<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 1999
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
UNITRODE CORPORATION
--------------------
(Exact Name of Registrant as Specified in its Charter)
<TABLE>
<S> <C>
MARYLAND 04-2271186
- --------------------------------- ------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
7 CONTINENTAL BOULEVARD, MERRIMACK, NEW HAMPSHIRE 03054
-------------------------------------------------------
(Address of principal executive offices) (Zip Code)
UNITRODE CORPORATION
1999 EQUITY INCENTIVE PLAN
UNITRODE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
----------------------------
(Full Titles of Plans)
<TABLE>
<S> <C>
ALLAN R. CAMPBELL, ESQUIRE Copy to:
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND JAMES J. HANKS, JR., ESQUIRE
SECRETARY BALLARD SPAHR ANDREWS & INGERSOLL, LLP
UNITRODE CORPORATION 300 EAST LOMBARD STREET, SUITE 1900
7 CONTINENTAL BOULEVARD BALTIMORE, MARYLAND 21202
MERRIMACK, NEW HAMPSHIRE 03054 (410) 528-5600
(603) 424-2410
--------------
(Name, address and telephone number, including
area code, of agent for service)
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Title of Proposed Maximum Proposed Maximum
Securities to Amount to be Offering Price Aggregate Amount of
be Registered Registered per Share (3) Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share 3,085,368(2) $28.22 $87,069,084.96 $24,205.21
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $.01
par value per share 200,000(4) $28.22 $ 5,644,000.00 $ 1,569.03
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this Registration
Statement shall be deemed to cover an indeterminate number of additional shares
of Common Stock issuable in the event the number of outstanding shares of
Unitrode Corporation is increased by split-up, reclassification, stock dividend
or similar transactions.
(2) Represents the number of shares of Common Stock authorized for issuance
pursuant to the Unitrode Corporation 1999 Equity Incentive Plan.
(3) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended.
The proposed maximum offering price per share is based upon the average of high
and low prices for shares of Common Stock of the Registrant on the New York
Stock Exchange on June 21, 1999.
(4) Represents the number of shares of Common Stock authorized for issuance
pursuant to the Unitrode Corporation Employee Stock Purchase Plan.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The Registrant will send or give the documents containing the
information specified in this Item 1 to employees, officers, directors or others
as specified by Rule 428(b). In accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission") and the instructions to
Form S-8, the Registrant is not filing such documents with the Commission either
as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The Registrant will send or give the documents containing the
information specified in this Item 2 to employees, officers, directors or others
as specified by Rule 428(b). In accordance with the rules and regulations of the
Commission and the instructions to Form S-8, the Registrant is not filing such
documents with the Commission either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents and information heretofore filed with the
Commission by the Registrant are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended January 31, 1999;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended May 1, 1999;
(c) The Registrant's Current Reports on Form 8-K filed February
15, 1999, Form 8-K filed March 15, 1999 and Form 8-K filed
June 28, 1999;
(d) The description of the Registrant's common stock, par value
$.01 per share, set forth in the Registrant's Registration
Statement filed under the Securities Exchange Act of 1934,
including any amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed with the Commission by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder have been sold
or which deregisters all securities then remaining unsold under this
Registration Statement shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such earlier statement. Any statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute part of this
Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
II-1
<PAGE> 4
Item 6. Indemnification of Directors and Officers.
The Maryland General Corporation Law permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors
and officers to the corporation and its stockholders for money damages except
for liability resulting from (a) actual receipt of an improper benefit or profit
in money, property or services or (b) active and deliberate dishonesty
established by a final judgment as being material to the cause of action. The
charter of Unitrode Corporation, a Maryland corporation (the "Registrant"),
contains such a provision which eliminates such liability except (a) to the
extent that it is proved that the person actually received an improper benefit
or profit in money, property or services, for the amount of the benefit or
profit in money, property or services actually received, or (b) to the extent
that a judgment or other final adjudication adverse to the person is entered in
a proceeding based on a finding in the proceeding that the person's action, or
failure to act, was the result of active and deliberate dishonesty and was
material to the cause adjudicated in the proceeding.
The Registrant's Amended and Re-stated By-Laws obligate it, to the
maximum extent permitted by Maryland law, to indemnify and to pay or reimburse
reasonable expenses in advance of final disposition of a proceeding to (a) any
individual who is a present or former director or officer or (b) any individual
who, while a director of the Registrant and at the request of the Registrant,
serves or has served another corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise. The Registrant's Amended and Re-stated By-Laws also
permit the Registrant to indemnify and advance expenses to any person who served
a predecessor of the Registrant in any of the capacities described above and to
any employee or agent of the Registrant or a predecessor of the Registrant.
The Maryland General Corporation Law requires a corporation (unless
its charter provides otherwise, which the Registrant's charter does not) to
indemnify a director or officer who has been successful, on the merits or
otherwise, in the defense of any proceeding to which he is made a party by
reason of his service in that capacity. The Maryland General Corporation Law
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (a) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (i) was
committed in bad faith or (ii) was the result of active and deliberate
dishonesty, (b) the director or officer actually received an improper personal
benefit in money, property or services or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, under the Maryland General Corporation Law, a
Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the Maryland General
Corporation Law requires a corporation, as a condition to
II-2
<PAGE> 5
advancing reasonable expenses, to obtain (a) a written affirmation by the
director or officer of his good faith belief that he has met the standard of
conduct necessary for indemnification by the corporation and (b) a written
undertaking by him or on his behalf to repay the amount paid or reimbursed by
the corporation if it shall ultimately be determined that the standard of
conduct was not met.
The Registrant's officers and directors are insured against certain
liabilities under a policy maintained by the Registrant with an aggregate
coverage of $10,000,000.
Item 7. Exemption From Registration Claimed.
Not claimed.
Item 8. Exhibits.
4.1 Articles of Restatement of the Charter of the Registrant and
Articles of Amendment to the Charter of the Registrant, previously
filed as Exhibit 3A to the Registrant's Annual Report on Form 10K
for the fiscal year ended January 31, 1989 and incorporated herein
by reference.
4.2 Articles Supplementary to the Charter of the Registrant, previously
filed as Exhibits 3(A)(1) and (6) to the Registrant's Current Report
on Form 8-K filed May 4, 1990 and incorporated herein by reference.
4.3 Articles of Amendment to the Charter of the Registrant, previously
filed as Exhibit 3B to the Registrant's Annual Report on Form 10-K
for fiscal year ended January 31, 1992 and incorporated herein by
reference.
4.4 Articles of Amendment to the Charter of the Registrant, previously
filed as Exhibit 3D to the Registrant's Annual Report on Form 10-K
for the fiscal year ended January 31, 1998, and incorporated herein
by reference.
4.5 Amended and Re-stated By-Laws of the Registrant.
4.6 Rights Agreement dated as of May 2, 1990 between the Registrant and
The First National Bank of Boston as Rights Agent, previously filed
as Exhibit 1 to the Registrant's Registration Statement on Form 8-A
dated May 3, 1990 and incorporated herein by reference.
4.7 First Amendment, dated as of April 30, 1993, to the Rights
Agreement, dated as of May 2, 1990, between the Registrant and The
First National Bank of Boston, as Rights Agent, previously filed as
Exhibit 1 to Form 8-A/A, Amendment to Registration Statement on Form
8-A, dated May 26, 1993 and incorporated herein by reference.
II-3
<PAGE> 6
4.8 Unitrode Corporation 1999 Equity Incentive Plan, previously filed as
Appendix A to the Registrant's Proxy Statement for its 1999 Annual
Meeting of Stockholders on Schedule 14A, filed April 27, 1999.
4.9 Unitrode Corporation Employee Stock Purchase Plan (as amended as of
July 6, 1999).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
Exhibit 5.1).
24.1 Powers of Attorney (included on page II-6 hereof).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from
the low or high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change in such information in
the registration statement;
II-4
<PAGE> 7
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that
is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933, as amended, and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
II-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Merrimack, State of New Hampshire, on this 6th day of
July, 1999.
Unitrode Corporation, a Maryland
corporation (Registrant)
By: /s/ Robert J. Richardson
---------------------------------
Robert J. Richardson,
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Richardson and Allan R.
