-----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, H6cDm5Jf+ZmZ8gxidtEhVLo5eKi8DQQshhLufjvpMWkzGDZgMoBg2wD1OIvT7pHu z7AajmXrAGLW1uQT4awiBQ== 0001095811-01-500424.txt : 20010313 0001095811-01-500424.hdr.sgml : 20010313 ACCESSION NUMBER: 0001095811-01-500424 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20010127 FILED AS OF DATE: 20010312 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CISCO SYSTEMS INC CENTRAL INDEX KEY: 0000858877 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER COMMUNICATIONS EQUIPMENT [3576] IRS NUMBER: 770059951 STATE OF INCORPORATION: CA FISCAL YEAR END: 0731 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-18225 FILM NUMBER: 1566578 BUSINESS ADDRESS: STREET 1: 170 WEST TASMAN DR CITY: SAN JOSE STATE: CA ZIP: 95134-1706 BUSINESS PHONE: 4085264000 MAIL ADDRESS: STREET 1: 225 WEST TASMAN DR CITY: SAN JOSE STATE: CA ZIP: 95134-1706 10-Q 1 f70305ore10-q.txt FORM 10-Q QUARTER ENDED JANUARY 27, 2001 1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-Q (MARK ONE) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED JANUARY 27, 2001 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ___________ TO ___________ COMMISSION FILE NUMBER 0-18225 CISCO SYSTEMS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) CALIFORNIA 77-0059951 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
170 WEST TASMAN DRIVE SAN JOSE, CALIFORNIA 95134 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICE AND ZIP CODE) (408) 526-4000 (REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to filing requirements for the past 90 days. YES [X] NO [ ] As of February 23, 2001, 7,276,393,789 shares of the registrant's common stock were outstanding. ================================================================================ 2 CISCO SYSTEMS, INC. FORM 10-Q FOR THE QUARTER ENDED JANUARY 27, 2001 INDEX
Page Part I. Financial Information Item 1. Financial Statements a) Consolidated Statements of Operations for the three and six months ended January 27, 2001 and January 29, 2000 3 b) Consolidated Balance Sheets at January 27, 2001 and July 29, 2000 4 c) Consolidated Statements of Cash Flows for the six months ended January 27, 2001 and January 29, 2000 5 d) Notes to Consolidated Financial Statements 6 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 15 Item 3. Quantitative and Qualitative Disclosures About Market Risk 32 Part II. Other Information Item 2. Changes in Securities and Use of Proceeds 33 Item 6. Exhibits and Reports on Form 8-K 34 Signature 35
2 3 PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS CISCO SYSTEMS, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (IN MILLIONS, EXCEPT PER-SHARE AMOUNTS) (UNAUDITED)
Three Months Ended Six Months Ended -------------------------- -------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- NET SALES $ 6,748 $ 4,357 $ 13,267 $ 8,275 Cost of sales 2,581 1,539 4,959 2,927 ---------- ---------- ---------- ---------- GROSS MARGIN 4,167 2,818 8,308 5,348 Operating expenses: Research and development 1,012 602 1,959 1,143 Sales and marketing 1,434 933 2,796 1,751 General and administrative 196 147 392 259 Amortization of goodwill and purchased intangible assets 256 47 481 71 In-process research and development 237 43 746 424 ---------- ---------- ---------- ---------- Total operating expenses 3,135 1,772 6,374 3,648 ---------- ---------- ---------- ---------- OPERATING INCOME 1,032 1,046 1,934 1,700 Net gains realized on minority investments - 31 190 31 Interest and other income, net 275 120 505 222 ---------- ---------- ---------- ---------- INCOME BEFORE PROVISION FOR INCOME TAXES 1,307 1,197 2,629 1,953 Provision for income taxes 433 381 957 722 ---------- ---------- ---------- ---------- NET INCOME $ 874 $ 816 $ 1,672 $ 1,231 ========== ========== ========== ========== Net income per share--basic $ 0.12 $ 0.12 $ 0.23 $ 0.18 ========== ========== ========== ========== Net income per share--diluted $ 0.12 $ 0.11 $ 0.22 $ 0.17 ========== ========== ========== ========== Shares used in per-share calculation--basic 7,144 6,911 7,121 6,872 ========== ========== ========== ========== Shares used in per-share calculation--diluted 7,556 7,387 7,567 7,338 ========== ========== ========== ==========
See Notes to Consolidated Financial Statements. 3 4 CISCO SYSTEMS, INC. CONSOLIDATED BALANCE SHEETS (IN MILLIONS, EXCEPT PAR VALUE) (UNAUDITED)
January 27, July 29, 2001 2000 ---------- ---------- ASSETS Current assets: Cash and cash equivalents $ 3,994 $ 4,234 Short-term investments 788 1,291 Accounts receivable, net of allowance for doubtful accounts of $89 at January 27, 2001 and $43 at July 29, 2000 3,512 2,299 Inventories, net 2,533 1,232 Deferred tax assets 1,162 1,091 Lease receivables 454 588 Prepaid expenses and other current assets 469 375 ---------- ---------- Total current assets 12,912 11,110 Investments 12,007 13,688 Restricted investments 1,162 1,286 Property and equipment, net 2,211 1,426 Goodwill and purchased intangible assets, net 4,696 4,087 Lease receivables 516 527 Other assets 2,377 746 ---------- ---------- TOTAL ASSETS $ 35,881 $ 32,870 ========== ========== LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Accounts payable $ 942 $ 739 Income taxes payable 287 233 Accrued compensation 1,312 1,317 Deferred revenue 1,994 1,386 Other accrued liabilities 1,800 1,521 ---------- ---------- Total current liabilities 6,335 5,196 Deferred tax liabilities - 1,132 Minority interest 48 45 Shareholders' equity: Preferred stock, no par value: 5 shares authorized; none issued and outstanding - - Common stock and additional paid-in capital, $0.001 par value: 20,000 shares authorized; 7,241 and 7,138 shares issued and outstanding at January 27, 2001 and July 29, 2000, respectively 18,203 14,609 Retained earnings 10,030 8,358 Accumulated other comprehensive income 1,265 3,530 ---------- ---------- Total shareholders' equity 29,498 26,497 ---------- ---------- TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 35,881 $ 32,870 ========== ==========
See Notes to Consolidated Financial Statements. 4 5 CISCO SYSTEMS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (IN MILLIONS) (UNAUDITED)
Six Months Ended --------------------------- January 27, January 29, 2001 2000 ---------- ---------- Cash flows from operating activities: Net income $ 1,672 $ 1,231 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 974 308 Provision for doubtful accounts 52 13 Provision for inventory reserves 338 154 Deferred income taxes (661) (113) Tax benefits from employee stock plans 1,662 697 Adjustment to conform fiscal year ends of pooled acquisitions - (18) In-process research and development 637 424 Net gains on minority investments and provision for losses 43 - Change in operating assets and liabilities: Accounts receivable (1,261) (477) Inventories (1,637) (195) Prepaid expenses and other current assets (93) (43) Accounts payable 193 (33) Income taxes payable 54 91 Accrued compensation (5) 133 Deferred revenue 608 222 Other accrued liabilities 250 303 ---------- ---------- Net cash provided by operating activities 2,826 2,697 ---------- ---------- Cash flows from investing activities: Purchases of short-term investments (1,975) (417) Sales and maturities of short-term investments 2,818 1,227 Purchases of investments (9,866) (5,988) Sales and maturities of investments 7,793 5,800 Purchases of restricted investments (489) (158) Sales and maturities of restricted investments 705 123 Acquisition of property and equipment (1,208) (414) Acquisition of businesses, net of cash and cash equivalents (24) (11) Net change in lease receivables 145 (262) Purchases of minority investments (806) (125) Other (855) (310) ---------- ---------- Net cash used in investing activities (3,762) (535) ---------- ---------- Cash flows from financing activities: Issuance of common stock 698 669 Other (2) 6 ---------- ---------- Net cash provided by financing activities 696 675 ---------- ---------- Net increase (decrease) in cash and cash equivalents (240) 2,837 Cash and cash equivalents, beginning of period 4,234 913 ---------- ---------- Cash and cash equivalents, end of period $ 3,994 $ 3,750 ========== ==========
See Notes to Consolidated Financial Statements. 5 6 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 1. DESCRIPTION OF BUSINESS Cisco Systems, Inc. (together with its subsidiaries, "Cisco" or the "Company") is the worldwide leader in networking for the Internet. Cisco hardware, software, and service offerings are used to create Internet solutions so that individuals, companies, and countries have seamless access to information -- regardless of differences in time and place. Cisco solutions provide competitive advantage to its customers through more efficient and timely exchange of information, which in turn leads to cost savings, process efficiencies, and closer relationships with their customers, prospects, business partners, suppliers, and employees. These solutions form the networking foundation for companies, universities, utilities, and government agencies worldwide. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Fiscal Year The Company's fiscal year is the 52-week or 53-week period ending on the last Saturday in July. Fiscal 2001 and 2000 are 52-week fiscal years. Basis of Presentation The accompanying financial data as of January 27, 2001 and for the three and six months ended January 27, 2001 and January 29, 2000 has been prepared by the Company, without audit, pursuant to the rules and regulations of the Securities and Exchange Commission ("SEC"). Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted pursuant to such rules and regulations. The July 29, 2000 Consolidated Balance Sheet was derived from audited financial statements, but does not include all disclosures required by generally accepted accounting principles. However, the Company believes that the disclosures are adequate to make the information presented not misleading. These Consolidated Financial Statements should be read in conjunction with the Consolidated Financial Statements and the notes thereto included in the Company's Annual Report on Form 10-K for the fiscal year ended July 29, 2000. In the opinion of management, all adjustments (which include only normal recurring adjustments) necessary to present a fair statement of financial position as of January 27, 2001, results of operations for the three and six months ended January 27, 2001 and January 29, 2000, and cash flows for the six months ended January 27, 2001 and January 29, 2000 have been made. The results of operations for the three and six months ended January 27, 2001 are not necessarily indicative of the operating results for the full fiscal year or any future periods. Certain amounts from the previous periods have been reclassified to conform with the current period presentation. 6 7 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) Computation of Net Income per Share Basic net income per share is computed using the weighted-average number of common shares outstanding during the period. Diluted net income per share is computed using the weighted-average number of common and dilutive common-equivalent shares outstanding during the period. Dilutive common-equivalent shares primarily consist of employee stock options. Recent Accounting Pronouncement In December 1999, the SEC issued Staff Accounting Bulletin No. 101 ("SAB 101"), "Revenue Recognition in Financial Statements." SAB 101 summarizes certain of the SEC's views in applying generally accepted accounting principles to revenue recognition in financial statements. At this time, management does not expect the adoption of SAB 101 to have a material effect on the Company's operations or financial position. The Company is required to adopt SAB 101 in the fourth quarter of fiscal 2001. 3. BUSINESS COMBINATIONS Purchase Combinations During the first six months of fiscal 2001, the Company completed a number of purchase acquisitions. The Consolidated Financial Statements include the operating results of each business from the date of acquisition. Pro forma results of operations have not been presented because the effects of these acquisitions were not material on either an individual or an aggregate basis. The amounts allocated to in-process research and development ("in-process R&D") were determined through established valuation techniques in the high-technology communications equipment industry and were expensed upon acquisition because technological feasibility had not been established and no future alternative uses existed. Amounts allocated to goodwill and purchased intangible assets are amortized on a straight-line basis over periods not exceeding five years. 7 8 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) The following is a summary of purchase transactions completed in the first six months of fiscal 2001 (in millions):
In-Process Form of Consideration Acquired Company Consideration R&D Expense and Other Notes to Acquisition - ---------------- ------------- ----------- ------------------------------------------------ IPmobile, Inc. $ 422 $ 181 Cash of $4; common stock and options assumed; goodwill and other intangibles recorded of $157 NuSpeed, Inc. $ 463 $ 164 Cash of $4; common stock and options assumed; goodwill and other intangibles recorded of $214 IPCell Technologies, Inc. $ 213 $ 75 Cash of $16; common stock and options assumed; $5 in liabilities assumed; goodwill and other intangibles recorded of $102 PixStream Incorporated $ 395 $ 67 Common stock and options assumed; $2 in liabilities assumed; goodwill and other intangibles recorded of $315 Other $ 756 $ 259 Cash of $181; common stock and options assumed; $22 in liabilities assumed; goodwill and other intangibles recorded of $308
Other Purchase Combinations Completed as of January 27, 2001 During the six months ended January 27, 2001, the Company acquired Netiverse, Inc.; HyNEX, Ltd.; Komodo Technology, Inc.; Vovida Networks, Inc.; and the broadband subscriber management business of CAIS Software Solutions, Inc. for a total purchase price of $756 million, paid in common stock and cash. Total in-process R&D related to these acquisitions amounted to $259 million. Total in-process R&D expense for the six months ended January 27, 2001 and January 29, 2000 was $746 million and $424 million, respectively. The in-process R&D expense that was attributable to stock consideration for the same periods was $637 million and $424 million, respectively. 8 9 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 4. BALANCE SHEET DETAIL The following tables provide details of selected balance sheet items (in millions):
January 27, July 29, 2001 2000 ---------- ---------- Inventories, net: Raw materials $ 941 $ 145 Work in process 902 472 Finished goods 610 496 Demonstration systems 80 119 ---------- ---------- Total $ 2,533 $ 1,232 ========== ========== Goodwill and purchased intangible assets, net: Goodwill $ 3,645 $ 2,937 Purchased intangible assets 1,950 1,558 ---------- ---------- 5,595 4,495 Less, accumulated amortization (899) (408) ---------- ---------- Total $ 4,696 $ 4,087 ========== ========== Other assets: Minority investments, net $ 765 $ 181 Inventory financing 645 25 Lease deposit 320 - Structured loans, net 186 205 Other 461 335 ---------- ---------- Total $ 2,377 $ 746 ========== ==========
9 10 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) The following table presents the details of the amortization of goodwill and purchased intangible assets (in millions):
Three Months Ended Six Months Ended --------------------------- -------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Reported as: Cost of sales $ 6 $ 6 $ 10 $ 12 Operating expenses 256 47 481 71 ---------- ---------- ---------- ---------- Total $ 262 $ 53 $ 491 $ 83 ========== ========== ========== ==========
5. COMPREHENSIVE INCOME (LOSS) The components of comprehensive income (loss), net of tax, are as follows (in millions):
