder shall have provided in writing to the Company, or at such other address as any Holder furnishes by notice given in accordance with this Section 8.

 

                9.   Governing Law; Jurisdiction and Venue.  This Warrant shall be governed by the laws of the State of Delaware, without regard to conflicts or choice of law rules or principles.  Each of the Company and the Holder submits to the exclusive jurisdiction and venue of the federal and state courts of New York, County of Westchester, to resolve all issues that may arise out of or relate to this Warrant. The parties waive any right to a jury trial.

 

                10.  Miscellaneous.

 

                (a)  Amendments.  This Warrant and any provision hereof may only be amended by an instrument in writing signed by the Company and all Holders hereof.

 

                (b)  U.S. Dollars.  All references in this Warrant to “dollars” or “$” shall mean the U.S. dollar.

 

                (c)  Fractional Shares.  The Company shall not be required upon the exercise of this Warrant to issue any fractional shares.  Any fractional shares will be rounded up to the next whole share.

 

                (d)  Descriptive Headings.  The descriptive headings of the several sections of this Warrant are inserted for purposes of reference only, and shall not affect the meaning or construction of any of the provisions hereof.

 

                (e)  Business Day.  For purposes of this Warrant, the term “business day” means any day, other than a Saturday or Sunday or a day on which banking institutions in New York, New York or the city and state provided in Section 8 hereof for notices to the Company, are authorized or obligated by law, regulation or executive order to close.

 

                (f)  Counterparts. This agreement may be executed in counterparts, and any such executed counterpart shall be, and shall be deemed to be, an original instrument.

 

                (g)  Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.

 

                (h)  Successors and Assigns.  This Agreement shall be binding on, and shall inure to the benefit of, the parties hereto and their respective successors and assigns, including all Holders.

 

                (i)  Survival.  The representations, warranties and covenants made by the parties hereto shall survive the execution and delivery of this Agreement.

 

 

 

 

 

 

 

 

5

 

                IN WITNESS WHEREOF, the undersigned have executed this Warrant as of the date first written above.

 

ADAPTEC, INC.

 

 

 

 

 

By:

/s/ David Young

 

 

Name:

David Young

 

Title:

Chief Financial Officer

 

 

 

INTERNATIONAL BUSINESS MACHINES CORPORATION

 

 

 

 

By:

/s/ David L. Johnson

 

 

Name:

David L. Johnson

 

Title:

Vice President, Corporate Development

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

 

 

 

APPENDIX A — DEFINITIONS

 

 

                “Acquisition Transaction” shall mean (i) the sale, lease or other transfer, in one or a series of transactions, of all or substantially all of the Company’s assets to any person or Group, or (ii) the consummation of any transaction or series of transactions the result of which is that any person or Group beneficially owns, directly or indirectly, 50% or more of the voting power or the voting stock of the Company.

 

                “Affiliate” shall mean any entity directly or indirectly controlled by, controlling or under common control with another entity.

 

                “Board” shall mean the Board of Directors of the Company.

 

                “Cashless Exercise” shall have the meaning specified in Section 1(b) of the Warrant.

 

                “Company” shall have the meaning specified in the initial paragraph of the Warrant.

 

                “Company Acquiror” means the person or Group (i) to whom the Company’s assets are transferred as described in clause (i) of the definition of Acquisition Transaction or (ii) that would beneficially own 50% or more of the voting power or voting stock of the Company as described in clause (ii) of such definition.

 

                “Common Stock” shall mean the common shares of the Company.

 

                “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

 

                “Exercise Period” shall have the meaning specified in Section 1(a) of the Warrant.

 

                “Group” shall have the meaning specified in Section 13(d)(3) of the Exchange Act.

 

                “Holder” shall have the meaning specified in the initial paragraph of the Warrant.

 

                “IBM” shall have the meaning specified in the initial paragraph of the Warrant.

 

                “Market Price” shall mean the following:  (i) the average of the closing sale prices for the shares of Common Stock as reported on the principal trading market for the Common Stock for the five (5) consecutive trading days immediately preceding such date, or if no sale price is so reported for such period, the last bid price for such period, or (ii) if the foregoing does not apply, the last sale price of such security in the over-the-counter market on the pink sheets or bulletin board for such security on the last trading day immediately preceding such date, or if  no sale price is so reported for such security, the average of the last bid and ask price for such security on the last trading day immediately preceding such date, or (iii) if market value cannot be calculated as of such date on any of the foregoing bases, the Market Price shall be the fair market value  as reasonably determined by an investment banking firm selected by the Company and reasonably acceptable to the Holder, with the costs of the appraisal to be borne by the Company, provided, however, that for purposes of determining Warrant Value in accordance with Section 6 in the event of a Stock Acquisition, Market Price shall have the meaning as set forth in the definition of “Warrant Value”.

 

                “Person” or “person” shall mean all natural persons, corporations, business trusts, associations, companies, partnerships, joint ventures, governments, agencies, political subdivisions and other entities.