Campbell, jointly and severally, his true and lawful attorneys-in-fact, each
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments and
supplements to this Registration Statement (including post-effective
amendments), and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
<S> <C> <C>
/s/ Robert J. Richardson Chairman, President and Chief Executive July 6, 1999
- ------------------------------- Officer (principal executive officer) and Director
Robert J. Richardson
/s/ John L. Kokulis Executive Vice President and July 6, 1999
- ------------------------------- Chief Financial Officer
John L. Kokulis (principal financial and accounting
officer)
/s/ Robert L. Gable Director July 6, 1999
- -------------------------------
Robert L. Gable
/s/ Dietrich R. Erdmann Director July 6, 1999
- -------------------------------
Dietrich R. Erdmann
/s/ William W.R. Elder Director July 6, 1999
- -------------------------------
William W.R. Elder
/s/ Louis E. Lataif Director July 6, 1999
- -------------------------------
Louis E. Lataif
/s/ James T. Vanderslice Director July 6, 1999
- -------------------------------
James T. Vanderslice
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
<S> <C>
4.1 Articles of Restatement of the Charter of the Registrant and
Articles of Amendment to the Charter of the Registrant, previously
filed as Exhibit 3A to the Registrant's Annual Report on Form 10K
for the fiscal year ended January 31, 1989 and incorporated herein
by reference.
4.2 Articles Supplementary to the Charter of the Registrant, previously
filed as Exhibits 3(A)(1) and (6) to the Registrant's Current Report
on Form 8-K filed May 4, 1990 and incorporated herein by reference.
4.3 Articles of Amendment to the Charter of the Registrant, previously
filed as Exhibit 3B to the Registrant's Annual Report on Form 10-K
for fiscal year ended January 31, 1992 and incorporated herein by
reference.
4.4 Articles of Amendment to the Charter of the Registrant, previously
filed as Exhibit 3D to the Company's Annual Report on Form 10-K for
the fiscal year ended January 31, 1998, and incorporated herein by
reference.
4.5 Amended and Re-stated By-Laws of the Registrant.
4.6 Rights Agreement dated as of May 2, 1990 between the Registrant and
The First National Bank of Boston as Rights Agent, previously filed
as Exhibit 1 to the
</TABLE>
II-7
<PAGE> 10
<TABLE>
<S> <C>
Registrant's Registration Statement on Form 8-A dated May 3, 1990
and incorporated herein by reference.
4.7 First Amendment, dated as of April 30, 1993, to the Rights
Agreement, dated as of May 2, 1990, between the Company and the
First National Bank of Boston, as Rights Agent, previously filed as
Exhibit 1 to Form 8-A/A, Amendment to Registration Statement on Form
8-A, dated May 26, 1993 and incorporated herein by reference.
4.8 Unitrode Corporation 1999 Equity Incentive Plan (as amended as of
July 6, 1999).
4.9 Unitrode Corporation Employee Stock Purchase Plan, previously filed
as Appendix B to the Proxy Statement for the 1999 Annual Meeting the
Stockholders on Schedule 14A, filed April 27, 1999.
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
Exhibit 5.1).
24.1 Powers of Attorney (included on page II-6 hereof).
</TABLE>
II-8
<PAGE> 1
EXHIBIT 4.5
BY-LAWS
OF
UNITRODE CORPORATION
A
MARYLAND CORPORATION
(As adopted by the Board of Directors
at a meeting held November 30, 1988
and amended at meetings held
April 30, 1990, June 5, 1990,
February 25, 1991, March 23, 1998 and April 22, 1999.)
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I RESIDENT AGENT AND OFFICERS 1
ARTICLE II DIRECTORS AND OFFICERS 2
Section 1 Function of Directors 2
Section 2 Number of Directors 2
Section 3 Qualification of Directors 2
Section 4 Election and Tenure of Directors 2
Section 5 Directors Holding Over 3
Section 6 Removal of Director 3
Section 7 Vacancy on Board 3
Section 8 Action by Directors 4
Section 9 Meetings of Directors 5
Section 10 Executive and Other Committees 5
Section 11 Officers 6
Section 12 Election, Tenure and Removal of Officers 6
Section 13 Powers and Duties of Officers and Agents 7
Section 14 Holding More Than One Office 9
ARTICLE III STOCKHOLDERS 10
Section 1 Annual Meeting 10
Section 2 Special Meeting 10
Section 3 Place of Meeting 11
Section 4 Notice of Meeting, Waiver of Notice 11
Section 5 Quorum; Voting 12
Section 6 General Right to Vote; Proxies 12
Section 7 Voting by Certain Holders of Stock 13
Section 8 Voting of Stock Held by Corporation 14
Section 9 Record Date and Closing of Transfer Books 15
Section 10 Voting Rights of Certain Control Shares 16
Section 11 Nominations and Stockholder Business 16
ARTICLE IV STOCK 19
Section 1 Stock Ledger 19
Section 2 Issuance of Stock Certificate 20
Section 3 Contents of Stock Certificate 20
Section 4 Signature and Seal on Certificates of Stock 21
Section 5 Lost Stock Certificate 21
Section 6 Issuance of Stock and Convertible Securities 21
Section 7 Preemptive Rights 22
ARTICLE V DIVIDENDS 22
ARTICLE VI BOOKS AND RECORDS 22
</TABLE>
ii
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VII INDEMNIFICATION 23
ARTICLE VIII GENDER 24
ARTICLE IX AMENDMENTS TO BY-LAWS 24
</TABLE>
iii
<PAGE> 4
BY-LAWS
OF
UNITRODE CORPORATION
ARTICLE I
RESIDENT AGENT AND OFFICES
Unitrode Corporation (the "Corporation") shall have: (1) A principal
office in the State of Maryland; and (2) At least one resident agent who shall
be either: (i) A citizen of the state of Maryland who resides there; or (ii) A
Maryland corporation. The Corporation may designate or change its resident agent
or principal office by resolution of its Board of Directors which authorizes the
designation or change. Until changed by the Board of Directors in accordance
with the provisions of this Article, the principal office of the Corporation in
the state of Maryland shall be in the City of Baltimore. The Corporation may
have such other office or offices in such other place or places of business as
the business of the Corporation may require and as the Board of Directors from
time to time may determine. The original or a certified copy of these by-laws,
including any amendments to them, shall be kept at the Corporation's principal
office in the State of Maryland.
1
<PAGE> 5
ARTICLE II
DIRECTORS AND OFFICERS
Section 1. FUNCTION OF DIRECTORS
(a) Management. The business and affairs of the Corporation shall be
managed under the direction of the Board of Directors.
(b) Power of Board. All powers of the Corporation may be exercised by or
under authority of the Board of Directors except as conferred on or reserved to
the stockholders by law or by the charter or by-laws of the Corporation.
Section 2. NUMBER OF DIRECTORS
(a) Minimum Number. The Corporation shall have at least three directors
at all times.
(b) Charter Provision. Subject to the provisions of subsection (a) of
this section, the Corporation shall have the number of Directors provided in its
charter until changed by these by-laws.
(c) By-Laws Provision. Subject to the provisions of subsection (a) of
this section, a majority of the entire Board of Directors may increase or
decrease the number of directors set by the charter or these by-laws, but the
action may not affect the tenure of office of any director, and the Board of
Directors may not increase the number of directors to more than fifteen, nor
decrease it to less than three.
Section 3. QUALIFICATIONS OF DIRECTORS
A director need not be a stockholder in the Corporation.
Section 4. ELECTION AND TENURE OF DIRECTORS
(a) Election of Directors; Tenure. The directors shall be divided into
three classes, each class to be as nearly equal in number as possible. The term
of office of directors of the first class shall expire at the annual meeting of
stockholders to be held in
2
<PAGE> 6
1985; the term of office of directors of the second class shall expire at the
annual meeting of stockholders to be held in 1986; and the term of office of
directors of the third class shall expire at the annual meeting of stockholders
to be held in 1987. At each annual meeting of stockholders, commencing at the
annual meeting to be held in 1985, the successors to the class of directors
whose term shall then expire shall be elected to hold office for a term expiring
at the third succeeding annual meeting. In all cases, the term of office of
directors shall continue until their respective successors are elected and
qualify. In the event of any increase in the number of directors, the additional
directors shall be classified so that all classes of directors have as nearly
equal numbers of directors as may be possible. In the event of any decrease in
the number of directors, all classes of directors shall be decreased equally as
nearly as may be possible.
(b) Manner of Voting; Required Votes. Each share of stock may be voted
for as many individuals as there are directors to be elected and for whose
election the share is entitled to be voted. Except as otherwise provided in the
charter or these by-laws of the Corporation, no director shall be elected unless
he receives the affirmative vote of not less than an absolute majority of all
the votes of the holders of capital stock entitled to vote for the election of
such director.
