UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
X Quarterly report pursuant to Section 13 or 15(d) of the Securities
----- Exchange Act of 1934
For the quarterly period ended September 26, 1998
OR
----- Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
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Commission File Number 0-6217
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INTEL CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 94-1672743
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2200 Mission College Boulevard, Santa Clara, California 95052-8119
- ------------------------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
(408) 765-8080
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(Registrant's telephone number, including area code)
N/A
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(Former name, former address, and former fiscal year, if changed since last
report.)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
Shares outstanding of the Registrant's common stock:
Class Outstanding at September 26, 1998
Common Stock, $.001 par value 1,667 million
<PAGE> 2
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
Intel Corporation
Consolidated Condensed Statements of Income (unaudited)
(in millions, except per share amounts)
<TABLE>
Three Months Ended Nine Months Ended
------------------ -----------------
Sept. 26, Sept. 27, Sept. 26, Sept. 27,
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenues $ 6,731 $ 6,155 $18,659 $18,563
Costs and expenses:
Cost of sales 3,192 2,604 8,968 7,254
Research and development 617 586 1,835 1,742
Marketing, general and administrative 766 676 2,148 2,073
Purchased in-process research and
development - - 165 -
------- ------- ------- -------
Operating costs and expenses 4,575 3,866 13,116 11,069
------- ------- ------- -------
Operating income 2,156 2,289 5,543 7,494
Interest expense (8) (6) (23) (20)
Interest income and other, net 178 157 537 591
------- ------- ------- -------
Income before taxes 2,326 2,440 6,057 8,065
Provision for taxes 767 866 2,053 2,863
------- ------- ------- -------
Net income $ 1,559 $ 1,574 $ 4,004 $ 5,202
======= ======= ======= =======
Basic earnings per common share $ 0.93 $ 0.96 $ 2.40 $ 3.18
======= ======= ======= =======
Diluted earnings per common share $ 0.89 $ 0.88 $ 2.27 $ 2.89
======= ======= ======= =======
Cash dividends declared per
common share $ 0.070 $ 0.030 $ 0.100 $ 0.085
======= ======= ======= =======
Weighted average common shares
outstanding 1,678 1,635 1,670 1,636
Dilutive effect of:
Employee stock options 75 102 80 105
1998 Step-Up Warrants - 60 15 57
------- ------- ------- -------
Weighted average common shares
outstanding, assuming dilution 1,753 1,797 1,765 1,798
======= ======= ======= =======
</TABLE>
See Notes to Consolidated Condensed Financial Statements.
<PAGE> 3
Item 1. Financial Statements (continued)
<TABLE>
Intel Corporation
Consolidated Condensed Balance Sheets Sept. 26, Dec. 27,
(in millions) 1998 1997
---- ----
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 2,900 $ 4,102
Short-term investments 5,519 5,630
Trading assets 268 195
Accounts receivable, net 3,636 3,438
Inventories:
Raw materials 258 255
Work in process 879 928
Finished goods 441 514
-------- --------
1,578 1,697
-------- --------
Deferred tax assets 629 676
Other current assets 183 129
-------- --------
Total current assets 14,713 15,867
-------- --------
Property, plant and equipment 20,748 18,127
Less accumulated depreciation 8,885 7,461
-------- --------
Property, plant and equipment, net 11,863 10,666
Long-term investments 1,789 1,839
Other assets 1,023 508
-------- --------
TOTAL ASSETS $29,388 $28,880
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Short-term debt $ 162 $ 212
Long-term debt redeemable within one year 30 110
Accounts payable 1,205 1,407
Accrued compensation and benefits 1,034 1,268
Deferred income on shipments to distributors 471 516
Accrued advertising 411 500
Other accrued liabilities 1,145 842
Income taxes payable 798 1,165
-------- --------
Total current liabilities 5,256 6,020
-------- --------
Long-term debt 583 448
Deferred tax liabilities 1,162 1,076
Put warrants 588 2,041
Stockholders' equity:
Preferred stock - -
Common stock and capital in excess
of par value 4,775 3,311
Retained earnings 16,842 15,926
Accumulated other comprehensive income 182 58
-------- --------
Total stockholders' equity 21,799 19,295
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $29,388 $28,880
======== ========
</TABLE>
Certain 1997 amounts have been reclassified to conform to the 1998 presentation
See Notes to Consolidated Condensed Financial Statements.
<PAGE> 4
Item 1. Financial Statements (continued)
<TABLE>
Intel Corporation
Consolidated Condensed Statements of Cash Flows (unaudited)
(in millions)
Nine Months Ended
-----------------
Sept. 26, Sept. 27,
1998 1997
---- ----
<S> <C> <C>
Cash flows provided by (used for) operating activities:
Net income $ 4,004 $ 5,202
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation 2,038 1,609
Net loss on retirements of property, plant and equipment 183 50
Deferred taxes 67 88
Purchased in-process research and development 165 -
Changes in assets and liabilities:
Accounts receivable (173) (198)
Inventories 171 (214)
Accounts payable (219) 228
Accrued compensation and benefits (234) (108)
Income taxes payable (371) (175)
Tax benefit from employee stock plans 258 171
Other assets and liabilities (428) (120)
-------- --------
Total adjustments 1,457 1,331
-------- --------
Net cash provided by operating activities 5,461 6,533
-------- --------
Cash flows provided by (used for) investing activities:
Additions to property, plant and equipment (2,928) (2,917)
Purchase of Chips and Technologies, Inc., net of cash acquired (321) -
Purchase of Digital Equipment Corporation semiconductor operations (625) -
Purchases of available-for-sale investments (6,347) (5,565)
Sales of available-for-sale investments 109 95
Maturities and other changes in available-for-sale
investments 6,774 5,062
-------- --------
Net cash (used for) investing activities (3,338) (3,325)
-------- --------
Cash flows provided by (used for) financing activities:
(Decrease) in short-term debt, net (71) (172)
Additions to long-term debt 63 68
Retirement of long-term debt - (300)
Proceeds from sales of shares through employee stock plans and other 421 294
Proceeds from exercise of 1998 Step-Up Warrants 1,620 35
Proceeds from sales of put warrants 40 190
Repurchase and retirement of common stock (5,248) (2,372)
Payment of dividends to stockholders (150) (131)
-------- --------
Net cash (used for) financing activities (3,325) (2,388)
-------- --------
Net (decrease) increase in cash and cash equivalents $ (1,202) $ 820
======== ========
Supplemental disclosures of cash flow information:
Cash paid during the period for:
Interest $ 28 $ 29
Income taxes $ 2,095 $ 2,779
</TABLE>
Certain 1997 amounts have been reclassified to conform to the 1998 presentation.