 

                “Purchase Price” shall mean fifteen dollars and thirty-one cents ($15.31) per share of Common Stock, as may be adjusted from time to time pursuant to Appendix B.

 

                “Registrable Securities” shall mean the Warrant Shares issued or issuable with respect to the Warrant.

 

 

 

 

Appendix A – Definitions
Appendix A – Definitions Page

1

 

 

 

                “Registration Expenses” shall mean all expenses incident to the Company’s performance of or compliance with the registration provisions of Appendix C herein, including without limitation (i) all fees and expenses of compliance with federal securities and state securities laws; (ii) all U.S. Securities and Exchange Commission and state securities laws filing fees; (iii) all printing expenses; (iv) all fees and disbursements of counsel for the Company; and (v) all fees and disbursements of accountants of the Company, but excluding (i) underwriter’s discounts relating to securities sold by the Selling Holder; (ii) filings made with the NASD and counsel fees in connection therewith; and (iii) fees and disbursements of counsel for the Selling Holder.

 

                “Registration Rights” shall mean the registration rights set forth in Appendix C.

 

                “Securities Act” shall mean the Securities Act of 1933, as amended.

 

                “Selling Holder” shall have the meaning specified in Appendix C(d)(ii) of the Warrant.

 

                “Stock Acquisition” shall mean an Acquisition Transaction described in clause (ii) of the definition of Acquisition Transaction.

 

                “Warrant” shall have the meaning specified in the initial paragraph of the Warrant.

 

                “Warrant Shares” shall mean One Hundred Fifty Thousand (150,000) shares of Common Stock, as may be adjusted from time to time pursuant to Appendix B.

 

                “Warrant Value” shall mean the value of this Warrant calculated as if the Holder had exercised this Warrant in full at such time by Cashless Exercise pursuant to Section 1(b) hereof, except that Market Price for purposes of determining Warrant Value in the event of a Stock Acquisition shall be equal to the per share consideration paid in the Stock Acquisition.

 

 

 

 

 

 

 

 

 

Appendix A – Definitions
Appendix A – Definitions Page

2

 

 

 

 

APPENDIX B — ANTIDILUTION PROVISIONS

 

                (a)  [THIS PARAGRAPH (a) INTENTIONALLY OMITTED]

 

                (b)  Recapitalizations.  If outstanding shares of the Company’s Common Stock shall be subdivided into a greater number of shares or a dividend in Common Stock shall be paid in respect of Common Stock, the Purchase Price in effect immediately prior to such subdivision or at the record date of such dividend shall simultaneously with the effectiveness of such subdivision or immediately after the record date of such dividend be proportionately reduced.

If outstanding shares of Common Stock shall be combined into a smaller number of shares, the Purchase Price in effect immediately prior to such combination shall, simultaneously with the effectiveness of such combination, be proportionately increased.

 

                (c)  Mergers; Transfer of Assets.  Subject to Section 6 of the Warrant, if there shall occur any capital reorganization or reclassification of the Company’s Common Stock (other than a subdivision or combination as provided for in (b) above), or any consolidation or merger of the Company with or into another corporation, or a transfer of all or substantially all of the assets of the Company, then, as part of any such reorganization, reclassification, consolidation, merger or sale, as the case may be, lawful provision shall be made so that the Holder of this Warrant shall have the right thereafter to receive upon the exercise hereof the kind and amount of shares of stock or other securities or property which such Holder would have been entitled to receive if, immediately prior to any such reorganization, reclassification, consolidation, merger or sale, as the case may be, such Holder had held the number of shares of Common Stock which were then purchasable upon the exercise of this Warrant.  In any such case, appropriate adjustment (as reasonably determined in good faith by the Board) shall be made in the application of the provisions set forth herein with respect to the rights and interests thereafter of the Holder of this Warrant, such that the provisions set forth in this Appendix B shall thereafter be applicable, as nearly as is reasonably practicable, in relation to any shares of stock or other securities or property thereafter deliverable upon the exercise of this Warrant.

 

                (d)  Adjustment in Number of Warrant Shares.  When any adjustment is required to be made in the Purchase Price, the number of Warrant Shares purchasable upon the exercise of this Warrant shall be changed to the number determined by dividing (i) an amount equal to the number of shares issuable upon the exercise of this Warrant immediately prior to such adjustment, multiplied by the Purchase Price in effect immediately prior to such adjustment, by (ii) the Purchase Price in effect immediately after such adjustment.

 

                (e)  Certificate of Adjustment.  When any adjustment is required to be made pursuant to this Appendix B, the Company shall promptly mail to the Holder a certificate setting forth the Purchase Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Such certificate shall also set forth the kind and amount of stock

or other securities or property into which this Warrant shall be exercisable following such adjustment.

