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HPQ » Topics » Anti-Takeover Effects of Provisions of the Registrants Certificate of Incorporation and Bylaws and Delaware LawThis excerpt taken from the HPQ 8-K filed Jun 23, 2006. Anti-Takeover Effects of Provisions of the Registrant’s Certificate of Incorporation and Bylaws and Delaware Law The following provisions of HP’s certificate of incorporation, as amended, and amended and restated bylaws and the following provisions of Delaware law may have the effect of delaying, deterring or preventing a change of control of HP. Certificate of Incorporation and Bylaws HP’s certificate of incorporation, as amended, and HP’s amended and restated bylaws include provisions: |
| • | authorizing blank check preferred stock, which HP could issue with voting, liquidation, dividend and other rights superior to HP’s common stock; |
| • | limiting the liability of, and providing indemnification to, HP’s directors and officers; |
| • | specifying that HP’s stockholders may take action only at a duly called annual or special meeting of stockholders and otherwise in accordance with HP’s amended and restated bylaws and limiting the ability of HP’s stockholders to call special meetings; |
| • | requiring advance notice of proposals by HP’s stockholders for business to be conducted at stockholder meetings and for nominations of candidates for election to HP’s board of directors; |
| • | requiring a vote by the holders of two-thirds of HP’s outstanding shares to amend certain bylaws relating to HP’s stockholder meetings, the board of directors and indemnification; and |
| • | controlling the procedures for the conduct of HP’s board and stockholder meetings and the election, appointment and removal of HP’s directors. |
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The Delaware General Corporation Law HP is subject to the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner. Section 203 defines a “business combination” as a merger, asset sale or other transaction resulting in a financial benefit to an interested stockholder. Section 203 defines an “interested stockholder” as a person who, together with affiliates and associates, owns, or, in some cases, within three years prior, did own, 15% or more of the corporation’s voting stock. Under Section 203, a business combination between HP and an interested stockholder is prohibited unless: |
| • | HP’s board of directors approved either the business combination or the transaction that resulted in the stockholders becoming an interested stockholder prior to the date the person attained that status; |
| • | upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of HP’s voting stock outstanding at the time the transaction commenced, excluding, for purposes of determining the number of shares outstanding, shares owned by persons who are directors and also officers and shares issued under employee stock plans under which employee participants do not have the right to determine confidentially whether shares held under the plan will be tendered in a tender or exchange offer; or |
| • | the business combination is approved by HP’s board of directors on or subsequent to the date the person became an interested stockholder and authorized at an annual or special meeting of the stockholders by the affirmative vote of the holders of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder. |
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This provision has an anti-takeover effect with respect to transactions not approved in advance by HP’s board of directors, including discouraging takeover attempts that might result in a premium over the market price for the shares of HP’s common stock. With approval of HP’s stockholders, HP could amend its certificate of incorporation in the future to elect not to be governed by this provision. This election would be effective 12 months after the adoption of the amendment and would not apply to any business combination between HP and any person who became an interested stockholder on or before the adoption of the amendment. |
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