Section 5. DIRECTORS HOLDING OVER
In case of failure to elect directors at the designated time, the
directors holding over shall continue to manage the business and affairs of the
Corporation until their successors are elected and qualify.
Section 6. REMOVAL OF DIRECTOR
The stockholders may remove any director, with or without cause, in the
manner and with the vote required by the charter of the Corporation.
3
<PAGE> 7
Section 7. VACANCY ON BOARD
The stockholders may elect a successor to fill a vacancy on the Board of
Directors which results from the removal of a director in the manner and with
the vote required by this Section 7. The affirmative vote of not less than an
absolute majority of all the votes of the holders of capital stock entitled to
be cast for the election of such director shall be necessary to elect a
successor to fill a vacancy on the Board of Directors which results from the
removal of a director who has been removed with cause. The affirmative vote of
not less than two-thirds of all the votes of the holders of capital stock
entitled to vote for the election of such director shall be necessary to elect a
successor to fill a vacancy on the Board of Directors which results from the
removal of a director who has been removed from office without cause. A majority
of the remaining directors, whether or not sufficient to constitute a quorum,
may fill a vacancy on the Board of Directors which results from any cause except
an increase in the number of directors. A majority of the entire Board of
Directors may fill a vacancy which results from an increase in the number of
directors. A director elected by the Board of Directors to fill a vacancy shall
serve until the next annual meeting of stockholders and until his successor is
elected and qualifies. A director elected by the stockholders to fill a vacancy
which results from the removal of a director shall serve for the balance of the
term of the removed director.
Section 8. ACTION BY DIRECTORS
(a) Majority Rule. Unless the laws of the State of Maryland, the charter
of the Corporation or these by-laws require a greater proportion, the action of
a majority of the directors present at a meeting at which a quorum is present
shall be the action of the Board of Directors.
(b) Quorum. A majority of the entire Board of Directors shall constitute
a quorum for the transaction of business.
4
<PAGE> 8
(c) Informal Action by Directors. Any action required or permitted to be
taken at a meeting of the Board of Directors or of a committee of the Board may
be taken without a meeting, if a unanimous written consent which sets forth the
action is: (1) Signed by each member of the Board or committee; and (2) Filed
with the minutes of proceedings of the Board or committee.
Section 9. MEETINGS OF DIRECTORS
(a) Place of Meeting. A regular or special meeting of the Board of
Directors may be held at any place in or out of the State of Maryland.
(b) Notice of Meeting. Notice of each meeting of the Board of Directors
shall be given: (1) By written notice mailed to each director at least three
days before the meeting; (2) By telegram dispatched to each director at least
one day before the meeting; or (3) By direct telephone communication with each
director at least one day before the meeting. Any form of such notice need not
state the business to be transacted at or the purpose of any regular or special
meeting of the Board of Directors.
(c) Waiver of Notice. Whenever notice of the time, place, or purpose of a
meeting of the Board of Directors or a committee of the Board is required, each
person who is entitled to the notice waives notice if he: (1) Before or after
the meeting signs a waiver of the notice which is filed with the records of the
meeting; or (2) Is present at the meeting.
(d) Telephone Meetings. Members of the Board of Directors or a committee
of the Board may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
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Section 10. EXECUTIVE AND OTHER COMMITTEES
(a) Board May Appoint. The Board of Directors may: (1) Appoint from among
its members an executive committee and other committees composed of two or more
directors; and (2) Delegate to these committees any of the powers of the Board
of Directors except the power to: (i) declare dividends or distributions on
stock; (ii) issue stock other than as provided in subsection (b) of this
section; (iii) recommend to the stockholders any action which requires
stockholder approval; (iv) amend these by-laws; or (v) approve any merger or
share exchange which does not require stockholder approval.
(b) If the Board of Directors has given general authorization for the
issuance of stock, a committee of the Board, in accordance with a general
formula or method specified by the Board by resolution or by adoption of a stock
option or other plan, may fix the terms on which any stock may be issued,
including all terms and conditions required or permitted to be established or
authorized by the Board of Directors under Sections 2-203 and 2-208 of Title 2
of the Maryland General Corporation Law.
(c) Appointment of Substitute Member. The members of a committee present
at any meeting, whether or not they constitute a quorum, may appoint a director
to act in the place of an absent member.
Section 11. OFFICERS
(a) The Corporation shall have the following officers: (1) A president;
(2) A secretary; and (3) A treasurer.
(b) In addition to the required officers, the Corporation may have a
chairman of the Board of Directors; one or more vice chairmen of the Board of
Directors; one or more vice presidents, with such additional designations before
or following such title as to seniority and/or functional responsibilities as
the Board shall determine; a vice president-
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finance; one or more assistant secretaries and assistant treasurers; and such
additional officers, with such titles, all as the Board of Directors shall
determine.
Section 12. ELECTION, TENURE, AND REMOVAL OF OFFICERS
(a) Election. The Board of Directors shall elect all officers.
(b) Tenure. Each officer shall serve for one year and until his successor
is elected and qualifies.
(c) Removal. (1) If the Board of Directors in its judgment finds that the
best interests of the Corporation will be served, it may remove any officer or
agent of the Corporation. (2) The removal of an officer or agent shall not
prejudice any of his contract rights.
(d) Board May Fill Vacancy. The Board of Directors may fill a vacancy
which occurs in any office.
Section 13. POWERS AND DUTIES OF OFFICERS AND AGENTS
(a) In General. An officer or agent of the Corporation shall have the
authority and shall perform the duties in the management of the assets and
affairs of the Corporation as are: (1) Incident to such office or provided in
these by-laws; and (2) Determined from time to time by resolution by the Board
of Directors not inconsistent with these by-laws.
(b) Duties of the Chairman of the Board. If there is a chairman of the
Board of Directors, he shall be the chief executive officer of the Corporation,
and he shall make his counsel available to the other officers of the
Corporation, and shall have such other duties and powers as may from time to
time be conferred on him by the directors. He shall preside at all meetings of
the directors at which he is present, and at all meetings of the stockholders,
unless he shall delegate the authority to do so to the president. He may sign
and execute all authorized bonds, contracts, or other obligations in the name of
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the Corporation, and with the secretary or assistant secretary, may sign all
certificates for shares of the capital stock of the Corporation.(1)
(c) Duties of the Vice Chairman. If there is a vice chairman of the Board
of Directors, he shall have such duties and powers as are conferred on him by
the Board of Directors.
(d) Duties of the President. In the absence of the chairman of the Board,
if there be one, the president shall preside at all meetings of the directors at
which he is present and at the direction of the chairman of the Board of
Directors or in his absence, at any meeting of the stockholders. The president
may sign and execute all authorized bonds, contracts or other obligations in the
name of the Corporation and, with the secretary or an assistant secretary, may
sign all certificates for shares of the capital stock of the Corporation. He
shall have such other duties and powers as may from time to time be assigned to
him by the Board of Directors. (1)
(e) Duties of the Vice Presidents. The Board of Directors may designate
vice presidents as executive vice presidents, senior vice presidents or vice
presidents with or without additional designations before such title, and with
such additional designations following such title as to seniority and/or
functional responsibilities, and may assign to them such powers and duties, as
the Board may deem appropriate. In the absence of the chairman of the Board, if
there be one, and of the president, the Board of Directors may designate one of
the vice presidents to perform their duties while such absence continues.
(f) Duties of the Secretary. The secretary shall (1) Keep the
minutes of all meetings of the stockholders and of the Board of Directors and of
any committees of the Board; (2) Attend to the giving of all notices of the
Corporation which may be required;
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(1) Amended at a meeting of the Board of Directors held June 5, 1990
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(3) Affix the seal of the Corporation to all contracts and other documents
executed by the proper corporate officer or officers as may be necessary or
desirable; (4) Subject to such provision as may be made by the Board of
Directors for the appointment of a transfer agent and registrar, have charge of
the stock certificate books, transfer books and stock ledgers, and such other
books and papers as the Board of Directors may from time to time direct; and (5)
In General, perform all the duties incident to the office of secretary of a
corporation. The secretary or an assistant secretary shall countersign all
certificates of the stock of the Corporation.
(g) Duties of the Assistant Secretaries. The assistant secretary or
assistant secretaries shall assist the secretary in the performance of his
duties and shall perform such other incidental work of a like character as may
be assigned to him or to them by the Board of Directors. Any assistant secretary
may countersign all certificates of stock of the Corporation.
(h) Duties of the Treasurer. The treasurer shall have general charge and
supervision of the finances, investments, securities, accounts receivable and
accounts payable, and contracts of the Corporation. He shall have custody of all
the funds and securities of the Corporation which may come into his possession.