Three Months Ended Six Months Ended --------------------------- --------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Net income $ 874 $ 816 $ 1,672 $ 1,231 Other comprehensive income (loss): Change in net unrealized gains on investments (1,134) 999 (2,263) 1,519 Change in accumulated translation adjustments 17 (2) (2) 4 ---------- ---------- ---------- ---------- Total $ (243) $ 1,813 $ (593) $ 2,754 ========== ========== ========== ==========
6. INCOME TAXES The Company received net income tax refunds of $118 million for the six months ended January 27, 2001 and paid income taxes of $174 million for the six months ended January 29, 2000. The Company's income taxes currently payable for federal and state purposes have been reduced by the tax benefits of employee stock option transactions. This benefit totaled $1.66 billion and $697 million in the first six months of fiscal 2001 and 2000, respectively, and was credited directly to shareholders' equity. In addition, the Company's valuation allowance against gross deferred tax assets attributable to employee stock option transactions has been increased by $479 million in the first six months of fiscal 2001 and was reflected as a debit to shareholders' equity. 10 11 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 7. SEGMENT INFORMATION AND MAJOR CUSTOMERS The Company's operations involve the design, development, manufacturing, marketing, and technical support of networking products and services. The Company offers end-to-end networking solutions for its customers. Cisco products include routers, LAN and ATM switches, dial-up access servers, and network-management software. These products, integrated by the Cisco IOS(R) software, link geographically dispersed LANs, WANs, and IBM networks. The Company conducts business globally and is managed geographically. The Company's management relies on an internal management system that provides sales and standard cost information by geographic theater. Sales are attributed to a theater based on the ordering location of the customer. The Company's management makes financial decisions and allocates resources based on the information it receives from this internal management system. The Company does not allocate research and development, sales and marketing, or general and administrative expenses to its geographic theaters, as management does not use this information to measure the performance of the operating segments. Management does not believe that allocating these expenses is material in evaluating a geographic theater's performance. Information from this internal management system differs from the amounts reported under generally accepted accounting principles due to certain corporate level adjustments not included in the internal management system. These corporate level adjustments are primarily sales adjustments relating to reserves for leases and structured loans, deferred revenue, two-tier distribution, and other timing differences. Based on established criteria, the Company has four reportable segments: the Americas; Europe, the Middle East, and Africa ("EMEA"); Asia Pacific; and Japan. 11 12 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) Summarized financial information by segment for the three and six months ended January 27, 2001 and January 29, 2000, as taken from the internal management system discussed above, is as follows (in millions):
Three Months Ended Six Months Ended --------------------------- --------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Net sales: Americas $ 4,197 $ 2,879 $ 8,829 $ 5,541 EMEA 1,991 1,082 3,836 2,102 Asia Pacific 731 351 1,400 634 Japan 434 182 918 339 Sales adjustments (605) (137) (1,716) (341) ---------- ---------- ---------- ---------- Total $ 6,748 $ 4,357 $ 13,267 $ 8,275 ========== ========== ========== ========== Gross margin: Americas $ 3,003 $ 2,117 $ 6,376 $ 4,057 EMEA 1,513 801 2,897 1,566 Asia Pacific 504 259 986 467 Japan 334 144 721 269 ---------- ---------- ---------- ---------- Standard margin 5,354 3,321 10,980 6,359 Sales adjustments (605) (137) (1,716) (341) Cost of sales adjustments 63 72 356 125 Production overhead (147) (106) (301) (189) Manufacturing variances and other related costs (498) (332) (1,011) (606) ---------- ---------- ---------- ---------- Total $ 4,167 $ 2,818 $ 8,308 $ 5,348 ========== ========== ========== ==========
The net sales and standard margins by geographic theater differ from the amounts recognized under generally accepted accounting principles because the Company does not allocate certain sales adjustments, cost of sales adjustments, production overhead, and manufacturing variances and other related costs to the theaters. The above table reconciles the net sales and standard margins by geographic theater to net sales and gross margin as reported in the Consolidated Statements of Operations by including such adjustments. 12 13 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) The following table presents net sales for groups of similar products and services (in millions):
Three Months Ended Six Months Ended --------------------------- --------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Routers $ 2,375 $ 1,688 $ 5,193 $ 3,286 Switches 3,283 1,702 6,092 3,278 Access 616 507 1,426 982 Other 1,079 597 2,272 1,070 Sales adjustments (605) (137) (1,716) (341) ---------- ---------- ---------- ---------- Total $ 6,748 $ 4,357 $ 13,267 $ 8,275 ========== ========== ========== ==========
Substantially all of the Company's assets at January 27, 2001 and July 29, 2000 were attributable to U.S. operations. No single customer accounted for 10% or more of net sales during the three and six months ended January 27, 2001 and January 29, 2000. 8. NET INCOME PER SHARE The following table presents the calculation of basic and diluted net income per share (in millions, except per-share amounts):
Three Months Ended Six Months Ended -------------------------- -------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Net income $ 874 $ 816 $ 1,672 $ 1,231 ========== ========== ========== ========== Weighted-average shares--basic 7,144 6,911 7,121 6,872 Effect of dilutive securities 412 476 446 466 ---------- ---------- ---------- ---------- Weighted-average shares--diluted 7,556 7,387 7,567 7,338 ========== ========== ========== ========== Net income per share--basic $ 0.12 $ 0.12 $ 0.23 $ 0.18 ========== ========== ========== ========== Net income per share--diluted $ 0.12 $ 0.11 $ 0.22 $ 0.17 ========== ========== ========== ==========
13 14 CISCO SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED) 9. SUBSEQUENT EVENTS Business Combinations In February 2001, the Company acquired Active Voice Corporation; Radiata, Inc.; and ExiO Communications, Inc. for a total purchase price of approximately $746 million, payable in common stock and cash. These acquisitions will be accounted for using the purchase method. Investment in KPMG Consulting, Inc. In January 2000, the Company purchased five million shares of Series A Mandatorily Redeemable Convertible Preferred Stock ("Preferred Stock") in KPMG Consulting, Inc. totaling $1.05 billion. In February 2001, 1.4 million shares of Preferred Stock were repurchased by KPMG LLP for $378 million and 2.5 million shares of Preferred Stock were repurchased by KPMG Consulting, Inc. for $525 million. The remaining portion of the Preferred Stock was converted to 9.9% of the outstanding common stock of KPMG Consulting, Inc. upon the completion of its initial public offering. Minority Interest In February 2001, the Company purchased a portion of the minority interest of Cisco Systems, K.K. (Japan) for approximately $275 million. As a result, the Company has increased its ownership to 84.2% of the voting rights. Workforce Reduction In March 2001, the Company announced measures to reduce its workforce. As a result of this workforce reduction, the Company expects to incur a one-time charge of $300 to $400 million by the end of the fourth quarter of fiscal 2001. 14 15 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS Certain statements contained in this Quarterly Report on Form 10-Q, including, without limitation, statements containing the words "believes," "anticipates," "estimates," "expects," "projections," and words of similar import, constitute "forward-looking statements." You should not place undue reliance on these forward-looking statements. Our actual results could differ materially from those anticipated in these forward-looking statements for many reasons, including the risks faced by us described below and elsewhere in this Quarterly Report, and in other documents we file with the Securities and Exchange Commission. Net sales in the second quarter of fiscal 2001 were $6.75 billion, compared with $4.36 billion in the second quarter of fiscal 2000, an increase of 54.9%. Net sales in the first six months of fiscal 2001 were $13.27 billion, compared with $8.27 billion in the first six months of fiscal 2000, an increase of 60.3%. The increases in net sales were primarily a result of increased unit sales of switch, router, and access products; growth in the sales of add-on boards that provide increased functionality; increased sales of optical transport products; and increased maintenance, service, and support sales (see Note 7 to the Consolidated Financial Statements). Net sales in the second quarter of fiscal 2001 were $6.75 billion, compared with $6.52 billion in the first quarter of fiscal 2001, an increase of 3.5%. We manage our business on four geographic theaters: the Americas; Europe, the Middle East, and Africa ("EMEA"); Asia Pacific; and Japan. Summarized financial information by theater for the first three and six months of fiscal 2001 and 2000 is summarized in the following table (in millions):
Three Months Ended Six Months Ended --------------------------- --------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Net sales: Americas $ 4,197 $ 2,879 $ 8,829 $ 5,541 EMEA 1,991 1,082 3,836 2,102 Asia Pacific 731 351 1,400 634 Japan 434 182 918 339 Sales adjustments (605) (137) (1,716) (341) ---------- ---------- ---------- ---------- Total $ 6,748 $ 4,357 $ 13,267 $ 8,275 ========== ========== ========== ==========
Gross margin in the second quarter of fiscal 2001 was 61.8%, compared with 64.7% in the second quarter of fiscal 2000. Gross margin in the first six months of fiscal 2001 was 62.6%, compared with 64.6% in the first six months of fiscal 2000. 15 16 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following table shows the standard margins for each theater:
Three Months Ended Six Months Ended --------------------------- --------------------------- January 27, January 29, January 27, January 29, 2001 2000 2001 2000 ---------- ---------- ---------- ---------- Standard margin: Americas 71.6% 73.5% 72.2% 73.2% EMEA 76.0% 74.0% 75.5% 74.5% Asia Pacific 68.9% 73.8% 70.4% 73.7% Japan 77.0% 79.1% 78.5% 79.4%
The net sales and standard margins by geographic theater differ from the amounts recognized under generally accepted accounting principles because we do not allocate certain sales adjustments, cost of sales adjustments, production overhead, and manufacturing variances and other related costs to the theaters. Sales adjustments relate to reserves for leases and structured loans, deferred revenue, two-tier distribution, and other timing differences. Standard margins decreased for three geographic theaters as compared with the second quarter and first six months of fiscal 2000. The decreases in the overall gross margin were primarily due to shifts in product mix; introduction of new products, which generally have lower margins when first released; higher production-related costs and inventory reserves; the continued pricing pressure seen from competitors in certain product areas; and the above-mentioned sales adjustments, which were not included in the standard margins. We expect gross margin may be adversely affected by increases in material or labor costs, heightened price competition, increasing levels of services, higher inventory balances, inventory financing, introduction of new products for new high-growth markets, and changes in channels of distribution or in the mix of products sold, in particular, optical and access products. We believe gross margin may be additionally impacted due to constraints relating to certain component shortages that exist or have existed in the supply chain. We recently introduced several new products, with additional new products scheduled to be released in the future. Increase in demand would result in increased manufacturing capacity, which in turn could result in higher inventory balances. In addition, certain portions of our vendor base are or have been capacity-constrained and this has resulted in increased cost pressure on certain components and increased levels of inventories due to longer term purchase commitments, which we have entered into to maintain or reduce lead times. We also provide inventory financing to certain of our suppliers. Inventory purchases and commitments are based upon future sales forecast. Due to the current slow down in the economy, our current inventory levels are higher than our current sales forecasts which could result in obsolescence charges or loss of cost savings on future inventory purchases, and thus gross margin may be adversely affected. If product or related warranty costs associated with our products are greater than we 16 17 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS have experienced, gross margin may be adversely affected. Our gross margin may also be impacted by geographic mix, as well as the mix of configurations within each product group. We continue to expand into third-party or indirect-distribution channels, which generally results in a lower gross margin. These distribution channels are generally given privileges to return inventory. In addition, increasing third-party and indirect-distribution channels generally results in greater difficulty in forecasting the mix of our product, and to a certain degree, the timing of orders from our customers. Downward pressures on our gross margin may be further impacted by other factors, such as increased percentage of net sales from lower margin businesses (for example, service provider markets), which could adversely affect our future operating results. Research and development ("R&D") expenses in the second quarter of fiscal 2001 were $1.01 billion, compared with $602 million in the second quarter of fiscal 2000, an increase of 68.1%. R&D expenses, as a percentage of net sales, increased to 15.0% in the second quarter of fiscal 2001, compared with 13.8% in the second quarter of fiscal 2000. R&D expenses in the first six months of fiscal 2001 were $1.96 billion, compared with $1.14 billion in the first six months of fiscal 2000, an increase of 71.4%. R&D expenses, as a percentage of net sales, increased to 14.8% in the first six months of fiscal 2001, compared with 13.8% in the first six months of fiscal 2000. The increases reflected our ongoing R&D efforts in a wide variety of areas such as data, voice, and video integration, digital subscriber line ("DSL") technologies, cable modem technology, wireless access, dial access, enterprise switching, optical transport, content networking, security, network management, and high-end routing and switching technologies, among others. A significant portion of the increase was due to the addition of new personnel, partly through acquisitions, as well as higher expenditures on prototypes and depreciation on additional lab equipment. We also continued to purchase technology in order to bring a broad range of products to the market in a timely fashion. If we believe that we are unable to enter a particular market in a timely manner with internally developed products, we may license technology from other businesses or acquire businesses as an alternative to internal R&D. All of our R&D costs are expensed as incurred. We expect that R&D expenses will continue to increase in absolute dollars as we continue to invest in technology to address potential market opportunities in future periods. Sales and marketing expenses in the second quarter of fiscal 2001 were $1.43 billion, compared with $933 million in the second quarter of fiscal 2000, an increase of 53.7%. Sales and marketing expenses, as a percentage of net sales, remained relatively constant at 21.3% in the second quarter of fiscal 2001, compared with 21.4% in the second quarter of fiscal 2000. Sales and marketing expenses in the first six months of fiscal 2001 were $2.80 billion, compared with $1.75 billion in the first six months of fiscal 2000, an increase of 59.7%. Sales and marketing expenses, as a percentage of net sales, remained relatively constant at 21.1% in the first six months of fiscal 2001, compared with 21.2% in the first six months of fiscal 2000. The increases in sales and marketing expense in absolute dollars were principally due to an increase in the size of our direct sales force and related commissions, additional marketing and advertising investments associated with existing and new product introductions, the expansion of distribution channels and markets, and general corporate branding. The increases also reflected our efforts to invest in certain key areas, such as expansion of our end-to-end networking strategy and service provider coverage, in order to be positioned to take advantage of future market opportunities. 