See Notes to Consolidated Condensed Financial Statements.
<PAGE> 5
Item 1. Financial Statements (continued)
Intel Corporation, Notes to Consolidated Condensed Financial Statements
1. The accompanying interim consolidated condensed financial statements of
Intel Corporation ("Intel," the "Company" or the "Registrant") have been
prepared in conformity with generally accepted accounting principles,
consistent in all material respects with those applied in the Annual
Report on Form 10-K for the year ended December 27, 1997. The interim
financial information is unaudited, but reflects all normal adjustments
which are, in the opinion of management, necessary to provide a fair
statement of results for the interim periods presented. The interim
financial statements should be read in connection with the financial
statements in the Company's Annual Report on Form 10-K for the year
ended December 27, 1997.
2. As of the second quarter of 1998, the Company adopted a new dividend
declaration schedule which will result in the Board of Directors
considering two dividend declarations in the first and third quarters of
the year and no declarations in each of the second and fourth quarters
of the year. The new declaration schedule does not change the Company's
historical quarterly dividend payment schedule. In keeping with this new
schedule, no dividend was declared in the second quarter of 1998, and on
July 22, 1998 the Board of Directors declared a dividend of $.03 per
share payable on September 1, 1998 to stockholders of record on August 7,
On September 16, 1998, the Board of Directors declared a quarterly
dividend of $.04 per share payable on December 1, 1998 to stockholders of
record on November 7, 1998.
3. Interest income and other includes (in millions):
<TABLE>
Three Months Ended Nine Months Ended
------------------ -----------------
Sept. 26, Sept. 27, Sept. 26, Sept. 27,
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Interest income $ 141 $ 134 $ 444 $ 403
Foreign currency gains 5 19 8 44
Other income (expense), net 32 4 85 144
------ ------ ------ ------
Total $ 178 $ 157 $ 537 $ 591
====== ====== ====== ======
</TABLE>
Other income for the three and nine months ended September 26, 1998 and the
nine months ended September 27, 1997 consists primarily of gains on sales of
equity investments.
4. The Company has adopted Statement of Financial Accounting Standards ("SFAS")
No. 130, "Reporting Comprehensive Income," as of the first quarter of 1998.
SFAS No. 130 establishes new rules for the reporting and display of
comprehensive income and its components, however it has no impact on the
Company's net income or total stockholders' equity.
The components of comprehensive income, net of tax, are as follows (in
millions):
<TABLE>
Three Months Ended Nine Months Ended
------------------ -----------------
Sept. 26, Sept. 27, Sept. 26, Sept. 27,
1998 1997 1998 1997
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $ 1,559 $ 1,574 $ 4,004 $ 5,202
Change in unrealized gain (loss) on
available-for-sale investments (34) 54 124 1
------- ------- ------- -------
Total $ 1,525 $ 1,628 $ 4,128 $ 5,203
======= ======= ======= =======
</TABLE>
Accumulated other comprehensive income presented in the accompanying
consolidated condensed balance sheets consists of the accumulated net
unrealized gain on available-for-sale investments.
<PAGE> 6
Item 1. Financial Statements (continued)
Intel Corporation, Notes to Consolidated Condensed Financial Statements
(continued)
5. Between December 27, 1997 and March 14, 1998, approximately 78 million of
the Company's 1998 Step-Up Warrants to purchase shares of Common Stock
were exercised at a price of $20.875 per share. Approximately 78 million
shares of Common Stock were issued, and the Company received proceeds of
approximately $1.6 billion. The expiration date of these warrants was March
14, 1998.
6. During the first nine months of 1998, the Company repurchased 64.4 million
shares of Common Stock under the Company's authorized repurchase program at
a cost of $5.2 billion, including $1.2 billion to purchase 15 million
shares upon the exercise of outstanding put warrants. During the first
quarter of 1998, the Company's Board of Directors approved an increase in
the repurchase program of up to 100 million additional shares, bringing the
total authorization to 380 million shares. As of September 26, 1998, after
allowing for the outstanding put warrants, approximately 94.7 million shares
remained available for repurchase under the program. (See Item 2.
Management's Discussion and Analysis for subsequent activity.)
7. In a series of private placements during the 1991-1998 period, the Company
sold put warrants that entitle the holder of each warrant to sell to the
Company, by physical delivery, one share of Common Stock at a specified
price. Activity during the first nine months of 1998 is summarized as
follows:
<TABLE>
Put Warrants Outstanding
------------------------
Cumulative Proceeds Number Potential
(in millions) Received Of Warrants Obligation
-------- ----------- ----------
<S> <C> <C> <C>
December 27, 1997 $ 623 26.3 $ 2,041
Exercises -- (1.7) (127)
Expirations -- (9.8) (729)
------- ------- -------
March 28, 1998 $ 623 14.8 $ 1,185
Sales 27 5.0 387
Exercises -- (10.3) (793)
Expirations -- (1.0) (68)
------- ------- -------
June 27, 1998 $ 650 8.5 $ 711
Sales 13 2.5 201
Exercises -- (3.0) (279)
Expirations -- (0.5) (45)
------- ------- -------
September 26, 1998 $ 663 7.5 $ 588
======= ======= =======
</TABLE>
A total of 2.5 million put warrants were sold to commercial and investment
banks during August 1998. They expire on various dates between January and
February 1999 and have exercise prices ranging from $79.50 to $82 per share,
with an average exercise price of $80. The 7.5 million put warrants
outstanding on September 26, 1998 expire on various dates between October
1998 and February 1999 and have exercise prices ranging from $70 to $82 per
share, with an average exercise price of $78. The amount related to the
Company's potential buyback obligation has been reclassified from
Stockholders' Equity and recorded as put warrants. There is no material
dilutive effect on earnings per share for the periods presented. (See Item
2. Management's Discussion and Analysis for subsequent activity.)
<PAGE> 7
Item 1. Financial Statements (Continued)
Intel Corporation, Notes to Consolidated Condensed Financial Statements
(continued)
8. In September 1998, the Company repriced $80 million of the 1983 Series A
Adjustable Rate Industrial Revenue Bonds ("Series A Bonds") issued by the
Puerto Rico Industrial, Tourist, Educational, Medical and Environmental
Control Facilities Financing Authority. The Series A Bonds will bear
interest at the rate of 4.25% through August 2003. Bondholders of
approximately $59 million agreed to retain the bonds at the adjusted
interest rate. The balance of approximately $21 million was remarketed.