He shall perform all acts incident to the position of treasurer of a
corporation, subject to the control of the Board of Directors.
(i) Duties of the Assistant Treasurers. The assistant treasurer or
assistant treasurers shall assist the treasurer in the performance of his duties
and shall perform such other incidental work of a like character as may be
assigned to him by the Board of Directors.
(j) Duties of the Vice President-Finance. The vice president-Finance, if
there be one, shall be the chief financial officer of the Corporation and shall
keep the Board of Directors fully informed of the Corporation's financial
condition.
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Section 14. HOLDING MORE THAN ONE OFFICE
(a) Permitted. A person may hold more than one office in the Corporation
but may not serve concurrently as both president and vice president of the
Corporation.
(b) Execution of Documents. A person who holds more than one office in
the Corporation may not act in more than one capacity to execute, acknowledge,
or verify an instrument required by law to be executed, acknowledged, or
verified by more than one officer.
ARTICLE III
STOCKHOLDERS
Section 1. ANNUAL MEETING
(a) Meeting Required. The Corporation shall hold an annual meeting of its
stockholders to elect directors and transact any other business within its
powers.
(b) Time of Meeting. The meeting shall be held on a date within the
thirty-one day period beginning with the first day of June and ending with the
first day of July in each year, set by the Board of Directors. (2)
(c) Business Which May Be Considered. Except as the laws of the State of
Maryland provide otherwise, any business may be considered at an annual meeting
without the purpose of the meeting having been specified in the notice.
(d) Failure to Hold Meeting. The failure to hold an annual meeting shall
not invalidate the Corporation's existence or affect any otherwise valid
corporate act.
Section 2. SPECIAL MEETING
(a) Called by President, Board, or Certain Other Officers. A special
meeting of the stockholders of the Corporation may be called by: (1) The
president; (2) The Board
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(2) Amended at a meeting of the Board of Directors held March 23, 1998
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of Directors; or (3) The chairman of the Board, any executive vice president or
any senior vice president.
(b) Called by Stockholders. (1) Except as provided in subsection (c) of
this section, the secretary of the Corporation shall call a special meeting of
the stockholders on the written request of stockholders entitled to cast at
least 25 percent of all the votes entitled to be cast at the meeting. (2) A
request for a special meeting shall state the purpose of the meeting and the
matters proposed to be acted on at it. (3) The secretary shall: (i) inform the
stockholders who make the request of the reasonably estimated cost of preparing
and mailing a notice of the meeting; and (ii) on payment of these costs to the
Corporation, notify each stockholder entitled to notice of the meeting.
(c) When Meeting Need Not Be Called. Unless requested by stockholders
entitled to cast a majority of all the votes entitled to be cast at the meeting,
a special meeting need not be called to consider any matter which is
substantially the same as a matter voted on at any special meeting of the
stockholders held during the preceding 12 months.
Section 3. PLACE OF MEETING
Meetings of stockholders shall be held at such place in the City of
Boston, Massachusetts or the Town of Lexington, Massachusetts or at any other
place in the United States, as is set by the Board of Directors.
Section 4. NOTICE OF MEETING; WAIVER OF NOTICE
(a) Secretary to Give Notice. Not less than ten nor more than 90 days
before each stockholders' meeting, the secretary of the Corporation shall give
written notice of the meeting to: (1) Each stockholder entitled to vote at the
meeting; and (2) Each other stockholder entitled to notice of the meeting.
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(b) Contents of Notice. The notice shall state: (1) The time and place of
the meeting; and (2) The purpose of the meeting, if: (i) the meeting is a
special meeting; or (ii) notice of the purpose is required by any other
provision of the laws of the State of Maryland.
(c) Delivery of Notice. For purposes of this section, notice is given to
a stockholder when it is: (1) Personally delivered to him; (2) Left at his
residence or usual place of business; or (3) Mailed to him at his address as it
appears on the records of the Corporation.
(d) Waiver of Notice. Whenever notice of the time, place, or purpose of a
meeting of the stockholders is required, each person who is entitled to the
notice waives notice if he: (1) Before or after the meeting signs a waiver of
the notice which is filed with the records of stockholders meetings; or (2) Is
present at the meeting in person or by proxy.
Section 5. QUORUM; VOTING
Unless the laws of the State of Maryland or the charter of the
Corporation provides otherwise, at a meeting of stockholders: (1) The presence
in person or by proxy of stockholders entitled to cast a majority of all the
votes entitled to be cast at the meeting shall constitute a quorum; and (2) A
majority of all the votes cast at a meeting at which a quorum is present shall
be sufficient to approve any matter which properly comes before the meeting.
Section 6. GENERAL RIGHT TO VOTE; PROXIES
(a) Each Share Entitled to One Vote. Unless the charter provides for a
greater or lesser number of votes per share or limits or denies voting rights,
each outstanding share of stock, regardless of class, shall be entitled to one
vote on each matter submitted to a vote at a meeting of stockholders. However, a
share shall not be entitled to vote if any installment payment on it is overdue
and unpaid.
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(b) Manner of Voting; Proxies. (1) A stockholder may vote the stock he
owns of record either: (i) in person; or (ii) by proxy executed by the
stockholder, or the stockholder's authorized agent in any manner permitted by
law. (3) (2) Unless a proxy provides otherwise, it shall not be valid more than
11 months after its date. (3) Unless otherwise agreed in writing, the holder of
record of stock which actually belongs to another shall issue a proxy to vote
the stock to the actual owner on his demand.
Section 7. VOTING BY CERTAIN HOLDERS OF STOCK
(a) Stock Held by Fiduciary. (1) A fiduciary may vote, either in person
or by proxy, stock registered in his name as fiduciary. (2) A fiduciary may
vote, either in person or by proxy, stock registered in the name of another
person on proof of the fact that legal title to the stock has devolved on him in
a fiduciary capacity and that he is qualified to act in that capacity.
(b) Stock Held by Pledgee. A stockholder of record who pledges his shares
may vote them, but, as between the pledgor and pledgee, this subsection shall
not affect the validity of any agreement between them as to the giving of
proxies or the exercise of voting rights.
(c) Jointly Held Stock. (1) If stock is registered in the names of two or
more persons, whether as fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety, or otherwise, or if two or more
persons have the same fiduciary relationship with respect to the same stock,
unless the secretary of the Corporation is given written notice to the contrary
and is furnished with a copy of the instrument on order which so provides, their
acts with respect to voting have the effects provided in this subsection. (2) If
only one votes, his vote binds all, and if more than one vote, the vote of the
majority binds all. (3) If more than one vote and the vote is evenly split on
any particular matter: (i) each faction may vote the stock in question
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(3) Amended at a meeting of the Board of Directors held April 22, 1999.
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proportionally; or (ii) any person voting the stock or any beneficiary may apply
to a court of competent jurisdiction to appoint an additional person to act with
the persons voting the stock and the stock shall then be voted as determined by
a majority of those persons and the person appointed by the court. (4) If the
instrument or order given to the secretary of the Corporation shows that the
interests are unequal, a majority or even split for the purpose of this
subsection is a majority or even split in interest.
Section 8. VOTING OF STOCK HELD BY CORPORATION
(a) Who May Vote. Stock registered in the name of a corporation, if
entitled to be voted, may be voted by the president, a vice president, the vice
president-finance, if there be one, the treasurer, or a proxy appointed by any
of them, unless another person appointed to vote the stock under a by-law or a
resolution of the Board of Directors presents a certified copy of the by-law or
resolution, in which case he may vote the stock. Such officer shall have full
power and authority to execute proxies, waivers of notice or consents of
stockholders in lieu of a meeting on behalf of the Corporation, and as its
representative to attend and to act and to vote at any meetings of stockholders
of any corporation in which the Corporation may hold stock and at any such
meeting shall possess and exercise any and all the rights and powers incident to
the ownership of such stock and which, as the owner thereof, the Corporation
might have possessed and exercised in person.
(b) When Stock May Not Be Voted. (1) Shares of the Corporation's own
stock owned directly or indirectly by it may not be voted at any meeting and may
not be counted in determining the total number of outstanding shares entitled to
be voted at any given time unless they are held by it in a fiduciary capacity,
in which case they may be voted and shall be counted in determining the total
number of outstanding shares at any given time. (2) Shares of its own stock are
considered owned directly by the Corporation
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if owned by another corporation in which the Corporation owns shares entitled to
cast a majority of all the votes entitled to be cast of all shares outstanding
and entitled to vote.