17 18 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS We expect that sales and marketing expenses will continue to increase in absolute dollars in future periods. General and administrative ("G&A") expenses in the second quarter of fiscal 2001 were $196 million, compared with $147 million in the second quarter of fiscal 2000, an increase of 33.3%. G&A expenses, as a percentage of net sales, decreased to 2.9% in the second quarter of fiscal 2001, compared with 3.4% in the second quarter of fiscal 2000. G&A expenses in the first six months of fiscal 2001 were $392 million, compared with $259 million in the first six months of fiscal 2000, an increase of 51.4%. G&A expenses, as a percentage of net sales, decreased to 3.0% in the first six months of fiscal 2001, compared with 3.1% in the first six months of fiscal 2000. The increases in G&A expenses in absolute dollars were primarily related to the addition of new personnel and investments in infrastructure. We intend to keep G&A expenses relatively constant as a percentage of net sales; however, this depends on the level of acquisition activity and our growth, among other factors. Amortization of goodwill and purchased intangible assets included in operating expenses was $256 million in the second quarter of fiscal 2001, compared with $47 million in the second quarter of fiscal 2000. Amortization of goodwill and purchased intangible assets included in operating expenses was $481 million in the first six months of fiscal 2001, compared with $71 million in the first six months of fiscal 2000. Amortization of goodwill and purchased intangible assets primarily relates to various purchase acquisitions (see Note 3 and Note 4 to the Consolidated Financial Statements). We expect amortization of goodwill and purchased intangibles assets to continue to increase as we acquire companies and technologies. The amount expensed to in-process research and development ("in-process R&D") arose from the purchase acquisitions (see Note 3 to the Consolidated Financial Statements). The fair values of the existing products and patents, as well as the technology currently under development, were determined using the income approach, which discounts expected future cash flows to present value. The discount rates used in the present value calculations were typically derived from a weighted-average cost of capital analysis and venture capital surveys, adjusted upward to reflect additional risks inherent in the development life cycle. These risk factors have increased the overall discount rate for acquisitions in the current year. We consider the pricing model for products related to these acquisitions to be standard within the high-technology communications equipment industry. However, we do not expect to achieve a material amount of expense reductions or synergies as a result of integrating the acquired in-process technology. Therefore, the valuation assumptions do not include significant anticipated cost savings. The development of these technologies remains a significant risk due to the remaining effort to achieve technical viability, rapidly changing customer markets, uncertain standards for new products, and significant competitive threats from numerous companies. The nature of the efforts to develop the acquired technologies into commercially viable products consists principally of planning, designing, and testing activities necessary to determine that the products can meet market expectations, including functionality and technical requirements. Failure to bring these products to market in a timely manner could result in a loss of market share or a lost 18 19 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS opportunity to capitalize on emerging markets and could have a material adverse impact on our business and operating results. The following table summarizes the significant assumptions underlying the valuations for our significant purchase acquisitions completed in fiscal 2001 and 2000 (in millions, except percentages):
Estimated Cost to Risk-Adjusted Complete Technology at Discount Rate for Acquired Company Time of Acquisition In-Process R&D - ---------------- ---------------------- ----------------- FISCAL 2001 - ----------- IPmobile, Inc. $ 15 42.5 % NuSpeed, Inc. $ 6 40.0 % IPCell Technologies, Inc. $ 10 30.0 % PixStream Incorporated $ 2 35.0 % FISCAL 2000 - ----------- Monterey Networks, Inc. $ 4 30.0 % The optical systems business of Pirelli S.p.A. $ 5 20.0 % Aironet Wireless Communications, Inc. $ 3 23.5 % Atlantech Technologies $ 6 37.5 % JetCell, Inc. $ 7 30.5 % PentaCom, Ltd. $ 13 30.0 % Qeyton Systems $ 6 35.0 %
Regarding our purchase acquisitions completed in fiscal 2001 and 2000, actual results to date have been consistent, in all material respects, with our assumptions at the time of the acquisitions. The assumptions primarily consist of an expected completion date for the in-process projects, estimated costs to complete the projects, and revenue and expense projections once the products have entered the market. Failure to achieve the expected levels of revenue and net income from these products will negatively impact the return on investment expected at the time that the acquisitions were completed and potentially result in impairment of any other assets related to the development activities. There were no net gains realized on minority investments in the second quarter of fiscal 2001, compared with $31 million in the second quarter of fiscal 2000. Net gains realized on minority investments were $190 million in the first six months of fiscal 2001, compared with $31 million in the first six months of fiscal 2000. Interest and other income, net, was $275 million in the second quarter of fiscal 2001, compared with $120 million in the second quarter of fiscal 2000. Interest and other income, net, was $505 million in the first six months of fiscal 2001, compared with $222 million in the first six months of fiscal 2000. The increases were primarily due to interest income related to the general increase in cash and investments generated from our operations. The effective tax rate was 33.1% for the second quarter of fiscal 2001 and 36.4% for the first six months of fiscal 2001, which included the impact of nondeductible in-process R&D and 19 20 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS acquisition-related costs. Our future effective tax rates could be adversely affected if earnings are lower than anticipated in countries where we have lower effective rates or by unfavorable changes in tax laws and regulations. Liquidity and Capital Resources Cash and cash equivalents, short-term investments, and investments were $17.95 billion at January 27, 2001, a decrease of $2.55 billion from July 29, 2000. The decrease was primarily a result of a net unrealized loss on publicly held investments of $3.51 billion ($2.26 billion, net of tax). Cash used in investing activities of $3.76 billion, which includes $1.21 billion in capital expenditures and $806 million in purchases of minority investments, was essentially offset by cash provided by operating activities of $2.83 billion and financing activities of $696 million. Accounts receivable increased 52.8% from July 29, 2000 to January 27, 2001. Days sales outstanding in receivables increased to 47 days at January 27, 2001 from 37 days at July 29, 2000. The increase in accounts receivable and days sales outstanding was due, in part, to growth in net sales and non-linear shipments combined with conditions in a number of markets resulting in longer payment terms. Inventories increased 105.6% from July 29, 2000 to January 27, 2001. Inventory turns decreased to 4.6 times at January 27, 2001 from 7.8 times at July 29, 2000. The increase in inventory levels reflected new product introductions and increased purchases to secure the supply of certain components with long lead times, combined with the decrease in demand of products due to certain unfavorable economic conditions. Inventory management remains an area of focus as we balance the need to maintain strategic inventory levels to ensure competitive lead times versus the risk of inventory obsolescence because of rapidly changing technology and customer requirements. At January 27, 2001, we had a line of credit totaling $500 million, which expires in July 2002. There have been no borrowings under this agreement. We have entered into certain lease agreements in San Jose, California, where our headquarters operations are established, and in Boxborough, Massachusetts; Littleton, Massachusetts; Salem, New Hampshire; Richardson, Texas; and Research Triangle Park, North Carolina, where we have expanded certain R&D and customer-support activities. In connection with these transactions, we pledged $1.16 billion of our investments as collateral for certain obligations of the leases. We anticipate that we will occupy more leased property in the future that will require similar pledged securities; however, we do not expect the impact of this activity to be material to our liquidity position. We believe that our current cash and cash equivalents, short-term investments, line of credit, and cash generated from operations will satisfy our expected working capital, capital expenditure, and investment requirements at least through the next 12 months. 20 21 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS Set forth below and elsewhere in this Quarterly Report and in the other documents we file with the SEC are risks and uncertainties that could cause actual results to differ materially from the results contemplated by the forward-looking statements contained in this Quarterly Report. YOU SHOULD EXPECT THAT OUR OPERATING RESULTS MAY FLUCTUATE IN FUTURE PERIODS The results of operations for any quarter are not necessarily indicative of results to be expected in future periods. Our operating results have in the past been, and will continue to be, subject to quarterly fluctuations as a result of a number of factors. These factors include: - - The integration of people, operations, and products from acquired businesses and technologies; - - Increased competition in the networking industry; - - The overall trend toward industry consolidation; - - The introduction and market acceptance of new technologies and standards, including switch routers, Gigabit Ethernet switching, Tag Switching (currently also known as multiprotocol label switching ["MPLS"]), optical transport, Packet over SONET, VSR optics, Dynamic Packet Transport, wireless, content networking, and data, voice, and video capabilities; - - Variations in sales channels, product costs, or mix of products sold; - - The timing of orders and manufacturing lead times; - - The trend towards sales of integrated network solutions; - - The timing and amount of employer payroll tax to be paid on employees' gains on stock options exercised; - - Overall information technology spending, especially service provider capital spending in the data or IP segment; and - - Changes in general economic conditions and specific economic conditions in the computer and networking industries. Any of the above factors could have a material adverse impact on our operations and financial results. For example, from time to time, we have made acquisitions that result in in-process research and development expenses being charged in an individual quarter. These charges may occur in any particular quarter resulting in variability in our quarterly earnings. Additionally, as a further example, the dollar amounts of large orders for our products have been increasing and therefore the operating results for a quarter could be materially adversely affected if a number of large orders are either not received or are delayed, for example, due to cancellations, delays, or deferrals by customers. 21 22 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS WE HAVE AND WILL CONTINUE TO INVEST IN NEW AND EXISTING MARKET OPPORTUNITIES We have made significant investments in headcount, inventory, manufacturing capacity, and product development through internal efforts and acquisitions, as a result of growth in existing opportunities and new or emerging opportunities in our target markets over the past year. We will continue to invest in these markets either through additional investments or through re-alignment of existing resources. With increased levels of spending, an inability to meet expected revenue levels in a particular quarter could have a material, negative impact on our operating results for that period as we will not be able to react quickly enough to scale back expenses. SINCE OUR GROWTH RATE MAY SLOW, OPERATING RESULTS FOR A PARTICULAR QUARTER ARE DIFFICULT TO PREDICT We expect that in the future, our net sales may grow at a slower rate than experienced in previous periods and that on a quarter-to-quarter basis, our growth in net sales may be significantly lower than our historical quarterly growth rate. As a consequence, operating results for a particular quarter are extremely difficult to predict. Our ability to meet financial expectations could be hampered if the non-linear sales pattern seen in our second quarter of fiscal 2001 recurs in future periods. We generally have had at least one quarter of the fiscal year when backlog has been reduced. Although such reductions have not occurred consistently in recent years, they are difficult to predict and may occur in the future. In addition, in response to customer demand, we continue to attempt to reduce our product manufacturing lead times, which may result in corresponding reductions in order backlog. A decline in backlog levels could result in more variability and less predictability in our quarter-to-quarter net sales and operating results going forward. On the other hand, for certain products, lead times are longer than our goal. If we cannot reduce manufacturing lead times for such products, our customers may place the same orders within our various sales channels, cancel orders, or not place further orders if shorter lead times are available from other manufacturers. WE EXPECT GROSS MARGIN TO DECLINE OVER TIME We expect gross margin may be adversely affected by increases in material or labor costs, heightened price competition, increasing levels of services, higher inventory balances, inventory financing, introduction of new products for new high-growth markets, and changes in channels of distribution or in the mix of products sold, in particular, optical and access products. We believe gross margin may be additionally impacted due to constraints relating to certain component shortages that exist or have existed in the supply chain. We recently introduced several new products, with additional new products scheduled to be released in the future. Increase in demand would result in increased manufacturing capacity, 22 23 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS