<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 22, 1994
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
NATIONAL SEMICONDUCTOR CORPORATION
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 95-2095071
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
</TABLE>
2900 SEMICONDUCTOR DRIVE
P.O. BOX 58090
SANTA CLARA, CALIFORNIA 95052-8090
(Address, including zip code, of Registrant's principal executive offices)
Registrant's telephone number including area code: (408) 721-5000
------------------------------
JOHN M. CLARK, III, ESQ.
SENIOR VICE PRESIDENT, GENERAL COUNSEL
AND SECRETARY
NATIONAL SEMICONDUCTOR CORPORATION
2900 SEMICONDUCTOR DRIVE, P.O. BOX 58090
SANTA CLARA, CALIFORNIA 95052-8090
(408) 721-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service of process)
------------------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
PETER F. KERMAN, Esq. ROBERT B. KNAUSS, Esq.
Latham & Watkins Munger, Tolles & Olson
505 Montgomery Street, Suite 1900 355 South Grand Avenue, 35th Floor
San Francisco, California 94111-2562 Los Angeles, California 90071
(415) 391-0600 (213) 683-9100
</TABLE>
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
BE REGISTERED BE REGISTERED PER SHARE (1) PRICE (1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock,
$0.50 par value.......... 8,250,000 shares (2) $22.6875 $187,171,875 $64,542
Preferred Stock
Purchase Rights.......... (3) -- -- --
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) on the basis of the average of the high and low
prices of the Registrant's common stock as reported on the New York Stock
Exchange Composite Transactions on March 15, 1994.
(2) The maximum number of shares issuable on conversion of the 2,500,000 shares
of the Registrant's Depositary Convertible Exchangeable Preferred Shares.
(3) Each share of Common Stock includes one Preferred Stock Purchase Right
issued under the Rights Agreement, dated as of August 8, 1988, as amended,
between the Registrant and The First National Bank of Boston, as Rights
Agent.
------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH
SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PROSPECTUS
8,250,000 SHARES
NATIONAL SEMICONDUCTOR CORPORATION
COMMON STOCK
(PAR VALUE $0.50 PER SHARE)
This prospectus relates to the issuance of a maximum of 8,250,000 shares of
Common Stock, $0.50 par value (the "Common Stock"), of National Semiconductor
Corporation, a Delaware corporation (the "Company"), either (i) upon conversion
of its Depositary Convertible Exchangeable Preferred Shares (the "Depositary
Shares"), each representing ownership of 1/10 of a share of the $40.00
Convertible Exchangeable Preferred Shares (the "Preferred Shares") of the
Company or (ii) to Salomon Brothers Inc (the "Purchaser") under the standby
arrangements described herein and the resale by the Purchaser of such Common
Stock.
The Company has called all of the Preferred Shares for redemption on April 21,
1994 (the "Redemption Date") at a redemption price equivalent to $50.80 per
Depositary Share, plus accrued dividends from March 1, 1994 to the Redemption
Date of $0.57 per share, for a total redemption price of $51.37 per share (the
"Redemption Price"). No dividends will accrue on the Depositary Shares from and
after the Redemption Date. The Depositary Shares are convertible prior to 5:00
p.m. Eastern Daylight Time on April 21,1994 at the rate of 3.30 shares of Common
Stock for each Depositary Share. Cash will be paid in lieu of any fractional
shares of Common Stock. No payment or adjustment will be made for dividends
accrued on Depositary Shares surrendered for conversion.
The Company has made arrangements with the Purchaser to purchase such number of
shares of Common Stock as would have been issuable upon conversion of the
Depositary Shares which have not been surrendered for conversion prior to 5:00
p.m. Eastern Daylight Time on April 21, 1994. The Purchaser may also purchase
Depositary Shares in the open market or otherwise prior to April 21, 1994, and
any Depositary Shares so purchased will be converted into Common Stock. See
"Standby Arrangements" for a description of the Purchaser's compensation and
indemnification arrangements with the Company. The Common Stock is traded on the
New York Stock Exchange under the symbol NSM. On March 18, 1994, the last
reported sales price of the Common Stock on such exchange was $23 5/8 per share.
THE CONVERTIBILITY OF THE DEPOSITARY SHARES WILL EXPIRE AT 5:00 P.M. EASTERN
DAYLIGHT TIME ON APRIL 21, 1994.
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED
BY PROSPECTIVE PURCHASERS OF COMMON STOCK.
Under the foregoing alternatives, a holder of Depositary Shares (a "Holder") who
converted such Depositary Shares on March 18, 1994 would have received Common
Stock (including cash in lieu of any fractional share) having a market value of
$77.96, based on the last reported sales price of the Common Stock on the New
York Stock Exchange on that date. As long as the market price of the Common
Stock remains at least $15.57 per share, Holders who elect to convert will
receive upon conversion Common Stock (plus cash in lieu of any fractional share)
having a current market value greater than the $51.37 in cash which would be
received if such Depositary Share were surrendered for redemption. It should be
noted, however, that the price of the Common Stock received upon conversion will
fluctuate in the market, and that Holders may incur various expenses of sale if
such Common Stock is sold.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
On or before the close of business on April 21, 1994, the Purchaser may offer to
the public Common Stock, including shares acquired through the purchase and
conversion of the Depositary Shares, at prices set from time to time by the
Purchaser. It is intended that each such price when set will not exceed the
greater of the last sale and current asked price of the Common Stock on the New
York Stock Exchange, plus the amount of any concession to dealers, and it is
intended that an offering price set on any calendar day will not be increased
more than once during such day. After the close of business on April 21, 1994,
the Purchaser may offer Common Stock at a price or prices to be determined, but
which it is presently intended will be determined in conformity with the
preceding sentence. The Purchaser may thus realize profits or losses independent
of the compensation referred to under "Standby Arrangements." Any Common Stock
will be offered by the Purchaser when, as and if accepted by the Purchaser and
subject to its right to reject orders in whole or in part.
This Prospectus covers the issuance of a maximum of 8,250,000 shares of Common
Stock to be issued directly or upon conversion of the Depositary Shares and the
resale of any such shares acquired by the Purchaser.
- ------------------------------------------------------------------------
SALOMON BROTHERS INC
- ----------------------------------------------------------------
The date of this Prospectus is March 22, 1994.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE PURCHASER MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON STOCK,
THE DEPOSITARY SHARES AND THE DEPOSITARY SHARES EVIDENCING THE COMPANY'S $32.50
CONVERTIBLE PREFERRED STOCK AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK
EXCHANGE, THE PACIFIC STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
National Semiconductor Corporation ("National" or the "Company") is subject
to the informational requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
and at the following Regional Offices of the Commission: Chicago Regional
Office, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and
New York Regional Office, 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained from the Public Reference Section
of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. Such material can also be inspected and copied at the offices
of the New York Stock Exchange, Inc. (the "NYSE"), 20 Broad Street, New York,
New York 10005 and the Pacific Stock Exchange, Inc., 301 Pine Street, San
Francisco, California 94104.
This Prospectus constitutes a part of a registration statement on Form S-3
(together with all amendments and exhibits, herein referred to as the
"Registration Statement") filed by the Company under the Securities Act of 1933,
as amended (the "Securities Act"). This Prospectus does not contain all of the
information included in the Registration Statement, certain parts of which are
omitted in accordance with the rules and regulations of the Commission.
Reference is made to such Registration Statement and to the exhibits relating
thereto for further information with respect to the Company and the securities
offered hereby.
------------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act are incorporated in and made a part of this Prospectus by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended May
30, 1993, including the portions of the Company's 1993 Annual Report and the
Company's Proxy Statement for the 1993 Annual Meeting of Stockholders
incorporated therein by reference;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarters
ended August 29, 1993, November 28, 1993 and February 27, 1994;
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed September 8, 1970; and
(d) The description of the Preferred Stock Purchase Rights contained in the
Company's Registration Statement on Form 8-A filed August 9, 1988.
All documents filed by National pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and before the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein, or contained in this Prospectus, shall be
deemed to be modified or superseded for purposes of
2
<PAGE>
this Prospectus to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
National will furnish without charge to each person to whom this Prospectus
is delivered, on written or oral request of such person, a copy of any or all
documents incorporated by reference in this Prospectus, without exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests for such copies should be directed to: Investor
Relations, Mail Stop 10-397, National Semiconductor Corporation, 2900
Semiconductor Drive, P.O. Box 58090, Santa Clara, California 95052-8090,
telephone: (408) 721-5693.
THE COMPANY
National designs, develops, manufactures and markets a broad line of
semiconductor products, including analog, digital and mixed-signal integrated
circuits.
National's principal executive offices are located at 2900 Semiconductor
Drive, P.O. Box 58090, Santa Clara, California 95052-8090 and its telephone
number is (408) 721-5000.
RISK FACTORS
In addition to the other information in this Prospectus, the following
factors should be considered carefully in evaluating the Company and its
business before purchasing the Common Stock offered by this Prospectus.
FLUCTUATIONS IN FINANCIAL RESULTS
The Company's financial results are affected by the business cycles and
seasonal trends of the semiconductor and related industries. Shifts in product
mix toward, or away from, higher margin products can also have a significant
impact on the Company's operating results. As a result of these, and other
factors, the Company's financial results can fluctuate significantly from period
to period. As an example, the Company has generated net profits in the last ten
quarters, but it experienced substantial losses in fiscal years 1989 through
1992.
THE SEMICONDUCTOR INDUSTRY; COMPETITION
The semiconductor industry is characterized by rapid technological change
and frequent introduction of new technology leading to more complex and powerful
products. The result is a cyclical environment with short product life-cycles,
price erosion and high sensitivity to the overall business conditions. In
addition, substantial capital and research and development investment is
required for products and processes. The Company may experience periodic
fluctuations in its operating results because of industry-wide conditions.
National competes with a number of major companies in the high-volume
segment of the industry. These include several companies whose semiconductor
business is only part of their overall operations, such as Motorola, Inc.,
Hitachi, Ltd., Nippon Electric Company, Ltd. and Texas Instruments Incorporated,
each of which has substantially greater financial resources than the Company.
National also competes with a large number of smaller companies that target
particular niche markets.
FOREIGN OPERATIONS
National conducts a substantial portion of its operations outside the United
States and its business is subject to risks associated with many factors beyond
its control, such as fluctuations in foreign currency rates, instability of
foreign economies and governments, and changes in U.S. and foreign laws and
policies affecting trade and investment. Although the Company has not
experienced any materially
3
<PAGE>
adverse effects with respect to its foreign operations arising from such
factors, there can be no assurance that such problems will not arise in the
future. In addition, although the Company seeks to hedge its exposure to
currency exchange rate fluctuations, the Company's competitive position relative
to non-U.S. suppliers can be affected by the exchange rate of the U.S. dollar
against other currencies.
TAX LITIGATION
The Company has received Notices of Deficiency from the United States
Internal Revenue Service (the "IRS") for the fiscal years ended May 31, 1976
through 1982. The Company and the IRS have reached a settlement on all disputed
issues except for the issue of inter-company product transfer prices; this
settlement has reduced the total of the additional taxes being sought to
approximately $52 million (exclusive of interest). Trial was held in February
1993, briefs were filed in June 1993 and rebuttal briefs were filed in August
1993; however, the Company is not able to predict when a decision will be
rendered. As a result of the length of time which has elapsed since the fiscal
years in question as well as the effect of compounding, the amount of interest
on any tax liability ultimately determined to be owing would be several times
the amount of the underlying additional tax. The Company's tax returns for
fiscal 1983 through 1989 have been under examination by the IRS, and the Company
expects the IRS to raise similar issues. In January 1994, the Company and the
IRS settled all issues for fiscal years 1983 through 1985, including issues
relating to intercompany product transfer pricing, without the payment of
additional federal tax. This result will be affected by certain net operating
loss carryovers and credits, which will not be determined until a final decision
is rendered in the litigation pending in the U.S. Tax Court. The Company's tax
returns for fiscal years 1986 through 1989 are still under examination by the
IRS. The Company believes that adequate tax payments have been made and accruals
recorded for all years.
4
<PAGE>
USE OF PROCEEDS
The net proceeds from the sale of Common Stock to the Purchaser pursuant to
the agreement described under "Standby Arrangements" will be used to fund the
redemption of any Depositary Shares not tendered for conversion. Any excess net
proceeds, resulting from the Purchaser remitting certain amounts to the Company
(see "Standby Arrangements"), will be used for general corporate purposes and,
pending such uses, are anticipated to be invested in short-term investments.
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Common Stock is listed and traded on the NYSE and the Pacific Stock
Exchange. The following table sets forth, for the periods indicated, the high
and low sales prices per share of the Common Stock, as reported on the NYSE
Composite Transactions Tape.
<TABLE>
<CAPTION>
FISCAL YEAR HIGH LOW
- ------------------------------------------------------------------------------------------------ ----------- -----------
<S> <C> <C>
1992:
First Quarter................................................................................. $ 73/8 $ 5
Second Quarter................................................................................ 65/8 37/8
Third Quarter................................................................................. 107/8 51/4
Fourth Quarter................................................................................ 111/2 81/4
1993:
First Quarter................................................................................. 113/4 81/2
Second Quarter................................................................................ 141/8 97/8
Third Quarter................................................................................. 135/8 101/8
Fourth Quarter................................................................................ 15 105/8
1994:
First Quarter................................................................................. 191/2 141/2
Second Quarter................................................................................ 213/4 15
Third Quarter................................................................................. 217/8 143/8
Fourth Quarter (through March 18, 1994)....................................................... 243/8 207/8
</TABLE>
On March 18, 1994, the last reported sales price for the Common Stock on the
NYSE Composite Transactions Tape was $23 5/8 per share.
The Company has not paid any cash dividends on its Common Stock and has no
plans to pay cash dividends on its Common Stock in the foreseeable future.
Although the Company's loan agreements do not directly limit the payment of
dividends on the Company's Common Stock and preferred stocks, these agreements
require the Company to comply with certain financial covenants that are affected
by dividend payments. These tests include minimum tangible net worth levels,
maximum ratios of total liabilities to tangible net worth and minimum ratios of
certain current assets to current liabilities. Under the most restrictive of
these tests, the Company had approximately $63.9 million available for the
payment of dividends as of February 27, 1994.
5
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company at February 27, 1994, and as adjusted to give effect to the conversion
of the Depositary Shares and the underlying Preferred Shares and the issuance of
8,250,000 shares of Common Stock, net of certain expenses associated therewith.
<TABLE>
<CAPTION>
February 27, 1994
------------------------
Actual As Adjusted
---------- ------------
<S> <C> <C>
(in millions)
Short-term borrowings and current portion of long-term debt............................ $ 11.9 $ 11.9
Long-term debt including capital lease obligations..................................... $ 25.8 $ 25.8
Shareholders' Equity:
Preferred Stock, $0.50 par value:
Authorized -- 1,000,000 shares; issued and outstanding -- 250,000 shares of $40
Convertible Exchangeable Preferred Stock(1), actual, and none as adjusted; --
345,000 shares of $32.50 Convertible Preferred Stock(2), actual and as adjusted..... .3 .2
Common Stock, $0.50 par value:
Authorized -- 200,000,000 shares; issued and outstanding -- 113,135,546 shares,
actual(3), and 121,385,546 shares, as adjusted...................................... 56.5 60.7
Additional paid-in capital........................................................... 907.4 901.3
Retained earnings.................................................................... 61.3 61.3
---------- ------------
Total shareholders' equity......................................................... 1,025.5 1,023.5
---------- ------------
Total capitalization................................................................... $ 1,051.3 $ 1,049.3
<FN>
- ------------------------
(1) The $40 Convertible Exchangeable Preferred Stock has an aggregate
liquidation preference of $125.0 million and has been called for
redemption by the Company.
(2) The $32.50 Convertible Preferred Stock has an aggregate liquidation
preference of $172.5 million and cannot be called for redemption before
November 1995.
(3) At February 27, 1994, 28.4 million shares of Common Stock were reserved
for issuance under the Company's various stock option, benefit and stock
purchase plans, of which options to purchase 18.7 million shares of Common
Stock were outstanding. In addition, 8.25 million shares of Common Stock
were reserved for issuance upon conversion of the Preferred Shares and
12.17 million shares of Common Stock were reserved for issuance upon
conversion of the $32.50 Convertible Preferred Stock.
</TABLE>
6
<PAGE>
SELECTED FINANCIAL DATA
The selected financial data set forth below relating to each of the five
fiscal years in the period ended May 30, 1993 have been derived from the
Company's audited consolidated financial statements. This information is
qualified by the detailed information and financial statements incorporated by
reference in the Prospectus. The selected financial data set forth below
relating to the nine months ended February 27, 1994 and February 28, 1993 are
unaudited and have been prepared on the same basis as the annual information
included in this Prospectus and, in management's opinion, reflect all
adjustments (consisting only of normal recurring entries except as discussed in
Note 2 and Note 3 of the Company's Quarterly Report on Form 10-Q for the
quarters ended August 29, 1993, November 28, 1993 and February 27, 1994)
necessary for a fair presentation of the information for the periods presented.
The operating results for any period are not necessarily indicative of results
for any future period. National's former Information Systems Group has been
classified as discontinued operations for all periods presented, as these
businesses were sold during fiscal 1989.