Section 9. RECORD DATE AND CLOSING OF TRANSFER BOOKS
(a) Directors May Set. The Board of Directors may set a record date or
direct that the stock transfer books be closed for a stated period for the
purpose of making any proper determination with respect to stockholders,
including which stockholders are entitled to: (1) Notice of a meeting; (2) Vote
at a meeting; (3) Receive a dividend; or (4) Be allotted other rights.
(b) Limitations. As set by the Board of Directors: (1) The record date
may not be prior to the close of business on the day the record date is fixed.
Except as otherwise provided in this section, the record date shall be not more
than 90 days before the date on which the action requiring the determination
will be taken; (2) The transfer books may not be closed for a period longer than
20 days; and (3) In the case of a meeting of stockholders, the record date or
the closing of the transfer books shall be at least ten days before the date of
the meeting.
(c) Effect of Failure to Set Dates. If a record date is not set and the
stock transfer books are not closed: (1) The record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the later of: (i) the close of business on the day on which notice of the
meeting is mailed; or (ii) the thirtieth day before the meeting; and (2) The
record date for determining stockholders entitled to receive payment of a
dividend or an allotment of any rights shall be the close of business on the day
on which the resolution of the Board of Directors declaring the dividend or
allotment of rights is adopted. But the payment or allotment may not be made
more than 60 days after the date on which the resolution is adopted.
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(d) Adjournment. A meeting of stockholders convened on the date for which
it was called may be adjourned from time to time without further notice to a
date not more than 120 days after the original date.
Section 10. VOTING RIGHTS OF CERTAIN CONTROL SHARES
So long as this Section 10 shall not have been modified or repealed, Subtitle 7
of Title 3 of the General Corporation Law of Maryland shall not apply to the
voting rights of share of stock of the Corporation and all acquisitions of
shares of stock of the Corporation by existing or future shareholders are exempt
from such Subtitle 7. (4)
Section 11. NOMINATIONS AND STOCKHOLDER BUSINESS
(a) Annual Meetings of Stockholders. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (i) pursuant to the Corporation's notice of meeting, (ii) by or
at the direction of the Board of Directors or (iii) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this Section 11(a), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 11(a).
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (iii) of paragraph (a)(1) of
this Section 11, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is
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(4) Added at a meeting of the Board of Directors held April 30, 1990
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advanced by more than 60 days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting and not later than the close of business on the
later of the 60th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made.
Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected); (ii) as to any other business that the stockholder proposes to bring
before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made, (x) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (y) the class and number of shares of stock of the Corporation which
are owned beneficially and of record by such stockholder and such beneficial
owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 11 to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the
Corporation at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by
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this Section 11(a) shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the tenth day following the day on which
such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation" notice of meeting (i) by or at the direction of the Board of
Directors or (ii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 11(b), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 11(b). In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board, any such stockholder may nominate a
person or persons (as the case may be) for election to such position(s) as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by paragraph (a)(2) of this Section 11(b) shall be delivered to the
Secretary at the principal executive offices of the Corporation not earlier than
the 90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the tenth
day following the day on which public announcement is first made of the date of
the special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(c) General. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 11 shall be eligible to serve as
directors and only
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such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 11. The presiding officer of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought before
the meeting was made in accordance with the procedures set forth in this Section
11 and, if any proposed nominations or business is not in compliance with this
Section 11, to declare that such defective nomination or proposal be
disregarded.
(2) For purposes of this Section 11, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Sections 13,
14 and 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 11, a
stockholder shall also comply with all applicable requirements of state law and
of the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 11. Nothing in this Section 11 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act. (5)
ARTICLE IV
STOCK
Section 1. STOCK LEDGER
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(5) Added at a meeting of the Board of Directors held February 25, 1991
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(a) Contents. The Corporation shall maintain a stock ledger which
contains: (1) The name and address of each stockholder; and (2) The number of
shares of stock of each class which the stockholder holds.
(b) Form. The stock ledger may be in written form or in any other form
which can be converted within a reasonable time into written form for visual
inspection.
(c) Location of Ledger. The original or a duplicate of the stock ledger
shall be kept at the office of the Corporation's transfer agent and registrar of
its stock in the Commonwealth of Massachusetts.
Section 2. ISSUANCE OF STOCK CERTIFICATE
(a) Stockholder Entitled to Certificate. Except as provided in subsection
(b) of this section, each stockholder shall be entitled to stock certificates
which represent and certify the shares of stock he holds in the Corporation.
(b) When Certificate May Not Be Issued. No stock certificate shall be
issued until the stock represented by it is fully paid, except in the case of
stock purchased under a plan, agreement, or transaction as provided by Section
2-207 of Title 2 of the Maryland General Corporation Law.
Section 3. CONTENTS OF STOCK CERTIFICATE
(a) Representation of Stock Held. Each stock certificate shall include on
its face: (1) The name of the Corporation; (2) The name of the stockholder or
other person to whom it is issued; and (3) The class of stock and number of
shares it represents.
(b) Preferences, Limitations, and Rights. If the Corporation has
authority to issue stock of more than one class, the stock certificate shall
contain on its face or back a full statement or summary of: (1) The designations
and any preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the stock of each class which the Corporation is authorized to
issue; and 92) If the Corporation is authorized to issue any preferred or
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special class in series: (I) the differences in the relative rights and
preferences between the shares of each series to the extent they have been set;
and (II) the authority of the Board of Directors to set the relative rights and
preferences of subsequent series.
(c) Alternative Statement. Instead of a full statement or summary of the
information required by subsection (b) of this section the certificate may state
that the Corporation will furnish a full statement of the required information
to any stockholder on request and without charge.
Section 4. SIGNATURE AND SEAL ON CERTIFICATES OF STOCK
Each stock certificate shall be signed by the president, a
vice-president, or the chairman of the board and countersigned by the secretary,
the assistant secretary, the treasurer, or an assistant treasurer. Each
certificate which represents any stock: (1) May be sealed with the actual seal
or facsimile of it or in any other form; and (2) The signatures may be either
manual or facsimile signatures. A certificate described in this section shall be
valid and may be issued whether or not an officer who signed it is still an
officer when it is issued.
Section 5. LOST STOCK CERTIFICATE
The Board of Directors may determine the conditions for issuing a new
stock certificate in place of one which is alleged to have been lost, stolen, or
destroyed. In its discretion, the Board may require the owner of the certificate
to give bond, with sufficient surety, to indemnify the Corporation against any
loss or claim arising as a result of the issuance of a new certificate.
Section 6. ISSUANCE OF STOCK AND CONVERTIBLE SECURITIES
Before the issuance of stock or convertible securities, the Board of
Directors shall adopt a resolution which: (1) Authorizes the issuance; (2) Sets
the minimum price or value of consideration for the stock or convertible
securities or a formula for its determination; and (3) Fairly describes any
consideration other than money and states:
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(I) its actual value as determined by the Board of Directors; or (II) that the
Board of Directors has determined that the actual value is or will be not less
than a certain sum.
Section 7. PREEMPTIVE RIGHTS
No stockholder shall have any preemptive rights.
ARTICLE V
DIVIDENDS
If declared by its Board of Directors and unless contrary to a
restriction contained in its charter, the Corporation may pay dividends on its
shares in cash, property, or its own stock, subject to the provisions of Section
2-309 of Title 2 of the Maryland General Corporation Law.
ARTICLE VI
BOOKS AND RECORDS
(a) Records of Accounts and Minutes to be Correct and Complete. The
Corporation shall keep correct and complete: (1) Books and records of its
accounts and transactions; and (2) Minutes of the proceedings of its
stockholders and Board of Directors and of any executive or other committee when
exercising any of the powers of the Board of Directors.
(b) Form of Records and Minutes. (1) The books and records of the
Corporation may be in written form or in any other form which can be converted
within a reasonable time into written form for visual inspection. (2) Minutes
shall be recorded in written form but may be maintained in the form of a
reproduction.
(c) Capital Account; Required Records. The Corporation shall keep its
books in a manner which shows: (1) The amount and nature of the money or other
consideration
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it receives for the stock which it issues, including: (I) the number of shares
of stock of each class issued for the consideration; and (II) the stated capital
attributable to the issued shares of stock of each class; and (2) The amount and
nature of the money or other consideration it receives for the convertible
securities which it issues.
(d) Annual Statement of Affairs. The president or treasurer of the
Corporation shall prepare annually a full and correct statement of the affairs
of the Corporation, to include a balance sheet and a financial statement of
operations for the preceding fiscal year. The statement of affairs shall be
submitted at the annual meeting of stockholders and, within 20 days after the
meeting, placed on file at the Corporation's principal office in the State of
Maryland.