The bonds, which were included in current liabilities at December 27, 1997
due to the redemption option, have been reclassified to long-term debt as a
result of the refinancing.
9. In January 1998, the Company acquired the outstanding shares of Chips and
Technologies, Inc., a supplier of graphics accelerator chips for mobile
computing products. The purchase price was approximately $430 million ($321
million in net cash). During the first quarter of 1998, the Company recorded
a nondeductible charge of $165 million for purchased in-process research and
development, representing the appraised value of products still in the
development stage that were not considered to have reached technological
feasibility and had no alternative future use.
In May 1998, the Company purchased the semiconductor operations of Digital
Equipment Corporation, including manufacturing facilities in Massachusetts
as well as development operations in Israel and Texas, for approximately
$625 million in cash, subject to certain adjustments. Assets acquired
consisted primarily of property, plant and equipment. Following the
completion of the purchase, lawsuits between the companies that had been
pending since 1997 were dismissed with prejudice.
10. SFAS No. 133, "Accounting for Derivative Instruments and Hedging
Activities," was issued by the Financial Accounting Standards Board in
June 1998. The Standard will require the Company to recognize all
derivatives on the balance sheet at fair value. Derivatives that are not
hedges must be adjusted to fair value through income. If the derivative is
a hedge, depending on the nature of the hedge, changes in the fair value
of derivatives will either be offset against the change in fair value of
the hedged assets, liabilities, or firm commitments through earnings, or
recognized in other comprehensive income until the hedged item is
recognized in earnings. The change in a derivative's fair value related
to the ineffective portion of a hedge, if any, will be immediately
recognized in earnings. The Company expects to adopt this Standard as of
the beginning of its fiscal year 2000. The effect of adopting the Standard
is currently being evaluated, but is not expected to have a material effect
on the Company's financial position or results of operations.
11. In November 1997, Intergraph Corporation ("Intergraph") filed suit in U.S.
District Court in Alabama generally alleging that Intel attempted to coerce
Intergraph into relinquishing certain patent rights and alleging
infringement on three Intergraph patents as well as violations of antitrust
laws and various state law claims. In April 1998, the Court ordered Intel to
continue to treat Intergraph as it does allegedly similarly-situated
customers. In June 1998, Intel answered the Amended Complaint of Intergraph
and filed counter claims against Intergraph for infringement of seven
patents covering various aspects of computer system performance. Also in
June, Intel filed a motion for summary judgment on Intergraph's patent
claims on the grounds that Intel is licensed to use those patents. In July,
the Company received a letter stating that Intergraph believes that the
patent damages will be "several billion dollars by the time of trial." In
addition, Intergraph alleges that Intel's infringement is willful and that
any damages awarded should be trebled. The letter also stated that
Intergraph believes that antitrust, unfair competition and tort and
contract damages will be "hundreds of millions of dollars by the time of
trial." The Company disputes Intergraph's claims and intends to defend the
lawsuit vigorously.
In March 1995, EMI Group, NA ("EMI") brought suit in U.S. District Court in
Delaware alleging infringement of a U.S. patent relating to processes for
manufacturing semiconductors. In May 1996, the Court granted Intel's motion
for summary judgment on some of the processes in issue. In November 1996,
the Court granted Intel's motion for summary judgment on the remaining
processes in issue and entered judgment in favor of Intel and against EMI
on the claims of the complaint. A unanimous decision by the Court of Appeals
affirmed this decision in September 1998.
<PAGE> 8
Item 1. Financial Statements (Continued)
Intel Corporation, Notes to Consolidated Condensed Financial Statements
(continued)
The Company is currently party to various legal proceedings, including
those noted above. While management, including internal counsel, currently
believes that the ultimate outcome of these proceedings will not have a
material adverse effect on the Company's financial position or overall
trends in results of operations, litigation is subject to inherent
uncertainties. Were an unfavorable ruling to occur, there exists the
possibility of a material adverse impact on the results of operations of
the period in which it occurs.
12. In October 1998, the Company announced that it had entered into a
definitive agreement to acquire Shiva Corporation, whose products include
remote access and virtual private networking (VPN) solutions for the small
to medium enterprise market segment and the remote access needs of campuses
and branch offices. Intel expects that the total cash required to complete
the transaction will be approximately $185 million, before consideration of
any cash to be acquired. This transaction is subject to approval by Shiva
stockholders and is also subject to regulatory review.
<PAGE> 9
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Results of Operations - Third Quarter of 1998 Compared to Third Quarter of 1997
Revenues for Q3 1998 increased by 9% compared to Q3 1997. Higher processor
volumes and a shift in mix toward processors based on the P6
micro-architecture** drove the overall growth in revenues. Revenues from sales
of chipsets and networking products also grew between these periods.
Cost of sales rose by 23% from Q3 1997 to Q3 1998 due to increased volumes and
additional costs associated with purchased components for the Single Edge
Contact ("SEC") cartridge in the Pentium(R) II processor. These cost increases
were partially offset by the impact of cost reduction efforts. Gross margin
decreased to 53% in Q3 1998 from 58% in Q3 1997 due to the impact of the SEC
cartridge, partially offset by the impact of cost reductions and a more
favorable product mix.
For Q3 1998, sales of microprocessors based on the P6 micro-architecture
represented a majority of the Company's revenues and a substantial majority of
its gross margin. For Q3 1997, these products represented a significant and
growing portion of both revenues and gross margin. Sales of Pentium(R) family
microprocessors did not represent a significant portion of the Company's
revenues and gross margin in Q3 1998, but they constituted a majority of
revenues and gross margin in Q3 1997. No other product group represented a
significant portion of the Company's revenues or gross margin during Q3 1998
or Q3 1997.