 

                (f)  Adjustments for Non-Stock Dividends and Distributions.  In the event that the Company shall issue or pay to holders of Common Stock a dividend or other distribution payable other than in securities of the Company, then and in each such event provision shall he made so that Holder shall receive upon exercise of this Warrant, in addition to the Warrant Shares issued upon exercise, the dividend or other distribution which Holder would have received if it had been the holder of such Warrant Shares at the time of such dividend or other distribution.

 

                (g)  Other Notices.  In case at any time:

 

                                (i)  the Company shall declare any dividend upon the Common Stock payable in shares of stock of any class or make any other distribution (other than dividends or distributions payable in cash out of retained earnings consistent with the Company’s past practices with respect to declaring dividends and making distributions) to the holders of the Common Stock;

 

                                (ii)  the Company shall offer for subscription pro rata to the holders of the Common Stock any additional shares of stock of any class or other rights;

 

 

 

Appendix B – Antidilution Provisions
Appendix B – Antidilution Provisions Page

1

 

 

 

                                (iii)  there shall be any capital reorganization of the Company, or reclassification of the Common Stock, or consolidation or merger of the Company with or into, or sale of all or substantially all of its assets to, another corporation or entity; or

 

                                (iv)  there shall be a voluntary or involuntary dissolution, liquidation or winding-up of the Company;

 

then, in each such case, the Company shall give to the Holder (a) notice of the date on which the books of the Company shall close or a record shall be taken for determining the holders of Common Stock entitled to receive any such dividend, distribution, or subscription rights or for determining the holders of Common Stock entitled to vote in respect of any  such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up and (b) in the case of any such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation or winding-up, notice of the date (or, if not then known, a reasonable estimate thereof by  the Company) when the same shall take place.  Such notice shall also specify the date on which the holders of Common Stock shall be entitled to receive such dividend, distribution, or subscription rights or to exchange their Common Stock for stock or other securities or property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding-up, as the case may be.  Such notice shall be given at least thirty (30) days prior to the record date or the date on which the Company’s books are closed in respect thereto.  Failure to give any such notice or any defect therein shall not affect the validity of the proceedings referred to in clauses (i), (ii), (iii) and (iv) above.

 

                (h)  Certain  Events.  If, at any time during the Exercise Period, any event occurs of the type contemplated by the adjustment  provisions of this Appendix B but not expressly provided for by such provisions, the Company will give notice of such event, and the Board will make an appropriate adjustment in the Purchase Price and the number of shares of Common Stock acquirable upon exercise of this Warrant so that the rights of the Holder shall be neither enhanced nor diminished by such event.

 

 

 

Appendix B – Antidilution Provisions
Appendix B – Antidilution Provisions Page

2

 

 

 

APPENDIX C — REGISTRATION RIGHTS

 

                (a)  Registration.  The Company will file or cause to be filed with the Securities and Exchange Commission on or prior to the date that is thirty (30) days after the date hereof a registration statement on Form S-3 (or Form S-1, if a form S-3 shelf registration is unavailable to the Company) (the “Registration Statement”) to cover re-sales of the Registrable Shares.  The Company shall use its reasonable best efforts to (x) cause such Registration Statement to be declared effective as soon as practicable thereafter, (y) to keep such Registration Statement continuously effective, supplemented and amended to the extent necessary to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities for a period ending one year following the date hereof, and (z) to cause such Registrable Securities to be qualified in such jurisdictions as the Holder may reasonably request.

 

                (b)  Indemnification.

 

                                (i)  Indemnification by the Company.  The Company agrees to indemnify and hold harmless any Holder of Registrable Securities which has included Registrable Securities in the Registration Statement, its officers, directors and agents and each Person, if any, who controls such Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages, liabilities and expenses (including reasonable attorneys fees and costs of investigation) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any registration statement or final prospectus relating to the Registrable Securities or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses arise out of, or are based upon, any such untrue statement or omission based upon information furnished in writing to Company by the Holder of the Registrable Securities, or on such Holder’s behalf, expressly for use therein; provided, that with respect to any untrue statement or omission made in any preliminary prospectus, the indemnity agreement contained in this paragraph shall not apply to the extent that any such loss, claim, damage, liability or expense results from the fact that a current copy of the prospectus was not sent or given to the person asserting any such loss, claim, damage, liability or expense at or prior to the written confirmation of the sale of the Registrable Securities concerned if it is determined that it was the responsibility of the Holder of such Registrable Securities to provide such person with a current copy of the prospectus and such current copy of the prospectus would have cured the defect giving rise to such loss, claim, damage, liability or expense. The Company also agrees to indemnify any underwriters of the Registrable Securities, their officers and directors and each person who controls such underwriters on substantially the same basis as that of the indemnification of the Holder of such Registrable Securities provided in this section (b).

