As filed with the Securities and Exchange Commission on February
3, 1997
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
____________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INTEL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-1672743
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2200 Mission College Blvd. 95052-8119
Santa Clara, CA (Zip Code)
(Address of Principal Executive Offices)
Intel Puerto Rico Retirement Savings Plan
(Full Title of the Plan)
F. Thomas Dunlap, Jr.
Vice President and Secretary
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052-8119
(Name and Address of Agent for Service)
(408) 765-8080
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Ronald O. Mueller, Esq.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 900
Washington, DC 20036
(202) 955-8500
CALCULATION OF REGISTRATION FEE
Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Registration
to be Registered Offering Aggregate Fee (3)
Registered Price Per Offering
(1) Share Price (2)
Common
Stock, par 50,000 $150.75 $7,537,500 $2,284.09
value
$0.001 per
share
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant
to the employee benefit plan described herein.
(2) Estimated solely for the purpose of determining the
registration fee.
(3) Calculated pursuant to Rule 457(h)(1) of the Securities Act of
1933, as amended, based upon the average of the high and low
prices of such stock on the Nasdaq National Market which, on
January 27, 1997, was $150.75 per share.
<PAGE> II.1
INTRODUCTION
This Registration Statement on Form S-8 is filed by Intel
Corporation, a Delaware corporation (the "Corporation") and the
Intel Puerto Rico Retirement Savings Plan (the "Plan"), relating
to 50,000 shares of the Corporation's common stock, par value
$0.001 per share (the "Common Stock"), to be offered and sold to
accounts of eligible employees of Intel Puerto Rico, Inc., a
California corporation ("Intel Puerto Rico"), under the Plan, as
well as to interests in the Plan. Intel Puerto Rico is the
"named fiduciary," the "administrator" and the "plan sponsor" of
the Plan.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual
Information.
Not filed as part of this Registration Statement pursuant to Note
to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Corporation heretofore filed with
the Securities and Exchange Commission (the "Commission") are
hereby incorporated in this Registration Statement by reference:
(1) The Corporation's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") or latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act"), that contains
audited financial statements for the Corporation's latest
fiscal year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered
by Corporation's latest annual report or prospectus referred
to in (1) above;
(3) The description of the Common Stock set forth under the
caption "Description of Capital Stock" in the Corporation's
registration statement on Form S-3, as amended, filed with
the Commission on April 18, 1995, File No. 33-56107,
together with any amendment or report filed with the
Commission for the purpose of updating such description.
All reports and other documents subsequently filed by the
Corporation or by the Plan pursuant to Sections 13(a) and (c), 14
and 15(d) of the Exchange Act (including the Plan's latest annual
report) prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or
which deregisters all such securities then remaining unsold 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
reports and 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
<PAGE> II.2
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 a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
makes provision for the indemnification of officers and directors
of corporations in terms sufficiently broad to indemnify the
officers and directors of the Corporation under certain
circumstances from liabilities (including reimbursement of
expenses incurred) arising under the Securities Act of 1933, as
amended (the "Act"). Section 102(b)(7) of the DGCL permits a
corporation to provide in its Certificate of Incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
As permitted by the DGCL, the Corporation's Certificate of
Incorporation (the "Charter") provides that, to the fullest
extent permitted by the DGCL or decisional law, no director shall
be personally liable to the Corporation or to its stockholders
for monetary damages for breach of his fiduciary duty as a
director. The effect of this provision in the Charter is to
eliminate the rights of the Corporation and its stockholders
(through stockholders' derivative suits on behalf of the
Corporation) to recover monetary damages against a director for
breach of fiduciary duty as a director thereof (including
breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i)-(iv),
inclusive, above. These provisions will not alter the liability
of directors under federal securities laws.
The Corporation's Bylaws (the "Bylaws") provide that the
Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation
or is or was serving at the request of the Corporation as a
director, officer, employee or agent of any other corporation or
enterprise (including an employee benefit plan), against all
expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes and penalties, and amounts
paid or to be paid in settlement, and any interest, assessments,
or other charges imposed thereof, and any taxes imposed on such
person as a result of such payments) reasonably incurred or
suffered by such person in connection with investigating,
defending, being a witness in, or participating in (including on
appeal), or preparing for any of the foregoing in such action,
suit or proceeding, to the fullest extent authorized by the DGCL,
provided that the Corporation shall indemnify such person in
connection with any such action, suit or proceeding initiated by
such person only if authorized by the Board of Directors of the
Corporation or brought to enforce certain indemnification rights.
The Bylaws also provide that expenses incurred by an officer or
director of the Corporation (acting in his capacity as such) in
defending any such action, suit or proceeding shall be paid by
the Corporation, provided that if required by the DGCL such
expenses shall be advanced only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer to
repay such amount if it shall
<PAGE> II.3
ultimately be determined that he is not entitled to be
indemnified by the Corporation. Expenses incurred by other
agents of the Corporation may be advanced upon such terms and
conditions as the Board of Directors of the Corporation deems
appropriate. Any obligation to reimburse the Corporation for
expenses advanced under such provisions shall be unsecured and no
interest shall be charged thereon.
The Bylaws also provide that indemnification provided for in the
Bylaws shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; that any right of
indemnification or protection provided under the Bylaws shall not
be adversely affected by any amendment, repeal, or modification
of the Bylaws; and that the Corporation may purchase and maintain
insurance to protect itself and any such person against any such
expenses, liability and loss, whether or not the Corporation
would have the power to indemnify such person against such
expenses, liability or loss under the DGCL or the Bylaws.
In addition to the above, the Corporation has entered into
indemnification agreements with each of its directors and certain
of its officers. The indemnification agreements provide
directors and officers with the same indemnification by the
Corporation as described above and assure directors and officers
that indemnification will continue to be provided despite future
changes in the Bylaws of the Corporation. The Corporation also
provides indemnity insurance pursuant to which officers and
directors are indemnified or insured against liability or loss
under certain circumstances, which may include liability or
related loss under the Securities Act and the Exchange Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed herewith:
4.1 Intel Corporation Certificate of Incorporation (incorporated
by reference to Exhibit 3.1 of Corporation's Form 10-Q for
the quarter ended June 26, 1993 (File No. 0-6217) as filed
on August 10, 1993).