<TABLE>
<CAPTION>
Years Ended(1) Nine Months Ended
----------------------------------------------------- --------------------
May 30, May 31, May 26, May 27, May 28, Feb. 27, Feb. 28,
1993 1992 1991 1990 1989 1994 1993
--------- --------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C> <C>
(dollars in millions, except per-share amounts)
INCOME STATEMENT DATA:
Net Sales.................................. $ 2,013.7 $ 1,717.5 $ 1,701.8 $ 1,675.0 $ 1,647.9 $ 1,686.0 $ 1,455.8
Operating costs and expenses(2):
Cost of sales............................ 1,298.3 1,182.1 1,294.3 1,251.1 1,293.5 985.8 950.1
Research and development................. 229.2 208.9 198.6 252.4 251.6 191.3 167.6
Selling, general and administrative...... 339.2 299.6 241.9 224.3 236.2 303.8 245.1
Restructuring of operations.............. -- 149.3 119.6 (8.0) 53.6 -- --
--------- --------- --------- --------- --------- --------- ---------
Total operating costs and expenses..... 1,866.7 1,839.9 1,854.4 1,719.8 1,834.9 1,480.9 1,362.8
--------- --------- --------- --------- --------- --------- ---------
Operating income (loss).................... 147.0 (122.4) (152.6) (44.8) (187.0) 205.1 93.0
Interest income (expense), net............. 2.9 5.4 3.6 12.4 (11.5) 6.9 1.8
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing operations
before income taxes....................... 149.9 (117.0) (149.0) (32.4) (198.5) 212.0 94.8
Income taxes (benefit)..................... 19.6 3.1 1.3 (3.1) 7.0 35.3 10.7
--------- --------- --------- --------- --------- --------- ---------
Income (loss) from continuing operations... $ 130.3 $ (120.1) $ (150.3) $ (29.3) $ (205.5) $ 176.7 $ 84.1
Discontinued operations:
Earning (loss) from operations........... -- -- -- -- (37.7) -- --
Gain on sale............................. -- -- (1.1) 4.3 220.0 -- --
Cumulative effect of accounting change for
years prior to 1994....................... -- -- -- -- -- 4.9 --
--------- --------- --------- --------- --------- --------- ---------
Net income (loss).......................... $ 130.3 $ (120.1) $ (151.4) $ (25.0) $ (23.2) $ 181.6 $ 84.1
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Net earnings (loss) used in per common
share calculation (reflecting preferred
dividends)................................ $ 113.2 $ (130.1) $ (161.4) $ (35.0) $ (33.2) $ 165.7 $ 72.3
Earnings (loss) per common share:
Earnings (loss) from continuing
operations.............................. $ 0.98 $ (1.24) $ (1.55) $ (0.38) $ (2.09) $ 1.34 $ 0.63
Discontinued operations.................. -- -- (0.01) 0.04 1.77 -- --
Cumulative effect of accounting change... -- -- -- -- -- 0.04 --
--------- --------- --------- --------- --------- --------- ---------
Net earnings (loss) per common share... $ 0.98 $ (1.24) $ (1.56) $ (0.34) $ (0.32) $ 1.38 $ 0.63
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Fully dilutive earnings per common
share(3):
Fully dilutive earnings per common share
before cumulative effect of accounting
change for years prior to 1994.......... -- -- -- -- -- $ 1.26 --
--------- --------- --------- --------- --------- --------- ---------
Cumulative effect of accounting change... -- -- -- -- -- 0.03 --
--------- --------- --------- --------- --------- --------- ---------
Fully dilutive earnings per common
share................................. -- -- -- -- -- $ 1.29 --
--------- --------- --------- --------- --------- --------- ---------
--------- --------- --------- --------- --------- --------- ---------
Weighted average common shares and common
share equivalents outstanding (in
millions)(3).............................. 115.9 104.6 103.4 102.7 103.1 120.1 115.0
BALANCE SHEET DATA(4):
Cash and cash equivalents.................. $ 277.4 $ 138.3 $ 192.5 $ 128.7 $ 228.0 $ 335.2 $ 246.1
Working capital............................ 336.6 122.0 196.1 223.4 229.6 492.1 362.2
Total assets............................... 1,476.5 1,148.9 1,190.7 1,377.6 1,416.1 1,626.3 1,347.0
Total debt................................. 47.9 45.4 46.0 76.2 62.2 37.7 49.6
Total shareholders' equity................. $ 837.4 $ 539.4 $ 658.3 $ 816.8 $ 848.5 $ 1,025.5 $ 793.3
OTHER DATA(5):
Capital additions.......................... $ 235.1 $ 189.4 $ 109.8 $ 182.0 $ 277.6 $ 158.9 $ 137.2
Depreciation and amortization.............. 159.8 167.0 181.9 179.9 184.7 126.1 118.8
Number of employees at period-end.......... 23,400 27,200 29,800 32,700 32,200 22,900 25,600
</TABLE>
(SEE FOLLOWING PAGE FOR NOTES TO SELECTED FINANCIAL DATA)
7
<PAGE>
NOTES TO SELECTED FINANCIAL DATA
(1) Fiscal 1993, 1991, 1990 and 1989 were 52-week years whereas fiscal 1992 was
a 53-week year.
(2) Effective beginning fiscal year 1994, the Company changed its method for
accounting to include certain costs in inventory which were previously
charged directly to cost of sales as incurred. The cumulative effect of this
change on years prior to fiscal year 1994 of $4.9 million is reflected in
the Income Statement Data for the nine months ended February 27, 1994. In
addition, beginning in fiscal year 1994, the Company reclassified certain
period expenses from cost of sales to research and development expenses or
selling, general and administrative expense. The amounts presented for the
nine months ended February 28, 1993, and the fiscal years ended May 30, 1993
and May 31, 1992 have been reclassified to conform with the fiscal 1994
presentation. Amounts in the Selected Financial Data table for the fiscal
years ended 1991, 1990 and 1989 have not been reclassified. For the first
nine months of fiscal year 1993, the effect of the reclassification was to
decrease cost of sales by $63.9 million, or 4.4 percent of sales, and to
increase research and development and selling, general and administrative
expenses by $20.9 million and $43.0 million, or 1.4 percent and 3.0 percent
of sales, respectively. For fiscal year 1993, the effect of the
reclassification was to decrease cost of sales by $81.3 million, or 4.0
percent of sales, and to increase research and development and selling and
administrative expense by $26.9 million and $54.4 million, or 1.3 percent
and 2.7 percent of sales, respectively. For the fiscal year 1992, the effect
of the reclassification was to decrease cost of sales by $65.4 million, or
3.8 percent of sales, and to increase research and development and selling
general and administrative expenses by $16.8 million and $48.6 million, or
1.0 percent and 2.8 percent of sales, respectively. Net income was not
affected in any period by the reclassifications. For additional information,
see Note 3 in the Company's Quarterly Report on Form 10-Q for the quarters
ended August 29, 1993, November 28, 1993 and February 27, 1994.
(3) Fully diluted earnings per share are disclosed for the first nine months of
fiscal year 1994 as it was the only period in which the results were
dilutive. The weighted average number of common shares and common share
equivalents used for the fully dilutive earnings per common share
calculation is 140.8 million.
(4) At end of period.
(5) National has paid no cash dividends on its Common Stock in any of the
periods presented, and has no plans to pay cash dividends on its Common
Stock in the foreseeable future.
8
<PAGE>
REDEMPTION OR CONVERSION OF DEPOSITARY SHARES
The Company has called all of the outstanding Preferred Shares for
redemption on April 21, 1994 (the "Redemption Date") pursuant to the terms of
the Certificate of the Powers, Designations, Preferences and Rights of the
Preferred Shares (the "Certificate of Designations"). As a result of the call
for redemption, holders of Depositary Shares ("Holders") are entitled to receive
from the Company upon redemption the sum of $50.80, plus accrued dividends from
March 1, 1994 to the Redemption Date in the amount of $0.57 per share. The total
amount payable upon redemption is thus $51.37 per share (the "Redemption
Price"). No dividends will accrue on the Depositary Shares from and after the
Redemption Date.
Holders have as alternatives, in addition to the right to sell their
Depositary Shares through usual brokerage facilities, (1) the right to convert
their Depositary Shares into Common Stock at the rate of 3.30 shares of Common
Stock for each Depositary Share converted and (2) the right to have their
Depositary Shares redeemed on the Redemption Date for the Redemption Price. The
availability of the first alternative will terminate at 5:00 p.m. Eastern
Daylight Time on April 21, 1994, as more fully described below.
ALTERNATIVES AVAILABLE TO HOLDERS OF DEPOSITARY SHARES
Holders of Depositary Shares have the following alternatives, which should
be carefully considered:
1. CONVERSION OF DEPOSITARY SHARES INTO COMMON STOCK. Until 5:00 p.m.
Eastern Daylight Time, on April 21, 1994, at the offices of The First National
Bank of Boston (the "Depositary") as listed below, the Depositary Shares are
convertible at the option of the Holder, at the rate of 3.30 shares of Common
Stock for each Depositary Share. On the basis of the last reported sales price
of the Common Stock on the NYSE on March 18, 1994 of $23 5/8, 3.30 shares had a
value (including cash in lieu of any fractional share) equivalent to $77.96. See
"Price Range of Common Stock and Dividend Policy" for additional market price
information. In the event such conversion would result in a fractional share of
Common Stock (after aggregating the number of Depositary Shares surrendered by a
Holder for conversion), an amount equivalent to the value of the fractional
share will be paid in cash. Such amount will be determined on the basis of the
last reported sales price on the NYSE on the day such Depositary Shares are
converted. No payment or adjustment will be made on conversion for dividends
accrued on the Depositary Shares surrendered for conversion or for dividends on
Common Stock delivered on such conversion. Accordingly, any Holder surrendering
Depositary Shares for conversion will not receive any dividends with respect to
such Depositary Shares accrued since March 1, 1994.
To convert Depositary Shares into Common Stock, the Holder thereof must
surrender certificates representing such Depositary Shares prior to 5:00 p.m.,
Eastern Daylight Time, on April 21, 1994 to the Depositary, as follows: if by
hand, BancBoston Trust Company of New York, 55 Broadway, Third Floor, New York,
New York; if by mail, The First National Bank of Boston, Shareholder Services
Division, P.O. Box 1889, Mail Stop 45-01-19, Boston, Massachusetts 02105; and if
by overnight courier, The First National Bank of Boston, Shareholder Services
Division, 150 Royall Street, Mail Stop 45-01-19, Canton, Massachusetts 02021. In
addition, the Holder must give written notice to the Depositary that the Holder
elects to convert such Depositary Shares. Such notice must state the name or
names in which the certificate or certificates for shares of Common Stock
issuable on such conversion shall be issued, together with the address or
addresses of the person or persons so named. Each Depositary Share surrendered
for conversion must, unless the shares issuable on conversion are to be issued
in the same name as the name in which such Depositary Share is registered, be
accompanied by instruments of transfer, in form satisfactory to the Company,
duly executed by the Holder, or his or her duly authorized attorney, and payment
of any applicable transfer tax. The notice that must be given to the Depositary
may be provided by surrendering Depositary Shares accompanied by the Letter of
Transmittal dated March 22, 1994 provided to all record Holders as of March 16,
1994. As promptly as practicable after the surrender of such Depositary Shares,
in the proper manner, the Company will issue and deliver at the office of the
Depositary to such Holder, or on such Holder's written order, a certificate or
certificates for the number of full shares of Common Stock issuable upon the
conversion of such Depositary Shares and a check for the amount payable in lieu
of any fractional share based on the last reported sales price
9
<PAGE>
of the Common Stock on the NYSE on the day of conversion. In the case of any
conversion of only a portion of the number of Depositary Shares represented by a
single certificate, a new certificate equal to the number of unconverted shares
represented thereby will be issued to the Holder.
2. REDEMPTION OF DEPOSITARY SHARES ON APRIL 21, 1994. Any Depositary
Shares which have not been converted into Common Stock either by a Holder or by
the Purchaser, on or prior to 5:00 p.m. Eastern Daylight Time on April 21, 1994,
will be redeemed on April 21, 1994 (the Redemption Date). Upon redemption a
Holder will receive $51.37 per Depositary Share (consisting of a redemption
price of $50.80 per share plus accrued and unpaid dividends thereon from March
1, 1994 to the Redemption Date of $0.57 per share). On and after the Redemption
Date, dividends will cease to accrue and Holders will not have any rights as
such Holders other than the right to receive $51.37 per share upon surrender of
their Depositary Shares.
To receive the Redemption Price specified above for any Depositary Shares
being redeemed, the Holder thereof must surrender such Depositary Shares to the
Depositary at the addresses set forth above.
SUMMARY OF AVAILABLE ALTERNATIVES
Under the foregoing alternatives, based upon the last reported sales price
of the Common Stock on the NYSE on March 18, 1994 of $23 5/8 per share, a Holder
who converted such Depositary Shares on that date would have received Common
Stock (including cash in lieu of any fractional share) having a market value of
$77.96. So long as the market price of the Common Stock is at least $15.57 per
share, a Holder who converts will receive Common Stock with a market value, plus
cash in lieu of any fractional share, greater than the amount of cash the Holder
would otherwise be entitled to receive upon redemption or upon a sale of
Depositary Shares to the Purchaser referred to under "Standby Arrangements"
herein. If a Holder surrenders such Depositary Shares for redemption, such
Holder will receive $51.37 in cash. It should be noted, however, that the price
of Common Stock received upon conversion will fluctuate in the market, and that
Holders may incur various expenses of sale if such Common Stock is sold in the
market. See "Price Range of Common Stock and Dividend Policy" for additional
market price information. Holders are urged to obtain current market quotations
for the Company's Common Stock. The conversion right expires at 5:00 p.m.,
Eastern Daylight Time, on April 21, 1994.
The Depositary Shares may be converted into Common Stock only by delivery of
Depositary Shares to the Depositary prior to 5:00 p.m., Eastern Daylight Time,
on April 21, 1994. Since it is the time of receipt, not the time of mailing,
that determines whether Depositary Shares have been properly tendered for
conversion, sufficient time should be allowed for Depositary Shares sent by mail
to be received by the Depositary prior to 5:00 p.m., Eastern Daylight Time, on
April 21, 1994.
Any Depositary Shares which have not been properly presented to the
Depositary for conversion prior to 5:00 p.m., Eastern Daylight Time, on April
21, 1994 will be automatically redeemed as set forth above.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following summary describes the anticipated federal income tax
consequences of (i) the conversion of Depositary Shares to Common Stock and (ii)
the redemption of Depositary Shares for cash (such conversion and redemption are
collectively referred to as the "Alternative Transactions"). This summary is for
general information only and is based upon the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), the final, temporary and proposed
regulations promulgated thereunder and administrative rulings and judicial
decisions now in effect, all of which are subject to change (possibly with
retroactive effect) or different interpretations. This summary does not deal
with all aspects of federal income taxation that could be relevant to an
investor in deciding between the Alternative Transactions, and it is not
intended to be applicable to all categories of investors, some of which, such as
dealers in securities, financial institutions, insurance companies, tax-exempt
organizations and foreign holders, may be subject to special rules. In addition,
the summary is limited to holders
10
<PAGE>
who have held their Depositary Shares as "capital assets" (generally, property
held for investment) within the meaning of Section 1221 of the Code. Holders
should note that there can be no assurance that the Internal Revenue Service
(the "IRS") will take a similar view with respect to the tax consequences
described below, and no ruling has been or will be requested by the Company from
the IRS on any tax matters relating to the Alternative Transactions.
THE ALTERNATIVE TRANSACTIONS
1. CONVERSION OF DEPOSITARY SHARES INTO COMMON STOCK. For federal income
tax purposes, the conversion of Depositary Shares into Common Stock will not
result in taxable gain or loss to a converting holder, except to the extent cash
is received in lieu of fractional shares of Common Stock. Gain or loss resulting
from receipt of cash in lieu of fractional shares of Common Stock will equal the
difference between the proceeds received with respect to such fractional shares
and the converting holder's tax basis in the Depositary Shares allocated to such
fractional shares.
Common Stock received by a converting holder will have an initial tax basis
equal to the adjusted tax basis of the Depositary Shares converted therefor
(less the tax basis, if any, allocated to fractional shares) and such Common
Stock will have a holding period that includes the period during which the
converting holder held the Depositary Shares converted therefor.
2. REDEMPTION OF DEPOSITARY SHARES. A redemption of Depositary Shares by
the Company will be treated under Section 302 of the Code as a distribution that
is taxable as a dividend at ordinary income tax rates (to the extent of the
Company's current and accumulated earnings and profits), unless the redemption
(i) is "substantially disproportionate" with respect to the redeeming holder,
(ii) results in a "complete termination" of the redeeming holder's stock
interest in the Company, or (iii) is "not essentially equivalent to a dividend"
with respect to the redeeming holder, all within the meaning of Section 302(b)
of the Code. In determining whether any of these tests has been met, any shares
of Company stock considered to be owned by the redeeming holder by reason of
certain constructive ownership rules set forth in Section 318(a) of the Code
(E.G., to reflect Common Stock constructively owned by reason of the
convertibility of the Depositary Shares), as well as shares actually owned, must
generally be taken into account. Because the analysis under Section 302(b) of
the Code will vary among holders, and will depend on the facts and circumstances
at the time that the determination must be made, each redeeming holder must
consult his or her tax advisor to determine the appropriate tax treatment of
such holder's redemption of Depositary Shares under Section 302(b) of the Code.