Research and development expenses and marketing, general and administrative
expenses rose by a total of $121 million, or 10%, from Q3 1997 to Q3 1998,
primarily due to increased spending on product development programs and higher
merchandising and Intel Inside(R) expenses. Operating expenses were 20.5% of
revenues in both Q3 of 1998 and Q3 1997.
Interest income and other for Q3 1998 increased by $21 million over the prior
year due primarily to higher gains on sales of equity investments, partially
offset by lower foreign currency gains.
The provision for taxes for Q3 1998 decreased by $99 million over the prior
year as a result of lower pretax earnings and a lower effective tax rate.
The effective tax rate decreased from 35.5% for Q3 1997 to 33% for Q3 1998.
Results of Operations - First Nine Months of 1998 Compared to First Nine
Months of 1997
Revenues for the first nine months of 1998 were essentially flat compared to
the first nine months of 1997. Higher processor unit volumes compared to the
first nine months of 1997 were offset by lower processor prices and lower
revenues from sales of flash memory and embedded control products. Revenues
from sales of chipsets and networking products increased.
Cost of sales rose by 24% from the first nine months of 1997 to the first nine
months of 1998 due to increased volumes and the shift in product mix to the P6
micro-architecture, reflecting the cost of purchased components for the SEC
cartridge. Gross margin decreased to 52% in the first nine months of 1998 from
61% in the first nine months of 1997 primarily due to the impact of the SEC
cartridge and lower processor prices.
For the first nine months of 1998, sales of microprocessors based on the P6
micro-architecture represented a majority of the Company's revenues and a
substantial majority of its gross margin. For the first nine months of 1997,
these products represented a significant and growing portion of both revenues
and gross margin. Sales of Pentium family microprocessors represented a
significant but declining portion of the Company's revenues and
________________
** The P6 micro-architecture products include the Pentium(R) II, Pentium(R) II
Xeon(TM), Pentium(R) Pro and Intel(R) Celeron(TM) processors.
<PAGE> 10
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Results of Operations - First Nine Months of 1998 Compared to First Nine
Months of 1997 (continued)
gross margin in the first nine months of 1998, and they constituted a
majority of revenues and a substantial majority of gross margin in the first
nine months of 1997. No other product group represented a significant portion
of the Company's revenues or gross margin during the first nine months of 1998
or 1997.
Research and development expenses and marketing, general and administrative
expenses rose by a total of $333 million, or 9%, from the first nine months
of 1997 to the first nine months of 1998, and included a one-time charge of
$165 million for in-process research and development related to the
acquisition of Chips and Technologies, Inc. which was completed in the first
quarter of 1998. The remaining increase was primarily due to higher levels of
research and development spending on product development programs. Operating
expenses were 22.2% of revenues in the first nine months of 1998 versus 20.6%
in the first nine months of 1997.
Interest income and other for the first nine months of 1998 decreased by $54
million over the prior year. Net gains associated with the Company's equity
investments and foreign currency gains were lower than in the first nine months
of 1997, partially offset by interest on a higher average investment balance.
The provision for taxes for the first nine months of 1998 decreased by $810
million over the prior year primarily as a result of a decrease in pretax
earnings. The effective tax rate decreased from 35.5% for the first nine months
of 1997 to 33% for the first nine months of 1998, excluding the impact of the
nondeductible charge related to the acquisition of Chips and Technologies, Inc.
Financial Condition
The Company's financial condition remains very strong. As of September 26,
1998, cash, trading assets and short- and long-term investments totaled $10.5
billion, down from $11.8 billion at December 27, 1997. The Company's other
sources of liquidity include authorized commercial paper borrowings of up to
$700 million. The Company also maintains the authority to issue an aggregate
of approximately $1.4 billion in debt, equity and other securities under
Securities and Exchange Commission shelf registration statements.
Major sources of cash during the first nine months of 1998 included cash
generated from operations, which totaled $5.5 billion, and approximately $1.6
billion received upon the exercise of the 1998 Step-Up Warrants. Major uses
of cash during the first nine months of 1998 included capital spending of $2.9
billion for property, plant and equipment, primarily for microprocessor
manufacturing capacity, $5.2 billion to buy back 64.4 million shares of Common
Stock and $946 million in net cash paid for the purchase of Chips and
Technologies, Inc. and the semiconductor manufacturing operations of Digital
Equipment Corporation ("Digital").
The Company's five largest customers accounted for approximately 41% of net
revenues for the nine month period ended September 26, 1998. At September 26,
1998, these customers accounted for approximately 38% of net accounts
receivable.
Key financing activities in the first nine months of 1998 included the
repurchase of 64.4 million shares of Common Stock for $5.2 billion as part of
the Company's authorized stock repurchase program, including $1.2 billion for
the purchase of 15 million shares upon the exercise of outstanding put
warrants. The Company also sold 7.5 million put warrants, receiving proceeds
of $40 million, while 11.3 million put warrants expired unexercised. From
September 26, 1998 through November 3, 1998, the Company repurchased 10.6
million shares of its Common Stock at a cost of $932 million and 5 million put
warrants expired unexercised. As of November 3, 1998, Intel had the potential
obligation to repurchase 2.5 million shares of Common Stock at an aggregate
cost of $201 million under outstanding put warrants. The exercise price of
these outstanding warrants ranged from $80 to $82 per share, with an average
exercise price of $80 per share. During the first quarter of 1998, the
Company's Board of
<PAGE> 11
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Financial Condition (continued)
Directors approved an increase of up to 100 million additional shares in the
Company's repurchase program. This increase brought the total authorization to
380 million shares. As of November 3, 1998, 89.1 million shares remained
available for repurchase under the authorization, after allowing for the
outstanding put warrants.
In October 1998, the Company announced that it had entered into a definitive
agreement to acquire Shiva Corporation. Intel expects that the total cash
required to complete the transaction will be approximately $185 million, before
consideration of any cash to be acquired. This transaction is subject to
approval by Shiva stockholders and is also subject to regulatory review. In
addition, during October 1998, the Company made a $500 million investment to
acquire a minority nonvoting equity interest in Micron Technology, Inc,.