4.2 Intel Corporation Bylaws as amended.
4.3 Agreement to Provide Instruments Defining the Rights of
Security Holders (incorporated by reference to Exhibit 4.1
of Corporation's Form 10-K (File No. 0-6217) as filed on
March 28, 1986).
4.4 Warrant Agreement dated as of March 1, 1993, as amended,
between the Corporation and Harris Trust and Savings Bank
(as successor Warrant agent) related to the issuance of 1998
Step-Up Warrants to Purchase Common Stock of Intel
Corporation (incorporated by reference to Exhibit 4.6 of
Corporation's Form 10-K (File No. 0-6217) as filed on March
25, 1993), together with the First Amendment to Warrant
Agreement dated as of October 18, 1993, the Second Amendment
to Warrant Agreement dated as of January 17, 1994
(incorporated by reference to Exhibit 4.4 of the
Corporation's Form 10-K (File No. 0-6217) as filed on March
25, 1994), and the Third Amendment to Warrant Agreement
dated as of May 1, 1995.
5.1 Internal Revenue Service determination letter, dated
December 10, 1992, regarding qualification of the Intel
Puerto Rico Retirement Savings Plan under Section 401 of the
Internal Revenue Code or 1986, as amended.
5.2 Treasury Department (Puerto Rico) determination letter,
dated May 11, 1993, regarding qualification of the Intel
Puerto Rico Retirement Savings Plan under Section 1165 of
the Puerto Rico Internal Revenue Code of 1994, as amended.
<PAGE> II.4
23.1 Consent of Independent Auditors.
24. Power of Attorney (contained on signature page hereto).
Item 9. Undertakings.
(1) The undersigned Corporation hereby undertakes:
(a) 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;
(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 to such information in the
registration statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(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 by the Corporation pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(b) That, for the purpose of determining any liability
under the Securities Act, 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.
(c) 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.
(2) The undersigned Corporation hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Corporation's annual report pursuant
to Section 13(a) or 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.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Corporation pursuant to the
foregoing provisions, or otherwise, the Corporation has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such
liabilities
<PAGE> II.5
(other than the payment by the Corporation of expenses
incurred or paid by a director, officer or controlling
person of the Corporation 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 Corporation 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 Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Corporation certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its
behalf by the undersigned, there-unto duly authorized, in the
City of Santa Clara, State of California, on this 29th day of
January, 1997.
INTEL CORPORATION
By: /s/F. Thomas Dunlap, Jr.
Vice President, General
Counsel and Secretary
Each person whose signature appears below constitutes and
appoints F. Thomas Dunlap, Jr. and Andy D. Bryant, and each of
them, his true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, severally, for him
and in his name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature Title Date
/s/Gordon E. Moore Chairman of the Board Jan.15,1997
Gordon E. Moore
/s/Andrew S. Grove Principal Executive Officer, Jan.15,1997
Andrew S. Grove President and Director
(Principal Executive Officer)
/s/Craig R. Barrett Executive Vice President, Jan.15,1997
Craig R. Barrett Chief Operating Officer and
Director
<PAGE>
/s/Andy D. Bryant Vice President, Principal Jan.15,1997
Andy D. Bryant Accounting and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
John Browne Director
/s/Winston H. Chen Director Jan.15,1997
Winston H. Chen
/s/D. James Guzy Director Jan.15,1997
D. James Guzy
/s/Max Palevsky Director Jan.15,1997
Max Palevsky
/s/Arthur Rock Director Jan.15,1997
Arthur Rock
/s/Jane E. Shaw Director Jan.15,1997
Jane E. Shaw
/s/Leslie L. Vadasz Director Jan.15,1997
Leslie L. Vadasz
/s/David B. Yoffie Director Jan.15,1997
David B. Yoffie
/s/Charles E. Young Director Jan.15,1997
Charles E. Young
The Plan. Pursuant to the requirements of the Securities Act of
1933, the Intel Puerto Rico Retirement Savings Plan has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Santa
Clara, [State of California] [Commonwealth of Puerto Rico], on
this 29th day of January, 1997.
INTEL PUERTO RICO RETIREMENT
SAVINGS PLAN
By: /s/Arvind Sodhani
Name: Arvind Sodhani
Title: Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
4.2 Intel Corporation Bylaws as amended.
5.1 Internal Revenue Service determination letter, dated
December 10, 1992, regarding qualification of the Intel
Puerto Rico Retirement Savings Plan under Section 401
of the Internal Revenue Code of 1986, as amended.
5.2 Treasury Department (Puerto Rico) determination letter,
dated May 11, 1993, regarding qualification of the
Intel Puerto Rico Retirement Savings Plan under Section
1165 of the Puerto Rico Internal Revenue Code of 1994,
as amended.
23.1 Consent of Independent Auditors.
EXHIBIT 4.2
INTEL CORPORATION
BYLAWS
ARTICLE I
Offices
Section 1. Registered Office. The registered office
of the corporation in the State of Delaware shall be in the City
of Wilmington, County of New Castle.
Section 2. Other Offices. The corporation shall also
have and maintain an office or principal place of business at
2200 Mission College Boulevard, Santa Clara, County of Santa
Clara, State of California, and may also have offices at such
other places, both within and without the State of Delaware, as
the Board of Directors may from time to time determine or the
business of the corporation may require.
ARTICLE II
Stockholders' Meetings
Section 1. Place of Meetings. Meetings of the
stockholders of the corporation shall be held at such place,
either within or without the State of Delaware, as may be
designated from time to time by the Board of Directors, or, if
not so designated, then at the office of the corporation required
to be maintained pursuant to Section 2 of Article I hereof.
Section 2. Annual Meetings. The annual meetings of
the stockholders of the corporation, commencing with the year
1990, for the purpose of election of directors and for such other
business as may lawfully come before it, shall be held on such
date and at such time as may be designated from time to time by
the Board of Directors, but in no event more than fifteen (15)
months after the date of the preceding annual meeting.