If redemption of the Depositary Shares is not treated as a distribution
taxable as a dividend to a particular holder because it meets any of the tests
set forth in Section 302(b) of the Code, such redemption will constitute, as to
that holder, a taxable exchange under Section 302(a) of the Code. In this event,
redeeming holders will recognize gain or loss equal to the difference between
(i) the amount of cash received by the holder in the redemption (except to the
extent attributable to the payment of accrued dividends) and (ii) the holder's
tax basis in the Depositary Shares surrendered in the redemption. Any such gain
or loss will be long-term capital gain or loss, provided the holder held the
Depositary Shares for more than one year.
BACKUP WITHHOLDING
Under the backup withholding provisions of the Code, a holder of Depositary
Shares or Common Stock may be subject to backup withholding at the rate of 31%
with respect to dividends paid on, or the proceeds of a sale, exchange,
conversion or redemption of, Depositary Shares or Common Stock unless (a) such
holder is a corporation or comes within certain other exempt categories and,
when required, demonstrates this fact, or (b) provides a taxpayer identification
number, certifies as to no loss of exemption from backup withholding, and
otherwise complies with applicable requirements of the backup withholding rules.
A holder of Depositary Shares who does not provide the Company with his or her
correct taxpayer identification number may be subject to penalties imposed by
the IRS.
11
<PAGE>
The Company will report to the holders of Depositary Shares and Common
Stock, and to the IRS, the amount of any "reportable payments" and any amount
withheld with respect to the Depositary Shares and Common Stock during each
calendar year.
THE FOREGOING DISCUSSION IS FOR GENERAL INFORMATION AND IS NOT TAX ADVICE.
ACCORDINGLY, EACH HOLDER OF DEPOSITARY SHARES SHOULD CONSULT HIS OR HER TAX
ADVISOR AS TO THE PARTICULAR TAX CONSEQUENCES TO HIM OR HER OF THE ALTERNATIVE
TRANSACTIONS, AS WELL AS THE CONSEQUENCES TO HIM OR HER OF THE ACQUISITION,
OWNERSHIP AND DISPOSITION OF ANY COMMON STOCK RECEIVED ON CONVERSION OF THE
DEPOSITARY SHARES, INCLUDING THE APPLICABILITY AND EFFECT OF ANY STATE, LOCAL OR
FOREIGN TAX LAWS, AND ANY CHANGES IN APPLICABLE TAX LAWS.
STANDBY ARRANGEMENTS
Upon the terms and subject to the conditions contained in the Standby
Agreement dated March 22, 1994 between the Company and the Purchaser (the
"Standby Agreement"), the Purchaser has agreed to purchase from the Company such
number of shares (the "Purchased Shares") of Common Stock as would have been
issuable upon conversion of such of the Depositary Shares which are not
surrendered for conversion at or prior to 5:00 p.m. Eastern Daylight Time on
April 21, 1994. The price to the Purchaser of the Purchased Shares will be
$15.57 per share. The Purchaser may also purchase Depositary Shares in the open
market or otherwise prior to the expiration of the conversion privilege, and the
Purchaser has agreed with the Company to convert any Depositary Shares so
purchased into Common Stock (the "Conversion Shares").
The Purchaser has agreed to pay to the Company 50% of the excess, if any, of
the aggregate proceeds received on the sale of the Purchased Shares (net of
selling concessions, transfer taxes and other directly related expenses) over
the aggregate purchase price paid therefor.
The Company has been advised by the Purchaser that it proposes to offer for
resale any shares of Common Stock purchased from the Company or acquired upon
conversion as set forth on the cover page of this Prospectus. The Purchaser may
also make sales of such shares to certain securities dealers at prices which may
reflect concessions from the prices at which such shares are then being offered
to the public. The amount of such concessions will be determined from time to
time by the Purchaser.
Under the terms of the Standby Agreement and as compensation for the
commitment of the Purchaser thereunder, the Company has agreed to pay the
Purchaser the sum of $1,125,000, plus an additional sum for certain Compensable
Shares. The additional sum will be paid as follows: (i) no additional sum will
be paid if the total number of Compensable Shares is less than or equal to
412,500 and (ii) if the total number of Compensable Shares is greater than
412,500, the additional sum will equal $0.47 per share for all Compensable
Shares exceeding 412,500 shares. Compensable Shares consist of Purchased Shares
plus any Conversion Shares which are resold by the Purchaser for less than
$15.57 per share. The Company has also agreed to pay the reasonable
out-of-pocket expenses of the Purchaser, other than the fees and disbursements
of Purchaser's counsel, and to pay Blue Sky fees and expenses.
Pursuant to the Standby Agreement, the Company has agreed that it will not,
without the written consent of the Purchaser, sell, contract to sell or
otherwise dispose of any shares of Common Stock, with certain exceptions, for a
period commencing on the date of this Prospectus and ending 90 days after the
Redemption Date, provided that if the Purchaser does not acquire any Purchased
Shares pursuant to the Standby Agreement, the Company will no longer be bound by
such restriction. In addition, the Company has agreed that it will cause
directors and certain officers to not, prior to the Redemption Date, without the
prior written consent of the Purchaser, sell, contract to sell or otherwise
dispose of any shares of Common Stock, except for an aggregate amount of 125,000
shares.
The Company has agreed to indemnify the Purchaser against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
12
<PAGE>
The Purchaser has performed investment banking services for the Company from
time to time in the ordinary course of its business.
CERTAIN LEGAL MATTERS
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Latham & Watkins, San Francisco, California. Certain
legal matters will be passed upon for the Purchaser by Munger, Tolles & Olson,
Los Angeles, California.
EXPERTS
The consolidated financial statements of the Company as of May 30, 1993 and
May 31, 1992 and for each of the years in the three-year period ended May 30,
1993, and the related schedules incorporated herein by reference have been
incorporated herein by reference in reliance upon the reports of KPMG Peat
Marwick, independent certified public accountants, also incorporated herein by
reference, and upon the authority of said firm as experts in accounting and
auditing.
13
<PAGE>
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE PURCHASER. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY BY ANY PERSON OR IN ANY JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT INFORMATION CONTAINED OR INCORPORATED BY REFERENCE
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----------
<S> <C>
Available Information......................... 2
Incorporation of Certain Documents By
Reference.................................... 2
The Company................................... 3
Risk Factors.................................. 3
Use of Proceeds............................... 5
Price Range of Common Stock and Dividend
Policy....................................... 5
Capitalization................................ 6
Selected Financial Data....................... 7
Redemption or Conversion of Depositary
Shares....................................... 9
Certain Federal Income Tax Consequences....... 10
Standby Arrangements.......................... 12
Certain Legal Matters......................... 13
Experts....................................... 13
</TABLE>
8,250,000 SHARES
NATIONAL SEMICONDUCTOR
CORPORATION
COMMON STOCK
(PAR VALUE $0.50 PER SHARE)
- -----------------------------
SALOMON BROTHERS INC
- -------------------------------------
PROSPECTUS
DATED MARCH 22, 1994
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an itemized statement of all expenses (other
than in connection with the standby arrangements) in connection with the
issuance and distribution of the securities being registered hereby. All amounts
are estimated except for the SEC registration fee.
<TABLE>
<S> <C>
SEC registration fee................................................... $ 64,542
Printing fees.......................................................... 52,000
Accountant's fees and expenses......................................... 75,000
Legal fees and expenses................................................ 65,000
Blue Sky fees and expenses............................................. 5,000
Depositary and Transfer Agent fees and expenses........................ 4,000
Miscellaneous expenses................................................. 19,458
----------
Total................................................................ $ 285,000
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL") allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or to any of its stockholders for monetary damages for a breach
of fiduciary duty as a director, except (i) for breach of the director's duty of
loyalty, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for certain unlawful
dividends and stock repurchases or (iv) for any transaction from which the
director derived an improper personal benefit. Article Thirteenth of the
Company's Second Restated Certificate of Incorporation (the "Certificate")
provides that no director shall be personally liable to National or its
stockholders for monetary damages for any breach of his fiduciary duty as a
director, except as provided in Section 102 of the DGCL.
Section 145 of the DGCL provides that in the case of any action other than
one by or in the right of the corporation, a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
in such capacity on behalf of another corporation or enterprise, against
expenses (including attorneys' fees) judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 145 of the DGCL provides that in the case of an action by or in the
right of a corporation to procure a judgment in its favor, a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any action or suit by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation in such capacity on behalf of another corporation
or enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted under standards similar to those set forth in the
preceding paragraph, except that no indemnification may be made in respect of
any action or claim as to which such person shall have been adjudged to be
liable to the corporation unless a court determines that such person is fairly
and reasonably entitled to indemnification.
Article Thirteenth of National's Certificate provides that National shall to
the extent permitted by law indemnify any person for all liabilities incurred by
or imposed upon him as a result of any action or threatened action, suit or
proceeding, whether civil, criminal, administrative or investigative, in which
he shall be involved by reason of the fact that he is or was serving as a
director, officer or employee of
II-1
<PAGE>
National, or, that, at the request of National, he is or was serving another
corporation or enterprise in any capacity. Article VIII of National's By-Laws
provides for indemnification of any person who was or is a party to any
threatened, pending or completed action, or to any derivative proceeding by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or was serving at the request of the corporation in that
capacity for another corporation if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct unlawful.
National has purchased and maintains at its expense on behalf of directors
and officers insurance, within certain limits, covering liabilities that may be
incurred by them in such capacities.
The form of Standby Agreement filed as Exhibit 1 to the Registration
Statement provide for indemnification of National's directors and officers by
the Purchaser against certain liabilities, including liabilities under the
Securities Act.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------- -----------------------------------------------------------------------------------------------------
<S> <C>
1 Form of Standby Agreement.
4-A Second Restated Certificate of Incorporation of the Company.
4-B** Certificate of the Powers, Designations, Preferences and Rights of the $40 Convertible Exchangeable
Preferred Shares (incorporated by reference from the Exhibits to the Company's Registration
Statement on Form S-3, Registration No. 2-99864, which became effective September 6, 1985).
4-C Certificate of the Powers, Designations, Preferences and Rights designating the $32.50 Convertible
Preferred Stock.
4-D By-Laws of the Company.
4-E** Form of Common Stock Certificate (incorporated by reference from the Exhibits to the Company's
Registration Statement on Form S-3, Registration No. 33-48935, which became effective October 5,
1992).
4-F** Form of $40 Convertible Exchangeable Preferred Stock Certificate (incorporated by reference from the
Exhibits to the Company's Registration Statement on Form S-3, Registration No. 2-99864, which became
effective September 6, 1985).
4-G** Form of $32.50 Convertible Preferred Stock Certificate (incorporated by reference from the Exhibits
to the Company's Registration Statement on Form S-3, Registration No. 33-48935, which became
effective October 5, 1992).
4-H** Deposit Agreement and Form of Depositary Receipt (incorporated by reference from the Exhibits to the
Company's Registration Statement on Form S-3, Registration No. 2-99864, which became effective
September 6, 1985).
4-I Deposit Agreement and Form of Depositary Receipt.
4-J** Rights Agreement (incorporated by reference from the Exhibits to the Company's Registration Statement
on Form 8-A filed August 9, 1988).
5 Opinion of Latham & Watkins.
23-A Consent of KPMG Peat Marwick.
23-B Consent of Latham & Watkins (contained in its opinion filed as Exhibit 5 to this Registration
Statement).
24 Power of Attorney.
<FN>
- ------------------------
** Incorporated herein by reference as indicated.
</TABLE>
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
(i) The undersigned registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial BONA FIDE offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3, and has duly caused this
Registration Statement to be signed on its behalf by or on behalf of the
undersigned, thereunto duly authorized, in the City of Santa Clara, and State of
California, on the 21st day of March, 1994.
NATIONAL SEMICONDUCTOR CORPORATION
By: /S/ GILBERT F. AMELIO
--------------------------------------
Gilbert F. Amelio
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by or on behalf of the following
persons in the capacities indicated on the 21st day of March, 1994.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
/S/ PETER J. SPRAGUE*
------------------------------------------- Chairman of the Board
Peter J. Sprague
/S/ GILBERT F. AMELIO
------------------------------------------- President, Chief Executive Officer and Director
Gilbert F. Amelio (Principal Executive Officer)
/S/ DONALD MACLEOD*
------------------------------------------- Senior Vice President, Finance and Chief Financial
Donald Macleod Officer (Principal Financial Officer)
/S/ ROBERT B. MAHONEY*
------------------------------------------- Controller (Principal Accounting Officer)
Robert B. Mahoney
/S/ GARY P. ARNOLD*
------------------------------------------- Director
Gary P. Arnold
/S/ ROBERT BESHAR*
------------------------------------------- Director
Robert Beshar
/S/ MODESTO A. MAIDIQUE*
------------------------------------------- Director
Modesto A. Maidique
/S/ J. TRACY O'ROURKE*
------------------------------------------- Director
J. Tracy O'Rourke
/S/ CHARLES E. SPORCK*
------------------------------------------- Director
Charles E. Sporck
/S/ DONALD E. WEEDEN*
------------------------------------------- Director
Donald E. Weeden
*By /S/ GILBERT F. AMELIO
----------------------------------------
Gilbert F. Amelio
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBITS DESCRIPTION NUMBERED PAGE
- ----------- --------------------------------------------------------------------------------------- --------------
<S> <C> <C>
1 Form of Standby Agreement..............................................................
4-A Second Restated Certificate of Incorporation of the Company............................
4-B** Certificate of the Powers, Designations, Preferences and Rights of the $40 Convertible
Exchangeable Preferred Shares (incorporated by reference from the Exhibits to the
Company's Registration Statement on Form S-3, Registration No. 2-99864, which became
effective September 6, 1985)..........................................................
4-C Certificate of the Powers, Designations, Preferences and Rights designating the $32.50
Convertible Preferred Stock...........................................................
4-D By-Laws of the Company.................................................................
4-E** Form of Common Stock Certificate (incorporated by reference from the Exhibits to the
Company's Registration Statement on Form S-3, Registration No. 33-48935, which became
effective October 5, 1992)............................................................
4-F** Form of $40 Convertible Exchangeable Preferred Stock Certificate (incorporated by
reference from the Exhibits to the Company's Registration Statement on Form S-3,
Registration No. 2-99864, which became effective September 6, 1985)...................
4-G** Form of $32.50 Convertible Preferred Stock Certificate (incorporated by reference from
the Exhibits to the Company's Registration Statement on Form S-3, Registration No.
33-48935, which became effective October 5, 1992).....................................
4-H** Deposit Agreement and Form of Depositary Receipt (incorporated by reference from the
Exhibits to the Company's Registration Statement on Form S-3, Registration No.
2-99864, which became effective September 6, 1985)....................................
4-I Deposit Agreement and Form of Depositary Receipt.......................................
4-J** Rights Agreement (incorporated by reference from the Exhibits to the Company's
Registration Statement on Form 8-A filed August 9, 1988)..............................
5 Opinion of Latham & Watkins............................................................
23-A Consent of KPMG Peat Marwick...........................................................
23-B Consent of Latham & Watkins (contained in its opinion filed as Exhibit 5 to this
Registration Statement)...............................................................
24 Power of Attorney......................................................................
<FN>
- ------------------------
** Incorporated herein by reference as indicated.
</TABLE>
<PAGE>
NATIONAL SEMICONDUCTOR CORPORATION
$40.00 CONVERTIBLE EXCHANGEABLE PREFERRED SHARES
(THE "PREFERRED SHARES")
AND
DEPOSITARY CONVERTIBLE EXCHANGEABLE PREFERRED SHARES
EACH REPRESENTING 1/10TH PREFERRED SHARE
(THE "DEPOSITARY SHARES")
STANDBY AGREEMENT
New York, New York
March 22, 1994
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
Dear Sirs:
National Semiconductor Corporation, a Delaware corporation (the "Company"),
intends to call for redemption on April 21, 1994 (the "Redemption Date"), all of
its outstanding $40.00 Convertible Exchangeable Preferred Shares (the "Preferred
Shares") and its Depositary Convertible Exchangeable Shares, each representing
ownership of 1/10th of a Preferred Share (the "Depositary Shares" or "Redeemable
Securities") at a redemption price of $50.80 per Depositary Share plus accrued
dividends from March 1, 1994, to the Redemption Date of $0.57, for a total
redemption price of $51.37 (the "Redemption Price") per Depositary Share. The
Redeemable Securities are convertible into shares of the Common Stock, $0.50 par
value, of the Company ("Common Stock") at any time prior to 5:00 P.M., New York
City time, on April 21, 1994 (the "Conversion Date").
In order to ensure that the Company will have available sufficient funds to
redeem any Redeemable Securities not converted on or prior to the Conversion
Date, the Company desires to make arrangements pursuant to which you (the
"Purchaser") will, on the Conversion Date, purchase shares of Common Stock that
would have been issuable upon the conversion of the Redeemable Securities that
have not been surrendered for conversion prior to 5:00 P.M., New York City time,
on the Conversion Date.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to,
and agrees with, the Purchaser as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (h) hereof.