Management considers cash flow from operations and available sources of
liquidity to be adequate to meet business requirements in the foreseeable
future, including the acquisition and the investment described above, planned
capital expenditure programs, working capital requirements, the put warrant
obligation and the dividend program.
Outlook
The outlook section contains a number of forward-looking statements, all of
which are based on current expectations. Actual results may differ materially.
These statements do not reflect the potential impact of any mergers or
acquisitions that have not closed as of the end of the third quarter of 1998.
The Company expects revenue for the fourth quarter of 1998 to be up
approximately 8 to 10 percent from the third quarter revenue of $6.7 billion.
This represents a change from the previous guidance that fourth quarter revenue
would be up slightly from the third quarter. Revenue is partly a function of
the mix of microprocessor types and speeds, purchased components and other
products, all of which are difficult to forecast. Because of the large price
difference between types of microprocessors, this mix affects the average
price Intel will realize and has a large impact on Intel's revenues. Revenue
is also subject to the rate of growth of the computing industry and the
impact of business and economic conditions, such as the current global
financial difficulties.
Intel's strategy is to introduce ever-higher performance microprocessors
tailored for the different segments of the worldwide computer market, using a
tiered branding approach. To implement this strategy, the Company plans to
cultivate new businesses and continue to work with the software industry to
develop compelling applications that can take advantage of this higher
performance, thus driving demand toward the newer products in each computer
market segment. In line with this strategy, the Company is seeking to develop
higher performance microprocessors for each market segment, including servers,
workstations, high-end business PCs, the basic PC and other product lines.
During the third quarter, the Company launched the Pentium(R) II Xeon(TM)
processor (for mid- and high-range servers and workstations), and introduced
higher performance versions of the Pentium II processor (for desktops and
entry-level servers and workstations), the Celeron(TM) brand processor
(for basic PC users) and the Pentium II processor for mobile PCs. The Company
may continue to reduce microprocessor prices at such times as it deems
appropriate in order to bring its technology to market within each relevant
market segment.
The Company now expects the gross margin percentage in the fourth quarter of
1998 to be up a couple of points from 53 percent in the third quarter. Previous
guidance was that margin would be flat to slightly up in the fourth quarter.
Intel's gross margin percentage in any period varies depending on the level of
revenues and on the mix of types and speeds of microprocessors sold, as well as
the mix of microprocessors and purchased components. The Pentium II processor
is packaged with purchased components in the SEC cartridge, and the inclusion
of purchased components tends to increase unit costs. Accordingly, sales of the
Pentium II processor increase absolute dollar margins but tend to lower the
gross margin percentage. Various other factors (including
<PAGE> 12
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Outlook (continued)
unit volumes and costs, yield issues associated with production at factories,
ramp of new technologies, excess or obsolete inventory, variations in inventory
valuation and mix of shipments of other semiconductors) will also continue to
affect the amount of cost of sales and the variability of gross margin
percentages.
The Company has expanded manufacturing capacity over the last few years and
continues to plan capacity based on the assumed continued success of its
strategy and the acceptance of its products in specific market segments. The
Company currently expects capital expenditures for 1998 to be approximately
$4.2 billion, down from $4.5 billion in 1997. This is less than the guidance
for the year of $4.5 to $4.7 billion given in the Form 10-Q for the second
quarter, primarily as a result of a facilities realignment and the Company's
continued efforts to control costs. The current estimate includes the
acquisition of the capital assets of Digital's semiconductor manufacturing
operations. This spending plan is dependent upon expectations regarding
manufacturing efficiencies, delivery times of various machines and construction
schedules for new facilities. Depreciation for the fourth quarter of 1998 is
expected to be approximately $780 million.
Spending on research and development and marketing, general and administrative
expenses in the fourth quarter of 1998 is expected to be approximately 8 to 10
percent higher than the $1.4 billion in the third quarter of 1998, up from
earlier guidance of 3 to 5 percent higher than third quarter expenses. Expense
projections for the fourth quarter of 1998 incorporate expected higher
merchandising, Intel Inside(R) and profit dependent expenses. Total spending
is subject in part to changes in revenue and profit dependent expenses. Research
and development spending for the fourth quarter of 1998 is expected to be
approximately $650 million.
Intel is still making progress on reducing headcount and the Company expects to
be within a few hundred people of its previously announced headcount reduction
target of approximately 3,000 employees by the end of the year. In 1999, the
Company expects to complete other previously announced headcount reduction plans
at manufacturing locations in Massachusetts and Puerto Rico.
The Company expects interest and other income for the fourth quarter of 1998 to
be approximately $200 million, up from earlier guidance of $160 million,
assuming no significant changes in expected interest rates or cash balances,
and no unanticipated items.
The tax rate for the fourth quarter of 1998 is expected to be 33%.
Intel has established a team to address the issues raised by the introduction
of the Single European Currency (Euro) for initial implementation as of January
1, 1999 and during the transition period through January 1, 2002. Intel
expects that its internal systems that will be affected by the initial
introduction of the Euro will be Euro capable by January 1, 1999, and does not
expect the costs of system modifications to be material. The Company does not
presently expect that introduction and use of the Euro will materially affect
the Company's foreign exchange and hedging activities, or the Company's use of
derivative instruments, or will result in any material increase in costs to the
Company. While Intel will continue to evaluate the impact of the Euro
introduction over time, based on currently available information, management
does not believe that the introduction of the Euro currency will have a
material adverse impact on the Company's financial condition or overall trends
in results of operations.