Section 3. Special Meetings. Special meetings of the
stockholders of the corporation may be called, for any purpose or
purposes, by the Chairman of the Board or the President or the
Board of Directors at any time.
Section 4. Notice of Meetings.
(a) Except as otherwise provided by law or the
Certificate of Incorporation, written notice of each meeting of
stockholders, specifying the place, date and hour and purpose or
purposes of the meeting, shall be given not less than ten nor
more than sixty days before the date of the meeting to each
stockholder entitled to vote thereat, directed to his address as
it appears upon the books of the corporation.
<PAGE> 2
(b) If at any meeting action is proposed to be taken
which, if taken, would entitle stockholders fulfilling the
requirements of section 262(d) of the Delaware General
Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of
that purpose and to that effect and shall be accompanied by a
copy of that statutory section.
(c) When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the
adjournment is taken unless the adjournment is for more than
thirty days, or unless after the adjournment a new record date is
fixed for the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
(d) Notice of the time, place and purpose of any
meeting of stockholders may be waived in writing, either before
or after such meeting, and to the extent permitted by law, will
be waived by any stockholder by his attendance thereat, in person
or by proxy. Any stockholder so waiving notice of such meeting
shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e) Unless and until voted, every proxy shall be
revocable at the pleasure of the person who executed it or of his
legal representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
Section 5. Quorum and Voting.
(a) At all meetings of stockholders, except where
otherwise provided by law, the Certificate of Incorporation, or
these Bylaws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum for
the transaction of business. Shares, the voting of which at said
meeting have been enjoined, or which for any reason cannot be
lawfully voted at such meeting, shall not be counted to determine
a quorum at said meeting. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, by
vote of the holders of a majority of the shares represented
thereat, but no other business shall be transacted at such
meeting. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted which might have
been transacted at the original meeting. The stockholders
present at a duly called or convened meeting, at which a quorum
is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave
less than a quorum.
(b) Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, all action taken by
the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding
upon the corporation.
<PAGE> 3
Section 6. Voting Rights.
(a) Except as otherwise provided by law, only persons
in whose names shares entitled to vote stand on the stock records
of the corporation on the record date for determining the
stockholders entitled to vote at said meeting shall be entitled
to vote at such meeting. Shares standing in the names of two or
more persons shall be voted or represented in accordance with the
determination of the majority of such persons, or, if only one of
such persons is present in person or represented by proxy, such
person shall have the right to vote such shares and such shares
shall be deemed to be represented for the purpose of determining
a quorum.
(b) Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or
agents authorized by a written proxy executed by such person or
his duly authorized agent, which proxy shall be filed with the
Secretary of the corporation at or before the meeting at which it
is to be used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three years from
its date unless the proxy provides for a longer period.
Section 7. List of Stockholders. The officer who has
charge of the stock ledger of the corporation shall prepare and
make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, showing the address of
and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior
to the meeting, either at a place within the city where the
meeting is to be held and which place shall be specified in the
notice of the meeting, or, if not specified, at the place where
said meeting is to be held, and the list shall be produced and
kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 8. Action Without Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required
by statute to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken
at any annual or special meeting of such stockholders, may be
taken without a meeting, without prior notice and without a vote,
if a consent or consents in writing, setting forth the action so
taken, are signed by the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. To be
effective, a written consent must be delivered to the corporation
by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall bear
the date of signature of each stockholder who signs the consent
and no written consent shall be effective to take the corporate
action referred to therein
<PAGE> 4
unless, within sixty days of the earliest dated consent delivered
in the manner required by this Section to the corporation,
written consents signed by a sufficient number of holders to take
action are delivered to the corporation in accordance with this
Section. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
Section 9. Nominations and Stockholder Business.
(a) 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 (a) pursuant to the Corporation's notice
of meeting, (b) by or at the direction of the Board of Directors,
or (c) by any stockholder of the Corporation who is a stockholder
of record at the time of giving of notice provided for in this
Section 9, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section 9.
(b) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
this Section 9, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation, and such
business must be a proper subject for stockholder action under
the Delaware General Corporation Law. 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 120 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 advanced by more
than 30 days or delayed (other than as a result of adjournment)
by more than 60 days from such anniversary date, notice by the
stockholder to be timely must be delivered not later than the
close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom
the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election
of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business
that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (c) as to the stockholder giving the notice
and the beneficial owners if any, on whose behalf the nomination
or proposal is made (i) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial
owner, and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder
and such beneficial owner.
<PAGE> 5
(c) Notwithstanding anything in this Section 9 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 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 this Section 9
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 10th day following the day on which such public
announcement is first made by the Corporation.
(d) 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's notice of meeting
(a) by or at the direction of the Board of Directors or (b) by
any stockholder of the Corporation who is a stockholder of record
at the time of giving of notice provided for in this section, who
is entitled to vote at the meeting and who complies with the
notice procedures set forth in this section. Nominations by
stockholders of persons for election to the Board of Directors
may be made at such a special meeting of Stockholders if the
stockholder's notice required by this section shall be delivered
to the secretary at the principal executive offices of the
Corporation not earlier than the 120th 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 10th day
following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
(e) Only those persons who are nominated in accordance
with the procedures set forth in this section shall be eligible
for election as directors at any meeting of stockholders. Only
such business shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in accordance with the
procedures set forth in this section. The chairman of the
meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in
this section and, if any proposed nomination or business is not
in compliance with this section, to declare that such defective
proposal shall be disregarded.
(f) For purposes of this section, "public
announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant
to Section 9 13, 14 or 15(d) of the Exchange Act.
<PAGE> 6
(g) Notwithstanding the foregoing provisions of this
Section 9, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
9. Nothing in this Section 9 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.
ARTICLE III
Directors
Section 1. Number and Term of Office. The number of
directors which shall constitute the whole of the Board of
Directors shall be twelve (12). With the exception of the first
Board of Directors, which shall be elected by the incorporator,
and except as provided in Section 3 of this Article III, the
directors shall be elected by a plurality vote of the shares
represented in person or by proxy, at the stockholders annual
meeting in each year and entitled to vote on the election of
directors. Elected directors shall hold office until the next
annual meeting and until their successors shall be duly elected
and qualified. Directors need not be stockholders. If, for any
cause, the Board of Directors shall not have been elected at an
annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for
that purpose in the manner provided in these Bylaws.