 

                                (ii)  Indemnification by the Holder of Registrable Securities.  The Holder of Registrable Securities, to the extent it is selling Registrable Securities (“Selling Holder”), agrees to indemnify and hold harmless the Company, its directors and officers and each Person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to the Selling Holder, but only with respect to, and to the extent that, information furnished in writing by the Selling Holder or on the Selling Holder’s behalf expressly for use in any registration statement or final prospectus relating to the Registrable Securities (or any amendment or supplement thereto, or any preliminary prospectus) which contained an untrue statement or alleged untrue statement of a material fact or omitted or allegedly omitted to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading.  Notwithstanding anything to the contrary contained herein, the liability of the Holder hereunder shall be limited to the proportion of any such loss, claim, damage, liability or expense that is equal to the proportion that the public offering price of the shares of Registrable Securities sold by the Holder bears to the total public offering price of all securities sold in such offering.  The Selling Holder also agrees to indemnify and hold harmless the underwriters on substantially the same basis of that of the indemnification of the Company provided in the preceding subsection.

 

                (c)  Contribution.  If the indemnification provided for in this Appendix C is unavailable to the Company, the Selling Holder or the underwriters in respect of any losses, claims, damages, liabilities, expenses or judgments referred to herein, then each such indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such

 

 

 

Appendix C – Registration Rights
Appendix C – Registration Rights Page

1

 

 

 

 

indemnified party as a result of such losses, claims, damages, liabilities, expenses and judgments (i) as between the Company and the Selling Holder on the one hand and the underwriters on the other, in such proportion as is appropriate to reflect the relative benefits received by the Company and the Selling Holder on the one hand and the underwriters on the other from the offering of the Registrable Securities, or if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Selling Holder on the one hand and of the underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities, expenses or judgments, as well as any other relevant equitable considerations and (ii) as between the Company on the one hand and each Selling Holder on the other, in such proportion as is appropriate to reflect the relative fault of the Company and of each Selling Holder in connection with such statements or omissions, as well as any other relevant equitable considerations.  The relative benefits received by the Company and the Selling Holder on the one hand and the underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company and the Selling Holder bear to the total underwriting discounts and commissions received by the underwriters, in each case as set forth in the table on the cover page of the prospectus.  The relative fault of the Company on the one hand and of each Selling Holder on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by such party, and the party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

                The Company and the Holder agree that it would not be just and equitable if contribution pursuant to this section were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph.  The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities, expenses or judgments referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim.  Notwithstanding the provisions of this section, no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no Selling Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities of such Selling Holder were offered to the public exceeds the amount of any damages which such Selling Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.

 

                (d)  Registration Expenses and Enforcement.

 

                                (i)  Registrations Rights.  The Company shall bear all Registration Expenses incurred in connection with the Registration Rights.

 

                                (ii)  Expenses of Registrant.  The Company shall pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with any listing of the securities to be registered on a securities exchange, and the fees and expenses of any person, including special experts, retained by the Company.

 

                                (iii)  Enforcement of Registration Rights.  Notwithstanding anything to the contrary contained herein, the Company hereby agrees that each Holder of Registrable Securities shall be entitled to specific performance of the registration rights hereunder, and that the Company shall pay any expenses, including without limitation attorneys’ fees, in connection with the enforcement by any Holder of such specific performance.

 

                (e)  Assignment of Registration Rights.  Any of the rights of the Holders hereunder, including the right to have the Company register Registrable Securities pursuant to this Agreement, may be assigned by each Holder to any transferee of all or any portion of the Warrant or the Registrable Securities if: (i) the Holder agrees in writing

 

 

 

 

Appendix C – Registration Rights
Appendix C – Registration Rights Page

2

 

 

 

with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company after such assignment, (ii) the Company is furnished with written notice of (A) the name and address of such transferee or assignee, and (B) the securities with respect to which such registration rights are being transferred or assigned,  (iii) following such transfer or assignment, the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws, and (iv) such transfer shall have been made in accordance with the applicable requirements of the Warrant. The transferee, by acceptance of the transfer of any registration rights hereunder, acknowledges that it takes such rights subject to the terms and conditions hereof.  Upon any transfer of less than all of its Registrable Securities, the Holder retains registration rights with respect to Registrable Securities held by it.

 

                (f)  Exercise of Registration Rights.  Notwithstanding anything to the contrary contained herein, the Holder agrees not to exercise any of its registration rights set forth in this Appendix C at any time that it is able to sell all of its Registrable Securities under Rule 144 of the Securities Act in a single transaction without exceeding the volume limitations or being subject to the notification requirements thereunder.

 

 

 

 

 

 

 

 

 

 

Appendix C – Registration Rights
Appendix C – Registration Rights Page

3

 

EX-5.01 5 a2076096zex-5_01.htm EXHIBIT 5.01
QuickLinks -- Click here to rapidly navigate through this document


Exhibit 5.01

[Fenwick & West LLP Letterhead]

April 9, 2002

Adaptec, Inc.
691 S. Milpitas Blvd.
Milpitas, CA 95035

Ladies and Gentlemen:

        At your request, we have examined the Registration Statement on Form S-3 (the "Registration Statement") filed by Adaptec, Inc., a Delaware corporation (the "Company"), with the Securities and Exchange Commission (the "Commission") on or about April 12, 2002, in connection with the registration under the Securities Act of 1933, as amended, of the re-offer and resale by International Business Machines Corporation ("IBM") of an aggregate of 150,000 shares of the Company's Common Stock (the "Stock"), all of which shares are issuable upon exercise of an outstanding warrant to purchase shares of the Stock held by IBM (the "Warrant").