ARTICLE VII
INDEMNIFICATION
To the maximum extent permitted by Maryland law in effect from time to
time, the Corporation shall indemnify, and shall pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to, (i) any individual
who is a present or former director or officer of the Corporation or (ii) any
individual who, while a director of the Corporation and at the request of the
Corporation, serves or has served another corporation, partnership, joint
venture, trust, employee benefit plan or any other enterprise as a director,
officer, partner or trustee of such corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. The Corporation may, with the
approval of its Board of Directors, provide such indemnification and advancement
of expenses to a person who served a predecessor of the Corporation in any of
the capacities described in (i) or (ii) above and to any employee or agent of
the Corporation or a predecessor of the Corporation.
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<PAGE> 27
Neither the amendment nor repeal of this section, nor the adoption or
amendment of any other provision of the by-laws or charter of the Corporation
inconsistent with this section, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption. (6)
ARTICLE VIII
GENDER
References to the masculine in these by-laws shall include the feminine
where appropriate.
ARTICLE IX
AMENDMENTS TO BY-LAWS
The power to adopt, alter, and repeal these by-laws shall be vested in
the Board of Directors. Such power shall be exercised only by a majority of the
entire Board of Directors then in office.
As adopted by the Board of Directors on November 30, 1988, and amended
April 30, 1990, June 5, 1990, February 25, 1991, and with respect to Article
VII, effective on June 4, 1991, March 23, 1998, and April 22, 1999.
----------------------------
Allan R. Campbell, Secretary
- -------------------------
(6) Added at a meeting of the Board of Directors held February 25, 1991,
effective June 4, 1991
24
<PAGE> 1
EXHIBIT 4.9
UNITRODE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(AMENDED AS OF JULY 6, 1999)
ARTICLE I - PURPOSE
1.01 PURPOSE
The Unitrode Corporation Employee Stock Purchase Plan ("the Plan") is intended
to provide a method whereby employees of Unitrode Corporation and its subsidiary
corporations (hereinafter referred to, unless the context otherwise requires, as
the "Company") who are residents of the United States will have an opportunity
to acquire a proprietary interest in the Company through the purchase of shares
of the Common Stock of the Company. It is the intention of the Company to have
the Plan qualify as an "employee stock purchase plan" under Section 423 of the
Internal Revenue Code of 1986, as amended (the "Code"). The provisions of the
Plan shall be construed so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
ARTICLE II - DEFINITIONS
2.01 BASE PAY
"Base Pay" shall mean regular straight-time earnings including disability pay,
but excluding payments for overtime, shift premium, bonuses and other special
payments, commissions and other marketing incentive payments.
2.02. COMMITTEE
"Committee" shall mean the individuals described in Article XI.
2.03. EMPLOYEE
"Employee" means any person working for the Company in the United States who is
customarily employed on a regular full-time or part-time basis by the Company
and is regularly scheduled to work more than 20 hours per week. Interns,
co-operative students, temporary contract service providers and consultants
shall not be considered Employees for purposes of the Plan.
2.04. SUBSIDIARY CORPORATION
"Subsidiary Corporation" shall mean any present or future corporation which (i)
would be a "subsidiary corporation" of Unitrode Company as that term is defined
in Section 424 of the Code and (ii) is designated as a participant in the Plan
by the Committee.
<PAGE> 2
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.01. ELIGIBILITY
Any Employee shall be eligible to participate in the next available Offering
Period under the Plan occurring after such Employee's date of hire or rehire.
3.02. LEAVE OF ABSENCE
For purposes of participation in the Plan, an Employee on a paid leave of
absence shall be deemed to be an eligible Employee for the first 90 days of such
paid leave of absence. Such Employee's eligibility to participate in the Plan
and the right to exercise any option shall be deemed to have terminated at the
close of business on such 90th day. Upon return from paid leave of absence, an
Employee will again be eligible for participation in the Plan and may
participate in the next available Offering Period occurring under the Plan
following such Employee's date of return.
3.03 RESTRICTIONS ON PARTICIPATION
Notwithstanding any provisions of the Plan to the contrary, no employee shall be
granted an option under the Plan:
(a) if, immediately after the purchase of shares under the Plan, such
employee would own stock, and/or hold outstanding options to
purchase stock, possessing 5% or more of the total combined voting
power or value of all classes of stock of the Company (for
purposes of this paragraph, the rules of Section 424(d) of the
Code shall apply in determining stock ownership of any employee);
(b) which would enable an Employee to purchase in excess of 1000
shares of the Company's common stock during any one Offering
Period under the Plan; or
(c) which permits such employee's rights to purchase stock under the
Plan to accrue at a rate which exceeds $25,000 in fair market
value of the stock (determined at the time such option is granted)
for each calendar year in which such option is outstanding.
3.04. COMMENCEMENT OF PARTICIPATION
An eligible employee may become a participant by completing an authorization for
a payroll deduction on the form provided by the Company and filing it with the
Company on or before the date set therefor by the Committee, which date shall be
prior to the Offering Commencement Date for the Offering (as such terms are
defined below). Payroll deductions for a participant shall commence on the
applicable Offering Commencement Date when the participant's authorization for a
payroll deduction becomes effective and shall continue in effect for the initial
and all subsequent offerings unless terminated by the participant as provided in
Article VIII.
2
<PAGE> 3
ARTICLE IV - OFFERINGS
4.01 OFFERINGS
The Plan will be implemented by offerings of the Company's Common Stock (the
"Offerings") beginning on the 1st day of January and the 1st day of July in each
year, each Offering terminating on June 30 and December 31 of that year.
As used in the Plan, "Offering Commencement Date" means the January 1 or July 1,
as the case may be, on which the particular Offering begins and "Offering
Termination Date" means the June 30 or December 31 as the case may be, on which
the particular Offering terminates. The first Offering hereunder shall commence
on July 1, 1999.
ARTICLE V - PAYROLL DEDUCTIONS
5.01. AMOUNT OF DEDUCTION
At the time a participant files his authorization for post-tax payroll
deduction, he shall elect to have deductions made from his pay on each payday
during the time he is a participant in an Offering at the rate of 1, 2, 3, 4, 5,
6, 7, 8, 9, or 10% of his Base Pay in effect at the Offering Commencement Date
of such Offering. Such rate may be changed prior to any subsequent offering in
accordance with procedures established by the Committee. In the case of a
part-time hourly employee, such employee's Base Pay during an Offering shall be
determined by multiplying such employee's hourly rate of pay in effect on the
Offering Commencement Date by the number of regularly scheduled hours of work
for such employee during such Offering.
5.02. PARTICIPANT'S ACCOUNT
All payroll deductions made for a participant shall be credited to his account
under the Plan.
5.03. CHANGES IN PAYROLL DEDUCTIONS
A participant may discontinue his participation in the Plan as provided in
Article VIII and can reduce contributions once during the Offering in accordance
with procedures established by the Committee. No other change can be made during
an Offering.
5.04. LEAVE OF ABSENCE
If a participant goes on a paid leave of absence, such participant shall have
the right to elect: (a) to withdraw the balance in his or her account pursuant
to Section 7.02, (b) to discontinue contributions to the Plan but remain a
participant in the Plan, or (c) remain a participant in the Plan during such
leave of absence, as outlined in Article III Section 3.02.
3
<PAGE> 4
ARTICLE VI - GRANTING OF OPTION
6.01. NUMBER OF OPTION SHARES
On the Commencement Date of each Offering, a participating employee shall be
deemed to have been granted an option to purchase a maximum number of shares of
the stock of the Company equal to an amount determined as follows: an amount
equal to (i) that percentage of the employee's Base Pay which he has elected to
have withheld (but not in any case in excess of 10%) multiplied by (ii) the
employee's Base Pay during the period of the offering (iii) divided by 85% of
the market value of the stock of the Company on the applicable Offering
Commencement Date. Notwithstanding the foregoing, the maximum number of shares
any Employee may purchase during any Offering shall be limited to 1000 shares.
The market value of the Company's stock shall be determined as provided in
paragraphs (a) and (b) of Section 6.02 below. An employee's Base Pay during the
period of an offering shall be determined by multiplying his normal weekly or
hourly rate of pay (as in effect on the last day prior to the Commencement Date
of the particular offering) by 26 or 1040, as the case may be, provided that, in
the case of a part time hourly employee, the employee's Base Pay during the
period of an offering shall be determined by multiplying such employee's hourly
rate by the number of regularly scheduled hours of work for such employee during
such Offering.