Section 2. Powers. The powers of the corporation
shall be exercised, its business conducted and its property
controlled by or under the direction of the Board of Directors.
Section 3. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole
remaining director, and each director so elected shall hold
office for the unexpired portion of the term of the director
whose place shall be vacant, and until his successor shall have
been duly elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this Section in the case
of the death, removal or resignation of any director, or if the
stockholders fail at any meeting of stockholders at which
directors are to be elected (including any meeting referred to in
Section 4 below) to elect the number of directors then
constituting the whole Board.
Section 4. Resignations and Removals.
(a) Any director may resign at any time by delivering
his written resignation to the Secretary, such resignation to
specify whether it will be effective at a particular time, upon
receipt by the Secretary or at the pleasure of the Board of
Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors. When one or
more directors shall resign from the Board, effective at a future
date, a majority of the directors then in office, including those
who
<PAGE> 7
have so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each director so
chosen shall hold office for the unexpired portion of the term of
the director whose place shall be vacated and until his successor
shall have been duly elected and qualified.
(b) Except as provided in Section 141 of the Delaware
General Corporation Law, at a special meeting of stockholders
called for the purpose in the manner hereinabove provided, the
Board of Directors, or any individual director, may be removed
from office, with or without cause, and a new director or
directors elected by a vote of stockholders holding a majority of
the outstanding shares entitled to vote at an election of
directors.
Section 5. Meetings.
(a) The annual meeting of the Board of Directors shall
be held immediately after the annual stockholders' meeting and at
the place where such meeting is held or at the place announced by
the Chairman at such meeting. No notice of an annual meeting of
the Board of Directors shall be necessary and such meeting shall
be held for the purpose of electing officers and transacting such
other business as may lawfully come before it.
(b) Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held in the office of
the corporation required to be maintained pursuant to Section 2
of Article I hereof. Regular meetings of the Board of Directors
may also be held at any place within or without the State of
Delaware which has been designated by resolutions of the Board of
Directors or the written consent of all directors. Notice of
regular meetings of the directors is hereby dispensed with and no
notice whatever of any such meetings need be given.
(c) Special meetings of the Board of Directors may be
held at any time and place within or without the State of
Delaware whenever called by the Chairman of the Board, the
President or by any two of the directors.
(d) Written notice of the time and place of all
special meetings of the Board of Directors shall be delivered
personally to each director or sent by telegram at least 24 hours
before the start of the meeting, or sent by first class mail at
least 72 hours before the start of the meeting. Notice of any
meeting may be waived in writing at any time before or after the
meeting and will be waived by any director by attendance thereat.
Section 6. Quorum and Voting.
(a) A quorum of the Board of Directors shall consist
of a majority of the exact number of directors fixed from time to
time in accordance with Section 1 of Article III of these Bylaws,
but not less than one; provided, however, at any meeting whether
a
<PAGE> 8
quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for
the next regular meeting of the Board of Directors, without
notice other than by announcement at the meeting.
(b) At each meeting of the Board at which a quorum is
present, all questions and business shall be determined by a vote
of a majority of the directors present, unless a different vote
be required by law, the Certificate of Incorporation, or these
Bylaws.
(c) Notwithstanding any of the foregoing, any action
stated in any Rights Agreement between this Corporation and the
rights agent appointed thereunder from time to time, as such
Rights Agreement may be entered into or adopted by this
Corporation and amended from time to time (the "Rights
Agreement") to be taken by the Board of Directors after a Person
has become an Acquiring Person shall require the presence in
office of Continuing Directors and the concurrence of a majority
of the Continuing Directors. Capitalized terms in this paragraph
shall have the meanings indicated in the Rights Agreement.
(d) Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of
conference telephone or similar communication equipment by means
of which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(e) The transactions of any meeting of the Board of
Directors, or any committee thereof, however called or noticed,
or wherever held, shall be as valid as though had at a meeting
duly held after regular call and notice, if a quorum be present
and if, either before or after the meeting, each of the directors
not present shall sign a written waiver of notice, or a consent
to holding such meeting, or an approval of the minutes thereof.
All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 7. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or of such
committee, as the case may be, consent thereto in writing, and
such writing or writings are filed with the minutes of
proceedings of the Board or committee.
Section 8. Fees and Compensation. Directors shall not
receive any stated salary for their services as directors but by
resolution of the Board, a fixed fee, with or without expense of
attendance, may be allowed for attendance at each meeting and at
each meeting of any committee of the Board of Directors. Nothing
herein contained shall be construed to preclude any director from
serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation
therefor.
<PAGE> 9
Section 9. Committees.
(a) Executive Committee: The Board of Directors may,
by resolution passed by a majority of the whole Board, appoint an
Executive Committee of not less than one member, each of whom
shall be a director. The Executive Committee, to the extent
permitted by law, shall have and may exercise when the Board of
Directors is not in session all powers of the Board in the
management of the business and affairs of the corporation,
including, without limitation, the power and authority to declare
a dividend or to authorize the issuance of stock, except such
committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement of merger or
consolidation, to recommend to the stockholders the sale, lease
or exchange of all or substantially all of the corporation's
property and assets, to recommend to the stockholders of the
Corporation a dissolution of the Corporation or a revocation of a
dissolution, or to amend these Bylaws.
(b) Other Committees: The Board of Directors may, by
resolution passed by a majority of the whole Board, from time to
time, appoint such other committees as may be permitted by law.
Such other committees appointed by the Board of Directors shall
have such powers and perform such duties as may be prescribed by
the resolution or resolutions creating such committee, but in no
event shall any such committee have the powers denied to the
Executive Committee in these Bylaws.