which in turn could result in higher inventory balances. In addition, certain portions of our vendor base are or have been capacity-constrained and this has resulted in increased cost pressure on certain components and increased levels of inventories due to longer term purchase commitments, which we have entered into to maintain or reduce lead times. We also provide inventory financing to certain of our suppliers. Inventory purchases and commitments are based upon future sales forecast. Due to the current slow down in the economy, our current inventory levels are higher than our current sales forecasts, which could result in obsolescence charges or loss of cost savings on future inventory purchases and thus gross margin may be adversely affected. If product or related warranty costs associated with our products are greater than we have experienced, gross margin may be adversely affected. Our gross margin may also be impacted by geographic mix, as well as the mix of configurations within each product group. We continue to expand into third-party or indirect-distribution channels, which generally results in a lower gross margin. These distribution channels are generally given privileges to return inventory. In addition, increasing third-party and indirect-distribution channels generally results in greater difficulty in forecasting the mix of our product, and to a certain degree, the timing of orders from our customers. Downward pressures on our gross margin may be further impacted by other factors, such as increased percentage of net sales from lower margin businesses (for example, service provider markets), which could adversely affect our future operating results. We also expect that our operating margin may decrease as we have continued to hire additional personnel and experienced increases in overall operating expenses to support our business. We plan our operating expense levels based primarily on forecasted revenue levels. Because these expenses are relatively fixed in the short-term, a shortfall in revenue could lead to operating results being below expectations. WE ARE DEPENDENT UPON ADEQUATE COMPONENT SUPPLY AND MANUFACTURING CAPACITY Our growth and ability to meet customer demands also depend in part on our ability to obtain timely deliveries of parts from our suppliers. We have experienced component shortages in the past that have adversely affected our operations. Although we work closely with our suppliers to avoid these types of shortages, there can be no assurance that we will not encounter these problems in the future. Although we generally use standard parts and components for our products, certain components are presently available only from a single source or limited sources. 23 24 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS While our suppliers have performed effectively and been relatively flexible to date, we believe that we will be faced with the following challenges going forward: - - New markets that we participate in may grow quickly and thus, consume significant component capacity; - - As we continue to acquire companies and new technologies, we are dependent, at least initially, on unfamiliar supply chains or relatively small supply partners; and - - We face competition for certain components, which are supply constrained, from existing competitors and companies in other markets. Manufacturing capacity and component supply constraints could be significant issues for us. To mitigate the component supply constraints that exist or have existed, we have built inventory levels for certain components with long lead times, entered into certain longer term commitments for certain other components and provided inventory financing. A reduction or interruption in supply, a significant increase in the price of one or more components, or a decrease in demand of products would adversely affect our business, operating results and financial condition, perhaps materially, and could materially damage customer relationships. WE ARE EXPOSED TO GENERAL ECONOMIC CONDITIONS As a result of recent unfavorable economic conditions and reduced capital spending, sales in the United States have declined as a percentage of our total revenue. In particular, sales to service providers, e-commerce and Internet businesses, and the manufacturing industry in the United States were impacted during the second quarter of fiscal 2001. If the economic conditions in the United States worsen or if a wider or global economic slowdown occurs, we may experience a material adverse impact on our business, operating results, and financial condition. WE COMPETE IN THE HIGHLY COMPETITIVE TELECOMMUNICATIONS EQUIPMENT MARKET We compete in the Internet infrastructure market, providing solutions for transporting data, voice, and video traffic across intranets, extranets, and the Internet. The market is characterized by rapid growth, converging technologies, and a conversion to New World solutions that offer superior advantages. These market factors represent both an opportunity and a competitive threat to us. We compete with numerous vendors in each product category. We expect that the overall number of competitors providing niche product solutions will increase due to the market's long-term attractive growth. On the other hand, we expect the number of vendors supplying end-to-end networking solutions will decrease, due to the rapid pace of acquisitions in the industry. We believe our primary competition comes from nimble start-ups and young companies offering innovative niche solutions. 24 25 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS Our competitors include Alcatel, Ciena, Ericsson, Extreme, Foundry, Juniper, Lucent, Nortel, Redback, Siemens AG, and Sycamore. Some of our competitors compete across many of our product lines, while others do not offer as wide a breadth of solutions. Several of our current and potential competitors have greater financial, marketing, and technical resources than we do. The principal competitive factors in the markets in which we presently compete and may compete in the future are: - - Price; - - Ability to provide financing; - - Performance; - - The ability to provide end-to-end networking solutions and support; - - Conformance to standards; - - The ability to provide value-added features such as security, reliability, and investment protection; and - - Market presence. We also face competition from customers we license technology to and suppliers from whom we transfer technology. Networking's inherent nature requires inter-operability. As such, we must cooperate and at the same time compete with these companies. Our inability to effectively manage these complicated relationships with customers and suppliers, or the uncontrollable and unpredictable acts of others, could have a material adverse effect on our business, operating results, and financial condition. WE EXPECT TO MAKE FUTURE ACQUISITIONS WHERE ADVISABLE AND ACQUISITIONS INVOLVE NUMEROUS RISKS The networking business is highly competitive, and as such, our growth is dependent upon market growth, our ability to enhance our existing products, and our ability to introduce new products on a timely basis. One of the ways we have addressed and will continue to address the need to develop new products is through acquisitions of other companies. Acquisitions involve numerous risks, including the following: - - Difficulties in integrating the operations, technologies, and products of the acquired companies; - - The risk of diverting management's attention from normal daily operations of the business; - - Potential difficulties in completing projects associated with in-process research and development; - - Risks of entering markets in which we have no or limited direct prior experience and where competitors in such markets have stronger market positions; 25 26 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS - - Initial dependence on unfamiliar supply chains or relatively small supply partners; - - Insufficient revenues to offset increased expenses associated with acquisitions; and - - The potential loss of key employees of the acquired companies. Mergers and acquisitions of high-technology companies are inherently risky, and no assurance can be given that our previous or future acquisitions will be successful and will not materially adversely affect our business, operating results, or financial condition. We must also manage any growth effectively. Failure to manage growth effectively and successfully integrate acquisitions we made could harm our business and operating results in a material way. WE ARE EXPOSED TO FLUCTUATIONS IN THE EXCHANGE RATES OF FOREIGN CURRENCY As a global concern, we face exposure to adverse movements in foreign currency exchange rates. These exposures may change over time as business practices evolve and could have a material adverse impact on our financial results. Historically, our primary exposures have related to nondollar-denominated sales in Japan, Canada, and Australia and nondollar-denominated operating expenses in Europe, Latin America, and Asia where we sell primarily in U.S. dollars. Additionally, we have continued to see our exposures to emerging market currencies, such as the Korean won, increase because of our expanding presence in these markets and their extreme currency volatility. We will continue to monitor our exposure and may hedge against these or any other emerging market currencies as necessary. The increasing use of the euro as a common currency for members of the European Union could impact our foreign exchange exposure. We are currently hedging against fluctuations with the euro and will continue to evaluate the impact of the euro on our future foreign exchange exposure as well as on our internal systems. At the present time, we hedge only those currency exposures associated with certain assets and liabilities denominated in nonfunctional currencies and periodically will hedge anticipated foreign currency cash flows. The hedging activity undertaken by us is intended to offset the impact of currency fluctuations on certain nonfunctional currency assets and liabilities. WE ARE EXPOSED TO THE CREDIT RISK OF SOME OF OUR CUSTOMERS AND TO CREDIT EXPOSURES IN WEAKENED MARKETS A portion of our sales is derived through our partners in two-tier distribution channels. These partners/customers are generally given privileges to return inventory, receive credits for changes in selling prices, and participate in cooperative marketing programs. We maintain appropriate accruals and allowances for such exposures. However, such partners tend to have access to more limited financial resources than other resellers and end-user customers and therefore represent potential sources of increased credit risk. We are experiencing increased demands for customer financing, including loan financing and leasing solutions. We expect demands for customer 26 27 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS financing to continue. We believe customer financing is a competitive factor in obtaining business, particularly in supplying customers involved in significant infrastructure projects. Our loan financing arrangements may include not only financing the acquisition of our products but also providing additional funds for soft costs associated with network installation and integration of our products and for working capital purposes. Due to the current slow down in the economy, the credit risks relating to these partners/customers have increased. Although we have programs in place to monitor and mitigate the associated risk, there can be no assurance that such programs will be effective in reducing our credit risks. We also continue to monitor increased credit exposures from weakened financial conditions in certain geographic regions, and the impact that such conditions may have on the worldwide economy. We have experienced losses due to customers failing to meet their obligations. Although these losses have not been significant, future losses, if incurred, could harm our business and have a material adverse effect on our operating results and financial condition. WE ARE EXPOSED TO FLUCTUATIONS IN THE MARKET VALUES OF OUR PORTFOLIO INVESTMENTS AND IN INTEREST RATES For additional information regarding the sensitivity of and risks associated with the market value of portfolio investments and interest rates, see Item 3 "Quantitative and Qualitative Disclosures About Market Risk" contained in this Quarterly Report. WE CANNOT PREDICT THE IMPACT OF RECENT ACTIONS AND COMMENTS BY THE SEC AND FASB Recent actions and comments from the SEC have indicated they are reviewing the current valuation methodology of in-process research and development related to business combinations. We believe we are in compliance with all of the existing rules and related guidance as applicable to our business operations. However, the SEC may change these rules or issue new guidance applicable to our business in the future. There can be no assurance that the SEC will not seek to reduce the amount of in-process research and development previously expensed by us. This would result in the restatement of our previously filed financial statements and could have a material adverse effect on our operating results and financial condition for periods subsequent to the acquisitions. Additionally, FASB has announced that it plans to rescind the pooling of interests method of acquisition accounting. If this occurs, it could alter our acquisition strategy and impair our ability to acquire companies. OUR BUSINESS DEPENDS UPON OUR PROPRIETARY RIGHTS, AND THERE IS A RISK OF INFRINGEMENT Our success is dependent upon our proprietary technology. We generally rely upon patents, copyrights, trademarks, and trade secret laws to establish and maintain our proprietary rights in our technology and products. We have a program to file applications for and obtain patents in the United States and in selected foreign countries where a potential market for our products 27 28 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS exists. We have been issued a number of patents; other patent applications are currently pending. There can be no assurance that any of these patents will not be challenged, invalidated, or circumvented, or that any rights granted thereunder will provide competitive advantages to us. In addition, there can be no assurance that patents will be issued from pending applications, or that claims allowed on any future patents will be sufficiently broad to protect our technology. Furthermore, the laws of some foreign countries may not permit the protection of our proprietary rights to the same extent as do the laws of the United States. Although we believe the protection afforded by its patents, patent applications, copyrights, and trademarks has value, the rapidly changing technology in the networking industry makes our future success dependent primarily on the innovative skills, technological expertise, and management abilities of our employees rather than on patent, copyright, and trademark protection. Many of our products are designed to include software or other intellectual property licensed from third-parties. While it may be necessary in the future to seek or renew licenses relating to various aspects of our products, we believe that based upon past experience and standard industry practice, such licenses generally could be obtained on commercially reasonable terms. Because of the existence of a large number of patents in the networking field and the rapid rate of issuance of new patents, it is not economically practical to determine in advance whether a product or any of its components infringe patent rights of others. From time to time, we receive notices from or are sued by third-parties regarding patent claims. If infringement is alleged, we believe that, based upon industry practice, any necessary license or rights under such patents may be obtained on terms that would not have a material adverse effect on our business, operating results, or financial condition. Nevertheless, there can be no assurance that the necessary licenses would be available on acceptable terms, if at all, or that we would prevail in any such challenge. The inability to obtain certain licenses or other rights or to obtain such licenses or rights on favorable terms, or the need to engage in litigation could have a material adverse effect on our business, operating results, and financial condition. WE FACE RISKS FROM THE UNCERTAINTIES OF REGULATION OF THE INTERNET There are currently few laws or regulations that apply directly to access or commerce on the Internet. We could be materially adversely affected by regulation of the Internet and Internet commerce in any country where we operate on such technology as voice over the Internet, encryption technology, and access charges for Internet service providers. We also could be materially adversely affected by the continuing deregulation of the telecommunications industry. The adoption of regulation of the Internet and Internet commerce could decrease demand for our products, and at the same time increase the cost of selling our products, which could have a material adverse effect on our business, operating results, and financial condition. 