        In rendering this opinion, we have examined:

    (1)
    the Company's Certificate of Incorporation, filed with the Delaware Secretary of State on November 19, 1997, certified by the Delaware Secretary of State on March 1, 2002;

    (2)
    the Company's Bylaws, certified by the Company's Assistant Secretary on March 5, 2002;

    (3)
    the Registration Statement, together with the Exhibits filed as a part thereof or incorporated therein by reference, including the Warrant;

    (4)
    the prospectus (the "Prospectus") prepared in connection with the Registration Statement;

    (5)
    the minutes of meetings and actions by written consent of the stockholders and Board of Directors that are contained in the Company's minute books;

    (6)
    a certificate from the Company's transfer agent of even date herewith verifying the number of the Company's issued and outstanding shares of capital stock as of the date hereof and a report from the Company and dated as of the date hereof verifying the number of the Company's issued and outstanding options and warrants, and of any rights to purchase the Company's capital stock; and

    (7)
    a Management Certificate addressed to us and dated of even date herewith executed by the Company containing certain factual and other representations (the "Management Certificate").

        In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity and completeness of all documents submitted to us as originals, the conformity to originals and completeness of all documents submitted to us as copies, the legal capacity of all persons or entities executing the same (except with respect to due authorization, execution and delivery of the Warrant by the Company), the lack of any undisclosed termination, modification, waiver or amendment to any document we have reviewed and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness thereof (except with respect to due authorization, execution and delivery of the Warrant by the Company). We have also assumed that the certificates representing the Stock will be when issued, properly signed by authorized officers of the Company or their agents.

        As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties


made by representatives of the Company to us, including but not limited to those set forth in the Management Certificate. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters; however, we are not aware of any facts that would cause us to believe that the opinion expressed herein is not accurate.

        We are admitted to practice law in the State of California, and we render this opinion only with respect to, and express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing laws of the United States of America, of the State of California and, with respect to the validity of corporate action and the requirements for the issuance of stock, of the Delaware General Corporation Law, the Delaware Constitution and reported judicial decisions relating thereto.

        Based upon the foregoing, it is our opinion that the 150,000 shares of Stock to be sold by IBM, when issued, sold and delivered by the Company in the manner and for the consideration stated in the Warrant, Registration Statement and the Prospectus, will be validly issued, fully paid and nonassessable.

        We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments or supplements thereto. This opinion speaks only as of its date and we assume no obligation to update this opinion should circumstances change after the date hereof. This opinion is intended solely for use in connection with the sale of shares subject to the Registration Statement and is not to be relied upon for any other purpose. We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention whether or not such occurrence would affect or modify the opinions expressed herein.

    Very truly yours,

 
 
/s/ Fenwick & West LLP

 
 
FENWICK & WEST LLP


QuickLinks

 EX-23.02 6 a2076096zex-23_02.htm EXHIBIT 23.02
QuickLinks -- Click here to rapidly navigate through this document


Exhibit 23.02


CONSENT OF INDEPENDENT ACCOUNTANTS

        We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated April 26, 2001 relating to the financial statements and financial statement schedule, which appears in Adaptec, Inc.'s Annual Report on Form 10-K for the year ended March 31, 2001. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