(c) Term: The members of all committees of the Board
of Directors shall serve a term coexistent with that of the Board
of Directors which shall have appointed such committee. The
Board, subject to the provisions of subsections (a) or (b) of
this Section 9, may at any time increase or decrease the number
of members of a committee or terminate the existence of a
committee; provided, that no committee shall consist of less than
one member. The membership of a committee member shall terminate
on the date of his death or voluntary resignation, but the Board
may at any time for any reason remove any individual committee
member and the Board may fill any committee vacancy created by
death, resignation, removal or increase in the number of members
of the committee. The Board of Directors may designate one or
more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee, and, in addition, in the absence or disqualification
of any member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in
the place of any such absent or disqualified member.
(d) Meetings: Unless the Board of Directors shall
otherwise provide, regular meetings of the Executive Committee or
any other committee appointed pursuant to this Section 9 shall be
held at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has
been given to each member of such committee, no further notice of
such regular meetings need be given thereafter; special meetings
of any such committee may be held at the
<PAGE> 10
principal office of the corporation required to be maintained
pursuant to Section 2 of Article I hereof; or at any place which
has been designated from time to time by resolution of such
committee or by written consent of all members thereof, and may
be called by any director who is a member of such committee, upon
written notice to the members of such committee of the time and
place of such special meeting given in the manner provided for
the giving of written notice to members of the Board of Directors
of the time and place of special meetings of the Board of
Directors. Notice of any special meeting of any committee may be
waived in writing at any time after the meeting and will be
waived by any director by attendance thereat. A majority of the
authorized number of members of any such committee shall
constitute a quorum for the transaction of business, and the act
of a majority of those present at any meeting at which a quorum
is present shall be the act of such committee.
Section 10. Emeritus Director. The Board of Directors
may, from time to time, elect one or more Emeritus Directors,
each of whom shall serve, at the pleasure of the Board, until the
first meeting of the Board next following the Annual Meeting of
Stockholders and for a maximum period of 3 years, subject to an
annual review, or until earlier resignation or removal by the
Board (except that founders of the company may remain as Emeritus
Directors, subject to the annual review, or until earlier
resignation or removal by the Board). Emeritus Directors shall
serve as advisors and consultants to the Board of Directors and
may be appointed by the Board to serve as advisors and
consultants to committees of the Board. Emeritus Directors may
be invited to attend meetings of the Board or any committee of
the Board for which they have been appointed to serve as advisors
and consultants and, if present, may participate in the
discussions occurring during such meetings. Emeritus Directors
shall not be permitted to vote on matters brought before the
Board or any committee thereof and shall not be counted for the
purpose of determining whether a quorum of the Board or the
committee is present. Emeritus Directors shall receive no fee
for their services as Emeritus Directors. Emeritus Directors
will not be entitled to receive reimbursement for expenses of
meeting attendance, except as approved by the Chairman of the
Board. Emeritus Directors may be removed at any time by the
Board of Directors.
ARTICLE IV
Officers
Section 1. Officers Designated. The officers of the
corporation shall be a Chairman of the Board of Directors who
shall be a member of the Board of Directors, a President, one or
more Vice Presidents, a Secretary, and a Treasurer. The order of
the seniority of the Vice Presidents shall be in the order of
their nomination, unless otherwise determined by the Board of
Directors. The Board of Directors or the Chairman of the Board
or the President may also appoint one or more assistant
secretaries, assistant treasurers, and such other officers and
agents with such powers and duties as it or he shall deem
necessary. The Board of Directors may assign such additional
titles to one or more of the officers as they shall deem
appropriate. Any one
<PAGE> 11
person may hold any number of offices of the corporation at any
one time unless specifically prohibited therefrom by law. The
salaries and other compensation of the officers of the
corporation shall be fixed by or in the manner designated by the
Board of Directors.
Section 2. Tenure and Duties of Officers.
(a) General: All officers shall hold office at the
pleasure of the Board of Directors and until their successors
shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors.
If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors. Nothing in
these Bylaws shall be construed as creating any kind of
contractual right to employment with the corporation.
(b) Duties of the Chairman of the Board of Directors:
The Chairman of the Board of Directors (if there be such an
officer appointed) shall preside at all meetings of the
stockholders and the Board of Directors. The Chairman of the
Board of Directors shall perform such other duties and have such
other powers as the Board of Directors shall designate from time
to time.
(c) Duties of President: The President shall preside
at all meetings of the stockholders and at all meetings of the
Board of Directors, unless the Chairman of the Board of Directors
has been appointed and is present. The President shall perform
such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(d) Duties of Vice Presidents: The Vice Presidents,
in the order of their seniority, may assume and perform the
duties of the President in the absence or disability of the
President or whenever the office of the President is vacant. The
Vice President shall perform such other duties and have such
other powers as the Board of Directors or the President shall
designate from time to time.
(e) Duties of Secretary: The Secretary shall attend
all meetings of the stockholders and of the Board of Directors
and any committee thereof, and shall record all acts and
proceedings thereof in the minute book of the corporation and
shall keep the seal of the corporation in safe custody. The
Secretary shall give notice, in conformity with these Bylaws, of
all meetings of the stockholders, and of all meetings of the
Board of Directors and any Committee thereof requiring notice.
The Secretary shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to
time. The President may direct any Assistant Secretary to assume
and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall
perform such other duties and have such other powers as the Board
of Directors or the President shall designate from time to time.
<PAGE> 12
(f) Duties of Chief Financial Officer and Treasurer:
The Chief Financial Officer and Treasurer shall control, audit
and arrange the financial affairs of the corporation. He or she
shall receive and deposit all monies belonging to the corporation
and shall pay out the same only in such manner as the Board of
Directors may from time to time determine, and he or she shall
perform such other further duties as the Board of Directors may
require. It shall be the duty of the assistant treasurers to
assist the Treasurer in the performance of the Treasurer's duties
and generally to perform such other duties as may be delegated to
them by the Board of Directors.
ARTICLE V
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
Section 1. Execution of Corporate Instruments.
(a) The Board of Directors may, in its discretion,
determine the method and designate the signatory officer or
officers, or other person or persons, to execute any corporate
instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such
execution or signature shall be binding upon the corporation.