6.02. OPTION PRICE
The option price of stock purchased with payroll deductions made during such
offering for a participant therein shall be the lower of:
(a) 85% of the closing price of the stock on the Offering Commencement
Date or the nearest prior business day on which trading occurred
on the New York Stock Exchange; or
(b) 85% of the closing price of the stock on the Offering Termination
Date or the nearest prior business day on which trading occurred
on the New York Stock Exchange.
If the Common Stock of the Company is not admitted to trading on any of the
aforesaid dates for which closing prices of the stock are to be determined, then
reference shall be made to the fair market value of the stock on that date, as
determined on such basis as shall be established or specified for the purpose by
the Committee.
ARTICLE VII - EXERCISE OF OPTION
7.01 AUTOMATIC EXERCISE
Unless a participant gives written notice to the Company as hereinafter
provided, his option for the purchase of stock with payroll deductions made
during any offering will be deemed to have been exercised automatically on the
Offering Termination Date applicable to such offering, for the purchase of the
number of full shares of stock which the accumulated payroll deductions in his
account at that time will purchase at the applicable option price (but not in
excess of the
4
<PAGE> 5
number of shares for which options have been granted to the employee pursuant to
Section 6.01), and except as otherwise provided in Section 7.03, any excess in
his account at that time will be returned to him as promptly as possible.
7.02 WITHDRAWAL OF ACCOUNT
By written notice to the Company, at any time prior to the Offering Termination
Date applicable to any Offering, a participant may elect to withdraw all the
accumulated payroll deductions in his account at such time.
7.03 FRACTIONAL SHARES
Fractional shares will not be issued under the Plan and any accumulated payroll
deductions which would have been used to purchase fractional shares will be
carried over to the next offering if his participation in the plan continues.
7.04 TRANSFERABILITY OF OPTION
During a participant's lifetime, options held by such participant shall be
exercisable only by that participant, or following a participant's death, only
by the participant's named beneficiary or legal representative, as applicable.
7.05 DELIVERY OF STOCK
As promptly as practicable after the Offering Termination Date of each Offering,
the Company will deliver to each participant, as appropriate, the stock
purchased upon exercise of his option.
ARTICLE VIII - WITHDRAWAL
8.01 IN GENERAL
As indicated in Section 7.02, a participant may withdraw payroll deductions
credited to his account under the Plan at any time prior to an offering
Termination Date by giving written notice to the Company. All of the
participant's payroll deductions credited to his account will be paid to him
promptly after receipt of his notice of withdrawal, and no further payroll
deductions with be made from his pay during such Offering. The Company may, at
its option, treat any attempt to borrow by an employee on the security of his
accumulated payroll deductions as an election, under Section 3.02, to withdraw
such deductions.
8.02 EFFECT ON SUBSEQUENT PARTICIPATION
A participant's withdrawal from any Offering will not have any effect upon his
eligibility to participate in any succeeding Offering or in any similar plan
which may hereafter be adopted by the Company.
5
<PAGE> 6
8.03 TERMINATION OF EMPLOYMENT
Upon termination of the participant's employment for any reason, including
retirement (but excluding death while in the employ of the Company or
continuation of a leave of absence for a period beyond 90 days), the payroll
deductions credited to his account will be returned to him, or, in the case of
his death subsequent to the termination of his employment, to the person or
persons entitled thereto under Section 12.01. For purposes of this Section,
salary continuation following termination of employment shall not be considered
continued employment.
8.04 TERMINATION OF EMPLOYMENT DUE TO DEATH
Upon termination of the participant's employment because of his death, his
beneficiary (as defined in Section 12.01) shall have the right to elect, by
written notice given to the Company prior to the earlier of the Offering
Termination Date or the expiration of a period of sixty (60) days commencing
with the date of the death of the participant, either: (a) to withdraw all of
the payroll deductions credited to the participant's account under the Plan, or
(b) to exercise the participant's option for the purchase of stock on the
Offering Termination Date next following the date of the participant's death for
the purchase of the number of full shares of stock which the accumulated payroll
deductions in the participant's account at the date of the participant's death
will purchase at the applicable option price, and any excess in such account
will be returned to said beneficiary. In the event that no such written notice
of election shall be duly received by the Company, the beneficiary shall
automatically be deemed to have elected, pursuant to paragraph (b), to exercise
the participant's option.
8.05 LEAVE OF ABSENCE
A participant on leave of absence shall, subject to the election made by such
participant pursuant to Section 5.04, continue to be a participant in the Plan
so long as such participant is on continuous leave of absence. A participant who
has been on leave of absence for more than 90 days and who therefore is not an
employee for the purpose of the Plan shall not be entitled to participate in any
offering commencing after the 90th day of such leave of absence. Notwithstanding
any other provisions of the Plan unless a participant on leave of absence
returns to regular full time or part time employment with the Company at the
earlier of: (a) the termination of such leave of absence or (b) three months
from the 90th day of such leave of absence, such participant's participation in
the plan shall terminate on whichever of such dates first occurs.
ARTICLE IX - INTEREST
9.01 NO PAYMENT OF INTEREST
No interest will be paid or allowed on any money paid into the Plan or credited
to the account of any participant employee.
6
<PAGE> 7
ARTICLE X - STOCK
10.01 MAXIMUM SHARES
The maximum number of shares which shall be issued under the Plan, subject to
adjustment upon changes in capitalization of the Company as provided in Section
12.04 shall be 200,000 shares. If the total number of shares for which options
are exercised on any Offering Termination Date in accordance with Article VI
exceeds the maximum number of shares then available for issuance under the Plan,
the Company shall make a pro rata allocation of the shares available for
delivery and distribution in as nearly a uniform manner as shall be practicable
and as it shall determine to be equitable, and the balance of payroll deductions
credited to the account of each participant under the Plan shall be returned to
him as promptly as possible.
10.02 PARTICIPANT'S INTEREST IN OPTION STOCK
The participant will have no interest in stock covered by his option until such
option has been exercised.
10.03 REGISTRATION OF STOCK
Stock to be delivered to a participant under the Plan will be registered in the
name of the participant, or, if the participant so directs by written notice to
the Secretary of the Company prior to the Offering Termination Date applicable
thereto, in the names of the participant and one such other person as may be
designated by the participant, as joint tenants with rights of survivorship or
as tenants by the entireties, to the extent permitted by applicable law.
10.04 RESTRICTIONS ON EXERCISE
The Board of Directors may, in its discretion, require as conditions to the
exercise of any option that the shares of Common Stock reserved for issuance
upon the exercise of the option shall have been duly listed, upon official
notice of issuance, upon a stock exchange, and that a Registration Statement
under the Securities Act of 1933, as amended, with respect to said shares shall
be effective.
ARTICLE XI - ADMINISTRATION
11.01 APPOINTMENT OF ADMINISTRATOR
The Executive Compensation Committee of the Board of Directors of the Company
(the "Committee") shall administer the Plan. No member of the Committee shall be
eligible to purchase stock under the Plan.
7
<PAGE> 8
11.02 AUTHORITY OF COMMITTEE
Subject to the express provisions of the Plan, the Committee shall have complete
authority in its discretion to interpret and construe any and all provisions of
the Plan, to adopt rules and regulations for administering the Plan, and to make
all other determinations deemed necessary or advisable for administering the
Plan. The Committee's determination on the foregoing matters shall be
conclusive.
11.03 RULES GOVERNING THE ADMINISTRATION OF THE COMMITTEE
All determinations of the Committee shall be made by a majority of its members.
The Committee may correct any defect or omission or reconcile any inconsistency
in the Plan, in the manner and to the extent it shall deem desirable.
ARTICLE XII - MISCELLANEOUS
12.01 DESIGNATION OF BENEFICIARY
A participant may file a written designation of a beneficiary who is to receive
any stock and/or cash. Such designation of beneficiary may be changed by the
participant at any time by written notice to the Company. Upon the death of a
participant and upon receipt by the Company of proof of identity and existence
at the participant's death of a beneficiary validly designated by him under the
Plan, the Company shall deliver such stock and/or cash to such beneficiary. In
the event of the death of a participant and in the absence of a beneficiary
validly designated under the Plan who is living at the time of such
participant's death, the Company shall deliver such stock and /or cash to the
executor or administrator of the estate of the participant, or if no such
executor or administrator has been appointed (to the knowledge of the Company),
the Company, in its discretion, may deliver such stock and/or cash to the spouse
or to any one or more dependents of the participant as the Company may
designate. No beneficiary shall, prior to the death of the participant by whom
he has been designated, acquire any interest in the stock or cash credited to
the participant under the Plan.