28 29 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS THE ENTRANCE INTO NEW OR DEVELOPING MARKETS EXPOSES OUR BUSINESS AND OPERATIONS TO RISKS As we focus on new market opportunities, such as transporting data, voice, and video traffic across the same network, we will increasingly compete with large telecommunications equipment suppliers such as Alcatel, Ericsson, Lucent, Nortel, and Siemens AG, among others, and several well-funded start-up companies. Several of our current and potential competitors may have greater financial, marketing, and technical resources than we do. Additionally, as customers in these markets complete infrastructure deployments, they may require greater levels of service, support, and financing than we have experienced in the past. We have not entered into a material amount of labor intensive service contracts, which require significant production or customization. However, we expect that demand for these types of service contracts will increase in the future. There can be no assurance that we can provide products, service, support, and financing to effectively compete for these market opportunities. Further, provision of greater levels of services by us may result in less favorable timing of revenue recognition than we have historically experienced. THE LOCATION OF OUR FACILITIES SUBJECTS US TO THE RISK OF EARTHQUAKES AND FLOODS Our corporate headquarters, including most of our research and development operations and our manufacturing facilities, are located in the Silicon Valley area of Northern California, a region known for seismic activity. Additionally, certain of our facilities, which include one of our manufacturing facilities, are located near rivers that have experienced flooding in the past. A significant natural disaster, such as an earthquake or a flood, could have a material adverse impact on our business, operating results, and financial condition. WE DEPEND UPON THE DEVELOPMENT OF NEW PRODUCTS AND ENHANCEMENTS TO EXISTING PRODUCTS, AND ARE SUBJECT TO RAPID CHANGES IN TECHNOLOGY AND THE MARKET Our operating results will depend to a significant extent on our ability to reduce the costs to produce existing products and to develop and introduce new products into existing and emerging markets. The success of new products is dependent on several factors, including proper new product definition, product cost, timely completion and introduction of new products, differentiation of new products from those of our competitors, and market acceptance of these products. The markets for our products are characterized by rapidly changing technology, evolving industry standards, frequent new product introductions, and evolving methods of building and operating networks. There can be no assurance that we will successfully identify new product opportunities, develop and bring new products to market in a timely manner, and achieve market acceptance of our products or that products and technologies developed by others will not render our products or technologies obsolete or noncompetitive. 29 30 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS WE ARE SUBJECT TO RISKS ASSOCIATED WITH STRATEGIC ALLIANCES We have increased the number of our strategic alliances with large and complex organizations and our ecosystem partners. These arrangements are generally limited to specific projects, the goal of which is generally to facilitate product compatibility and adoption of industry standards. If successful, these relationships will be mutually beneficial and result in industry growth. However, these alliances carry an element of risk because, in most cases, we must compete in some business areas with a company with which we have strategic alliances and, at the same time, cooperate with that company in other business areas. Also, if these companies fail to perform or if these relationships fail to materialize as expected, we could suffer delays in product development or other operational difficulties. THE INDUSTRY IN WHICH WE COMPETE IS SUBJECT TO CONSOLIDATION There has been a trend toward industry consolidation for several years. We expect this trend toward industry consolidation to continue as companies attempt to strengthen or hold their market positions in an evolving industry. We believe that industry consolidation may provide stronger competitors that are better able to compete as sole-source vendors for customers. This could lead to more variability in operating results as we compete to be a single vendor solution and could have a material adverse effect on our business, operating results, and financial condition. SALES TO THE SERVICE PROVIDER MARKET ARE SUBJECT TO VARIATION Sales to the service provider market have been characterized by large and often sporadic purchases. Sales activity in this industry depends upon the stage of completion of expanding network infrastructures, the availability of funding, and the extent that service providers are affected by regulatory, economic and business conditions in the country of operations. A decline or delay in sales orders from this industry could have a material adverse effect on our business, operating results, and financial condition. WE FACE RISKS ASSOCIATED WITH CHANGES IN TELECOMMUNICATIONS REGULATION AND TARIFFS Changes in domestic and international telecommunications requirements could affect the sales of our products. In particular, we believe it is possible that there may be significant changes in domestic telecommunications regulation in the near future that could slow the expansion of the service providers' network infrastructures and materially adversely affect our business, operating results, and financial condition. Future changes in tariffs by regulatory agencies or application of tariff requirements to currently untariffed services could affect the sales of our products for certain classes of customers. Additionally, in the United States, our products must comply with various Federal Communications Commission requirements and regulations. In countries outside of the United States, our products must meet various requirements of local 30 31 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS RISK FACTORS telecommunications authorities. Changes in tariffs or failure by us to obtain timely approval of products could have a material adverse effect on our business, operating results, and financial condition. OUR BUSINESS IS SUBJECT TO RISKS FROM INTERNATIONAL OPERATIONS We conduct business globally. Accordingly, our future results could be materially adversely affected by a variety of uncontrollable and changing factors including, among others, foreign currency exchange rates; regulatory, political, or economic conditions in a specific country or region; trade protection measures and other regulatory requirements; service provider and government spending patterns; and natural disasters. Any or all of these factors could have a material adverse impact on our future international business. OUR BUSINESS SUBSTANTIALLY DEPENDS UPON THE CONTINUED GROWTH OF THE INTERNET AND INTERNET-BASED SYSTEMS We believe that there will be performance problems with Internet communications in the future, which could receive a high degree of publicity and visibility. As we are a large supplier of equipment for the Internet infrastructure, customers' perceptions of our products and the marketplace's perception of us as a supplier of networking products may be materially adversely affected, regardless of whether or not these problems are due to the performance of our products. Such an event could also result in a material adverse effect on the market price of our common stock and could materially adversely affect our business, operating results, and financial condition. In addition, spending on Internet infrastructure has increased significantly over the past several years based upon the growth of the Internet. There can be no assurance that spending on this infrastructure will continue at these historical rates. If there is a significant decrease in spending, we may experience a material adverse impact on our business, operating results, and financial condition. OUR STOCK PRICE MAY BE VOLATILE Our common stock has experienced substantial price volatility, particularly as a result of variations between our actual or anticipated financial results, the published expectations of analysts, and as a result of announcements by our competitors and us. In addition, the stock market has experienced extreme price and volume fluctuations that have affected the market price of many technology companies, in particular, and that have often been unrelated to the operating performance of these companies. These factors, as well as general economic and political conditions, may materially adversely affect the market price of our common stock in the future. Additionally, volatility or a lack of positive performance in our stock price may adversely affect our ability to retain key employees, all of who have been granted stock options. 31 32 ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK We maintain an investment portfolio of various holdings, types, and maturities. These securities are generally classified as available for sale and, consequently, are recorded on the balance sheet at fair value with unrealized gains or losses, net of tax, reported as a separate component of accumulated other comprehensive income. Part of this portfolio includes minority equity investments in several publicly traded companies, the values of which are subject to market price volatility. For example, as a result of recent market price volatility of our publicly traded equity investments, we experienced a $2.26 billion after-tax unrealized loss during the first six months of fiscal 2001 on these investments. We have also invested in numerous privately held companies, many of which can still be considered in the start-up or development stages. These investments are inherently risky as the market for the technologies or products they have under development are typically in the early stages and may never materialize. We could lose our entire initial investment in these companies. We also have certain real estate lease commitments with payments tied to short-term interest rates. At any time, a sharp rise in interest rates could have a material adverse impact on the fair value of our investment portfolio while increasing the costs associated with our lease commitments. Conversely, declines in interest rates could have a material impact on interest earnings for our investment portfolio. We do not currently hedge these interest rate exposures. Readers are referred to pages 23 to 24 of the fiscal 2000 Annual Report to Shareholders for a more detailed discussion of quantitative and qualitative disclosures about market risk. The following analysis presents the hypothetical changes in fair values of public equity investments that are sensitive to changes in the stock market. These equity securities are held for purposes other than trading. The modeling technique used measures the hypothetical change in fair values arising from selected hypothetical changes in each stock's price. Stock price fluctuations of plus or minus 15%, plus or minus 35%, and plus or minus 50% were selected based on the probability of their occurrence. The following table estimates the fair value of the publicly traded corporate equities at a 12-month horizon (in millions):
Valuation of Securities Valuation of Securities Given X% Decrease Fair Value Given X% Increase in Each Stock's Price as of in Each Stock's Price ------------------------------------------ Jan. 27, ------------------------------------------ (50%) (35%) (15%) 2001 15% 35% 50% ---------- ---------- ---------- ---------- ---------- ---------- ---------- Corporate equities $ 1,780 $ 2,313 $ 3,025 $ 3,559 $ 4,093 $ 4,805 $ 5,339
Our equity portfolio consists of securities with characteristics that most closely match the S&P Index or companies traded on the NASDAQ National Market. The NASDAQ Composite Index has shown a 15% movement in each of the last three years and a 35% and 50% movement in at least one of the last three years. 32 33 PART II. OTHER INFORMATION ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS (c) During the quarter ended January 27, 2001, the Company issued an aggregate of approximately 12.1 million shares of its common stock in connection with the purchase of the capital stock of IPCell Technologies, Inc.; PixStream Incorporated; and Vovida Networks, Inc. The shares were issued pursuant to exemptions under Section 3(a)(10) and 4(2) of the Securities Act of 1933, as amended. In the case of issuances in reliance on Section 3(a)(10), an appropriate governmental authority approved the terms of the issuance following a fairness hearing. In the case of issuances in reliance on Section 4(2), the issuances were effected without general solicitation or advertising, and each purchaser was an accredited investor or a sophisticated investor with access to information regarding the Company, its business, and its common stock. 33 34 ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits: 3.1 Restated Articles of Incorporation of Cisco Systems, Inc., as currently in effect. 3.2 Amended and Restated Bylaws of Cisco Systems, Inc., as currently in effect. (b) Reports on Form 8-K The Company filed eight reports on Form 8-K during the quarter ended January 27, 2001. Information regarding the items reported on is as follows:
Date Item Reported On - ---- ---------------- November 6, 2000 The Company announced the completion of the acquisition of IPCell Technologies, Inc. November 7, 2000 The Company reported its first quarter results for the period ending October 28, 2000. November 13, 2000 The Company announced the completion of the acquisition of Vovida Networks, Inc. November 15, 2000 The Company announced the acquisition of Radiata, Inc. November 15, 2000 The Company announced the acquisition of Active Voice Corporation. December 19, 2000 The Company provided certain detail regarding its provision for losses included in the cash flow statement in its Quarterly Report on Form 10-Q for its first quarter of fiscal 2001 ended October 28, 2000 filed with the SEC on December 12, 2000. December 21, 2000 The Company announced the acquisition of ExiO Communications, Inc. December 27, 2000 The Company announced the completion of the acquisition of PixStream Incorporated.
34 35 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Cisco Systems, Inc. Date: March 12, 2001 By /s/ Larry R. Carter ------------------------------------ Larry R. Carter, Senior Vice President, Finance and Administration, Chief Financial Officer and Secretary 35 36 EXHIBIT INDEX
Exhibit Number Description - ------ ----------- 3.1 Restated Articles of Incorporation of Cisco Systems, Inc., as currently in effect. 3.2 Amended and Restated Bylaws of Cisco Systems, Inc., as currently in effect.