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such Form
for the registration under the Act of the issuance by the Company of the
shares of Common Stock issuable upon conversion by the Purchaser of
Redeemable Securities and the sale by the Purchaser of any shares of Common
Stock that may be acquired by it. The Company may file with the Commission
one of the following: (i) prior to effectiveness of such registration
statement, a further amendment to such registration statement, including the
form of final prospectus, (ii) a final prospectus in accordance with Rules
430A and 424(b)(1) or (4), or (iii) a final prospectus in accordance with
Rules 415 and 424(b)(2) or (5). In the case of clause (ii), the Company has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Prospectus with respect to the
Common Stock registered pursuant to the Registration Statement and the
offering thereof. As filed, such amendment and form of final prospectus, or
such final prospectus, shall contain all Rule 430A Information, together
with all other such required information, with respect to the Common Stock
registered pursuant to the Registration Statement and the offering thereof
and, except to the extent the Purchaser shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to
<PAGE>
the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in
the latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. If the Registration
Statement contains the undertaking specified by Regulation S-K Item 512(a),
the Registration Statement, at the Execution Time, meets the requirements
set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule
424(b), on the Conversion Date, on the Redemption Date and on the Closing
Date, the Prospectus (and any supplements thereto) will, comply in all
material respects with the applicable requirements of the Act and the
Securities Exchange Act of 1934 (the "Exchange Act") and the respective
rules thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and
on the date of any filing pursuant to Rule 424(b), on the Conversion Date,
on the Redemption Date and on the Closing Date, the Prospectus (together
with any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to the information contained in or omitted
from the Registration Statement or the Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Purchaser through the
Purchaser specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) The Redeemable Securities are convertible into Common Stock at a
rate of 3.30 shares of Common Stock per Depositary Share. At the Execution
Time, there were outstanding 250,000 shares of Preferred Shares; the
redemption of all the outstanding Redeemable Securities had been duly
authorized by the Company; by the close of business on the business day
following the date of execution hereof, all the Redeemable Securities shall
have been duly called for redemption in accordance with the Company's
Certificate of the Powers, Designations, Preferences and Rights of the
Preferred Shares ("Certificate") and the Deposit Agreement, dated as of
September 1, 1985 ("Deposit Agreement") between the Company and The First
National Bank of Boston (the "Depositary"); and the right to convert the
Redeemable Securities into shares of Common Stock will, as a result of such
call, expire at 5:00 P.M., New York City time, on the Conversion Date. A
copy of the form of notice of redemption and the related letter of
transmittal (collectively, the "Notice of Redemption") has been heretofore
delivered to you. The Deposit Agreement has been duly authorized, executed
and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
its terms. The Preferred Shares have been duly and validly authorized and
issued and are fully paid and nonassessable.
(d) The Company has neither taken nor will take, directly or indirectly,
any action designed to cause or result in, or that has constituted or that
might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to facilitate the
conversion of the Redeemable Securities.
(e) The Company has neither paid nor given, nor will pay or give,
directly or indirectly, any commission or other remuneration for soliciting
the conversion of Redeemable Securities into Common Stock and cash.
(f) Neither the issue and sale of the Securities (as defined in Section
2(b) hereof), nor the consummation of any other of the transactions herein
contemplated, nor fulfillment of the terms hereof will conflict with, result
in a breach or violation of, or constitute a default under any law or the
charter or by-laws of the Company or the terms of any material indenture or
other material agreement or instrument to which the Company or any of its
subsidiaries is a party or bound or any
2
<PAGE>
material judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or any
of its subsidiaries.
(g) The Company does not have a "significant subsidiary" within the
meaning of Regulation S-X under the Act.
(h) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "the Effective Date" shall mean each date that
the Registration Statement and any post-effective amendment or amendments
thereto became or become effective and each date after the date hereof on
which a document incorporated by reference in the Registration Statement is
filed. "Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Preliminary Prospectus" shall
mean any preliminary prospectus referred to in paragraph (a) above and any
preliminary prospectus included in the Registration Statement at the
Effective Date that omits Rule 430A Information. "Prospectus" shall mean the
prospectus relating to the Securities that is first filed pursuant to Rule
424(b) after the Execution Time or, if no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes effective prior to the
Closing Date (as hereinafter defined), shall also mean such registration
statement as so amended. Such term shall include any Rule 430A Information
deemed to be included therein at the Effective Date as provided by Rule
430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such
rules or regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes effective pursuant
to Rule 430A. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of such
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement, or the issue date of the Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by
reference.
2. PURCHASE OF SECURITIES. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth:
(a) The Purchaser agrees to surrender for conversion into Common Stock
prior to 5:00 P.M., New York City time, on the Conversion Date all
Redeemable Securities purchased by the Purchaser pursuant to Section 4
hereof or otherwise held by the Purchaser. The shares of Common Stock issued
to the Purchaser upon the conversion of Redeemable Securities are referred
to as the "Conversion Securities".
(b) The Company agrees to sell to the Purchaser, and the Purchaser shall
purchase from the Company, at a purchase price of $15.57 per share, such
whole number of shares of Common Stock as would have been issuable upon
conversion of all Redeemable Securities not surrendered for conversion. The
shares of Common Stock to be purchased pursuant to this Section 2(b) are
referred to as the "Purchased Securities" and, together with the Conversion
Securities, the "Securities".
(c) It is understood that the Purchaser intends to resell the Securities
from time to time at prices prevailing in the open market. With respect to
any Purchased Securities the Purchaser, on or prior to the fifteenth day
after the Redemption Date, shall remit to the Company 50% of the excess, if
3
<PAGE>
any, of the aggregate proceeds received by the Purchaser from the sale of
such Purchased Securities (net of selling concessions, transfer taxes and
other expenses of sale) over an amount equal to $15.57 multiplied by the
number of such Purchased Securities sold by such Purchaser. Upon completion
of the sale of the Securities, the Purchaser shall furnish to the Company a
statement setting forth the aggregate proceeds received on the sale thereof
and the applicable selling concessions, transfer taxes and other expenses of
sale. For purposes of the foregoing determination, any Securities not sold
by or for the account of the Purchaser prior to the close of business on the
tenth day after the Redemption Date shall be deemed to have been sold on
such tenth day for an amount equal to the last reported sale price of the
Common Stock on such day. Nothing contained herein shall limit the right of
the Purchaser, in its discretion, to determine the price or prices at which,
or the time or times when, any Securities shall be sold, whether or not
prior to the Redemption Date and whether or not for long or short account.
(d) Delivery of and payment for the Purchased Securities shall be made
at 10:00 A.M., New York City time, on April 22, 1994 (one business day after
the Redemption Date), or if necessary to comply with the provisions of the
Company's Amended and Restated Credit Agreement (Multicurrency) or Revolving
Credit and Standby Letter of Credit Reimbursement Agreement, such earlier
date as the Purchaser and the Company may agree (such date and time of
delivery and payment for the Purchased Securities being herein called the
"Closing Date"). Delivery of the Purchased Securities shall be made to the
Purchaser against payment by the Purchaser of the purchase price thereof to
or upon the order of the Company by wire transfer of immediately available
funds. Delivery of the Purchased Securities shall be made at such location
as the Purchaser shall reasonably designate at least one business day in
advance of the Closing Date and payment for the Purchased Securities shall
be made at the office of Latham & Watkins, 505 Montgomery Street, Suite
1900, San Francisco, California. Certificates for the Purchased Securities
shall be registered in such names and in such denominations as the Purchaser
may request.
The Company agrees to have the Purchased Securities available for
inspection, checking and packaging by the Purchaser in New York, New York prior
to the Closing Date.
3. COMPENSATION. As compensation for the commitment of the Purchaser
hereunder, the Company will pay to the Purchaser an amount equal to the sum of
(i) $1,125,000 plus (ii) if the aggregate number of the Compensable Shares
exceeds 412,500 shares, an additional $0.47 per Compensable Share for the
aggregate number of all such Compensable Shares exceeding 412,500 shares.
Compensable Shares consists of Purchased Securities plus any Conversion
Securities which are resold by the Purchaser for less than $15.57 per share.
Such compensation shall be paid to the Purchaser by wire transfer of
immediately available funds on (A) if the Purchaser is required to purchase any
Purchased Securities, the Closing Date, or (B) otherwise, as soon as practicable
after the Conversion Date (but in no event later than two business days
thereafter).
4. ADDITIONAL PURCHASES. The Purchaser may purchase Redeemable Securities,
in the open market or otherwise, in such amounts and at such prices as the
Purchaser may deem advisable. All Redeemable Securities so purchased will be
converted by the Purchaser into Common Stock in accordance with Section 2(a)
hereof. The Common Stock acquired by the Purchaser upon conversion of any
Redeemable Securities acquired pursuant to this Section 4 may be sold at any
time or from time to time by the Purchaser. It is understood that, for the
purpose of stabilizing the price of the Common Stock or otherwise, the Purchaser
may make purchases and sales of Common Stock, the Depositary Shares and the
Depository Shares evidencing the Company's $32.50 Convertible Preferred Stock,
in the open market or otherwise, for long or short account, on such terms as it
may deem advisable and it may overallot in arranging sales.
4
<PAGE>
5. AGREEMENTS. The Company agrees with the Purchaser that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Purchaser of such
timely filing. The Company will promptly advise the Purchaser (i) when the
Registration Statement, if not effective at the Execution Time, and any
amendment thereto, shall have become effective, (ii) when the Prospectus,
and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or supplement to
the Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
(i) prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Purchaser an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Purchaser and counsel for the
Purchaser, without charge, signed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by a
Purchaser or dealer may be required by the Act, as many copies of each
Preliminary Prospectus and the Prospectus and any supplement thereto as the
Purchaser may reasonably request. The Company will pay the expenses of
printing or other production of all documents relating to the transactions
contemplated hereby. The Company will pay all the fees of the Depositary in
connection with the performance of the transactions contemplated hereby and
will pay all transfer taxes as may be imposed on the Purchaser in connection
with their purchase of Redeemable Securities pursuant thereto. The Company
will also pay all reasonable out of pocket expenses of the Purchaser, other
than the fees and disbursements of Purchaser's counsel.
(e) The Company will arrange for the qualification of the Securities for
sale under the laws of such jurisdictions as the Purchaser may designate,
and will maintain such qualifications in effect so long as required for the
distribution of the Securities.
5
<PAGE>
(f) The Company will (i) mail or cause to be mailed not later than the
business day following the date of execution hereof the Notice of Redemption
by first class mail to the registered holders of the Redeemable Securities
as of March 16, 1994, which mailing will conform to the requirements of the
Certificate and Deposit Agreement and (ii) publish an advertisement, in form
and substance reasonably satisfactory to the Purchaser, relating to the
redemption of the Redeemable Securities. The Company will not, and will
ensure that the Depositary does not, withdraw or revoke the Notice of
Redemption or attempt to do so.
(g) The Company will direct the Depositary to advise the Purchaser daily
of the amount of Redeemable Securities surrendered in the previous day for
redemption or for conversion.
(h) The Company will not take any action the effect of which would be to
require an adjustment in the conversion price of the Redeemable Securities.
(i) The Company will not, prior to the Conversion Date and for a period
of 90 days following the Conversion Date, without the prior written consent
of the Purchaser, offer, sell or contract to sell, or otherwise dispose of,
directly or indirectly, or announce, or file for the registration of, the
offering of, any other shares of Common Stock or any securities convertible
into, or exchangeable for, shares of Common Stock; PROVIDED, HOWEVER, that
the Company may issue and sell or register Common Stock pursuant to any
employee stock option plan, stock ownership plan or dividend reinvestment
plan of the Company in effect at the Execution Time and the Company may
issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time; provided, further,
that such restriction shall not apply if the Purchaser does not acquire any
Securities pursuant to this Agreement.
(j) The Company will cause its officers and directors to not, prior to
the Closing Date, without the prior written consent of the Purchaser, offer,
sell, or contract to sell, or otherwise dispose of, directly or indirectly,
or announce, or file for the registration of, the offering of, and any other
shares of Common Stock or any securities convertible into, or exchangeable
for shares of Common Stock, except for the aggregate amount of 125,000
shares.
(k) The Company confirms as of the date hereof that it is in compliance
with all provisions of Section 1 of Laws of Florida, Chapter 92-198, AN ACT
RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company further
agrees that if it commences engaging in business with the government of Cuba
or with any person or affiliate located in Cuba after the date the
Registration Statement becomes or has become effective with the Securities
and Exchange Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's business with
Cuba or with any person or affiliate located in Cuba changes in any material
way, the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations of the
Purchaser hereunder to purchase any Purchased Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, each Effective Date occurring after
the Execution Time, the Conversion Date, and the Redemption Date and the Closing
Date, to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Purchaser agrees in writing to a later time, the
Registration Statement will become effective not later than 6:00 P.M., New
York City time, on the date hereof; if filing of the Prospectus, or any
supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and
any such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
6
<PAGE>
(b) On the date of this Agreement and on the Closing Date, the Company
shall have furnished to the Purchaser the opinion of Latham & Watkins,
counsel for the Company, and the opinion of the General Counsel of the
Company, each dated the date of this Agreement and the Closing Date, in the
respective forms previously approved by the Purchaser.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Purchaser and
(B) as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Prospectus in this paragraph (b) include any supplements thereto on the Closing
Date.
(c) On the date of this Agreement and on the Closing Date, the Purchaser
shall have received from Munger, Tolles & Olson, counsel for the Purchaser,
such opinion or opinions, dated the date of this Agreement and the Closing
Date, respectively, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Purchaser may reasonably require,
and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) On the date of this Agreement, and on each Effective Date occurring
after the Execution Time and on the Closing Date, the Company shall have
furnished to the Purchaser a certificate of the Company, signed by the
Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the date of delivery, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement to the Prospectus and
this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
date of such certificate as if made on the date of such certificate and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
date of such certificate;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been
no material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) At the Execution Time, and on each Effective Date occurring after
the Execution Time on which financial information is included or
incorporated in the Registration Statement or the Prospectus and on the
Closing Date, KPMG Peat Marwick shall have delivered to the Purchaser a
letter or letters, dated as of the date of delivery, in form and substance
satisfactory to the Purchaser, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and stating
in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules and any pro forma financial statements included or
incorporated in the Registration Statement and the Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
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(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries: carrying
out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders, directors and specified committees of the Company and its
Subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements included or incorporated in
the Registration Statement and the Prospectus, nothing came to their
attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated
in the Registration Statement and the Prospectus do not comply in
form in all material respects with applicable accounting requirements
and with the published rules and regulations of the Commission with
respect to financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the Registration Statement and the Prospectus; or
(2) with respect to the period subsequent to the date of the most
recent financial statements, audited or unaudited, included or
incorporated in the Registration Statement and the Prospectus, there
were any changes, at a specified date not more than five business
days prior to the date of the letter, in the capital stock or
consolidated long-term debt or consolidated short-term debt of the
Company or decreases in the consolidated net current assets, net
assets or shareholders' equity of the Company as compared with the
amounts shown on the most recent consolidated balance sheet included
or incorporated in the Registration Statement and the Prospectus, or
for the period from the date of the most recent financial statements
included or incorporated in the Registration Statement and the
Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year in
consolidated net sales or in total or per share amounts of net income
from continuing operations or in net income, except in all instances
for changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is not deemed
necessary by the Purchaser;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in the
Registration Statement and the Prospectus, including the information set
forth under the captions "Price Range of Common Stock and Divided
Policy," "Capitalization," and "Selected Financial Data," the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration Statement
and the Prospectus, the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included or incorporated in any of the Company's Quarterly Reports on
Form 10-Q incorporated in the Registration Statement and the Prospectus
and any such information appearing in any Current Report on Form 8-K
incorporated in the Registration Statement and the Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (e) include any supplement
thereto at the date of the letter.
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(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting
the business or properties of the Company and its subsidiaries the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
judgment of the Purchaser, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(g) The Company shall have furnished to the Purchaser such further
information, certificates and documents as the Purchaser may reasonably
request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser and its counsel, this Agreement and all
obligations of the Purchaser hereunder may be cancelled at, or at any time prior
to, the Closing Date by the Purchaser. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Munger, Tolles & Olson, counsel for the Purchaser, at 355 South
Grand Avenue, 35th Floor, Los Angeles, California 90071-1560, on the date of
this Agreement or on the Closing Date, as applicable.
7. REIMBURSEMENT OF PURCHASER'S EXPENSES. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Purchaser set forth in Section 6 hereof is not satisfied, because of any
termination pursuant to Section 11 hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by the Purchaser,
the Company will reimburse the Purchaser upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Purchaser, the
directors, officers, employees and agents of the Purchaser and each person
who controls the Purchaser within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage or liability or
action; PROVIDED, HOWEVER, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Purchaser through the Purchaser specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) The Purchaser severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls
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the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to the Purchaser,
but only with reference to the statements set forth in the last paragraph of
the cover page and under the heading "Standby Arrangements" in any
Preliminary Prospectus and the Prospectus. This indemnity agreement will be
in addition to any liability which the Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below): provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at
the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
comprise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such
claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Purchaser agrees to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and the Purchaser may be subject in such proportion as is
appropriate to reflect the relative benefits received by Company and by the
Purchaser from the offering of the Securities; PROVIDED, HOWEVER, that in no
case shall the Purchaser be responsible for any amount in excess of the fees
payable by the Company to the Purchaser pursuant to Section 3 hereof. If the
allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and the Purchaser shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and of the Purchaser in connection
with the statements or omissions which resulted in such Losses as well as
any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the sum of (i) the principal amount
of Redeemable Securities converted by the Purchaser pursuant to Section 2(a)
hereof and (ii) the net amount paid by the Purchaser to the Company at the
Closing, and benefits received by the Purchaser shall be deemed to be equal
to the
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total fees payable by the Company to the Purchaser pursuant to Section 3
hereof. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or the Purchaser. The Company and the Purchaser agree that it would
not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls the Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of the Purchaser
shall have the same rights to contribution as the Purchaser, and each person
who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. SOLICITING CONVERSIONS. The Purchaser may assist the Company in
soliciting conversion of the Redeemable Securities by the holder thereof but
shall not be entitled to compensation by the Company for any such assistance.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Purchaser, by notice given to the Company at any time
prior to the Closing Date, if prior to such time (i) (a) trading in the
Company's Common Stock shall have been suspended by the Commission or the New
York Stock Exchange or trading in the Redeemable Securities shall have been
suspended by the Commission or the New York Stock Exchange during the five
business days prior to the Redemption Date (other than if trading is resumed
within one hour), or (b) trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial market is such as to make it, in the judgment of the
Purchaser, impracticable or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Purchaser set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Purchaser or the Company or any of the officers,
directors or
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controlling persons referred to in Section 8 hereof, and will survive the
conversion of any Redeemable Securities and the delivery of and payment for any
securities. The provisions of Section 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Purchaser, will be mailed, delivered or
telegraphed and confirmed to it at Seven World Trade Center, New York, New York
10048; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 2900 Semiconductor Drive, Santa Clara, California 95052,
attention of the legal department.
13. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and the Purchaser.
Very truly yours,
NATIONAL SEMICONDUCTOR CORPORATION
By:
-----------------------------------
President and CEO
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Salomon Brothers Inc
By:
-----------------------------------
Vice President
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SECOND RESTATED
CERTIFICATE OF INCORPORATION
OF
NATIONAL SEMICONDUCTOR CORPORATION
NATIONAL SEMICONDUCTOR CORPORATION, a corporation organized and existing
under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the corporation is NATIONAL SEMICONDUCTOR CORPORATION.
The date of filing its original Certificate of Incorporation with the Secretary
of State was May 27, 1959. The First Restated Certificate of Incorporation was
filed with the Secretary of State on April 27, 1970.
2. This Second Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of this corporation as heretofore amended or supplemented and
there is no discrepancy between those provisions and the provisions of this
Restated Certificate of Incorporation.
3. The text of the Certificate of Incorporation as amended or
supplemented heretofore is hereby restated without further amendments or changes
to read as herein set forth in full:
FIRST: The name of the corporation is NATIONAL SEMICONDUCTOR CORPORATION.
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SECOND: Its principal office in the State of Delaware is located at 1209
Orange Street, in the City of Wilmington, County of New Castle. The name and
address of its resident agent is The Corporation Trust Company, 1209 Orange
Street, Wilmington, Delaware 19801.
THIRD: The nature of the business, the objects or purposes to be
transacted, promoted or carried on, are:
To engage in the manufacture, production and fabrication of; to buy or
otherwise acquire, import, store, repair, service, maintain, sell, assign,
distribute, export and otherwise dispose of; and generally to trade and
deal in and with, as principal agent or otherwise, transistors, diodes,
rectifiers, photo devices and electronic assemblies and equipment of every
type and description and all parts, materials, accessories, supplies,
appliances, tools, and devices used or useful in connection with or
incidental to any of the foregoing.
To buy, sell, hold, transfer, mortgage, assign and lease real property
and equipment which may be necessary or useful in connection with the
transaction of the business of this corporation.
To build, purchase, lease as lessee or otherwise acquire, own, hold,
use, improve, equip and maintain, mortgage, convey in trust, or otherwise
encumber, sell, convey, assign, lease as lessor, and otherwise dispose of
factories, shops, laboratories, offices, warehouses, and any and all
buildings and structures which may be necessary or useful in connection
with the transaction of the business of this corporation.
To manufacture, purchase or otherwise acquire, invest in, own,
mortgage, pledge, sell, assign and transfer or otherwise dispose of, trade,
deal in and deal with goods, wares and merchandise and personal property of
every class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any
person, firm, association or corporation.
To acquire, hold, use, sell, assign, lease grant licenses in respect
of, mortgage or otherwise dispose of letters patent
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of the United States or any foreign country, patent rights, licenses and
privileges, inventions, improvements and processes, copyrights, trademarks,
and trade names, relating to or useful in connection with any business of
this corporation.
To acquire by purchase, subscription or otherwise, and to receive,
hold, own, guarantee, sell, assign, exchange, transfer, mortgage, pledge or
otherwise dispose of or deal in and with any of the shares of the capital
stock, or any voting trust certificates in respect of the shares of capital
stock, scrip, warrants, rights, bonds, debentures, notes, trust receipts,
and other securities, obligations, choses in action and evidences of
indebtedness or interest issued or created by any corporations, joint stock
companies, syndicates, associations, firms, trusts or persons, public or
private, or by the government of the United States of America, or by any
foreign government, or by any state, territory, province, municipality or
other political subdivision or by any governmental agency, and as owner
thereof to possess and exercise all the rights, powers, and privileges of
ownership, including the right to execute consents and vote thereon, and to
do any and all acts and things necessary or advisable for the preservation,
protection, improvement and enhancement in value thereof.
To enter into, make and perform contracts of every kind and
description with any person, firm, association, corporation, municipality,
county, state, body politic or government or colony or dependency thereof.
To borrow or raise moneys for any of the purposes of the corporation
and, from time to time without limit as to amount, to draw, make, accept,
endorse, execute and issue promissory notes, drafts, bills of exchange,
warrants, bonds, debentures and other negotiable or non-negotiable
instruments and evidences of indebtedness, and to secure the payment of any
thereof and of the interest thereon by mortgage upon or pledge, conveyance
or assignment in trust of the whole or any part of the property of the
corporation, whether at the time owned or thereafter acquired, and to sell,
pledge or otherwise dispose of such bonds or other obligations of the
corporation for its corporate purposes.
To loan to any person, firm or corporation any of its surplus
funds, either with or without security.
To purchase, hold, sell and transfer the shares of its own capital
stock; provided it shall not use its funds or property for the purchase of
its own shares of capital stock when such use would cause any impairment of
its capital except as otherwise permitted by law, and provided further that
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shares of its own capital stock belonging to it shall not be voted upon
directly or indirectly.
To have one or more offices, to carry on all or any of its operations
and business and without restriction or limit as to amount to purchase or
otherwise acquire, hold, own, mortgage, sell, convey or otherwise dispose
of, real and personal property of every class and description in any of the
states, districts, territories or colonies of the United States, and in any
and all foreign countries, subject to the laws of such state, district,
territory, colony or country.
In general, to carry on any other business in connection with the
foregoing, and to have and exercise all the powers conferred by the laws of
Delaware upon corporations formed under the General Corporation Law of the
State of Delaware, and to do any or all of the things hereinbefore set
forth to the same extent as natural persons might or could do.
The objects and purposes specified in the foregoing clauses shall,
except where otherwise expressed, be, in nowise limited or restricted by
reference to, or inference from, the terms of any other clause in this
certificate of incorporation, but the objects and purposes specified in
each of the foregoing clauses of this article shall be regarded as
independent objects and purposes.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is Two Hundred and One Million (201,000,000), consisting
of One Million (1,000,000) shares of preferred stock, par value of Fifty Cents
($.50) each (hereinafter called the Preferred Stock) and Two Hundred Million
(200,000,000) shares of common stock of par value of Fifty Cents ($.50) each
(hereinafter called the Common Stock).
The designations and the powers, preferences and rights, and the
qualification, limitations or restrictions thereof, of each class of stock of
the Corporation which are fixed by this Certificate of Incorporation, and the
express grant of authority to the Board of Directors to fix by resolution or
resolutions the designations, and the powers, preferences and rights, and the
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<PAGE>
qualifications, limitations or restrictions thereof, of the Preferred Stock
which are not fixed by this Certificate of Incorporation, are as follows:
A. PREFERRED STOCK
(1) Shares of Preferred Stock may be issued from time to time in one or
more series, each such series to have such distinctive designation as shall be
stated and expressed in the resolution or resolutions adopted by the Board of
Directors providing for the initial issuance of shares of such series, and
authority is expressly vested in the Board of Directors, by such resolution or
resolutions providing for the initial issuance of shares of each series:
(a) To fix the distinctive designation of such series and the number
of shares which shall constitute such series, which number may be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by actions of the Board of Directors;
(b) To fix (i) the dividend rate of such series, (ii) any limitation,
restrictions or conditions on the payment of dividends, including whether
dividends shall be cumulative and, if so, from which date or dates, (iii)
the relative rights of priority, if any, of payment of dividends on shares
of that series and (iv) the form of dividends, which shall be payable
either (A) in cash only, or (B) in stock only, or (C) partly in cash and
partly in stock, or (D) in stock or, at the option of the holder, in cash
(and in such case to prescribe the terms and conditions of exercising such
option), and to make provision in case of dividends payable in stock for
adjustments of the dividend rate in such events as the Board of Directors
shall determine;
(c) To fix the price or prices at which, and the terms and conditions
on which, the shares of such series may be redeemed by the Company;
(d) To fix the amount or amounts payable upon the shares of such
series in the event of any liquidation, dissolution or winding up of the
Company and the relative rights of priority, if any, of payment upon
shares of such series;
(e) To determine whether or not the shares of such series shall be
entitled to the benefit of a sinking fund to be applied to the purchase or
redemption of such series and, if so entitled, the amount of such fund and
the manner of its application;
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(f) To determine whether or not the shares of such series shall be
made convertible into, or exchangeable for, shares of any other class or
classes of stock of the Corporation or shares of any other series of
Preferred Stock, and, if made so convertible or exchangeable, the
conversion price or prices, or the rate or rates of exchange, and the
adjustments thereof, if any, at which such conversion or exchange may be
made, and any other terms and conditions of such conversion or exchange;
(g) To determine whether or not the shares of such series shall have
any voting powers and, if voting powers are so granted, the extent of such
voting powers, provided that the number of authorized share of Common
Stock may be increased or decreased by the affirmative vote of the holders
of a majority of the Common Stock, voting as a class, and such increase or
decrease shall not require any actions by holders of shares of Preferred
Stock. Except as otherwise provided by statute or by a determination by
the Board of Directors, the holders of shares of Preferred Stock, as such
holders, shall not have any right to vote in the election of directors or
for any other purpose; and such holders shall not be entitled to notice of
any meeting of stockholders at which they are not entitled to vote;
(h) To determine whether or not the issue of any additional shares of
such series or of any other series in addition to such series shall be
subject to restrictions in addition to the restrictions, if any, on the
issue of additional shares imposed in the resolution or resolutions fixing
the terms of any outstanding series of Preferred Stock theretofore issued
pursuant to this Section A and, if subject to additional restrictions, the
extent of such additional restrictions; and
(i) Generally to fix the other rights, and any qualifications,
limitations or restrictions of such rights, of such series; provided,
however, that no such rights, qualifications, limitations or restrictions
shall be in conflict with this Certificate of Incorporation or any
amendment hereof.
(2) Before any dividends shall be declared or paid or any distribution
ordered or made upon the Common Stock (other than a dividend payable in Common
Stock), the Corporation shall comply with the dividend and sinking fund
provisions, if any, of any resolution or resolutions providing for the issue of
any series of Preferred Stock any shares of which shall at the time be
outstanding. Subject to the foregoing sentence, the holders of Common Stock
shall be entitled, to the exclusion of the holders of Preferred Stock of any and
all series, to receive such dividends as from time to time may be declared by
the Board of Directors.
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(3) Upon any liquidation, dissolution or winding up of the Corporation,
the holders of Preferred Stock of each series shall be entitled to receive the
amount to which such holders are entitled as fixed with respect to such series,
including all dividends accumulated to the date of final distribution, before
any payment or distribution of assets of the Corporation shall be made to or set
apart for the holders of Common Stock; and after such payments shall have been
made to or set apart for the holders of Common Stock; and after such payments
shall have been made in full to the holders of Preferred Stock, the holders of
Common Stock shall be entitled to receive any and all assets remaining to be
paid or distributed to stockholders and the holders of Preferred Stock shall not
be entitled to share therein. For the purposes of this paragraph, the voluntary
sales, conveyance, lease, exchange or transfer of all or substantially all the
property or assets of the Corporation or a consolidation or merger of the
Corporation with one or more other corporation (whether or not the Corporation
is the Corporation surviving such consolidation or merger) shall not be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary.
(4) Subject to such limitations (if any) as may be fixed by the Board of
Directors with respect to such series of Preferred Stock in accordance with
paragraph (1) of this Section A, Preferred Stock of each series may be redeemed
at any time in whole or from time to time in part, at the option of the
Corporation, by vote of the Board of Directors, at the redemption price thereof
fixed in accordance with said paragraph (1). If less than all the outstanding
shares of Preferred Stock of such series are to be redeemed, the shares to be
redeemed shall be determined in such manner as the Board of Directors shall
prescribe. At such time or times prior to the date fixed for redemption as the
Board of Directors shall determine, written notice shall be mailed to each
holder of record of shares to be redeemed, in a postage prepaid envelope
addressed to such holder at his address as shown by the records of the
Corporation, notifying such holders of the election of the Corporation to redeem
such shares and stating the date fixed for the redemption thereof and calling
upon such holder to surrender to the Corporation on or after said date, at a
place designated in such notice, his certificate or certificates representing
the number of shares specified in such notice of redemption. On and after the
date fixed in such notice of redemption, each holder of shares of preferred
Stock to be redeemed shall present and surrender his certificate or certificates
for such shares to the Corporation at the place designated in such notice and
thereupon the redemption price of such shares shall be paid to or on the order
of the person whose name appears on the records of the Corporation as the holder
of the shares designated for redemption. In case less than all the shares
represented by any such certificate are redeemed a new certificate shall be
issued representing the unredeemed shares. From and after the date fixed in any
such notice as the date of redemption (unless default shall
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be made by the Corporation in payment of the redemption price) all dividends on
the shares of Preferred Stock designated for redemption in such notice shall
cease to accrue and all rights of the holders thereof as stockholders of the
Corporation, other than to receive the redemption price, shall terminate and
such shares shall not thereafter be transferred (except with the consent of the
Corporation) on the books of the Corporation and such shares shall not be deemed
to be outstanding for any purpose whatsoever. At any time after the mailing of
any such notice of redemption the Corporation may deposit the redemption price
of the shares designated therein for redemption with a bank or trust company in
the United States of America, having capital and surplus of at least $25,000,000
in trust for the benefit of the respective holders of the shares designated for
redemption but not yet redeemed. From and after the making of such deposit the
sole right of the holders of such shares shall be the right either to receive
the redemption price of such shares on and after such redemption date, or, in
the case of shares having conversion rights, the right to convert the same at
any time at or before the earlier of the close of business on such redemption
date or such prior date and time at which the right to convert shall have
expired; and except for these rights, the shares of Preferred Stock so
designated for redemption shall not be deemed to be outstanding for any purpose
whatsoever.
(5) Shares of any series of Preferred Stock which have been redeemed
(whether through the operation of a sinking fund or otherwise) or purchased by
the Corporation, or which, if convertible, have been converted into shares of
stock of the corporation of any other class or classes, may, upon appropriate
filing and recording to the extent required by law, have the status of
authorized and unissued shares of Preferred Stock and may be reissued as part of
such series or of any other series of Preferred Stock, subject to such
limitations (if any) as may be fixed by the Board of Directors with respect to
such series of Preferred Stock in accordance with paragraph (1) of this Section
A.
B. COMMON STOCK
(1) Except as otherwise provided by (a) the Board of Directors in fixing
the voting rights of any series of the Preferred Stock in accordance with
Section A of this Article FOURTH or (b) statute, voting power in the election of
directors and for all other purposes shall be vested exclusively in the holders
of the Common Stock.
(2) In the event of any liquidation, dissolution or winding up of the
Corporation, either voluntary or involuntary after payment shall have been made
to the holders of the Preferred Stock of the full amount to which they shall be
entitled pursuant to paragraph (3) of Section A of this Article FOURTH, the
holders of Common Stock shall be entitled, to the exclusion of the holders of
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the Preferred Stock of any and all series, to share, ratably according to the
number of shares of Common Stock held by them, in all remaining assets of the
Corporation available for distribution to its stockholders.
All persons who shall acquire stock in this Corporation shall acquire the
same subject to the provisions of this Certificate of Incorporation, as amended.
FIFTH: The minimum amount of capital with which the corporation will
commence business is One thousand dollars ($1,000.00).
SIXTH: The names and places of residence of the incorporators are as
follows:
NAMES RESIDENCES
----- ----------
R. F. Westover Wilmington, Delaware
L.A. Schoonmaker Wilmington, Delaware
A.D. Atwell Wilmington, Delaware
SEVENTH: The corporation is to have perpetual existence.
EIGHTH: The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the corporation.
To authorize and cause to be executed mortgages and liens upon the
real and personal property of the corporation.
To set apart out of any of the funds of the corporation available for
dividends a reserve or reserves for any proper purpose and to abolish any
such reserve in the manner in which it was created.
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By resolution passed by a majority of the whole board, to designate
one or more committees, each committee to consist of two or more of the
Directors of the corporation, which, to the extent provided in the
resolution or in the by-laws of the corporation, shall have and may
exercise the powers of the Board of Directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be stated in
the by-laws of the corporation or as may be determined from time to time
by resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at
a stockholders' meeting duly called for that purpose, or when authorized
by the written consent of the holders of a majority of the voting stock
issued and outstanding, to sell, lease or exchange all of the property and
assets of the corporation, including its good will and its corporate
franchises, upon such terms and conditions and for such consideration,
which may be in whole or in part shares of stock in, and/or other
securities of, any other corporation or corporations, as its Board of
Directors shall deem expedient and for the best interests of the
corporation.
TENTH: Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the state of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as
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the case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this corporation, as the case may be,
and also on this corporation.
ELEVENTH: Meetings of stockholders may be held outside of the State of
Delaware, if the by-laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in the by-laws of the corporation. Elections of Directors
need not be by ballot unless the by-laws of the corporation shall so provide.