Like many other companies, the year 2000 computer issue creates risks for
Intel. If internal systems do not correctly recognize and process date
information beyond the year 1999, there could be an adverse impact on the
Company's operations. There are two other related issues which could also lead
to incorrect calculations or failures: i) some systems' programming assigns
special meaning to certain dates, such as 9/9/99, and ii) the fact that the
year 2000 is a leap year. To address these year 2000 issues with its internal
systems, the Company has initiated a comprehensive program which is designed
to deal with the most critical systems first (the Company has categorized as
"critical" or "priority" those systems whose failure would cause an extended
shut down of all or part
<PAGE> 13
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Outlook (continued)
of a factory, could cause personal injury or would have a sustained and
significant detrimental financial impact). These activities are intended to
encompass all major categories of systems in use by the Company, including
network and communications infrastructure, manufacturing, facilities
management, sales, finance and human resources. The Company is also testing
customer and supplier interfaces as appropriate. The Company's manufacturing
equipment and systems are highly automated, incorporating PC's, embedded
processors and related software to control activity scheduling, inventory
tracking, statistical analysis and automated manufacturing. A significant
portion of the Company's year 2000 efforts on internal systems is intended
to prevent disruption to manufacturing operations. As of October 1998,
approximately 85% of the Company's critical and priority manufacturing systems
and 61% of critical and priority non-manufacturing systems were determined to
be already year 2000 capable, or replacements, changes, upgrades or workarounds
have been determined and tested. These replacements, changes and upgrades may
not yet have been deployed. The Company is in the process of planning a
comprehensive program of integration testing of internal systems. The
integration testing began in the third quarter of 1998 and will continue into
1999 as necessary.
The table below indicates the phases of the year 2000 project related to the
Company's critical and priority internal systems and the expected time frames.
Phases of the Project Start Date End Date
- --------------------- ---------- --------
High level assessment of systems 1996 Q3 1998 (actual)
Detailed assessment, remediation and
unit testing 1996 Q1 1999 (expected)
Deployment 1997 Mid-1999 (expected)
Integration testing Q3 1998 Mid-1999 (expected)
Intel is also actively working with suppliers of products and services to
determine the extent to which the suppliers' operations and the products and
services they provide are year 2000 capable and to monitor their progress
toward year 2000 capability. Highest priority is being placed on working with
suppliers that are critical to the business, defined by Intel as those whose
failure would shut down manufacturing or other critical operations within a
short period of time. The Company has made inquiry of its major suppliers and
to date has received responses to its initial inquiries from 100% of critical
suppliers. Follow-up activities seek to determine whether the supplier is
taking all appropriate steps to fix year 2000 problems and to be prepared to
continue functioning effectively as a supplier in accord with Intel's
standards and requirements. Contingency plans are being developed to address
issues related to suppliers that are not considered to be making sufficient
progress in becoming year 2000 capable in a timely manner. The Company is also
developing contingency plans to address possible changes in customer order
patterns due to year 2000 issues. As with suppliers, the readiness of customers
to deal with year 2000 issues may affect their operations and their ability to
order and pay for products.
Intel believes that its most reasonably likely worst case year 2000 scenarios
would relate to problems with the systems of third parties rather than with
the Company's internal systems or its products. It is clear that the Company
has the least ability to assess and remediate the year 2000 problems of third
parties and the Company believes the risks are greatest with infrastructure
(e.g. electricity supply, water and sewer service), telecommunications,
transportation supply chains and critical suppliers of materials.
The Company's microprocessor production is conducted in a network of domestic
and foreign facilities. Each location relies on local private and governmental
suppliers for electricity, water, sewer and other needed supplies. Failure of
an electricity grid or an uneven supply of power, as an example, would be a
worst case scenario that would completely shut down the affected facilities.
Electrical failure could also shut down airports and other transportation
facilities. The Company does not currently maintain facilities which would
allow it to generate its
<PAGE> 14
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Outlook (continued)
own electrical or water supply in lieu of that supplied by utilities. To the
extent possible, the Company is working with the infrastructure suppliers for
its manufacturing sites, major subcontractor sites and relevant transportation
hubs to seek to better ensure continuity of infrastructure services.
Contingency planning regarding major infrastructure failure generally
emphasizes the shift of production to other, unaffected sites or planned
increases in inventory levels of specific products. Multiple plants engage in
similar tasks in the Intel system and production can be expanded in some sites
to partially make up for capacity unavailable elsewhere. Although overall
capacity would be reduced, it is not expected that the entire production system
would halt due to the unavailability of one or two facilities.
A worst case scenario involving a critical supplier of materials would be the
partial or complete shutdown of the supplier and its resulting inability to
provide critical supplies to the Company on a timely basis. The Company does
not maintain the capability to replace most third party supplies with internal
production. Where efforts to work with critical suppliers to ensure year 2000
capability have not been successful, contingency planning generally emphasizes
the identification of substitute and second-source suppliers, and in certain
limited situations includes a planned increase in the level of inventory
carried.
The Company is not in a position to identify or to avoid all possible
scenarios; however, the Company is currently assessing scenarios and taking
steps to mitigate the impacts of various scenarios if they were to occur.
This contingency planning will continue through 1999 as the Company learns
more about the preparations and vulnerabilities of third parties regarding
year 2000 issues. Due to the large number of variables involved, the Company
cannot provide an estimate of the damage it might suffer if any of these
scenarios were to occur.
The Company also has a program to assess the capability of its products to
handle the year 2000. To assist customers in evaluating their year 2000 issues,
the Company has developed a list which indicates the capability of Intel's
current products, and certain products no longer being produced, to handle the
year 2000. Products are assigned to one of five categories as defined by the
Company: "Year 2000 Capable", "Year 2000 Capable" with update, not "Year 2000
Capable", under evaluation, or will not test. The list is located at the
Company's Year 2000 support website and is periodically updated as analysis
on additional products is completed. All Intel processors are "Year 2000
Capable." All Intel microcontrollers (embedded processors) are also "Year 2000
Capable," with the exception of two custom microcontroller products which were
sold to a limited number of customers. However, the assessment of whether a
complete system will operate correctly depends on the firmware (BIOS)
capability and software design and integration, and for many end-users this
will include firmware and software provided by companies other than Intel. As
described more fully at the support website, Intel offers a "Year 2000 Capable"
Limited Warranty on certain of its current products. Except as specifically
provided for in the Limited Warranty, the Company does not believe it is
legally responsible for costs incurred by customers related to ensuring their
year 2000 capability. Nevertheless, the Company is incurring various costs to
provide customer support and customer satisfaction services regarding Year
2000 issues, and it is anticipated that these expenditures will continue
through 1999 and thereafter. An Intel product, when used in accordance with its
associated documentation, is "Year 2000 Capable" when, upon installation, it
accurately stores, displays, processes, provides, and/or receives data from,
into, and between 1999 and 2000, and the twentieth and twenty-first centuries,
including leap year calculations, provided that all other technology used in
combination with the Intel product properly exchanges date data with it.