/s/ PricewaterhouseCoopers LLP

San Jose, California
April 8, 2002



QuickLinks

CONSENT OF INDEPENDENT ACCOUNTANTS
 GRAPHIC 8 g808046.jpg G808046.JPG begin 644 g808046.jpg M_]C_X``02D9)1@`!`0$!L`&P``#_VP!#``@&!@<&!0@'!P<)"0@*#!0-#`L+ M#!D2$P\4'1H?'AT:'!P@)"XG("(L(QP<*#0PGJ&>L_74;;C;2=7?E9,R/I* M`H<&&$"1*4/UE'@GS8/DK$YL.L$]WV1>;M>[G)4-ANBX M5DGRV6)O2L1G'$9E$C*4DCJ\E0Z+;S>X6RNRKG38L6;%E!TQ'NC4=T[PX\1S M'93`_`E9_E'J;^?']M0_:1L_C:+TRU=;=?;\Z_[,::W9$S>3NJ)SP`'93\3[ MT=U?:***********************,T9';1111111111103@9KX"3U"@G=!*B M`!S)K"S-BR%E#,EEQ8YI0X%$>BL]%%%%%%%%177>L$Z3L[?L=DRKO-7['M\1 M/$NNG@,CXHR,^8==:6A]"FRN.7R^O"X:GF#>DRU\>BS_`--OL2!PX<^[A4WK M!+FQ8#/33)+,=K.-]YP(3Z34?O>I;#,T]=&8M[MK[JH;P"&I;:E$[AZ@:4VF M_P`Z;'?FTS[#5@!RI8[=O%^U](Q_M-,U/O1W5]HHHHHHHHI>;:;M<++L]=F6 MR:_$DB2TD.L+*58).1D56O\`"1K3Y477^955BMAEYN=\T-(E76=(FR!.<0'' MUE:@D)00,GJXFF;111111111115>=M.O-3ZMY-]M[#VHI2VG)+2%I(1Q!6`1RJW@HHHHHHHHHHKX>H'KK2O%UB MV.SR[I-64QHK1=<(&3@=0\IY4O+@AIZW1K_M`N\UVX6^?O>UL]_'2I6D9+#I'OC@92KKX@U-J*******6&F6QK+:E>M22 M/RD&QK-MMJ3Q2'/^JX/+_10[*9]0K7FLY-B5#LECBB=J2YDIB1S[U">MQ?ZH MP?0>H&EC/BV-J^&+?$7/7VKAQ>BQUJ$:*>M/#@D#_P#0*]W"WPH\13E]V+N1 M(`3E4BWR0MQI/:0C!X>4BMF!-T]*UILQ9TS,7)M\836D]*?RC9W,[JQ@8/'S MT]QRI8[=O%^U](Q_M-,U/O1W5]J$ZGVL:2TH^Y&F7`OS$9WHT1/2+!["?>I/ MD)J!/^$I;$ND1].RW&^I3DA"#Z`#]M8_QEH?R9?_`)Q/]E'XRT/Y,O\`\XG^ MRF_I6_)U1IB!>D1S'3+;Z0-%6\4\2,9P,\J[%1;5&T33&D#T=VN:$2#Q$9H% MQWSI'+O.*7,OPD[.AW$.P3GF_C.O(;/H&]4,VA;9X^M]*N69NRNQ%*>0YTJI M`6/#OXNY/TBYZB*;=<'4FL]/Z2CAV]7)J,5#*&N*G%]R!Q/?R MI9W#PD+$RZ4P+-/E)!QONK0T#Y1[XUI?C+0_DR__`#B?[*/QEH?R9?\`YQ/] ME3_9SM':VA1[@\U;5PA#4A)"W@YO[P)Z@,I;A9EZ?>?5#>+1= M3*"0K'7C=X5ROQEH?R9?_G$_V4?C+0_DR_\`SB?[*[]F\(+25Q<2U/;FVU9P M-]YL+1Z49/I%,^!<(=TA-3($EJ3&=&4.LK"DJ'D(K9JJWA">,I'T>UZRZ6=L MEI@W6)+4DJ2P^ATI',A*@6E1<(&21CJ&0*QZQVEZ;T2.BN4I3DTIWDPXXWW2.HD4M1_=P!7JW>$G/2^/;/3\9QH\S&>4A0\N%9!^JFYH_:1IS6R" MFV2RB6E.\N(^-QU([<R'U=$WYDX*CY\5$SX1^I>ER+3:MSXN',^G>J3Z?\`"-MT MIQ+.H+2Y#SSD15]*@=Z3A0'=FICKVZP;[LQ>N=KE-S8"'H[[JVE;P+:'D*7G MN`.0>-?=I:WI$#3"[:\R'W+W&,=QQ)4WDA6Z2!@D=UN(6_IB&CC+>O3"V0.8"-Y2U=P3G/?4 MRHHHHHHK5N9)/]*AFQN&8NS&UNKXO2RY*=5CWREK/$^8"I M[5?YM^D,_A`UNSE5R1+%CMIZV$@A)*?+R/?WTV="Z0AZ/TW'A,MI,MQ(0`,<=X$CAQ M!