(b) Unless otherwise specifically determined by the
Board of Directors or otherwise required by law, formal contracts
of the corporation, promissory notes, deeds of trust, mortgages
and other evidences of indebtedness of the corporation, and other
corporate instruments or documents requiring the corporate seal,
and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the
Board (if there be such an officer appointed), the President, any
Vice President or the Secretary. All other instruments and
documents requiring the corporate signature, but not requiring
the corporate seal, may be executed as aforesaid or in such other
manner as may be directed by the Board of Directors.
(c) All checks and drafts drawn on banks or other
depositaries on funds to the credit of the corporation, or in
special accounts of the corporation, shall be signed by such
person or persons as the Board of Directors shall authorize so to
do.
Section 2. Voting of Securities Owned by Corporation.
All stock and other securities of other corporations owned or
held by the corporation for itself, or for other parties in any
capacity, shall be voted, and all proxies with respect thereto
shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such
authorization, by the Chairman of the Board (if there be such an
officer appointed), or by the President, or by any Vice
President.
<PAGE> 13
ARTICLE VI
Shares of Stock
Section 1. Form and Execution of Certificates.
Certificates for the shares of stock of the corporation shall be
in such form as is consistent with the Certificate of
Incorporation and applicable law. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or
in the name of the corporation by, the Chairman of the Board (if
there be such an officer appointed), or by the President or any
Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares
owned by him in the corporation. Any or all of the signatures on
the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued with the same effect as
if he were such officer, transfer agent, or registrar at the date
of issue. If the corporation shall be authorized to issue more
than one class of stock or more than one series of any class, the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of
such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the
corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in section 202
of the Delaware General Corporation Law, in lieu of the foregoing
requirements, there may be set forth on the face or back of the
certificate which the corporation shall issue to represent such
class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
Section 2. Lost Certificates. The Board of Directors
may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost or destroyed, upon the
making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to
indemnify the corporation in such manner as it shall require
and/or to give the corporation a surety bond in such form and
amount as it may direct as indemnity against any claim that may
be made against the corporation with respect to the certificate
alleged to have been lost or destroyed.
Section 3. Transfers. Transfers of record of shares
of stock of the corporation shall be made only upon its books by
the holders thereof, in person or by
<PAGE> 14
attorney duly authorized, and upon the surrender of a certificate
or certificates for a like number of shares, properly endorsed.
Section 4. Fixing Record Dates.
(a) In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be
more than sixty nor less than ten days before the date of such
meeting. If no record date is fixed by the Board of Directors,
the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the
day next preceding the date on which the meeting is held. A
determination of stockholders of record entitled notice of or to
vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors
may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the
stockholders entitled to consent (if such written consent is
permitted under these Bylaws and the Certificate of
Incorporation) corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which date shall
not be more than ten days after the date upon which the
resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is required by the
Delaware General Corporation Law, shall be the first date on
which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the corporation by delivery
to its registered office in Delaware, its principal place of
business, or an officer or agent of the corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed
by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such
prior action.
(c) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the
<PAGE> 15
resolution fixing the record date is adopted, and which record
date shall be not more than sixty days prior to such action. If
no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 5. Registered Stockholders. The corporation
shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to
recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
Other Securities of the Corporation
All bonds, debentures and other corporate securities of
the corporation, other than stock certificates, may be signed by
the Chairman of the Board (if there be such an officer
appointed), or the President or any Vice President or such other
person as may be authorized by the Board of Directors and the
corporate seal impressed thereon or a facsimile of such seal
imprinted thereon and attested by the signature of the Secretary
or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer; provided, however, that where any such bond, debenture
or other corporate security shall be authenticated by the manual
signature of a trustee under an indenture pursuant to which such
bond, debenture or other corporate security shall be issued, the
signature of the persons signing and attesting the corporate seal
on such bond, debenture or other corporate security may be the
imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid,
shall be signed by the Treasurer or Assistant Treasurer of the
corporation, or such other person as may be authorized by the
Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have
signed or attested any bond, debenture or other corporate
security, or whose facsimile signature shall appear thereon or
before the bond, debenture or other corporate security so signed
or attested shall have been delivered, such bond, debenture or
other corporate security nevertheless may be adopted by the
corporation and issued and delivered as though the person who
signed the same or whose facsimile signature shall have been used
thereon had not ceased to be such officer of the corporation.
<PAGE> 16
ARTICLE VIII
Corporate Seal
The corporation shall have a common seal, upon which
shall be inscribed:
"Intel Corporation
Incorporated March 1, 1989
Delaware"
In the event the corporation changes its name, the
corporate seal shall be changed to reflect such new name.
ARTICLE IX
Indemnification of
Officers, Directors, Employees and Agents
Section 1. Right to Indemnification. Each person who
was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a
"Proceeding"), by reason of the fact that he, or a person of whom
he is the legal representative, is or was a director, officer,
employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or
agent of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to
employee benefit plans, whether the basis of the Proceeding is
alleged action in an official capacity as a director, officer,
employee, or agent or in any other capacity while serving as a
director, officer, employee, or agent (hereafter an "Agent"),
shall be indemnified and held harmless by the corporation to the
fullest extent authorized by the Delaware General Corporation
Law, as the same exists or may hereafter be amended or
interpreted (but, in the case of any such amendment or
interpretation, only to the extent that such amendment or
interpretation permits the corporation to provide broader
indemnification rights than were permitted prior thereto) against
all expenses, liability, and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement, and any interest, assessments,
or other charges imposed thereon, and any federal, state, local,
or foreign taxes imposed on any Agent as a result of the actual
or deemed receipt of any payments under this Article) reasonably
incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in
(including on appeal), or preparing for any of the foregoing in,
any Proceeding (hereinafter "Expenses"); provided, however, that
except as to actions to enforce indemnification rights pursuant
to Section 3 of this Article, the corporation shall indemnify any
Agent seeking indemnification in connection with a Proceeding (or
part thereof) initiated by such person only if the Proceeding (or
part thereof) was authorized by the Board of Directors of the
corporation. The right to indemnification conferred in this
Article shall be a contract right.