EX-3.1 2 f70305orex3-1.txt EXHIBIT 3.1 1 EXHIBIT 3.1 RESTATED ARTICLES OF INCORPORATION OF CISCO SYSTEMS, INC., A CALIFORNIA CORPORATION The undersigned, John T. Chambers and Larry R. Carter, hereby certify that: ONE: They are the duly elected and acting President and Secretary, respectively, of said corporation. TWO: The Restated Articles of Incorporation of said corporation shall be amended and restated in its entirety to read in full as follows: ARTICLE I The name of this corporation is Cisco Systems, Inc. ARTICLE II The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. ARTICLE III The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. ARTICLE IV (A) CLASSES OF STOCK. This corporation is authorized to issue two classes of stock to be designated, respectively, "Common Stock" and "Preferred Stock." The total number of shares that the corporation is authorized to issue is Twenty Billion Five Million (20,005,000,000) shares. Twenty Billion (20,000,000,000) shares shall be Common Stock, par value of $0.001, and Five Million (5,000,000) shares shall be Preferred Stock. (B) RIGHTS, PREFERENCES AND RESTRICTIONS OF PREFERRED STOCK. The Preferred Stock authorized by these Restated Articles of Incorporation may be issued from time to time in series. The Board of Directors is hereby authorized to fix or alter the rights, preferences, privileges and restrictions granted to or imposed upon series of Preferred Stock, and the number of shares constituting any such series and the designation thereof, or of any of them. Subject to compliance with applicable protective voting rights that have been or may be granted to the Preferred Stock or any series thereof in any Certificate of Determination or the corporation's Articles of Incorporation ("Protective Provisions"), but notwithstanding any other rights of the 2 Preferred Stock or any series thereof, the rights, privileges, preferences and restrictions of any such additional series may be subordinated to, pari passu with (including, without limitation, inclusion in provisions with respect to liquidation and acquisition preferences, redemption and/or approval of matters by vote or written consent), or senior to any of those of any present or future class or series of Preferred Stock or Common Stock. Subject to compliance with applicable Protective Provisions, the Board of Directors also is authorized to increase or decrease the number of shares of any series prior or subsequent to the issue of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series. 1. REPURCHASE OF SHARES. In connection with repurchases by this corporation of its Common Stock pursuant to its agreements with certain of the holders thereof, Sections 502 and 503 of the California General Corporation Law shall not apply in whole or in part with respect to such repurchases. (C) COMMON STOCK. 1. DIVIDEND RIGHTS. Subject to the prior rights of holders of all classes of stock at the time outstanding having prior rights as to dividends, the holders of the Common Stock shall be entitled to receive, when and as declared by the Board of Directors, out of any assets of the corporation legally available therefor, such dividends as may be declared from time to time by the Board of Directors. 2. LIQUIDATION RIGHTS. Subject to the prior rights of holders of all classes of stock at the time outstanding having prior rights as to liquidation, upon the liquidation, dissolution or winding up of the corporation, the assets of the corporation shall be distributed to the holders of the Common Stock. 3. REDEMPTION. The Common Stock is not redeemable. 4. VOTING RIGHTS. The holder of each share of Common Stock shall have the right to one vote, and shall be entitled to notice of any shareholders' meeting in accordance with the Bylaws of this corporation, and shall be entitled to vote upon such matters and in such manner as may be provided by law. (D) SERIES A JUNIOR PARTICIPATING PREFERRED STOCK. The shares of such series shall be designated as "Series A Junior Participating Stock" (the "Series A Preferred Stock") and the number of shares constituting the Series A Preferred Stock shall be one million two hundred thousand (1,200,000). Such number of shares may be increased or decreased by resolution of the Board of Directors; provided, that no decrease shall reduce the number of shares of Series A Preferred Stock to a number less than the number of shares then outstanding plus the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by the Corporation convertible into Series A Preferred Stock. The rights, preferences, privileges, and restrictions granted and imposed on the Series A Preferred Stock are as set forth below in this Article VII. 3 1. DIVIDENDS AND DISTRIBUTIONS. (A) Subject to the rights of the holders of any shares of any series of Preferred Stock (or any similar stock) ranking prior and superior to the Series A Preferred Stock with respect to dividends, each holder of a share of Series A Preferred Stock, in preference to the holders of shares of Common Stock, par value $.001 per share (the "Common Stock"), of the Corporation, and of any other junior stock, shall be entitled to receive, when declared by the Board of Directors out of funds legally available for the purpose, quarterly dividends payable in cash on the last day of March, June, September and December in each year (each such date being referred to herein as a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share Series A Preferred Stock, in an amount per share (rounded to the nearest cent) equal to, subject to the provision for adjustment hereinafter set forth, Ten Thousand (10,000) times the aggregate per share amount of all cash dividends, and Ten Thousand (10,000) times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions, other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of a share or fraction of Series A Preferred Stock. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) The Corporation shall declare a dividend or distribution on the shares of Series A Preferred Stock as provided in paragraph (A) of this Section immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock); provided, however, that, in the event no dividend or distribution shall have been declared on the Common Stock during the period between any Quarterly Distribution Date and the next subsequent Quarterly Dividend Payment Date, a dividend of $.000001 per share of Series A Preferred Stock shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date. (C) Dividends shall begin to accrue and be cumulative on each outstanding share of Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of issue of such share of Series A Preferred Stock, unless the date of issue of such share is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such share shall begin to accrue from the date of issue of such share, or unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of Series A Preferred Stock entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such 4 dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares of Series A Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix a record date for the determination of holders of shares of Series A Preferred Stock entitled to receive payment of a dividend or distribution declared thereon, which record date shall be not more than 60 days prior to the date fixed for the payment thereof. 2. VOTING RIGHTS. The holders of shares of Series A Preferred Stock shall have the following voting rights: (A) Subject to the provision for adjustment hereinafter set forth, each share of Series A Preferred Stock shall entitle the holder thereof to Ten Thousand (10,000) votes on all matters submitted to a vote of the shareholders of the Corporation. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the number of votes per share to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) Except as otherwise provided herein, in any other Certificate of Determination creating a series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A Preferred Stock and the holders of shares of Common Stock and any other capital stock of the Corporation having general voting rights shall vote together as one class on all matters submitted to a vote of shareholders of the Corporation. (C) Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any corporate action. 3. CERTAIN RESTRICTIONS. (A) Whenever quarterly dividends or other dividends or distributions payable on the Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock outstanding shall have been paid in full, the Corporation shall not: (i) declare or pay dividends, or make any other distributions, on any shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock; 5 (ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except dividends paid ratably on the shares of Series A Preferred Stock and all such parity stock on which dividends are payable or in arrears in proportion to the total amounts to which the holders of all such shares are then entitled; (iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock, provided that the Corporation may at any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange for shares of any stock of the Corporation ranking junior (either as to dividends or upon dissolution, liquidation or winding up) to the Series A Preferred Stock; or (iv) redeem or purchase or otherwise acquire for consideration any shares of Series A Preferred Stock, or any shares of stock ranking on a parity with the Series A Preferred Stock, except in accordance with a purchase offer made in writing or by publication (as determined by the Board of Directors) to all holders of such shares upon such terms as the Board of Directors, after consideration of the respective annual dividend rates and other relative rights and preferences of the respective series and classes, shall determine in good faith will result in fair and equitable treatment among the respective series or classes. (B) The Corporation shall not permit any subsidiary of the Corporation to purchase or otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such manner. 4. REACQUIRED SHARES. Any shares of Series A Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such shares shall upon their cancellation become authorized but unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on issuance set forth herein, in the Articles of Incorporation, or in any other Certificate of Determination creating a series of Preferred Stock or any similar stock or as otherwise required by law. 5. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (1) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A Preferred Stock shall have received Ten Thousand Dollars ($10,000) per share, plus an amount equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to receive an aggregate amount per share, subject to the provision for adjustment hereinafter set forth, equal to 10,000 times the 6 aggregate amount to be distributed per share to holders of shares of Common Stock, or (2) to the holders of shares of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with the Series A Preferred Stock, except distributions made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to which holders of shares of Series A Preferred Stock were entitled immediately prior to such event under the proviso in clause (1) of the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. (B) In the event, however, that there are not sufficient assets available to permit payment in full to the Series A Liquidation Preference and the liquidation preferences of all other series of Preferred Stock, if any, which rank on a parity with the Series A Preferred Stock, then such remaining assets shall be distributed ratably to the holders of such parity shares in proportion to their respective liquidation preferences. In the event, however, that there are not sufficient assets available to permit payment in full of the Common Adjustment, then such remaining assets shall be distributed ratably to the holders of Common Stock. (C) In the event the Corporation shall at any time after the Rights Declaration Date (i) declare any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the Adjustment Number in effect immediately prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 6. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged or changed into an amount per share, subject to the provision for adjustment hereinafter set forth, equal to Ten Thousand (10,000) times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, 7 the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event. 7. NO REDEMPTION. The shares of Series A Preferred Stock shall not be redeemable. 8. RANK. The Series A Preferred Stock shall rank, with respect to the payment of dividends and the distribution of assets, junior to all series of any other class of the Corporation's Preferred Stock. 9. AMENDMENT. The Restated Articles of Incorporation of the Corporation shall not be amended in any manner which would materially alter or change the powers, preferences or special rights of the Series A Preferred Stock so as to affect them adversely without the affirmative vote of the holders of at least a majority of the outstanding shares of Series A Preferred Stock, voting together as a single class. ARTICLE V (A) The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. (B) The corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations Code) through bylaw provisions, agreements with agents, vote of shareholders or disinterested directors or otherwise, in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code, 8 subject only to applicable limits set forth in Section 204 of the California Corporations Code with respect to actions for breach of duty to the corporation and its shareholders. ARTICLE VI Shareholders of this corporation shall not be entitled to cumulate their votes at any election of directors of this corporation. The corporation's common stock is qualified for trading on the Nasdaq National Market and there were at least 800 holders of its equity securities as of the record date of the most recent annual shareholders meeting. THREE: The foregoing restatement of the Restated Articles of Incorporation, as amended, has been duly approved by the Board of Directors of said corporation and does not require shareholder approval pursuant to section 910(b) of the California Corporations Code. IN WITNESS WHEREOF, the undersigned have executed these Restated Articles of Incorporation on the 15th of November, 2000. /s/ JOHN T. CHAMBERS ----------------------------------------- John T. Chambers, President /s/ LARRY R. CARTER ----------------------------------------- Larry R. Carter, Secretary 9 The undersigned certifies under penalty of perjury that they have read the foregoing Restated Articles of Incorporation and know the contents thereof, and that the statements therein are true. Executed at San Jose, California, on November 15, 2000. /s/ John T. Chambers ----------------------------------------- John T. Chambers /s/ Larry R. Carter ----------------------------------------- Larry R. Carter EX-3.2 3 f70305orex3-2.txt EXHIBIT 3.2 1 EXHIBIT 3.2 AMENDED AND RESTATED BYLAWS OF CISCO SYSTEMS, INC. (AS AMENDED MARCH 10, 1985, DECEMBER 10, 1987, OCTOBER 11, 1988, DECEMBER 20, 1989, JULY 31, 1996, JUNE 8, 1998, NOVEMBER 10, 1999 and JANUARY 9, 2001) Article 1. - OFFICES Section 1.01 The principal executive offices of Cisco Systems, Inc. (the "Corporation") shall be at such place inside or outside the State of California as the Board of Directors may determine from time to time. Section 1.02 The Corporation may also have offices at such other places as the Board of Directors may from time to time designate, or as the business of the Corporation may require Article 2. - SHAREHOLDERS' MEETINGS Section 2.01 Annual Meetings. The annual meeting of the shareholders of the Corporation for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting shall be held each year on the second Thursday in November at 10:00 a.m. at the principal office of the Corporation, or at such other time and place as may be determined by the Board of Directors. Section 2.02 Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman of the Board, by the President, by the Board of Directors, or by one or more shareholders holding not less than ten percent (10%) of the voting power of the Corporation on the record date established pursuant to Article 5, Section 5.01 of these Bylaws. The person or persons calling any such meeting shall concurrently specify the purpose of such meeting and the business proposed to be transacted at such meeting. In connection with any special meeting called in accordance with the provisions of this Article 2, Section 2.02, upon request in writing sent by registered mail to the Chairman of the Board, the President, a Vice President or the Secretary of the Corporation, or delivered to any such officer in person, by the person or persons calling such meeting (such request, if sent by a shareholder or shareholders, to include the information required by Article 2, Section 2.12 of these Bylaws), it shall be the duty of such officer, subject to the immediately succeeding sentence, to cause notice of such meeting to be given in accordance with Article 2, Section 2.04 of these Bylaws as promptly as reasonably practicable and, in connection therewith, to establish the place and, subject to Section 601(c) of the California Corporations' Code, the date and hour of such meeting. Within five (5) business 2 days after receiving such a request from a shareholder or shareholders of the Corporation, the Board of Directors shall determine whether such shareholder or shareholders have satisfied the requirements for calling a special meeting of the shareholders and notify the requesting party or parties of its finding. Section 2.03 Place. All meetings of the shareholders shall be at any place within or without the State of California designated either by the