TWELFTH: No holder of stock now or hereafter authorized of any class of
the corporation shall be entitled as of right to subscribe for or purchase any
part of any new or additional issue of stock now or hereafter authorized of any
class of the corporation, or of any stock now or hereafter authorized of any
class of the corporation reacquired by it after the issue thereof, or of any
bonds, debentures, notes or other obligations convertible
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into any stock now or hereafter authorized of any class of the corporation, or
of any warrants, options or other instruments conferring upon the holder or
owner thereof the right to subscribe for or purchase any such stock.
THIRTEENTH: No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under section 174 of Delaware General Corporation Law or
successor provision thereto or (iv) for any transaction from which the director
derived an improper personal benefit.
Every person who is or has been a director, officer, employee or agent of
this corporation shall be indemnified by the corporation to the full extent
permitted by applicable law against expenses reasonably incurred by him in
connection with any action, suit or proceeding to which he may be a party
defendant, or with which he shall be threatened by reason of his being or having
been a director, officer, employee or agent of the corporation. The term
"expenses" includes attorney's fees, judgments, fines and amounts paid in
settlement. The foregoing right of indemnification shall be in addition to any
other rights to which any such director, officer, employee or agent may be
entitled as a matter of law.
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FOURTEENTH: A Director or officer of this corporation shall not be
disqualified by his office from dealing or contracting with the corporation as a
vendor, purchaser, employee, agent or otherwise; nor shall any transaction,
contract or act of this corporation be voided or voidable or in any way affected
or invalidated by reason of the fact that any director or officer or any firm of
which such director or officer is a member or any corporation of which such
director or officer is a shareholder, director or officer is in any way
interested in such transaction, contract or act, provided the fact that such
director, officer, firm or corporation so interested shall be disclosed or shall
be known to the Board of Directors or such members thereof as shall be present
at any meeting of the Board of Directors at which action upon any such contract,
transaction or act shall be taken; nor shall any such director or officer be
accountable or responsible to the corporation for or in respect of any such
transaction, contract or act of this corporation or for any gains or profits
realized by him by reason of the fact that he or any firm of which he is member
or any corporation of which he is a shareholder, officer or director is
interested in such transaction, contract or act; and any such director or
officer, if such officer is a director, may be counted in determining the
existence of a quorum at any meeting of the Board of Directors of the
corporation which shall authorize or take action in respect of any such
contract, transaction or act, and may vote thereat to authorize, ratify or
approve any such contract, transaction or act, with like force and effect as if
he or any firm of which he is a member or any
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corporation of which he is a shareholder, officer or director were not
interested in such transaction, contract or act.
FIFTEENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
4. This Second Restated Certificate of Incorporation was duly adopted by
the board of directors in accordance with Section 245 of The General Corporation
Law of the State of Delaware.
5. That the capital of said corporation will not be reduced under or by
reason of any amendment in this Restated Certificate of Incorporation.
IN WITNESS WHEREOF, said NATIONAL SEMICONDUCTOR CORPORATION has caused its
corporate seal to be hereunto affixed and this certificate to signed by PETER J.
SPRAGUE, Chairman of its Board of Directors, and attested by JOHN M. CLARK III,
its secretary this 3rd day of February, 1994.
--- --------
NATIONAL SEMICONDUCTOR CORPORATION
By/s/ PETER J. SPRAGUE
------------------------------------------
Peter J. Sprague,
Chairman of the Board of Directors
(CORPORATE SEAL)
ATTEST:
By JOHN M. CLARK III
----------------------
John M. Clark III
Secretary
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NATIONAL SEMICONDUCTOR CORPORATION
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE $32.50
CONVERTIBLE PREFERRED STOCK
PAR VALUE $.50 PER SHARE
LIQUIDATION VALUE $500 PER SHARE
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned, a Vice President of National Semiconductor Corporation, a
Delaware corporation (the "Company"), DOES HEREBY CERTIFY that the following
resolutions have been duly adopted by the Board of Directors of the Company:
RESOLVED, that pursuant to the authority expressly granted to and vested in
the Board of Directors of the Company by the provisions of the Restated
Certificate of Incorporation, this Board of Directors hereby authorizes the
issuance of a series of the Preferred Stock of the Company (the "Preferred
Stock") which shall consist of 345,000 shares of the Company's Preferred Stock,
and this Board of Directors hereby fixes the powers, designations, preferences
and relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Restated Certificate of
Incorporation of the Company which are applicable to the Preferred Stock) as
follows:
(i) DESIGNATION. The designation of said series of the Preferred Stock
shall be the $32.50 Convertible Preferred Shares ("this Series"). The number of
shares of this Series shall be 345,000. The liquidation value of this Series
shall be $500 per share.
(ii) DIVIDENDS. The dividend rate on shares of this Series shall be $32.50
per share per annum. Dividends on shares of this Series shall be fully
cumulative and shall accrue, without interest, from the date of issuance of such
shares, and shall be payable quarterly, when and as declared by the Board of
Directors out of funds legally available for the payment of dividends, on each
Dividend Payment Date. Each such dividend shall be payable in arrears to the
holders of record of shares of this Series, as they appear on the stock records
of the Company at the close of business on such record dates, not more than 60
days preceding the payment dates thereof, as shall be fixed by the Board of
Directors. Accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any Dividend Payment Date,
to holders of record on such date, not exceeding 45 days preceding the payment
date thereof, as may be fixed by the Board of Directors. The amount of dividends
payable for each full Dividend Period for this Series shall be computed by
dividing the annual dividend rate by four. The amount of dividends payable for
the initial Dividend Period, or any other period shorter or longer than a full
Dividend Period, on this Series shall be computed on the basis of twelve 30-day
months and a 360-day-year. Holders of shares of this Series shall be entitled to
receive such dividends in preference to and in priority over dividends upon the
Common Shares and all Junior Shares. Shares of this Series shall be junior as to
dividends to all Senior Shares, and if at any time the Company has failed to
make a sinking fund or mandatory redemption payment with respect to Senior
Shares, the Company shall not declare or pay any dividend on shares of this
Series or redeem any shares of this Series. The holders of shares of this Series
shall not be entitled to any dividends other than the cash dividends provided in
this Clause (ii).
If at any time the Company has failed to pay accrued dividends on any shares
of this Series or any Parity Shares at the time outstanding at the times such
dividends are payable, the Company shall not
(a) declare or pay any dividend on the Common Shares or on any Junior
Shares or make any payment on account of, or set apart money for, a sinking
or other analogous fund for, the purchase,
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redemption or other retirement of, any Common Shares or any Junior Shares or
make any distribution in respect thereof, either directly or indirectly and
whether in cash or property or in obligations or shares of the Company
(other than in Common Shares or Junior Shares),
(b) purchase any shares of this Series or Parity Shares (except for a
consideration payable in Common Shares or Junior Shares) or redeem fewer
than all of the shares of this Series and Parity Shares then outstanding, or
(c) permit any corporation or other entity directly or indirectly
controlled by the Company to purchase any Common Shares, Junior Shares,
shares of this Series or Parity Shares,
unless, in the case of any such dividend, payment, distribution, purchase or
redemption, all dividends accrued and payable but unpaid on shares of this
Series and any Parity Shares have been or contemporaneously are declared and
paid in full or declared and a sum sufficient for the payment thereof set aside
for such payment. Unless and until all dividends accrued and payable but unpaid
on shares of this Series and any Parity Shares at the time outstanding have been
paid in full, all dividends declared by the Company upon shares of this Series
or Parity Shares shall be declared pro rata with respect to all shares of this
Series and Parity Shares then outstanding, so that the amounts of any dividends
declared on shares of this Series and such Parity Shares shall in all cases bear
to each other the same ratio that, at the time of such declaration, all accrued
and payable but unpaid dividends on shares of this Series and such other Parity
Shares, respectively, bear to each other.
(iii) REDEMPTION AT THE OPTION OF THE COMPANY.
(A) This Series shall not be redeemable by the Company prior to November 1,
1995. On and after November 1, 1995, the Company, at its option, may redeem the
shares of this Series, in whole or in part, as set forth herein, subject to the
provisions described below.
(B) This Series may be redeemed, in whole or in part, at the option of the
Company, at any time, only if for 20 Trading Days, within any period of 30
consecutive Trading Days, including the last Trading Day of such period, the
Closing Price of the Common Shares on each of such 20 Trading Days exceeds 125%
of the Conversion Price in effect on such Trading Day. In order to exercise its
redemption option, the Company must issue a press release announcing the
redemption (the "Press Release") prior to the opening of business on the second
Trading Day after the last Trading Day of any such 30 consecutive Trading Day
period. The Company may not issue a Press Release prior to November 1, 1995. The
Press Release shall announce the redemption and set forth the number of shares
of this Series which the Company intends to redeem. The Call Date (as defined
below) shall be selected by the Company, shall be specified in the notice of
redemption and shall be not less than 30 days nor more than 60 days after the
date on which the Company issues the Press Release.
(C) Upon redemption of shares of this Series by the Company on the date
specified in the notice to holders required under paragraph (E) of this Clause
(iii) (the "Call Date"), each share of this Series so redeemed shall be
converted into a number of Common Shares equal to the liquidation preference of
the shares of this Series being redeemed divided by the Conversion Price as of
the opening of business on the Call Date.
Upon any redemption of this Series, the Company shall pay any accrued and
unpaid dividends in arrears for any Dividend Period ending on or prior to the
Call Date. If a Call Date falls after a dividend payment record date and prior
to the corresponding Dividend Payment Date, then each holder of this Series at
the close of business on such Dividend Payment Record Date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment Date
notwithstanding the redemption of such shares before such Dividend Payment Date.
In the case of any Call Date occurring prior to the record date for the December
1, 1995 Dividend Payment Date, the holders of the shares of this Series to be
redeemed on such Call Date shall be entitled to any accrued and unpaid dividends
through November 1, 1995 but not thereafter. Except as provided above, the
Company shall make no payment or allowance for unpaid dividends, whether or not
in arrears, on shares of this Series called for redemption or on the Common
Shares issued upon such redemption.
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(D) If full cumulative dividends on this Series and any other class or
series of stock of the Company ranking, as to dividends and amounts
distributable on liquidation, dissolution or winding up, on a parity with this
Series have not been paid or declared and set apart for payment, shares of this
Series may not be redeemed in part and the Company may not purchase or acquire
shares of this Series, otherwise than pursuant to a purchase or exchange offer
made on the same terms to all holders of shares of this Series.
(E) If the Company shall redeem shares of this Series pursuant to paragraph
(A) of this Clause (iii), notice of such redemption shall be given not more than
four Business Days after the date on which the Company issues the Press Release,
to each holder of record of the shares to be redeemed. Such notice shall be
provided by first class mail, postage prepaid, at such holder's address as the
same appears on the stock records of the Company, or by publication in THE WALL
STREET JOURNAL or THE NEW YORK TIMES, or if neither such newspaper is then being
published, any other daily newspaper of national circulation. If the Company
elects to provide such notice by publication, it shall also promptly mail notice
of such redemption to the holders of shares of this Series to be redeemed.
Neither the failure to mail any notice required by this paragraph (E), nor any
defect therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for redemption
with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such mailed or
published notice shall state, as appropriate: (1) the Call Date and record date
for purposes of such redemption; (2) the number of shares of this Series
(expressed in 1/10 of a share of this Series) to be redeemed and, if fewer than
all the shares held by such holder are to be redeemed, the number of such shares
(expressed in 1/10 of a share of this Series) to be redeemed from such holder;
(3) the number of Common Shares to be issued with respect to each 1/10 of a
share of this Series; (4) the place or places at which certificates for such
shares are to be surrendered for certificates representing Common Shares; (5)
the then current Conversion Price; and (6) that dividends on the shares to be
redeemed shall cease to accrue on such Call Date, except as otherwise provided
herein. Notice having been published or mailed as aforesaid, from and after the
Call Date (unless the Company shall fail to make available a number of Common
Shares or amount of cash necessary to effect such redemption), (i) except as
otherwise provided herein, dividends on the shares of this Series so called for
redemption shall cease to accrue, (ii) said shares shall no longer be deemed to
be outstanding, and (iii) all rights of the holders thereof as holders of shares
of this Series shall cease (except the rights to receive the Common Shares and
cash payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any dividends
payable thereon). The Company's obligation to provide Common Shares and cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Company shall deposit with a bank or trust company
(which may be an affiliate of the Company) that has an office in the Borough of
Manhattan, City of New York, and that has, or is an affiliate of a bank or trust
company that has, a capital and surplus of at least $50,000,000, Common Shares
and any cash necessary for such redemption, in trust, with irrevocable
instructions that such Common Shares and cash be applied to the redemption of
the shares of this Series so called for redemption. At the close of business on
the Call Date, each holder of shares of this Series to be redeemed (unless the
Company defaults in the delivery of the Common Shares or cash payable on such
Call Date) shall be deemed to be the record holder of the number of Common
Shares into which such shares of this Series is to be redeemed, regardless of
whether such holder has surrendered the certificates representing the shares of
this Series. No interest shall accrue for the benefit of the holders of shares
of this Series to be redeemed on any cash so set aside by the Company. Subject
to applicable escheat laws, any such cash unclaimed at the end of six years from
the Call Date shall revert to the general funds of the Company, after which
reversion the holders of such shares so called for redemption shall look only to
the general funds of the Company for the payment of such cash.
As promptly as practicable after the surrender in accordance with said
notice of the certificates for any such shares so redeemed (properly endorsed or
assigned for transfer, if the Company shall so require and the notice shall so
state), such shares shall be exchanged for certificates of Common Shares and any
cash (without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding shares of this Series are to be redeemed, shares
to be redeemed shall be selected by the
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Company from outstanding shares of this Series not previously called for
redemption by lot or pro rata (as nearly as may be) or by any other method
determined by the Company in its sole discretion to be equitable, provided that
only whole shares shall be called for redemption. If fewer than all the shares
represented by any certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares without cost to the holder thereof.
(F) No fractional shares or scrip representing fractions of Common Shares
shall be issued upon redemption of shares of this Series. Instead of any
fractional interest in a Common Share that would otherwise be deliverable upon
the redemption of a share of this Series, the Company shall pay to the holder of
such share an amount in cash (computed to the nearest cent) based upon the
Closing Price of Common Shares on the Trading Day immediately preceding the Call
Date. If more than one share shall be surrendered for redemption at one time by
the same holder, the number of full Common Shares issuable upon redemption
thereof shall be computed on the basis of the aggregate number of shares of this
Series so surrendered.
(G) The Company covenants that any Common Shares issued upon redemption of
this Series shall be validly issued, fully paid and non-assessable. The Company
shall use its best efforts to list the Common Shares required to be delivered
upon redemption of shares of this Series, prior to such redemption, upon each
national securities exchange, if any, upon which the outstanding Common Shares
are listed at the time of such delivery.
The Company shall endeavor to take any action necessary to ensure that any
Common Shares issued upon the redemption of shares of this Series are freely
transferable and not subject to any resale restrictions under the Securities Act
of 1933, as amended (the "Act"), or any applicable state securities or blue sky
laws (other than any Common Shares issued upon redemption of any shares of this
Series which are held by an "affiliate" (as defined in Rule 144 under the Act)
of the Company).
(iv) LIQUIDATION.
(A) The liquidation price of shares of this Series, in case of the voluntary
or involuntary liquidation, dissolution or winding-up of the Company, shall be
$500.00 per share, plus an amount equal to the dividends accrued and unpaid
thereon to the payment date (whether or not declared).
(B) In the event of any voluntary or involuntary liquidation, dissolution or
winding-up of the Company, the holders of shares of this Series (1) shall not be
entitled to receive the liquidation price of such shares held by them until the
liquidation price of all Senior Shares shall have been paid in full and (2)
shall be entitled to receive the liquidation price of such shares held by them
in preference to and in priority over any distributions upon the Common Shares
and all Junior Shares. Upon payment in full of the liquidation price to which
the holders of shares of this Series are entitled, the holders of shares of this
Series will not be entitled to any further participation in any distribution of
assets by the Company. If the assets of the Company are not sufficient to pay in
full the liquidation price payable to the holders of shares of this Series and
the liquidation price payable to the holders of all Parity Shares, the holders
of all such shares shall share ratably in such distribution of assets in
accordance with the amounts which would be payable on such distribution if the
amounts to which the holders of shares of this Series and the holders of Parity
Shares are entitled were paid in full.
(C) Neither a consolidation or merger of the Company with or into any other
corporation, nor a merger of any other corporation with or into the Company, nor
a sale or transfer of all or any part of the Company's assets for cash or
securities shall be considered a liquidation, dissolution or winding-up of the
Company within the meaning of this Clause (iv).
(v) CONVERSION.
(A) Subject to the provisions for adjustment hereinafter set forth, each
share of this Series shall be convertible at the option of the holder thereof,
in the manner hereinafter set forth, into fully paid and nonassessable Common
Shares at the Conversion Price, determined as hereinafter provided, in effect on
the date of conversion.