<PAGE> 17
Section 2. Authority to Advance Expenses. Expenses
incurred by an officer or director (acting in his capacity as
such) in defending a Proceeding shall be paid by the corporation
in advance of the final disposition of such Proceeding, provided,
however, that if required by the Delaware General Corporation
Law, as amended, such Expenses shall be advanced only upon
delivery to the corporation of an undertaking by or on behalf of
such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article or
otherwise. Expenses incurred by other Agents of the corporation
(or by the directors or officers not acting in their capacity as
such, including service with respect to employee benefit plans)
may be advanced upon such terms and conditions as the Board of
Directors deems appropriate. Any obligation to reimburse the
corporation for Expense advances shall be unsecured and no
interest shall be charged thereon.
Section 3. Right of Claimant to Bring Suit. If a
claim under Section 1 or 2 of this Article is not paid in full by
the corporation within thirty (30) days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
(including attorneys' fees) of prosecuting such claim. It shall
be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending a Proceeding
in advance of its final disposition where the required
undertaking has been tendered to the corporation) that the
claimant has not met the standards of conduct that make it
permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed.
The burden of proving such a defense shall be on the corporation.
Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the
circumstances because he has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that
the claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that
claimant has not met the applicable standard of conduct.
Section 4. Provisions Nonexclusive. The rights
conferred on any person by this Article shall not be exclusive of
any other rights that such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation,
agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to
action in another capacity while holding such office. To the
extent that any provision of the Certificate, agreement, or vote
of the stockholders or disinterested directors is inconsistent
with these Bylaws, the provision, agreement, or vote shall take
precedence.
<PAGE> 18
Section 5. Authority to Insure. The corporation may
purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have
the power to indemnify the Agent against such Expense under
applicable law or the provisions of this Article.
Section 6. Survival of Rights. The rights provided by
this Article shall continue as to a person who has ceased to be
an Agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 7. Settlement of Claims. The corporation
shall not be liable to indemnify any Agent under this Article (a)
for any amounts paid in settlement of any action or claim
effected without the corporation's written consent, which consent
shall not be unreasonably withheld; or (b) for any judicial award
if the corporation was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of
such action.
Section 8. Effect of Amendment. Any amendment,
repeal, or modification of this Article shall not adversely
affect any right or protection of any Agent existing at the time
of such amendment, repeal, or modification.
Section 9. Subrogation. In the event of payment under
this Article, the corporation shall be subrogated to the extent
of such payment to all of the rights of recovery of the Agent,
who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation
effectively to bring suit to enforce such rights.
Section 10. No Duplication of Payments. The
corporation shall not be liable under this Article to make any
payment in connection with any claim made against the Agent to
the extent the Agent has otherwise actually received payment
(under any insurance policy, agreement, vote, or otherwise) of
the amounts otherwise indemnifiable hereunder.
ARTICLE X
Notices
Whenever, under any provisions of these Bylaws, notice
is required to be given to any stockholder, the same shall be
given in writing, timely and duly deposited in the United States
Mail, postage prepaid, and addressed to his last know post office
address as shown by the stock record of the corporation or its
transfer agent. Any notice required to be given to any director
may be given by the method hereinabove stated, or by telegram,
except that such notice other than one which is delivered
personally, shall be sent to such address as such director shall
have filed in writing with the Secretary of the corporation, or,
in the absence of such filing, to the last known post office
address of such director. If no address of a stockholder or
director be known,
<PAGE> 19
such notice may be sent to the office of the corporation required
to be maintained pursuant to Section 2 of Article I hereof. An
affidavit of mailing, executed by a duly authorized and competent
employee of the corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and
address or the names and addresses of the stockholder or
stockholders, director or directors, to whom any such notice or
notices was or were given, and the time and method of giving the
same, shall be conclusive evidence of the statements therein
contained. All notices given by mail, as above provided, shall
be deemed to have been given as at the time of mailing and all
notices given by telegram shall be deemed to have been given as
at the sending time recorded by the telegraph company
transmitting the same. It shall not be necessary that the same
method of giving be employed in respect of all directors, but one
permissible method may be employed in respect of any one or more,
and any other permissible method or methods may be employed in
respect of any other or others. The period or limitation of time
within which any stockholder may exercise any option or right, or
enjoy any privilege or benefit, or be required to act, or within
which any director may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him in the manner above
provided, shall not be affected or extended in any manner by the
failure of such a stockholder or such director to receive such
notice. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of
Incorporation, or of these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto. Whenever notice is required to be given,
under any provision of law or of the Certificate of Incorporation
or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such
person shall not be required and there shall be no duty to apply
to any governmental authority or agency for a license or permit
to give such notice to such person. Any action or meeting which
shall be taken or held without notice to any such person with
whom communication is unlawful shall have the same force and
effect as if such notice had been duly given. In the event that
the action taken by the corporation is such as to require the
filing of a certificate under any provision of the Delaware
General Corporation Law, the certificate shall state, if such is
the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom
communication is unlawful.
ARTICLE XI
Amendments
Unless otherwise provided in the Certificate of
Incorporation, these Bylaws may be repealed, altered or amended
or new Bylaws adopted by written consent of stockholders in the
manner authorized by Section 8 of Article II, or at any meeting
of the stockholders, either annual or special, by the affirmative
vote of a majority of the stock entitled to vote at such meeting.
The Board of Directors shall also have the authority to repeal,
alter or amend these Bylaws or adopt new Bylaws (including,
without limitation, the amendment of any Bylaws setting forth the
number of
<PAGE> 20
directors who shall constitute the whole Board of Directors) by
unanimous written consent or at any annual, regular, or special
meeting by the affirmative vote of a majority of the whole number
of directors, subject to the power of the stockholders to change
or repeal such Bylaws and provided that the Board of Directors
shall not make or alter any Bylaws fixing the qualifications,
classifications, term of office or compensation of directors.