Various of the Company's disclosures and announcements concerning its products
and year 2000 programs are intended to constitute "Year 2000 Readiness
Disclosures" as defined in the recently-enacted Year 2000 Information and
Readiness Disclosure Act. The Act provides added protection from liability for
certain public and private statements concerning an entity's year 2000
readiness and the year 2000 readiness of its products and services. The Act
also potentially provides added protection from liability for certain types
of year 2000 disclosures made after January 1, 1996, and before the date of
enactment of the Act.
<PAGE> 15
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Outlook (continued)
The Company's year 2000 efforts have been undertaken largely with its existing
personnel. In some instances, consultants have been engaged to provide specific
assessment, remediation or other services. Activities with suppliers and
customers have also involved their staffs and consultants. The Company engaged a
third party firm to assist with planning and taking the inventory of internal
systems and engaged another firm to perform an assessment of the overall scope
and schedule of Intel's year 2000 efforts.
The Company currently expects that the total cost of these programs, including
both incremental spending and redeployed resources, will not exceed $250
million. Approximately $35 million has been spent on the programs to date, of
which approximately $30 million was incurred in the first three quarters of
1998. Costs in the fourth quarter of 1998 are expected to be approximately $30
million. A majority of the total estimated costs are expected to be incurred in
assessing and remediating issues with manufacturing systems, and as a result, a
majority of the total costs are expected to be included in cost of sales and in
the calculation of gross margin. Expected year 2000 costs for manufacturing and
non-manufacturing internal systems in 1998 represent less than 10% of the total
information technology budget for 1998. No significant internal systems
projects are being deferred due to the year 2000 program efforts. In some
instances, the installation schedule of new software and hardware in the normal
course of business is being accelerated to also afford a solution to year 2000
capability issues. The Company expects that costs related to accelerated
systems replacements will be approximately $15 million in addition to the total
costs noted above. In addition, the estimated costs do not include any
potential costs related to customer or other claims, or potential amounts
related to executing contingency plans, such as costs incurred on account of
an infrastructure or supplier failure. The Company has adequate general
corporate funds with which to pay for the programs' expected costs. All
expected costs are based on the current assessment of the programs and are
subject to change as the programs progress.
Based on currently available information, management does not believe that
the year 2000 matters discussed above related to internal systems or products
sold to customers will have a material adverse impact on the Company's
financial condition or overall trends in results of operations; however, it is
uncertain to what extent the Company may be affected by such matters. In
addition, there can be no assurance that the failure to ensure year 2000
capability by a supplier, customer or another third party would not have a
material adverse effect on the Company's financial condition or overall trends
in results of operations.
The Company is currently party to various legal proceedings. Although
litigation is subject to inherent uncertainties, management, including internal
counsel, does not believe that the ultimate outcome of these legal proceedings
will have a material adverse effect on the Company's financial position or
overall trends in results of operations. However, were an unfavorable ruling
to occur in any specific period, there exists the possibility of a material
adverse impact on the results of operations of that period. Management
believes, given the Company's current liquidity and cash and investments
balances, that even an adverse judgment would not have a material impact on
cash and investments or liquidity.
The Company's future results of operations and the other forward-looking
statements contained in this outlook, in particular the statements regarding
revenues, pricing, new product development, gross margin, capital spending,
depreciation, research and development expenses, marketing and general and
administrative expenses, headcount reductions, net interest and other, tax
rate, conversion to the Euro, year 2000 issues and legal proceedings involve
a number of risks and uncertainties. In addition to the factors discussed
above, among the other factors that could cause actual results to differ
materially are the following: changes in customer order patterns, including
changes in customer and channel inventory levels; competitive factors, such
as rival chip architectures and manufacturing technologies, competing
software-compatible microprocessors and acceptance of new products in specific
market segments; pricing pressures; continued success in technological
advances, including development and implementation of new processes and
strategic products for specific market segments; execution of the
<PAGE> 16
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (continued)
Outlook (continued)
manufacturing ramp; effects of excess or shortage of manufacturing capacity;
unanticipated costs or other adverse effects associated with processors and
other products containing errata (deviations from published specifications);
impact on the Company's business due to internal systems or systems of
suppliers and other third parties adversely affected by year 2000 problems;
and litigation involving antitrust, intellectual property, consumer and other
issues.
Intel believes that it has the product offerings, facilities, personnel, and
competitive and financial resources for continued business success, but future
revenues, costs, margins and profits are all influenced by a number of factors,
as discussed above, all of which are inherently difficult to forecast.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
For financial market risks related to changes in interest rates and foreign
currency exchange rates, reference is made to Part II, Item 7A, Quantitative
and Qualitative Disclosures About Market Risk, in the Registrant's Annual
Report on Form 10-K for the year ended December 27, 1997 and to the subheading
"Financial Market Risks" under the heading "Management's Discussion and
Analysis of Financial Condition and Results of Operations" on page 23 of the
Registrant's 1997 Annual Report to Stockholders.
The Company is exposed to equity price risks on the marketable portion of
equity securities included in its portfolio of investments entered into for the
promotion of business and strategic objectives. These investments are generally
in companies in the high-technology industry sector, many of which are small
capitalization stocks. The Company typically does not attempt to reduce or
eliminate its market exposure on these securities. A 20% adverse change in
equity prices, based on a sensitivity analysis of the Company's investment
portfolio as of September 26, 1998, would result in an approximate $120
million decrease in the fair value of the Company's available-for-sale
securities. This represents an update to the equity risk disclosure contained
in the 1997 Annual Report to Stockholders based an increase in the dollar
value of the marketable portion of the portfolio of equity investments. Actual
results may differ materially.
<PAGE> 17
PART II - OTHER INFORMATION
- ---------------------------
Item 1. Legal Proceedings
Reference is made to Item 3. Legal Proceedings, in the Registrant's Annual
Report on Form 10-K for the year ended December 27, 1997 and to Part II,
Item 1. Legal Proceedings, in the Registrant's Quarterly Report on Form 10-Q
for the quarterly periods ended March 28, 1998 and June 27, 1998 for
descriptions of the following and other legal proceedings.