Board of Directors or the President of the Corporation. In the absence of any such designation, shareholders' meetings shall be held at the principal executive office of the Corporation. Section 2.04 Notice. Notice of meetings of the shareholders of the Corporation shall be given in writing to each shareholder entitled to vote, either personally or by first-class mail (unless the Corporation has 500 or more shareholders determined as provided by the California Corporations Code on the record date for the meeting, in which case notice may be sent by third-class mail) or other means of written communication, charges prepaid, addressed to the shareholder at his address appearing on the books of the Corporation or given by the shareholder to the Corporation for the purpose of notice. Notice of any such meeting of shareholders shall be sent to each shareholder entitled thereto not less than ten (10) days (or, if sent by third-class mail, thirty (30) days) nor more than sixty (60) days before the meeting. Said notice shall state the place, date and hour of the meeting and, (1) in the case of special meetings, the purpose of the meeting and the business proposed to be transacted, or (2) in the case of annual meetings, those matters which the Board of Directors, at the time of the mailing of the notice, intends to present for action by the shareholders, and (3) in the case of any meeting at which directors are to be elected, the names of the nominees intended at the time of the mailing of the notice to be presented by management for election. Section 2.05 Adjourned Meetings. Any shareholders' meeting may be adjourned from time to time by (1) the vote of the holders of a majority of the voting shares present at the meeting either in person or by proxy or (2) the presiding officer of the meeting. Written notice of the place, date and hour of any adjourned meeting need not be given if such place, date and hour are announced at the meeting at which the adjournment is taken; provided, however, that 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, written notice of the place, date and hour of the adjourned meeting must be given in conformity with Article 2, Section 2.04 of these Bylaws. At any adjourned meeting, any business may be transacted which properly could have been transacted at the original meeting. Section 2.06 Quorum. The presence in person or by proxy of the persons entitled to vote a majority of the shares entitled to vote at any meeting constitutes a quorum for the transaction of business. The shareholders 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 shareholders 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 or, if required by the California Corporations Code or the Articles of Incorporation of the Corporation, the vote of a greater number or voting by classes. 2 3 In the absence of a quorum, any meeting of shareholders may be adjourned from time to time by the vote of a majority of the shares, the holders of which are either present in person or represented by proxy thereat, but no other business may be transacted, except as provided above. Section 2.07 Consent to Shareholder Action. Any action which may be taken at any meeting of shareholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares on the record date established pursuant to Article 5, Section 5.01 of these Bylaws having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted; provided, however, that (1) unless the consents of all shareholders entitled to vote have been solicited in writing, notice of any shareholder approval without a meeting by less than unanimous written consent shall be given as required by the California Corporations Code, and (2) directors may not be elected by written consent except by unanimous written consent of all shares entitled to vote for the election of directors. Any written consent may be revoked by a writing received by the Secretary of the Corporation prior to the time that written consents of the number of shares required to authorize the proposed action have been filed with the Secretary. Section 2.08 Waiver of Notice. The transactions of any meeting of shareholders, however called and noticed, and whenever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice, or a consent to the holding of the meeting, or an approval of the minutes thereof. All such waivers, consents, or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 2.09 Voting. At any meeting of the shareholders, every shareholder having the right to vote shall be entitled to vote in person, or by proxy appointed in a writing subscribed by such shareholder and bearing a date not more than eleven (11) months prior to said meeting, unless the writing states that it is irrevocable and satisfies Section 705(e) of the California Corporations Code, in which event it is irrevocable for the period specified in said writing and said Section 705(e). The voting at meetings of shareholders need not be by ballot, but any qualified shareholder before the voting begins may demand that voting be by ballot, each of which shall state the name of the shareholder or proxy voting and the number of shares voted by such shareholder or proxy. Section 2.10 Record Dates. In the event the Board of Directors fixes a day for the determination of shareholders of record entitled to vote as provided in Article 5, Section 5.01 of these Bylaws, then, subject to the provisions of the General Corporation Law of the State of California, only persons in whose name shares entitled to vote stand on the stock records of the Corporation at the close of business on such day shall be entitled to vote. 3 4 If no record date is fixed: The record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the business day next preceding the day 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; In order that the Corporation may determine the shareholders entitled to consent to corporate action in writing without a meeting or request a special meeting of the shareholders, the Board of Directors shall fix a record date, which record date shall not precede the date upon which the resolution fixing such record date is adopted by the Board of Directors. Any shareholder of record seeking to have the shareholders authorize or take corporate action by written consent or request a special meeting of the shareholders shall, by written notice to the Secretary, request the Board of Directors to fix a record date. The Board of Directors shall promptly, but in no event later than twenty-eight (28) days after the date on which such request is received, adopt a resolution fixing the record date; and The record date for determining shareholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto, or the sixtieth (60th) day prior to the date of such other action, whichever is later. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders 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 forty-five (45) days. Section 2.11 Order of Business. The Chairman of the Board, or such other officer of the Corporation designated by a majority of the Board of Directors, will call meetings of the shareholders to order and will act as presiding officer thereof. Unless otherwise determined by the Board of Directors prior to the meeting, the presiding officer of the meeting of the shareholders will also determine the order of business and have the authority in his or her sole discretion to regulate the conduct of any such meeting, including without limitation by (i) imposing restrictions on the persons (other than shareholders of the Corporation or their duly appointed proxies) who may attend any such shareholders' meeting, (ii) ascertaining whether any shareholder or his proxy may be excluded from any meeting of the shareholders based upon any determination by the presiding officer, in his or her sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings thereat, and (iii) determining the circumstances in which any person may make a statement or ask questions at any meeting of the shareholders. At an annual meeting of the shareholders, only such business will be conducted or considered as is properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by the presiding officer or by or at the direction of a majority of the Board of Directors, or (iii) otherwise properly requested to be brought before the meeting by a shareholder of the 4 5 Corporation in accordance with the immediately succeeding sentence. For business to be properly requested by a shareholder to be brought before an annual meeting, the shareholder must (i) be a shareholder of record at the time of the giving of the notice of such annual meeting by or at the direction of the Board of Directors, (ii) be entitled to vote at such meeting, and (iii) have given timely written notice thereof to the Secretary in accordance with Article 2, Section 2.12 of these Bylaws. Nominations of persons for election as Directors of the Corporation may be made at an annual meeting of shareholders only (i) by or at the direction of the Board of Directors or (ii) by any shareholder who is a shareholder of record at the time of the giving of the notice of such annual meeting by or at the direction of the Board of Directors, who is entitled to vote for the election of directors at such meeting and who has given timely written notice thereof to the Secretary in accordance with Article 2, Section 2.12 of these Bylaws. Only persons who are nominated in accordance with this Article 2, Section 2.11 will be eligible for election at a meeting of shareholders as Directors of the Corporation. At a special meeting of shareholders, only such business may be conducted or considered as is properly brought before the meeting. To be properly brought before a special meeting, business must be (i) specified in the notice of the meeting (or any supplement thereto) given by or at the direction of the Chairman of the Board, the President, a Vice President or the Secretary or (ii) otherwise properly brought before the meeting by the presiding officer or by or at the direction of a majority of the Board of Directors. The determination of whether any business sought to be brought before any annual or special meeting of the shareholders is properly brought before such meeting in accordance with this Article 2, Section 2.11, and whether any nomination of a person for election as a Director of the Corporation at any annual meeting of the shareholders was properly made in accordance with this Article 2, Section 2.11, will be made by the presiding officer of such meeting. If the presiding officer determines that any business is not properly brought before such meeting, or any nomination was not properly made, he or she will so declare to the meeting and any such business will not be conducted or considered and any such nomination will be disregarded. Section 2.12 Advance Notice of Shareholder Proposals and Director Nominations. To be timely for purposes of Article 2, Section 2.11 of these Bylaws, a shareholder's notice must be addressed to the Secretary and delivered or mailed to and received at the principal executive offices of the Corporation not less than sixty (60) nor more than ninety (90) calendar days prior to the anniversary date of the date (as specified in the Corporation's proxy materials for its immediately preceding annual meeting of shareholders) on which the Corporation first mailed its proxy materials for its immediately preceding annual meeting of shareholders ; provided, however, that in the event the annual meeting is called for a date that is not within thirty (30) calendar days of the anniversary date of the date on which the immediately preceding annual meeting of shareholders was called, to be timely, notice by the shareholder must be so received not later than the close of business on the tenth (10th) calendar day following the day on which public announcement of the date of the annual meeting is first made. In no event will the public announcement of an adjournment of an annual meeting of 5 6 shareholders commence a new time period for the giving of a shareholder's not as provided above. In the case of a request by a shareholder for business to be brought before any annual meeting of shareholders, a shareholder's notice to the Secretary must set forth as to each matter the shareholder proposes to bring before the annual meeting (i) a description in reasonable detail of the business desired to brought before the annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and address, as they appear on the Corporation's books, of the shareholder proposing such business and the beneficial owner, if any, on whose behalf the proposal is made, (iii) the class and number of shares of the Corporation that are owned beneficially and of record by the shareholder proposing such business and by the beneficial owner, if any, on whose behalf the proposal is made, and (iv) any material interest of such shareholder proposing such business and the beneficial owner, if any, on whose behalf the proposal is made in such business. In the case of a nomination by a shareholder of a person for election as a director of the Corporation at any annual meeting of shareholders, a shareholder notice to the Secretary must set forth (i) the shareholders intent to nominate one or more persons for election as a director of the Corporation, the name of each such nominee proposed by the shareholder giving the notice, and the reason for making such nomination at the annual meeting, (ii) the name and address, as they appear on the Corporation's books, of the shareholder proposing such nomination and the beneficial owner, if any, on whose behalf the nomination is proposed, (iii) the class and number of shares of the Corporation that are owned beneficially and of record by the shareholder proposing such nomination and by the beneficial owner, if any, on whose behalf the nomination is proposed, and (iv) any material interest of such shareholder proposing such nomination and the beneficial owner, if any, on whose behalf the proposal is made, (v) a description of all arrangements or understandings between or among any of (A) the shareholder giving the notice, (B) each nominee, and (C) any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the shareholder giving the notice, (vi) such other information regarding each nominee proposed by the shareholder giving the notice as would be required to be included in a proxy statement filed in accordance with the proxy rules of the Securities and Exchange Commission had the nominee been nominated, or intended to be nominated, by the Board, and (vii) the signed consent of each nominee proposed by the shareholder giving the notice to serve as a director of the Company if so elected. Any shareholder or shareholders seeking to call a special meeting pursuant to Article 2, Section 2.02 of these Bylaws shall provide information comparable to that required by the preceding paragraphs, to the extent applicable, in any request made pursuant to such Article and Section. Notwithstanding the provisions of Sections 2.11 and 2.12 of this Article 2, a shareholder must also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in Sections 2.11 and 2.12 of this Article 2. Nothing in Sections 2.11 and 2.12 of this Article 2 will be deemed to affect any rights of shareholders to request inclusion of proposals in the 6 7 Corporation's proxy statement in accordance with the provisions of Rule 14a-8 under the Securities Exchange Act of 1934, as amended. For purposes of this Article 2, Section 2.12, "public announcement" means disclosure in a press release reported by the Dow Jones News Service, Associated Press, or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or furnished to shareholders. Article 3. - BOARD OF DIRECTORS Section 3.01 Powers. Subject to any limitations in the Restated Articles of Incorporation or these Amended and Restated Bylaws and to any provision of the California Corporations Code requiring shareholder authorization or approval for a particular action, 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. The Board of Directors may delegate the management of the day-to-day operation of the business of the Corporation to a management company or other person provided that the business and affairs of the Corporation shall be managed, and all corporate powers shall be exercised, under the ultimate direction of the Board of Directors. Section 3.02 Number and Qualification of Directors. The number of authorized directors of this Corporation shall be not less than eight (8) nor more than fifteen (15), the exact number of directors to be fixed from time to time within such range by a duly adopted resolution of the Board of Directors or shareholders. Directors shall hold office until the next annual meeting of shareholders and until their respective successors are elected. If any such annual meeting is not held, or the directors are not elected thereat, the directors may be elected at any special meeting of shareholders held for that purpose. Directors need not be shareholders. Section 3.03 Regular Meetings. A regular annual meeting of the Board of Directors shall be held without other notice than this Bylaw provision immediately after, and at the same place as, the annual meeting of shareholders. The Board of Directors may provide for other regular meetings from time to time by resolution. Section 3.04 Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board, the President of the Corporation or any two (2) directors. Written notice of the time and place of all special meetings of the Board of Directors shall be delivered personally or by telephone or telegraph to each director at least forty-eight (48) hours before the meeting, or sent to each director by first-class mail, postage prepaid, at least four (4) days before the meeting. Such notice need not specify the purpose of the meeting. Notice of any meeting of the Board of Directors need not be given to any director who signs a waiver of notice, whether before or after the meeting, or who attends the meeting without protesting prior thereto or at its commencement, the lack of notice to such director. 