/73,I8[=O%^U](Q_M-,U/O1W57[;-M9DMS)&EM/R"T&\MSI39PHJZVTGJ`Z MSSSP[L56-Y]V2\MY M]Q;CJSO+6M14I1[23S-#+#TA>XRTMQ?Q4)*CZ!65ZWS([?2/1'VT`XWEMJ2/ M216M5I/!W\7<==5E2C6NVVMU80VA2UGDE(R3YJV'+9/:;4XY"DH0D9 M*E-*``[\5JU8?P:OS;J+]JQZJZ4VU'QG:A^>*_I43;;6ZXEMM"EK4ZJT>$)XRD?1[7K+I5`%2@E()) MX`#KK=9LUR??;9;@25..*"$IZ)7$DX`Y59#5NI6]C^S6U:>MI0;PXQT;:@." M#S<=(_U$X';W56:3*?FR7),EYQY]U16MQQ14I1/,DGF:SV^TW&ZN]%;H$J6Y M\6.RIP_4*^3[5<+6[T5P@R8CGQ)#2FSZ"*QPYDFWRVI<1]QB0RH+;<;5NJ2H M=8-6WV3[0AKK3RA+*$7:'A$E*>'2`^]<`Z@>.1U$>45.IDQBWPGYDIU+4=AM M3CBUD")4+XH&]P<"5=2Z:@ MD7R*B)_@*\2UAQ+B$3$H8;0M)RE165<,'K`-=*PZW"M1:B?9?NZF^B8:8 MST,-L\2E&>)4>M1Y\N52JBBBBBBM*[QU2[-.C)&5.QW&P!VE)%1+8]+$O9;9 M>&%LH6PM)Y@H6H?=4Z-5VFVJ5_AW:+IR.DFXP+L+NRT`N=0NJG[XM<%*5R`DX+BB?&B);8;$2.D8#;+80/JI+^$I^9[#\X=]5-5T'.KB[,9+`[@,#S5V=GVCG=<:L MCVE+A:8"2])=`R4-IQG'E)(`\IJX%ATS9],P40[1`9BM)&"4)]TORJ5S4?*: M@NWSQ8O?.V?M-50JTG@[^+J3](N>HBD/M*OSNHMH%XF+7O-HD*88&>`;02E. M._&>\FN1INPR=3:B@V:'@/2W0@*/)(YJ4?(`"?-5QM):&L6C;>W&MD-L.A(# MDI:0773VE7/S#@*UMI_BSU%\R75+3SJP_@U?FW47[5CU5TIMJ/C.U#\\5_2L M6S;QE:<^?M>M5U2D$$$9!Y@TG]KVRNV7.PR[]9X;<6YQ$*?=2RC=3(0!E60/ MA8R0>OD?)6&G]X-]_<*[MIYQ9+82)C()]ZLNEWI MW_,MK^>,^N*O9U53K:]>G;UM,O"G%9;B.^Q&DYX)2WP/I5O'SUH[.M'+UOJ^ M-:BM3<9(+TIQ/-+2<9QY22`.^K*:DU=I;9%;+?`1;EMM/E711X2$Y`2!E2LD M9XD#)R2:A-[VXZ%U%;7;?==/7*5&<&"EQMOW)[4G?R#Y15?[@(8N$CVN4\J' MOGH2^`'-SJWL$C/=4VV,7IVS[3;6E+FZS-48CJ<\%!0]S_Y!-.7P@KZY;="L MVYE92Y?'%-S%)K:YLB3?V4WC3,!M-V"P'V&REM,A)^%QP`H=O6,]>*4?X%] MH'R?5_,L_P!]/?8Q9M3:=TS)L^HH"XR67]^*5.H7E"AE21NDXPH9_P!U,K%% M%%%%%%%%++0R_P#"NT#4>CG_`,FS*>-TM@ZE(7[]([B!P_5-,VE_KG3%U1>8 M>LM*H0N]P4=$]%5@)FL=:#^L.K[P*@EK3#E763<-G^HT::O#RO\`CM/W1.ZV M7.L)21VYY`_[>5=N4O:H]&4FZ:CTS8X83AR8V05`=HWN`/HKA6_3UDLFT79] M*LTUVX^V"ICS]Q>42N2H(QO<>0SG']>=/T#M&<=U_+D)'Y-FWK"C_J6@#[*U_"$\92 M/H]KUETN]._YEM?SQGUQ5[.JJ0Z[97'U_J%MSWPN+_UK)J?^#M/8C:[F175! M+LJ"I+6?A*2I*B/0"?-6?:KIG6^L=XBH3 M^"O7/R:G_NC[Z/P5ZY^34_\`='WUV]';,]91-:V.3*L,QB.S.9=<=6D`(2E8 M))X]@J?^$K'<5:M/R0#T3;[S:CY5)21ZIJNHJ\>CKE'N^C;/.BJ!:=B-X`^" M0D`CS$$>:NY6A=[S;;#;U3KK,:B14J"2XZ<#)Y"H[^%30WRE@?O'[J[5BU19 M-2H?59KBS-2P0'"T20DG.,\/(:Z]%%%%%%%%%0S:#I&3?XD2Z69T,:AM*R_` M=Y!1ZVU>16,?_1-;&B-;QM6PG&G6C"O,0[DZWN<%LK'`D`\2DGD?,:E=<.^: M.TYJ0[UWL\26O_W%HPO]X8/UU$[ILET/;+)PM=,W%=6A3CKBPDA!