EXHIBIT 5.1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
31 HOPKINS PLAZA
BALTIMORE, MD 21201-0000
Date: Dec. 10, 1992 Employer Identification Number:
94-2626437
File folder Number: 521018434
INTEL PUERTO RICO, INC. Person to Contact: KARL ZORIC
SEE ATTACHMENT I Contact Telephone Number:
(410) 962-0704
c/o MRS. SOLEDAD REICHARD Plan Name: THE INTEL PUERTO RICO
MCCONNELL VALDES KELLEY RETIREMENT SAVINGS PLAN
SIFRE GRIGG Plan Number: 102
PO BOX 364225
SAN JUAN, PR 00936-4225
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this
letter in your permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of
the Income Tax Regulations.) We will review the status of the
plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect
the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan.
It also describes some events that automatically nullify it. It
is very important that you read the publication.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the
effect of other federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated November 16, 1992. The
proposed amendments should be adopted on or before the date
prescribed by the regulations under Code section 401(b).
This determination letter is also applicable for the amendment(s)
adopted on September 26, 1991.
This letter is based upon the certification and demonstrations
you submitted pursuant to Revenue procedure 91-66. Therefore,
the certification and demonstrations are considered an integral
part of this letter. Accordingly, YOU MUST KEEP A COPY OF
<PAGE> 2
THESE DOCUMENTS AS A PERMANENT RECORD OR YOU WILL NOT BE ABLE TO
RELY ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/District Director
District Director
Enclosures: Publication 794
PWBA 515
ESTADO LIBRE ASOCIADO DE PUERTO RICO EXHIBIT 5.2
DEPARTAMENTO DE
HACIENDA
P.O. S-4515 SAN JUAN, PUERTO RICO 000905
NEGOCIADO DE CONTRIBUCION
SOBRE INGRESOS
McConnell Valdes Kelley
Sifre Griggs & Ruiz-Suria
Apartado General 4225
San Juan, Puerto Rico 00936
Numero de Cuenta: 94-2626437
Fecha de 1 de julio de 1990
Efectividad:
Nombre del Plan: The Intel Puerto Rico Retirement
Savings Plan (Seccion 165(e))
Estimados senores:
Es la opinion de este Negociado, basada en la evidencia
presentada con su solicitud de opinion administrativa, que el
plan de referencia cumple con los requisitos de la Seccion 165(a)
de nuestra Ley de Contribuciones sobre Ingresos de 1954, segun
enmendada ("la Ley"). De acuerdo con las disposiciones del
Articulo 165-1(a)(4) del Reglamento relativo a la mencionada Ley,
los efectos de la operacion de cualquier plan importan mas a la
Ley que la forma del plan.
Estando el fideicomiso exento de tributacion bajo las
disposiciones de la Seccion 165(a) de nuestra Ley estara sujeto a
las disposiciones de la Seccion 404, relativas a ingreso
comercial no relacionado, segun se define en la Seccion 404A de
la referida Ley. El fideicomiso viene obligado a rendir una
planilla anual, utilizando la Forma 480.70 que se acompana,
haciendo constar especificamente las partidas de ingresos,
entradas y desemobolsos relacionados, y cualiquier otra
informacion pertinente.
Las aportaciones que haga el patrono pajo los terminos del plan,
seran deducibles hasta los limites permitidos por la Seccion
23(p)(1) de la referida Ley. La deducibilidad de tales
aportaciones sera verificada mediante la investigacion de las
planillas del patrono.
La informacion requerida por el Articulo 23(p)-2 del Reglamento
relativo a la mencionada Ley debera someterse cada ano con las
planillas del patrono y el fideicomiso. Sin embargo, si para un
determinado ano contributivo dicha informacion
<PAGE> 2
es radicada por el patrono y asi lo notifica al fiduciario, el
fiduciario, en sustitucion de la informacion requerida bajo el
Articulo 23(p)-2, podra radicar ante el Secretario de Hacienda la
siguiente informacion: (1) los nombres y direcciones de las
partes en el documento de fideicomiso y la fecha del mismo; (2)
el ano contributivo de referencia; (3) copia de la notificacion
del patrono con respecto a la racicacion de dicha informacion; y
(4) una solicitud de exencion del fideicomiso bajo la Seccion
165(a) de la referida Ley.
Cualquier enmienda que en el futuro se haga al plan debera
notificarse a esta Oficina a los fines de que se pueda determinar
el efecto contributivo que dicha enmienda pueda tener sobre el
plan. Mas aun, esta Oficina debera ser notificada inmediatamente
en la eventualidad de que se suspendan o descontinuen las
aportaciones del patrono bajo el plan, asi como, si el plan y/o
el fideicomiso son terminados.
Por cuanto las disposiciones de la Ley no proveen beneficios para
los programas de "Top Heavy Plan" o "Top-Heavy Group" bajo un
plan de pensiones, no estamos emitiendo opinion alguna sobre este
aspecto bajo el plan que nos ocupa.
No estamos emitiendo opinion alguna en cuanto al tratamiento
contributivo a darsele a la proyectada transaccion bajo otras
disposiciones de la Ley o el Reglamento, que pudieran ser de
aplicacion a la misma, o en cuanto al tratamiento contributivo de
cualesquiera condiciones existentes o resultantes de la
transaccion que no sean las cubiertas especificamente por la
opinion aqui emitida. Esta sera valida unicamente a base de la
continua existencia de los hechos sometidos ante nuestra
consideracion.
Finalmente, les informamos que las disposiciones de esta opinion
le son de aplicacion a las siguientes corporaciones:
1. Intel Puerto Rico, Inc.
2. Intel Puerto Rico II, Inc.
3. Intel Microprocessor Corporation
Cordialmente,
/s/Dalia M. Velez Irizarry
Dalia M. Velez Irizarry, Jefe
Seccion de Planes de Pensiones, Int.
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the Intel Puerto Rico
Retirement Savings Plan of our report dated January 15, 1996 with
respect to the consolidated financial statements of Intel
Corporation incorporated by reference in its Annual Report (Form
10-K) for the year ended December 30, 1995, and the related
financial statement schedule included therein, filed with the
Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
San Jose, California
January 31, 1997