7 8 Section 3.05 Place of Meetings. Meetings of the Board of Directors may be held at any place within or without the State of California, which has been designated in the notice, or if not stated in the notice or there is no notice, the principal executive office of the Corporation or as designated by the resolution duly adopted by the Board of Directors. Section 3.06 Participation by Telephone. Members of the Board of Directors may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Section 3.07 Quorum. A quorum at all meetings of the Board of Directors shall be a majority of the authorized directors. In the absence of a quorum a majority of the directors present may adjourn any meeting to another time and place. If a meeting is adjourned for more than twenty-four (24) hours, notice of any adjournment to another time or place shall be given prior to the time of the reconvened meeting to the directors who were not present at the time of adjournment. Section 3.08 Action at Meeting. Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present is the act of the Board of Directors. 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 such meeting. Section 3.09 Waiver of Notice. The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, are as valid as though had at a meeting duly held after regular call and notice if a quorum is present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, a consent to holding the meeting, or an approval of the minutes thereof. All such waivers, consents and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 3.10 Action Without Meeting. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting, if all members of the Board individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board of Directors. Such action by written consent shall have the same force and effect as a unanimous vote of such directors. Section 3.11 Removal. The Board of Directors may declare vacant the office of a director who has been declared of unsound mind by an order of court or who has been convicted of a felony. The entire Board of Directors or any individual director may be removed from office without cause by a vote of shareholders holding a majority of the outstanding shares entitled to vote at an election of directors; provided, however, that unless the entire Board of Directors is removed, no individual director may be removed when the votes cast against removal, or not consenting in writing to such removal, would be sufficient to elect such director if voted cumulatively at an election at which the same total number of votes cast were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire 8 9 number of directors authorized at the time of the director's most recent election were then being elected. In the event an office of a director is so declared vacant or in case the Board of Directors or any one or more directors be so removed, new directors may be elected at the same meeting. Section 3.12 Resignations. Any director may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary or the Board of Directors of the Corporation, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. Section 3.13 Vacancies. Except for a vacancy created by the removal of a director, all vacancies in the Board of Directors, whether caused by resignation, death or otherwise, may be filled by a majority of the remaining directors, though less than a quorum, or by a sole remaining director, and each director so elected shall hold office until his successor is elected at an annual, regular or special meeting of the shareholders. Vacancies created by the removal of a director may be filled only by approval of the shareholders. Section 3.14 Compensation. No stated salary shall be paid directors, as such, for their services, but, by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of such Board; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. Section 3.15 Committees. The Board of Directors may, by resolution adopted by a majority of the authorized number of directors, designate one or more committees, each consisting of two (2) or more directors, to serve at the pleasure of the Board of Directors. The Board of Directors may designate one 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 such committee, to the extent provided in the resolution of the Board of Directors, shall have all the authority of the Board of Directors in the management of the business and affairs of the Corporation, except with respect to (a) the approval of any action requiring shareholders' approval or approval of the outstanding shares, (b) the filling of vacancies on the Board of Directors or any committee, (c) the fixing of compensation of directors for serving on the Board of Directors or a committee, (d) the adoption, amendment or repeal of Bylaws, (e) the amendment or repeal of any resolution of the Board of Directors which by its express terms is not so amendable or repealable, (f) a distribution to shareholders, except at a rate or in a periodic amount or within a price range determined by the Board of Directors, and (g) the appointment of other committees of the Board of Directors or the members thereof. 9 10 Article 4. - OFFICERS Section 4.01 Number and Term. The officers of the Corporation shall be a President, one or more Vice Presidents, a Secretary and a Chief Financial Officer, all of which shall be chosen by the Board of Directors. The Corporation may also have a Chairman of the Board who shall be chosen by the Board of Directors. In addition, the Board of Directors may appoint such other officers as may be deemed expedient for the proper conduct of the business of the Corporation, each of whom shall have such authority and perform such duties as the Board of Directors may from time to time determine. The officers to be appointed by the Board of Directors shall be chosen annually at the regular meeting of the Board of Directors held after the annual meeting of shareholders and shall serve at the pleasure of the Board of Directors. If officers are not chosen at such meeting of the Board of Directors, they shall be chosen as soon thereafter as shall be convenient. Each officer shall hold office until his successor shall have been duly chosen or until his removal or resignation. Section 4.02 Inability to Act. In the case of absence or inability to act of any officer of the Corporation and of any person herein authorized to act in his place, the Board of Directors may from time to time delegate the powers or duties of such officer to any other officer, or any director or other person whom it may select. Section 4.03 Removal and Resignation. Any officer chosen by the Board of Directors may be removed at any time, with or without cause, by the affirmative vote of a majority of all the members of the Board of Directors. Any officer chosen by the Board of Directors may resign at any time by giving written notice of said resignation to the Corporation. Unless a different time is specified therein, such resignation shall be effective upon its receipt by the Chairman of the Board, the President, the Secretary or the Board of Directors. Section 4.04 Vacancies. A vacancy in any office because of any cause may be filled by the Board of Directors for the unexpired portion of the term. Section 4.05 Chairman of the Board. The Chairman of the Board shall preside at all meetings of the Board of Directors. Section 4.06 President. The President shall be the general manager and chief executive officer of the Corporation, subject to the control of the Board of Directors, and as such shall preside at all meetings of shareholders, shall have general supervision of the affairs of the Corporation, shall sign or countersign or authorize another officer to sign all certificates, contracts, and other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and shareholders, and shall have all such other authority and perform all such other duties as are incident to such office or as may be delegated or assigned from time to time by the Board of Directors. Section 4.07 Vice President. In the absence of the President, or in the event of such officer's death, disability or refusal to act, the Vice President, or in the event there is more 10 11 than one Vice President, the Vice Presidents in the order designated at the time of their selection, or in the absence of any such designation, then in the order of their selection, shall perform the duties of President, and when so acting, shall have all the powers and be subject to all restrictions upon the President. Each Vice President shall have all such other authority and perform all such other duties as are incident to such office or as may be delegated or assigned from time to time by the President or by the Board of Directors. Section 4.08 Secretary. The Secretary shall see that notices for all meetings are given in accordance with the provisions of these Bylaws and as required by law, shall keep minutes of all meetings, shall have charge of the seal and the corporate books, and shall have all such other authority and perform all such other duties as are incident to such office or as may be delegated or assigned from time to time by the President or by the Board of Directors. The Assistant Secretary or the Assistant Secretaries, in the order of their seniority, shall, in the absence or disability of the Secretary, or in the event of such officer's refusal to act, perform the duties of Secretary and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary. Each Assistant Secretary shall have all such other authority and perform all such other duties as are incident to such office or as may be assigned or delegated from time to time by the President or by the Board of Directors. Section 4.09 Chief Financial Officer. The Chief Financial Officer shall have all such authority and perform all such duties as are incident to such office or as may be delegated or assigned from time to time by the President or by the Board of Directors. Section 4.10 Treasurer. The Treasurer shall have custody of all moneys and securities of the Corporation and shall keep regular books of account. Such officer shall disburse the funds of the Corporation in payment of the just demands against the Corporation, or as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Board of Directors from time to time as may be required of such officer, an account of all transactions as Treasurer and of the financial condition of the Corporation. Such officer shall have all such other authority and perform all such other duties as are incident to such office or as may be delegated or assigned by the President or by the Board of Directors. The Assistant Treasurer or the Assistant Treasurers, in the order of their seniority, shall, in the absence or disability of the Treasurer, or in the event of such officer's refusal to act, perform the duties and exercise the powers of the Treasurer, and shall have all such other authority and perform all such other duties as are incident to such office or as may be delegated or assigned from time to time by the by the President or by the Board of Directors. Section 4.11 Salaries. The salaries of the officers shall be fixed from time to time by the Board of Directors and no officer shall be prevented from receiving such salary by reason of the fact that such officer is also a director of the Corporation. Section 4.12 Officers Holding More than One Office. Any two or more offices may be held by the same person. Section 4.13 Approval of Loans to Directors and Officers. The Corporation may, upon the approval of the Board of Directors alone, make loans of money or property to, or 11 12 guarantee the obligations of, any director or officer of the Corporation or its parent or subsidiary, or adopt an employee benefit plan or plans authorizing such loans or guaranties provided that (i) the Board of Directors determines that such a loan or guaranty or plan may reasonably be expected to benefit the Corporation, (ii) the Corporation has outstanding shares held of record by 100 or more persons (determined as provided in Section 605 of the California Corporations Code) on the date of approval by the Board of Directors, and (iii) the approval of the Board of Directors is by a vote sufficient without counting the vote of any interested director or directors. Article 5. - MISCELLANEOUS Section 5.01 Record Date and Closing of Stock Books. The Board of Directors may fix a time in the future as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to receive payment of any dividend or distribution, or any allotment of rights, or to exercise rights in respect to any other lawful action. The record date so fixed shall not be more than sixty (60) nor less than ten (10) days prior to the date of the meeting or event for the purposes of which it is fixed. When a record date is so fixed, only shareholders of record at the close of business on that date are entitled to notice of and to vote at the meeting or to receive the dividend, distribution, or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares on the books of the Corporation after the record date. In the event that no record date is fixed by the Board of Directors, the record date for determining shareholders entitled to notice of or to vote at a meeting of shareholders will be at the close of business on the calendar day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the calendar day next preceding the day on which the meeting is held. A determination of shareholders of record entitled to notice of or to vote at a meeting of the shareholders will apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. The Board of Directors may close the books of the Corporation against transfers of shares during the whole or any part of a period of not more than sixty (60) days prior to the date of a shareholders' meeting, the date when the right to any dividend, distribution, or allotment of rights vests, or the effective date of any change, conversion or exchange of shares. Section 5.02 Certificates. Certificates of stock shall be issued in numerical order and each shareholder shall be entitled to a certificate signed in the name of the Corporation by the Chairman of the Board or the President or a Vice President, and the Chief Financial Officer, the Secretary or an Assistant Secretary, certifying to the number of shares owned by such shareholder. Any or all of the signatures on the certificate may be facsimile. Prior to the due presentment for registration of transfer in the stock transfer book of the Corporation, the registered owner shall be treated as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner, except as expressly provided otherwise by the laws of the State of California. 12 13 The Secretary may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owners of such lost, stolen or destroyed certificate or certificates to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate. Section 5.03 Representation of Shares in Other Corporations. Shares of other corporations standing in the name of this Corporation may be voted or represented and all incidents thereto may be exercised on behalf of the Corporation by the Chairman of the Board, the President or any Vice President and the Chief Financial Officer or the Secretary or an Assistant Secretary. Section 5.04 Fiscal Year. The fiscal year of the Corporation shall end on the last Saturday of July. Section 5.05 Annual Reports. The Annual Report to shareholders, described in the California Corporations Code, is expressly waived and dispensed with. Section 5.06 Amendments. Bylaws may be adopted, amended, or repealed by the vote or the written consent of shareholders entitled to exercise a majority of the voting power of the Corporation. Subject to the right of shareholders to adopt, amend, or repeal Bylaws, Bylaws may be adopted, amended, or repealed by the Board of Directors, except that a Bylaw amendment thereof changing the authorized number of directors may be adopted by the Board of Directors only if these Bylaws permit an indefinite number of directors and the Bylaw or amendment thereof adopted by the Board of Directors changes the authorized number of directors within the limits specified in these Bylaws. Section 5.07 Indemnification of Corporate Agents. (a) The Corporation shall indemnify each of its agents against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred by such person by reason of such person's having been made or having threatened to be made a party to a proceeding to the fullest extent permissible by the provisions of Section 317 of the California Corporations Code. The terms "agent," "proceeding" and "expenses" made in this Section 7 shall have the same meaning as such terms in said Section 317. (b) Expenses reasonably incurred by an agent of the Corporation in defending a civil or criminal action, suit or proceeding by reason of the fact that he or she is or was an agent of the Corporation (or was serving at the Corporation's request as a director or officer of another corporation) shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such agent to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized by relevant sections of the General Corporation Law of California. 13 14 (c) Notwithstanding the foregoing, the Corporation shall not be required to advance such expenses to an agent who is party to an action, suit or proceeding brought by the Corporation and approved by a majority of the Board of Directors which alleges willful misappropriation of corporate assets by such agent, wrongful disclosure of confidential information, or any other willful and deliberate breach in bad faith of such agent's duty to the Corporation or its shareholders. 14 -----END PRIVACY-ENHANCED MESSAGE-----