((!4 M14'TW^=-COS:9]AJP`Y4L=NWB_:^D8_VFF'<(#%UM4FWRD;\>2RIEQ/:E0P? MMJDFJM.3-*:DF6>:@A;"R$+Q@.(^"L>0BL%BOUQTW=V+I:Y*F)3)R%#B".M) M'6#UBGO9_"2@*B)%ZL7"B".[)J,[7-<1-=Z4M%P@0)L:,S- M=:"Y02-]6XDG=P3RR,]])PGQ_\8^NJJU;4M&OZ.UG*8#1$"4M3 M\-8'`H)R4]Z2<>CMJ(0YDB!,9EQ'ELR&5A;;B#A25#D0:>^G/".Z*(AG4=I< M=>0,&1"*1O\`E*%8`/<<>05BVA;3+=K_`&_WP[SV M4JDJ4A04DD*!R".JG=I#PA9EMA-0M205STM@)$ME8#I`^,#P4?+D>7-=^^[7 M[3K?2&H+3;+5USKJW74MA#:1CB2%$\R!WFJXGG5A_!J_-NHOVK'JKI3; M4?&=J'YXK^E:^SM:F]H=@6EM3BDS6U!"<940>0SUFGH_X1NG6M]`LUWZ9.1N M+2VGB.H^Z./12EVA;5[OKP)B%I,&UH7O"*VLJ*SU%:OA8ZA@"E_5J=A.C7M. M:3$)XRD?1[7K+I=Z=_P`RVOYXSZXJ M]@Y56';_`*2ULPELZ9A MO2):AA,B4C<;;\N[G*CY.`I<93YZIDZTMEU;3 MJ%(<0HI4E0P4D<"".VF!LXVL7+0>]#6S[.M+B]]4!\G.F M^OPB=(B%TJ8=U4_C_D]"@4?A M*QPZ@.KKJ$#>40!DD]0JX.R'2#FD=#1VI2"B?,5[*DI/-!(&Z@]R0,^7-3VB MBBBBBBBBBH=JS9_$U!,;N\"6]:+^P/R5QB^^('P5IY+3W\?-PKBIU=K32@#. MJ=-.76,@X]L[,-_>3VJ:/$'T"MUG;-HA9")-S>A.XR6Y41U"D]_N&Q%EEQU0)"0>` MY<>9%-8;7M!8_P`R1_X;G]M03:WK_2VI-'M0+1>&94KVCZ5V?:1L ML<)(C+=2M8&.D64I*E>=1)I'`<:N7LF\5FG_`)L?7574U?H^U:TLJ[;=&"V5_&2?Z&V'6MR?+E,291(XA2N2?]HP._-(C%6D\'?Q=R M?I%SU$4RK[8K=J2SOVNZ1TOQ7AA23S!ZB#U$=1JLFMMA^H-.O.2;0VN[6W)( M4TG+S8[%('/O3GN%+%Z.]&=+3[2VG!S2XDI(\QIZ:5T>;%L%U)>93>[,NL)2 MT[PP4,CW@\^2KSBD.1QJPW@U?FW47[5CU5TIMJ/C.U#\\5_2L6S;QE:<^D&O M6J5;==(#3^L_;.,WNPKJ"]P&`EX>_'GR%?[C2\M=BNM[?2Q;+=*EN*.`&6BK MTD,I'S!KU METO-/?YEM?SQGUQ5[!7,O]@MVIK+(M5T8#T9].".12>I23U$'B#54]=[);]H MV2MYIERX6HGW$ME!.Z.Q:1Q2?+R/;U4O\48IAZ#V17[6$EM^0RY;K3G*Y3R, M%8[&TGBH^7D/JJU=CL=OTY9X]JM<=+$1A.$I'$GM)/62>)-=&D[M2V,(U,^[ M>]/EMFZK]T_'6=U$@]H/P5_4>O'.JX76RW.QS%1+I!D1'TG!0\@ISW=H\HK1 MK;MUKGW:4F+;H;\I]1P&V&RM7H%6%V7[$E6>4Q?-4);7,;(7'@@A26E=2EGD M5#J`X#GQZG?11111111111116)V,P_CIF6W,?'2#]M8O:V#^A1_X2?NKTJ#$ M6A"%165)0,)!;!">[APKS[6P?T*/_"3]U'M;!_0X_P#"3]U;5%&*U?:V#[(3 M(]AQ^F206@*QZ:Q>UD#]"C?PD_=6PVVAIL( M;0E"$\`E(P!7JBM5ZVP9+G2/PX[J^>\MI*CZ2*SNLM/HW'FT.(SG=6D$?76# MVL@?H4;^$G[JS,L-1T;C+2&TYSA"0!GS5DHK7D0(X8_*-A7VBLI M9:+/0EM'18W=S=&[CLQ6#VL@?H4;^$G[JRM1F(R5!AEMK>Y[B`G/HJF>U'QG M:A^>*_I6+9MXRM.?2#7K5="1$C3$I3)CM/)2<@.("@#V\:]M,M,-AMIM#:!R M2A(`]`KW16!V%%?7OO1F7%8QE;8)^NO`ML%)!$.."#D$-)^ZMJBC%1ZXZ$TI M=75.SM/6UYU7OG#'2%'SC!K[;=#:6M#J7H&G[ -----END PRIVACY-ENHANCED MESSAGE-----