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Any holder of shares of this Series desiring to convert the same into Common
Shares shall surrender the certificate or certificates for the shares of this
Series being converted, duly endorsed or assigned to the Company or in blank, at
the principal office of the Company or at a bank or trust company appointed by
the Company for that purpose, accompanied by a written notice of conversion
specifying the number (in whole shares) of shares of this Series to be converted
and the name or names in which such holder wishes the certificate or
certificates for Common Shares to be issued; in case such notice shall specify a
name or names other than that of such holder, such notice shall be accompanied
by payment of all transfer taxes payable upon the issue of Common Shares in such
name or names. In case less than all of the shares of this Series represented by
a certificate are to be converted by a holder, upon such conversion the Company
shall issue and deliver, or cause to be issued and delivered, to the holder a
certificate or certificates for the shares of this Series not so converted. The
right to convert shares of this Series called for redemption shall terminate at
the close of business on the Call Date pursuant to Clause (iii) above. The
holders of shares of this Series at the close of business on a dividend payment
record date shall be entitled to receive the dividend payable on such shares on
the corresponding dividend payment date notwithstanding the conversion thereof
or the Company's default on payment of the dividend due on such dividend payment
date. However, shares of this Series surrendered for conversion during the
period from the close of business on any record date for the payment of
dividends on such shares of this Series to the opening of business on the
corresponding dividend payment date (except shares called for redemption on a
Call Date during such period) must be accompanied by payment of an amount equal
to the dividend payable on such shares on such dividend payment date. A holder
of shares of this Series on a dividend payment record date who (or whose
transferee) tenders shares of this Series on a dividend payment date will
receive the dividend payable on such shares by the Company on such date, and the
converting holder need not include payment in the amount of such dividend upon
surrender of shares of this Series for conversion. Except as provided above, no
payment or adjustment will be made on account of accrued or unpaid dividends
upon the conversion of shares of this Series.
(B) The Conversion Price shall be adjusted from time to time as follows:
(1) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in Common Shares,
the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying
such Conversion Price by a fraction of which the numerator shall be the
number of Common Shares outstanding at the close of business on the date
fixed for such determination and the denominator shall be the sum of such
number of shares and the total number of shares constituting such dividend
or other distribution, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this subclause (B)(1), the number of
Common Shares at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of the
scrip certificates issued in lieu of fractions of Common Shares. The Company
will not pay any dividend or make any distribution on Common Shares held in
the treasury of the Company.
(2) In case the Company shall issue rights or warrants to all holders of
its Common Shares entitling them to subscribe for or purchase Common Shares
at a price per share less than the current market price per share
(determined as provided in subclause (C) hereof) of a Common Share on the
date fixed for the determination of stockholders entitled to receive such
rights or warrants, the Conversion Price in effect at the opening of
business on the day following the date fixed for such determination shall be
reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of Common
Shares which the aggregate of the offering price of the total number of
Common Shares offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of Common
Shares outstanding at the close of business on the date fixed for such
determination plus the
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<PAGE>
number of Common Shares so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this subclause (B)(2), the number of Common Shares at any time outstanding
shall not include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not issue any rights
or warrants in respect of shares of Common Stock held in the treasury of the
Company.
(3) In case outstanding Common Shares shall be subdivided into a greater
number of Common Shares, the Conversion Price in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case
outstanding Common Shares shall each be combined into a smaller number of
Common Shares, the Conversion Price in effect at the opening of business on
the day following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of business on the
day following the day upon which such subdivision or combination becomes
effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Shares evidences of its indebtedness or assets
(including securities, but excluding rights or warrants referred to in
subclause (B)(2), any dividend or distribution paid in cash out of the
retained earnings of the Company and any dividend or a distribution referred
to in subclause (B)(1)), the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in subclause (C) hereof) of the Common Shares on the
date fixed for such determination less the then fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive) of the portion of the assets or evidences of indebtedness so
distributed applicable to one Common Share and the denominator shall be such
current market price per share of the Common Shares, such adjustment to
become effective immediately prior to the opening of business on the day
following the date fixed for the determination of stockholders entitled to
receive such distribution.
(5) The reclassification of Common Shares into securities other than
Common Shares (other than any reclassification upon a consolidation or
merger to which subclause (v)(F) applies) shall be deemed to involve (a) a
distribution of such securities other than Common Shares to all holders of
Common Shares (and the effective date of such reclassification shall be
deemed to be "the date fixed for the determination of stockholders entitled
to receive such distribution" and "the date fixed for such determination"
within the meaning of subclause (B)(4), and (b) a subdivision or
combination, as the case may be, of the number of Common Shares outstanding
immediately prior to such reclassification into the number of Common Shares
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of subclause (B)(3)).
(C) For the purpose of any computation under subclause (B) above and only
for such purpose, the current market price per Common Share on any date shall be
deemed to be the average of the daily Closing Prices for 15 consecutive Business
Days selected by the Company commencing not more than 30 and not less than 20
Business Days before the date in question.
(D) Notwithstanding the provisions of subclause (B) above, no adjustment in
the Conversion Price shall be required unless such adjustment (plus any
adjustments not previously made by reason of this subclause (D)) would require
an increase or decrease of at least 1% in such price; provided, however, that
any adjustments which by reason of this subclause (D) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment; and provided further, that adjustment
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<PAGE>
shall be required and shall be made in accordance with the provisions of this
Clause (v) (other than this subclause (D)) not later than the same time as may
be required in order to preserve the tax-free nature of a distribution to the
holder of any share of this Series. All calculations under this Clause (v) shall
be made to the nearest cent.
(E) The Company may make such reductions in the Conversion Price, in
addition to those required by this Clause (v), as it considers to be advisable
in order to avoid or diminish any income tax to any holder of Common Shares
resulting from any dividend or distribution of stock or issuance of rights or
warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error in this Clause (v) and its
actions in so doing shall be final and conclusive.
(F) In case the Company shall effect any capital reorganization or
reclassification of its shares or shall consolidate or merge with or into any
other corporation (other than a consolidation or merger in which the Company is
the surviving corporation and each Common Share outstanding immediately prior to
such consolidation or merger is to remain outstanding immediately after such
consolidation or merger) or shall sell, lease or transfer all or substantially
all of its assets to any other person or entity for a consideration consisting
in whole or in part of equity securities of such other entity, lawful provision
shall be made as a part of the terms of such transaction whereby the holders of
shares of this Series shall, if entitled to convert such shares at any time
after the consummation of such transaction, receive upon conversion thereof in
lieu of each Common Share issuable upon conversion of such shares prior to such
consummation the same kind and amount of stock (or other securities, cash or
property, if any) as may be issuable or distributable in connection with such
transaction with respect to each outstanding Common Share subject to adjustments
for subsequent stock dividends and distributions, subdivisions or combinations
of shares, capital reorganizations, reclassifications, consolidations or mergers
as nearly equivalent as possible to the adjustments provided for in this Clause
(v).
(G) Whenever the Conversion Price is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Price and shall
cause to be prepared a certificate signed by a principal financial officer
of the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based and the
computation thereof; such certificate shall forthwith be filed with each
transfer agent for the shares of this Series; and
(2) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall, as soon as practicable,
be mailed to the holders of record of outstanding shares of this Series.
(H) In case:
(1) the Company shall declare a dividend or other distribution on its
Common Shares otherwise than in cash out of its retained earnings;
(2) the Company shall authorize the granting to the holders of its
Common Shares of rights or warrants entitling them to subscribe for or
purchase any shares of capital stock of any class or of any other rights;
(3) of any reclassification of the Common Shares (other than a
subdivision or combination of its outstanding Common Shares), or of any
consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale,
lease or transfer of all or substantially all the assets of the Company; or
(4) of the voluntary or involuntary liquidation, dissolution or
winding-up of the Company;
then the Company shall cause to be mailed to each transfer agent of the shares
of this Series and to the holders of record of the outstanding shares of this
Series, at least 20 days (or 10 days in any case specified in subclauses (1) or
(2) above) prior to the applicable record or effective date hereinafter
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<PAGE>
specified, a notice stating (x) the date as of which the holders of record of
Common Shares to be entitled to such dividend, distribution, rights or warrants
are to be determined, or (y) the date on which such reclassification,
consolidation, merger, sale, lease, transfer, liquidation, dissolution or
winding-up is expected to become effective, and the date as of which it is
expected that holders of record of Common Shares shall be entitled to exchange
their shares for securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, sale, lease, transfer, liquidation,
dissolution or winding-up. Such notice shall also state whether such transaction
will result in any adjustment in the Conversion Price applicable to the shares
of this Series and, if so, shall state what the adjusted Conversion Price will
be and when it will become effective. Neither the failure to give the notice
required by this subclause (H), nor any defect therein, to any particular holder
shall affect the sufficiency of the notice or the legality or validity of any
such dividend, distribution, right, warrant, reclassification, consolidation,
merger, sale, lease, transfer, liquidation, dissolution or winding-up, or the
vote on any action authorizing such with respect to the other holders.
(I) The Company shall at all times reserve and keep available out of its
authorized but unissued Common Shares, for the purpose of issuance upon
conversion of shares of this Series, the full number of Common Shares then
deliverable upon the conversion of all shares of this Series then outstanding
and shall take all action necessary so that Common Shares so issued will be
validly issued, fully paid and nonassessable. The Company shall use its best
efforts to list the Common Shares required to be delivered upon conversion of
shares of this Series, prior to such conversion, upon each national securities
exchange, if any, upon which the outstanding Common Shares are listed at the
time of such delivery.
(J) The Company will pay any and all stamp or similar taxes that may be
payable in respect of the issuance or delivery of Common Shares on conversion of
shares of this Series. The Company shall not, however, be required to pay any
tax which may be payable in respect of any transfer involved in the issuance and
delivery of Common Shares in a name other than that in which the shares of this
Series so converted were registered, and no such issuance or delivery shall be
made unless and until the person requesting such issuance has paid to the
Company the amount of any such tax or has established to the satisfaction of the
Company that such tax has been paid.
(K) No fractional shares or scrip representing fractional shares shall be
issued upon the conversion of shares of this Series. If any such conversion
would otherwise require the issuance of a fractional share, an amount equal to
such fraction multiplied by the Closing Price per Common Share) on the day of
conversion shall be paid to the holder in cash by the Company.
(L) The certificate of any independent firm of public accounts of recognized
standing selected by the Board of Directors shall be presumptive evidence of the
correctness of any computation made under this Clause (v).
(vi) OTHER PREFERENCE SHARES. So long as any shares of this Series remain
outstanding, the Company shall not issue any Preference Shares which are not
Senior Shares, Parity Shares or Junior Shares. All shares of this Series which
are at any time redeemed pursuant to Clause (iii) above or converted pursuant to
Clause (v) above by the Company and subsequently cancelled by the Board of
Directors shall have the status of authorized but unissued Preferred Shares,
without designation as to series, subject to reissuance by the Board of
Directors as shares of this Series or shares of any one or more other series.
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<PAGE>
(vii) VOTING RIGHTS. Except as otherwise required by law, holders of shares
of this Series shall have no voting rights; provided, however, that:
(A) DIVIDEND DEFAULTS.
(1) If and whenever accrued dividends on the shares of this Series or
any Parity Shares, whether or not declared, shall not have been paid in an
aggregate amount equal to or greater than six quarterly dividends on the
shares of this Series or such Parity Shares at the time outstanding, then,
and in any such event, the number of Directors then constituting the entire
Board of Directors of the Company shall automatically be increased by two
Directors and the holders of shares of this Series and the holders of such
Parity Shares, voting together as a single class, shall be entitled to fill
such newly created directorships. Such right to vote as a single class to
elect two Directors shall, when vested, continue until all dividends in
default on the shares of this Series and such Parity Shares, as the case may
be, shall have been paid in full and, when so paid, such right to elect two
Directors separately as a class shall cease, subject, always, to the same
provisions for the vesting of such right to elect two Directors separately
as a class in the case of future dividend defaults. At any time when such
right to elect two Directors separately as a class shall have so vested the
Company may, and upon the written request of the holders of record of not
less than 20% of the total number of shares of this Series and such Parity
Shares then outstanding shall, call a special meeting of the holders of such
shares to fill such newly created directorships for the election of
Directors. In the case of such a written request, such special meeting shall
be held within 90 days after the delivery of such request and, in either
case, at the place and upon the notice provided by law and in the Bylaws of
the Company, provided that the Company shall not be required to call such a
special meeting if such request is received less than 120 days before the
date fixed for the next ensuing annual meeting of stockholders of the
Company, at which meeting such newly created directorships shall be filled
by the holders of such shares of this Series and such Parity Shares.
(2) So long as any shares of this Series are outstanding, the Bylaws of
the Company shall contain provisions ensuring that the number of Directors
of the Company shall at all times be such that the exercise, by the holders
of shares of this Series and the holders of Parity Shares, of the right to
elect Directors under the circumstances provided in paragraph (1) of this
subclause (A) will not contravene any provisions of the Company's Restated
Certificate of Incorporation or Bylaws.
(3) Directors elected pursuant to paragraph (1) of this subclause (A)
shall serve until the earlier of (x) the next annual meeting of the
stockholders of the Company and the election (by the holders of shares of
this Series and the holders of Parity Shares) and qualification of their
respective successors or (y) the next annual meeting of the stockholders of
the Company following the date upon which all dividends in default on the
shares of this Series and such Parity Shares shall have been paid in full.
If, prior to the end of the term of any Director elected as aforesaid, a
vacancy in the office of such Director shall occur during the continuance of
a default in dividends on the shares of this Series or such Parity Shares by
reason of death, resignation or disability, such vacancy shall be filled for
the unexpired term by the appointment by the remaining Director elected as
aforesaid of a new Director for the unexpired term of such former Director.
(B) MISCELLANEOUS. Without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of this Series and outstanding Parity
Shares, voting as a single class (or, if less than all shares of this Series and
all series of Parity Shares then outstanding would be similarly adversely
affected thereby, without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of each series so affected, voting as a
separate class), the Company may not
(1) amend the Company's Restated Certificate of Incorporation or this
Certificate so as to adversely affect the voting powers (except as such
voting powers may be affected by the authorization of any new series of
Parity Shares having the same voting rights as this Series or by the
authorization of any other shares of any class having voting rights which
are not entitled to vote together with this Series in any separate class
vote) or other rights or preferences of shares of this Series; or
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<PAGE>
(2) authorize or create any Senior Shares.
(C) VOTES PER SHARE. For purposes of the foregoing provisions of this Clause
(vii), each share of this Series shall have one vote per share.
(viii) CERTAIN DEFINITIONS. As used in this Certificate, the following terms
shall have the following respective meanings:
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"CLOSING PRICE" on any day shall mean (i) the last reported sales price
regular way per Common Share on such day or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange ("NYSE"), or (ii) if
the Common Shares are not listed or admitted to trading on the NYSE, the last
reported sales price regular way, or in case no such reported sale takes place
on such day, the average of the reported closing bid and asked prices regular
way, on the principal national securities exchange on which the Common Shares
are admitted for trading, or (iii) if the Common Shares are not listed or
admitted for trading on any national securities exchange, the average of the
closing bid and asked prices as furnished by any NYSE member firm selected from
time to time by the Company for that purpose.
"COMMON SHARES" shall mean any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which is not subject to redemption by the Company. However, Common Shares
issuable upon conversion of shares of this Series shall include only shares of
the class designated as Common Shares as of the original date of issuance of
shares of this Series, or shares of the Company of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which are not subject to redemption by the Company; PROVIDED that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from such reclassifications bears to
the total number of shares of all classes resulting from all such
reclassifications.
"CONVERSION PRICE" shall mean the Conversion Price per share of Common Stock
for which this Series is convertible, as such Conversion Price may be adjusted
pursuant to Clause (v). The initial Conversion Price will be $14.175 (equivalent
to a conversion rate of 35.273 shares of Common Stock for each share of this
Series).
"DIVIDEND PAYMENT DATE" shall mean the first calendar day of March, June,
September and December in each year, commencing on December 1, 1992; PROVIDED,
HOWEVER, that if any Dividend Payment Date falls on any day other than a
Business Day, the dividend payment due on such Dividend Payment Date shall be
paid on the Business Day immediately following such Dividend Payment Date.
"DIVIDEND PERIODS" shall mean quarterly dividend periods commencing on March
1, June 1, September 1 and December 1 of each year and ending on and including
the day preceding the first day of the next succeeding Dividend Period (other
than the initial Dividend Period, which shall commence on the Issue Date and end
on and include November 30, 1992.)
"ISSUE DATE" shall mean the first date on which shares of this Series are
issued and sold.
"JUNIOR SHARES" shall mean the Company's Series A Junior Participating
Preferred Stock and any Preference Shares of any series or class of the Company
which are by their terms expressly made junior to shares of this Series at the
time outstanding both as to dividends and as to the distribution of assets on
any voluntary or involuntary liquidation of the Company.
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"PARITY SHARES" shall mean the Company's $40.00 Convertible Exchangeable
Preferred Stock and any Preference Shares which are by their terms on a parity
with the shares of this Series at the time outstanding both as to dividends and
as to the distribution of assets on any voluntary or involuntary liquidation of
the Company.
"PREFERENCE SHARES" shall mean any class of shares of the Company ranking
prior to at least one other class of shares of the Company as to the payment of
dividends or the distributions of assets on any voluntary or involuntary
liquidation of the Company.
"SENIOR SHARES" shall mean any Preference Shares of any series or class of
the Company which are by their terms expressly made senior to shares of this
Series at the time outstanding both as to dividends and as to the distribution
of assets on any voluntary or involuntary liquidation of the Company.
"TRADING DAY" shall mean any day on which the securities in question are
traded on the NYSE, or if such securities are not listed or admitted for trading
on the NYSE, on the principal national securities exchange on which such
securities are listed or admitted, or if not listed or admitted for trading on
any national securities exchange, on the National Market System of the NASDAQ,
or if such securities are not quoted on such National Market System, in the
applicable securities market in which the securities are traded.
IN WITNESS WHEREOF, the Company has caused this Certificate to be duly
executed on its behalf by the undersigned Vice President and attested to by its
Secretary this 5th day of October, 1992.