Intergraph Corporation v. Intel
U.S. District Court, Northern District of Alabama, Northeastern Division
------------------------------------------------------------------------
(CV-97-N-3023-NE)
-----------------
In June of this year, Intel filed a motion for summary judgment on Intergraph's
patent claims on the grounds that Intel is licensed to those patents. In
September, Intergraph filed their opposition to that motion and filed its own
motion which seeks summary judgment in its favor on the same issue. Although
litigation is subject to inherent uncertainties and the ultimate outcome of
this lawsuit cannot be determined at this time, management, including internal
counsel, does not believe that the ultimate outcome will have a material
adverse effect on Intel's financial position or overall trends in results of
operations.
EMI Group, NA v. Intel, DEL (C95-199)
-------------------------------------
In March 1995, the plaintiff brought suit in U.S. District Court in Delaware
alleging infringement of a U.S. patent relating to processes for manufacturing
semiconductors. In May 1996, the Court granted Intel's motion for summary
judgment on some of the processes in issue. In November 1996, the Court granted
Intel's motion for summary judgment on the remaining processes in issue and
entered judgment in favor of Intel and against the plaintiff on the claims of
the complaint. A unanimous decision by the Court of Appeals affirmed this
decision in September 1998.
Item 2. Changes in Securities
(c) Unregistered sales of equity securities.
Reference is made to the information on sales of put warrants appearing in Note
7 under the heading "Intel Corporation, Notes to Consolidated Condensed
Financial Statements" in Part I, Item 1 hereof. All such transactions are
exempt from registration under Section 4 (2) of the Securities Act of 1933.
Each transaction was privately negotiated and each offeree and purchaser was
an accredited investor/qualified institutional buyer. No public offering or
public solicitation was used by the registrant in the placement of these
securities.
Item 5. Other Information
On September 16, 1998 the Board of Directors approved an amendment to the
Company's Bylaws to temporarily increase the number of authorized members of
the Board of Directors from 11 to 12. The number of authorized members will
automatically revert to 11 following the 1999 Annual Meeting of Stockholders.
The amended and restated Bylaws are attached hereto as Exhibit 3.1.
<PAGE> 18
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 Intel Corporation Bylaws as amended.
12.1 Statement setting forth the computation of ratios of earnings to
fixed charges.
27 Financial Data Schedule.
(b) Reports on Form 8-K.
Intel filed a report on Form 8-K, dated July 14, 1998, relating to
financial information for Intel Corporation for the quarter ended June
27, 1998 and forward-looking statements relating to 1998, the 3rd Quarter
of 1998 and the 2nd Half of 1998, as presented in a press release of July
14, 1998.
<PAGE> 19
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTEL CORPORATION
(Registrant)
Date: November 10, 1998 By: /s/ Andy D. Bryant
----------------------
Andy D. Bryant
Vice President, Chief Financial
Officer and Principal Accounting
Officer
Exhibit 3.1
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>
(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>
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 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
<PAGE>
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 45 days nor more than 120
days prior to the date on which the Corporation first mailed its proxy
materials for the prior year's annual meeting of stockholders; 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 30 days from the anniversary of the previous year's annual meeting,
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 meting 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>
(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.
(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
<PAGE>
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 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
<PAGE>
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 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.
<PAGE>
(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>
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.
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 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
<PAGE>
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 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.
<PAGE>
Section 2. Tenure and Duties of Officers.
--------- -----------------------------
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.
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.
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.
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.
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.
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
<PAGE>
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.
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,
<PAGE>
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 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
<PAGE>
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 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.
<PAGE>
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.
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.
<PAGE>
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.
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.
<PAGE>
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.
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.
<PAGE>
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, 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
<PAGE>
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 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 12.1
INTEL CORPORATION
STATEMENT SETTING FORTH THE COMPUTATION
OF RATIOS OF EARNINGS TO FIXED CHARGES
(in millions)
<TABLE>
Nine Months Ended
Sept. 26, Sept. 27,
1998 1997
----------------------
<S> <C> <C>
Income before taxes $ 6,057 $ 8,065
Add fixed charges net of
capitalized interest 35 33
-------- --------
Income before taxes and fixed
charges (net of capitalized
interest) $ 6,092 $ 8,098
======== ========
Fixed charges:
Interest $ 23 $ 20
Capitalized interest 5 7
Estimated interest component
of rental expense 12 13
-------- --------
Total $ 40 $ 40
======== ========
Ratio of earnings before taxes and
fixed charges, to fixed charges 152 202
</TABLE>
<TABLE> <S> <C>
<S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary information extracted from Intel Corporation's
CONSOLIDATED CONDENSED STATEMENTS OF INCOME AND CONSOLIDATED CONDENSED
BALANCE SHEETS and is qualified in its entirety by reference to such
financial statements.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-26-1998
<PERIOD-END> SEP-26-1998
<CASH> 2900
<SECURITIES> 5787
<RECEIVABLES> 3636<F3>
<ALLOWANCES> 0
<INVENTORY> 1578
<CURRENT-ASSETS> 14713
<PP&E> 20748
<DEPRECIATION> 8885
<TOTAL-ASSETS> 29388
<CURRENT-LIABILITIES> 5256
<BONDS> 583
588<F1>
0
<COMMON> 4775
<OTHER-SE> 17024
<TOTAL-LIABILITY-AND-EQUITY> 29388
<SALES> 18659
<TOTAL-REVENUES> 18659
<CGS> 8968
<TOTAL-COSTS> 8968
<OTHER-EXPENSES> 2000<F2>
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 23
<INCOME-PRETAX> 6057
<INCOME-TAX> 2053
<INCOME-CONTINUING> 4004
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4004
<EPS-PRIMARY> 2.40<F4>
<EPS-DILUTED> 2.27
<FN>
<F1>Item consists of put warrants.
<F2>Item consists of research and development, including $165 million
for purchased in-process research and development.
<F3>Item shown net of allowance, consistent with the balance sheet
presentation.
<F4>Item consists of basic earnings per share
</FN>
</TABLE>