12.02 TRANSFERABILITY
Neither payroll deductions credited to a participant's account nor any rights
with regard to the exercise of any option or the right to receive stock under
the Plan may be assigned, transferred, pledged, or otherwise disposed of in any
way by the participant other than by will or the laws of descent and
distribution. Any such attempted assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such act
as an election to withdraw funds in accordance with Section 7.02.
12.03 USE OF FUNDS
All payroll deductions received or held by the Company under this Plan may be
used by the Company for any corporate purpose and the Company shall not be
obligated to segregate such payroll deductions.
8
<PAGE> 9
12.04 ADJUSTMENT UPON CHANGES IN CAPITALIZATION
If, while any options are outstanding, the outstanding shares of Common Stock of
the Company have increased, decreased, changed into, or been exchanged for a
different number or kind of shares or securities of the Company through
reorganization, merger, recapitalization, reclassification, stock split, reverse
stock split, or similar transaction, appropriate and proportionate adjustments
may be made by the Committee in the number and/or kind of shares which are
subject to purchase under outstanding options and on the option exercise price
or prices applicable to such outstanding options. In addition, in any such
event, the number and/ or kind of shares which may be offered in the Offerings
described in Article IV hereof shall also be proportionately adjusted.
Upon the dissolution or liquidation of the Company, or upon a reorganization,
merger or consolidation of the Company with one or more corporations as a result
of which the Company is not the surviving corporation, or upon a sale of
substantially all of the property of stock of the Company to another
corporation, the holder of each option then outstanding under the Plan will
thereafter be entitled to receive at the next Offering Termination Date upon the
exercise of such option for each share as to which such option shall be
exercised, as nearly as reasonably may be determined, the cash, securities
and/or property which a holder of one share of the Common stock was entitled to
receive upon and at the time of such transaction. The Board of Directors shall
take such steps in connection with transactions as the Board shall deem
necessary to assure that provisions of this Section 12.04 shall thereafter be
applicable, as nearly as reasonably may be determined, in relation to the said
cash, securities and/or property as to which such holders of such option might
thereafter be entitled to receive.
12.05 AMENDMENT AND TERMINATION
The Board of Directors shall have complete power and authority to terminate or
amend the Plan; provided, however, that the Board of Directors shall not,
without the approval of the stockholders of the Corporation (i) increase the
maximum number of shares which may be issued under the Plan (except pursuant to
Section 12.04); (ii) amend the requirements as to the class of employees
eligible to purchase stock under the Plan or permit the members of the Committee
to purchase stock under the Plan. No termination, modification, or amendment of
the Plan may, without the consent of an employee then having an option under the
Plan to purchase stock, adversely affect the rights of such employee under such
option.
12.06 EFFECTIVE DATE
The Plan shall become effective as of June 7, 1999 subject to approval by the
holders of the majority of the Common Stock present and represented at a special
or annual meeting of the shareholders held on or before June 7, 1999. If the
Plan is not so approved, the Plan shall not become effective.
9
<PAGE> 10
12.07 NO EMPLOYMENT RIGHTS
The Plan does not, directly or indirectly, create any right for the benefit of
any employee or class of employees to purchase any shares under the Plan, or
create in any employee or class of employees any right with respect to
continuation of employment by the Company, and it shall not be deemed to
interfere in any way with the Company's right to terminate, or otherwise modify,
an employee's employment at any time.
12.08 EFFECT OF PLAN
The provisions of the Plan shall, in accordance with its terms, be binding upon,
and inure to the benefit of, all successors of each employee participating in
the Plan, including, without limitation, such employee's estate and the
executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such employee.
12.09 GOVERNING LAW
The law of the State of Maryland will govern all matters relating to this Plan
except to the extent it is superseded by the laws of the United States.
Adopted by the Board of Directors on
April 22, 1999
------------------------------------
Approved by the Company's Stockholders on
June 7, 1999
------------------------------------
10
<PAGE> 1
Exhibit 5.1
BSAI LETTERHEAD
July 13, 1999
Unitrode Corporation
7 Continental Boulevard
Merrimack, New Hampshire 03054
Re: Unitrode Corporation:
Registration Statement on Form S-8:
Shares of Common Stock
Ladies and Gentlemen:
We have served as Maryland counsel to Unitrode Corporation, a
Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the registration of 3,285,368 shares (the
"Shares") of common stock, $.01 par value per share (the "Common Stock"),
covered by the above-referenced Registration Statement and any amendments
thereto (the "Registration Statement"), under the Securities Act of 1933, as
amended (the "1933 Act"). Of the 3,285,368 Shares, (i) 3,085,368 Shares are
to be issued pursuant to the Unitrode Corporation 1999 Equity Incentive Plan and
(ii) 200,000 Shares are to be issued pursuant to the Unitrode Corporation 1999
Employee Stock Purchase Plan (collectively, the "Plans"). Capitalized terms used
but not defined herein shall have the meanings given to them in the Registration
Statement.
In connection with our representation of the Company, and as a basis
for the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The charter of the Company (the "Charter"), certified as of a
recent date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
2. The Amended and Re-stated By-Laws of the Company, certified as of
the date hereof by the Secretary of the Company;
<PAGE> 2
3. Resolutions adopted by the Board of Directors of the Company
relating to the sale, issuance, registration and listing of the Shares under the
Plans, certified as of the date hereof by the Secretary of the Company;
4. The Registration Statement on Form S-8, in the form to be filed
with the Securities and Exchange Commission (the "Commission") pursuant to the
1933 Act;
5. A certificate, as of a recent date, of the SDAT as to the good
standing of the Company;
6. The form of certificate representing a share of the Common Stock,
certified as of the date hereof by the Secretary of the Company;
7. A certificate executed by Allan R. Campbell, Secretary of the
Company, dated as of the date hereof; and
8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth herein, subject to the assumptions,
limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so
far as is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to do so;
2. Each individual executing any of the Documents on behalf of a
party (other than the Company) is duly authorized to do so;
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms; and
4. All Documents submitted to us as originals are authentic. The
form and content of documents submitted to us as drafts do not differ in any
respect relevant to this opinion from the form and content of such Documents as
executed and delivered. All Documents submitted to us as certified or
photostatic copies conform to the original documents. All signatures on all
Documents are genuine. All public records reviewed or relied upon by us or on
our behalf are true and complete. All statements and information contained in
the Documents are true and complete. There are no modifications of or
amendments to the Documents, and there has been no waiver of any of the
provisions of the Documents, by action or omission of the parties or otherwise.
2
<PAGE> 3
5. The Shares will not be transferred in violation of any limitation
or restriction contained in the Charter. Upon the issuance of the Shares in
accordance with the Charter, Bylaws, the Resolutions and Registration Statement,
and immediately thereafter, the total number of shares of Common Stock issued
and outstanding or reserved for issuance will not exceed the total number of
shares of Common Stock that the Company is then authorized to issue under the
Charter.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under
and by virtue of the laws of the State of Maryland and is in good standing with
the SDAT.
2. The Shares have been duly authorized and, upon issuance in
accordance with the Charter, Bylaws, Resolutions and Registration Statement and
the terms of the Plans, such shares will be validly issued, fully paid and
non-assessable.
The foregoing opinion is limited to the substantive laws of the
State of Maryland and we do not express any opinion herein concerning any other
law. We express no opinion as to the applicability or effect of or compliance
with any federal or state securities laws, including the securities laws of the
State of Maryland, or as to federal or state laws regarding fraudulent
transfers. To the extent that any matter as to which our opinion is expressed
herein would be governed by any jurisdiction other than the State of Maryland,
we do not express any opinion on such matter.
We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the
Commission as an exhibit to the Registration Statement and, except as provided
above, it may not be relied upon by, quoted in any manner to, or delivered to
any other person or entity without, in each instance, our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein. In giving
this consent, we do not admit that we are within the category of persons whose
consent is required by Section 7 of the 1933 Act.
Very truly yours,
Ballard Spahr Andrews & Ingersoll, LLP
3
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 3, 1999 relating to the
financial statements and financial statement schedule, which appears in
Unitrode Corporation's Annual Report on Form 10-K for the year ended January
31, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
July 12, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1999 Equity Incentive Plan and Employee Stock
Purchase Plan of Unitrode Corporation of our report dated January 26, 1998,
with respect to the consolidated financial statements of BENCHMARQ
Microelectronics, Inc. included in the annual report on Form 10-K of Unitrode
Corporation for the year ended January 31, 1999, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
July 12, 1999