NATIONAL SEMICONDUCTOR CORPORATION
--------------------------------------
/s/ Donald Macleod ,
-----------------------------------------------------------------------------
Vice President
[
- --------Seal]
/s/ John M. Clark III
- --------------------------------------
JOHN M. CLARK III ,
- -----------------------------------------------------------------------------
Secretary
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BY-LAWS
OF
NATIONAL SEMICONDUCTOR CORPORATION
----------------------------------
ARTICLE I.
---------
OFFICES
-------
Section 1. REGISTERED OFFICE. The registered office shall be in the City
of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation 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
------------
Section 1. PLACE OF MEETINGS. Meetings of stockholders shall be held at
such place either within or without the State of Delaware as may be designated
by the board of directors.
Section 2. ANNUAL MEETING. An annual meeting of stockholders shall be
held on the fourth Friday in September of each year, at 10:30 A.M., or at such
other date and time as shall be designated by the board of directors. At the
annual meeting the stockholders shall elect a board of directors and transact
such other business as may be properly brought before the meeting.
<PAGE>
Section 3. SPECIAL MEETINGS. Special meetings of the stockholders (a) may
be called by the chairman of the board of directors, the president, or by a
majority of the board of directors but (b) shall be called by the secretary at
the request in writing of stockholders owning at least 50% in interest of the
capital stock of the corporation issued and outstanding and entitled to vote at
such meeting. Any business can be transacted at a special meeting of the
stockholders.
Section 4. NOTICE OF MEETINGS. The secretary or such other officer of the
corporation as is designated by the board of directors shall serve personally or
send through the mails or by telegraph a written notice of annual or special
meetings of stockholders, addressed to each stockholder of record entitled to
vote at his address as it appears on the stock transfer books of the
corporation, stating the time and place of the meeting, not less than ten nor
more than sixty days before the date of the meeting, except that a special
meeting may be called on five days' notice. If mailed, notice shall be deemed
to have been given when deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the records of the
corporation. Notice given by telegraph shall be deemed to have been given upon
delivery of the message to the telegraph company.
Section 5. WAIVER OF NOTICE. Notice of a meeting need not be given to any
stockholder who signs a waiver of notice, in person or by proxy, whether before
or after a meeting. The attendance of any
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<PAGE>
stockholder at a meeting, in person or by proxy, without protesting either prior
thereto or at its commencement the lack of notice of such meeting, shall
constitute a waiver of notice by him. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.
Section 6. ACTION BY CONSENT. Any action required to be taken at any
annual or special meeting of stockholders, 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 in writing,
setting forth the action so taken, shall be 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. 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 7. STOCKHOLDER'S LIST. The officer who has charge of the stock
transfer book of the corporation shall prepare and make, at least ten days
before every meeting of the stockholders at which directors are to be elected, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of
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shares registered in the name of each stockholder. Such list shall be open to
examination by 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, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 8. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote at a meeting, present in person or represented
by proxy, shall constitute a quorum at all meetings of stockholders for the
transaction of business except as otherwise provided by statute. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, a majority in interest of the stockholders entitled to vote
thereat, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or after the
adjournment
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a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote.
Section 9. PROXIES. At all meetings of stockholders, each stockholder
entitled to vote shall have one vote, to be exercised in person or by proxy, for
each share of capital stock having voting power, held by such stockholder. All
proxies shall be in writing, shall relate only to a specific meeting (including
continuations and adjournments of the same), and shall be filed with the
secretary at or before the time of the meeting. Each proxy must be signed by
the shareholder or his attorney-in-fact. The person or persons named in a proxy
for a specific meeting may vote at any adjournment of the meeting for which the
proxy was given. If more than one person is named as proxy, a majority of such
persons so named present at the meeting, or if only one shall be present, then
that one, shall have and exercise all the powers conferred upon all of the
persons unless the proxy shall provide otherwise. A proxy purporting to be
executed by or on behalf of a stockholder shall be deemed valid unless
challenged prior to or at its exercise and the burden of proving invalidity
shall rest on the challenger.
Section 10. VOTING. When a quorum is present at any meeting, the vote of
the holders of a majority of the capital stock having voting power present in
person or represented by proxy shall decide
5
<PAGE>
any question brought before such meeting, except in respect of elections of
directors which shall be decided by a plurality of the votes cast, and except
when the question is one which by express provision of statute a different vote
is required, in which case such express provision shall govern and control the
decision of such question. No vote need be taken by ballot unless required by
statute.
ARTICLE III.
-----------
THE BOARD OF DIRECTORS
----------------------
Section 1. COMPOSITION. The board of directors shall consist of eight
directors subject to such automatic increase as may be required by the
corporation's Restated Articles of Incorporation. The board may enlarge or
reduce the size of the board in a vote of the majority of the directors in
office. No director need be a stockholder.
Section 2. ELECTION AND TERM. Except as provided in Section 3 of this
Article, the directors shall be elected by a plurality vote at the annual
meeting of the stockholders. Each director shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Section 3. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Any vacancy on the
board of directors, or any newly created directorships, however occurring, may
be filled by a majority of the directors then in office, though less than a
quorum or by a
6
<PAGE>
sole remaining director. Any vacancy in the board of directors may also be
filled by a plurality vote of the stockholders unless such vacancy shall have
been previously filled by the board of directors.
Section 4. POWERS. The business of the corporation shall be managed by
its board of directors which shall have and may exercise all such powers of the
corporation, including the power to make, alter or repeal the bylaws of the
corporation, and do all such lawful acts and things as are not by statute
directed or required to be exercised or done by the stockholders.
Section 5. PLACE OF MEETINGS. The board of directors of the corporation
may hold meetings both regular and special, either within or without the State
of Delaware. Members of the board of directors or any committee designated by
the board, may participate in a meeting of such board or committee by means of a
conference telephone by means of which all persons participating in the meeting
can hear each other, and participation shall constitute presence in person at
such meeting.
Section 6. REGULAR MEETINGS. Regular meetings of the board of directors
may be held without call or notice immediately following the annual meeting of
the stockholders and at such time and at such place as shall from time to time
be selected by the board of directors, provided that in respect of any director
who is absent when such selection is made, the notice, waiver and attendance
provisions of Section 7 of this Article shall apply to such regular meetings.
7
<PAGE>
Section 7. SPECIAL MEETINGS AND NOTICE. Special meetings of the board of
directors may be called by the chairman of the board of directors, a majority of
the directors or the president on at least two days' notice given to each
director, either personally or by mail or telegram sent to his business or home
address, stating the place, date and hour of the meeting. If mailed, notice
shall be deemed to have been given when deposited in the United States mail,
postage prepaid, directed to the director at his business or home address.
Notice given by telegraph shall be deemed to have been given upon delivery of
the message to the telegraph company. Notice of a meeting need not be given to
any director who signs a waiver of notice, whether before or after the meeting.
The attendance of any director at a meeting, without protesting either prior
thereto or at its commencement the lack of notice of such meeting, shall
constitute a waiver of notice by him. Any notice or waiver of notice of a
meeting of the board of directors need not specify the purposes of the meeting.
Section 8. QUORUM AND VOTING. At all meetings of the board of directors a
majority less one of the total number of directors then in office shall
constitute a quorum for the transaction of business, except that in no case
shall less than two directors be deemed to constitute a quorum, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors. If a quorum shall not be present at
any meeting of the board of directors, a majority of less than a quorum may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
8
<PAGE>
Section 9. ACTION BY CONSENT. Any action required or permitted to be
taken at any meeting of the board of directors may be taken without a meeting,
if all members of the board of directors, then in office, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings
of the board of directors.
Section 10. RESIGNATION. Any director may resign at any time upon written
notice delivered to the corporation at its principal office. The resignation
shall take effect at the time specified therein, and if no time be specified, at
the time of its dispatch to the corporation.
Section 11. REMOVAL. A director may be removed for cause by the vote of a
majority of the stockholders at a special or annual meeting after the director
has been given reasonable notice and opportunity to be heard before the
stockholders.
Section 12. COMMITTEES. The board of directors may, by resolution passed
by a majority of the whole board of directors, designate one or more committees,
each committee to consist of one or more of the directors of the corporation,
which committee, to the extent provided in the resolution, shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
9
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ARTICLE IV.
----------
OFFICERS
--------
Section 1. DESIGNATION. The officers of the corporation shall consist of
a president, a treasurer, a secretary, and such other officers including a
chairman of the board of directors, one or more group presidents, vice
presidents (including group executive vice presidents, corporate vice presidents
and senior vice presidents), assistant treasurers and assistant secretaries, as
the board of directors or the stockholders may deem warranted. With the
exception of the chairman of the board of directors who must be a director, no
officer need be a director or a stockholder. Any number of offices may be held
by the same person.
Section 2. ELECTION AND TERM. Except for officers to fill vacancies and
newly created offices provided for in Section 6 of this Article, the officers
shall be elected by the board of directors at the first meeting of the board of
directors after the annual meeting of the stockholders. All officers shall
hold office at the pleasure of the board of directors.
Section 3. DUTIES OF OFFICERS. In addition to those duties that may from
time to time be delegated to them by the board of directors, the officers of the
corporation shall have the following duties:
(a) CHAIRMAN OF THE BOARD. The chairman of the board shall preside at all
meetings of the stockholders and of the board of directors at which he is
present, shall be ex-officio a member of all committees formed by the board of
directors and shall have such other duties and powers as the board of directors
may prescribe.
10
<PAGE>
(b) PRESIDENT. The president shall be the chief executive officer of the
corporation, shall have general and active management of the business of the
corporation, shall see that all orders and resolutions of the board of directors
are carried into effect, and, in the absence or nonelection of the chairman of
the board of directors, shall preside at all meetings of the stockholders and
the board of directors at which he is present if he is also a director. The
president also shall execute bonds, mortgages, and other contracts requiring a
seal under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed and except where the signing and
execution thereof shall be delegated expressly by the board of directors to some
other officer or agent of the corporation and shall have such other powers and
duties as the board of directors may prescribe.
(c) GROUP PRESIDENT. The group president or group presidents, if any,
shall have general and active management of the group for which they are
designated as president by the board of directors and shall have such other
duties and powers as vice-presidents or as the board of directors or the
president may prescribe.
(d) VICE-PRESIDENT. The vice-president or vice-presidents, if any, shall
have such duties and powers as the board of directors or the president may
prescribe. In the absence of the president or in the event of his inability or
refusal to act, the group president or vice-president, if any, or if there be
more than one, the group presidents or vice-presidents, in the order designated
by the board of directors, or, in the absence of such designation, then in the
order of their election, shall perform the duties and exercise the powers of the
president.
(e) SECRETARIES AND ASSISTANT SECRETARIES. The secretary shall record the
proceedings of all meetings of the stockholders and all meetings of the board of
directors in books to be kept for that purpose, shall perform like duties for
the standing committees when required, and shall give, or cause to be given,
call and/or notices of all meetings of the stockholders and meetings of the
board of directors in accordance with these by-laws. The secretary also shall
have custody of the corporate seal of the corporation, affix the seal to any
instrument requiring it and attest thereto when authorized by the board of
directors or the president, and shall have such other duties and powers as the
board of directors may prescribe.
The assistant secretary, if any, or if there be more than one, the
assistant secretaries, in the order designated
11
<PAGE>
by the board of directors, or, if there be no such designation, then in order of
their election, shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall have such other duties and powers as the board of directors
may prescribe.
In the absence of the secretary or an assistant secretary at a meeting
of the stockholders or the board of directors, an acting secretary shall be
chosen by the stockholders or directors, as the case may be, to exercise the
duties of the secretary at such meeting.
In the absence of the secretary or an assistant secretary or in the
event of the inability or refusal of the secretary or an assistant secretary to
give, or cause to be given, any call and/or notice required by law or these by-
laws, any such call and/or notice may be given by any person so directed by the
board of directors, the president or stockholders, upon whose requisition the
meeting is called in accordance with these by-laws.
(f) TREASURER AND ASSISTANT TREASURER. The treasurer shall have the
custody of the corporate funds and securities, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the corporation in such depositories as may be designated by the board
of directors. The treasurer shall also disburse the funds of the corporation as
may be ordered by the board of directors, taking proper vouchers for such
disbursements, shall render to the board of directors, when the board of
directors so requires, an account of all his transactions as treasurer and of
the financial condition of the corporation, and shall have such other duties
and powers as the board of directors may prescribe. If required by the board of
directors, the treasurer shall give the corporation a bond, which shall be
renewed every six years, in such sum and with such surety or sureties as shall
be satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the corporation.
The assistant treasurer, if any, or if there be more than one, the
assistant treasurers in the order designated by the board of directors, or, in
the absence of such designation, then in the order of their election, shall, in
the absence of the
12
<PAGE>
treasurer or in the event of his inability or refusal to act, perform the duties
and exercise the powers of the treasurer and shall have such other duties and
powers as the board of directors may prescribe.
(g) OTHER OFFICERS. Any other officer shall have such powers and
duties as the board of directors may prescribe.
Section 4. RESIGNATION. Any officer may resign at any time upon written
notice delivered to the corporation at its principal office. The resignation
shall take effect at the time specified therein, and if no time be specified, at
the time of its dispatch to the corporation.
Section 5. REMOVAL. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the board of directors.
Section 6. VACANCIES AND NEWLY CREATED OFFICES. A vacancy in office,
however occurring, and newly created offices, shall be filled by the board of
directors.
ARTICLE V.
---------
CAPITAL STOCK
-------------
Section 1. STOCK CERTIFICATES. Each holder of stock in the corporation
shall be entitled to have a certificate signed in an officer's official capacity
or in the name of the corporation by the chairman of the board of directors, or
the president or a vice-president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of the corporation, certifying
13
<PAGE>
the number of shares owned by him in the corporation. Where a certificate is
countersigned (a) by a transfer agent other than the corporation or its
employee, or, (b) by a registrar other than the corporation or its employee, any
other signature on the certificate may be 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 by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 2. LOST, STOLEN OR DESTROYED CERTIFICATES. The board of
directors, or at their direction any officer of the company, may direct a new
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the board of directors, or at their direction any officer of the company, may,
in its (his) discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or certificates,
or his legal representative, to advertise the same in such manner as it shall
require and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the
14
<PAGE>
corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
Section 3. TRANSFER. Upon surrender to the secretary or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, and upon compliance with any provisions respecting restrictions on
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 4. ISSUE OF STOCK. From time to time, the board of directors may,
by vote of a majority of the directors, issue any of the authorized capital
stock of the corporation for cash, property, services rendered or expenses, or
as a stock dividend and on any terms permitted by law.
Section 5. FIXING RECORD DATE. 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, or to express consent to corporate
action in writing without a meeting or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or 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, in
advance, a record date, which shall not be more than sixty nor
15
<PAGE>
less than ten days before the date of such meeting, nor more than sixty days
prior to any other action. A determination of stockholders of record entitled
to 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.
Section 6. 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 to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VI.
----------
GENERAL PROVISIONS
------------------
Section 1. DIVIDENDS. Dividends upon the capital stock of the corporation
may be declared by the board of directors in any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
capital stock. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
16
<PAGE>
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 2. CHECKS. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
Section 3. FISCAL YEAR. The fiscal year of the corporation shall be fixed
by a resolution of the board of directors.
Section 4. SEAL. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VII.
-----------
AMENDMENTS
----------
Section 1. AMENDMENTS. These by-laws may be amended at any proper meeting
of the stockholders or of the board of directors.
17
<PAGE>
ARTICLE VIII.
------------
INDEMNIFICATION
---------------
Section 1. NON-DERIVATIVE PROCEEDINGS. The corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any
18
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criminal action or proceedings, had reasonable cause to believe that his conduct
was unlawful.
Section 2. DERIVATIVE PROCEEDINGS. The corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
19
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Section 3. MOUNT OF INDEMNIFICATION. To the extent that a director,
officer, employee or agent of the corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in
Sections 1 or 2, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
Section 4. DETERMINATION TO INDEMNIFY. Any indemnification under Sections
1 or 2 (unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 1 and 2. Such
determination shall be made (1) by the board of directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in
written opinion, or (3) by the stockholders.
Section 5. ADVANCE PAYMENT. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the corporation in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of a director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
20
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indemnified by the corporation as authorized in this section or otherwise
pursuant to the law of Delaware.
Section 6. NON-EXCLUSIVENESS OF BY-LAW. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of this Article VIII shall not be deemed exclusive of any other
rights to which those seeking indemnification or advancement of expenses may be
entitled under any statute, 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.
Section 7. CONTINUATION OF INDEMNIFICATION. The indemnification and
advancement of expenses provided by, or granted pursuant to this Article VIII,
or permitted by statute or otherwise, shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 8. INDEMNIFICATION INSURANCE. The corporation shall have power to
purchase and maintain insurance on behalf of any person who 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, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
21
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corporation would have the power to indemnify him against such liability under
the provisions of this section.
22
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NATIONAL SEMICONDUCTOR CORPORATION
AND
THE FIRST NATIONAL BANK OF BOSTON
AS DEPOSITARY
AND
HOLDERS OF DEPOSITARY RECEIPTS
---------------
DEPOSIT AGREEMENT
---------------
DATED AS OF OCTOBER 5, 1992
<PAGE>
TABLE OF CONTENTS
<TABLE>
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<S> <C> <C>
ARTICLE I -- DEFINITIONS.................................................................................. 1
ARTICLE II -- FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER, REDEMPTION
AND CONVERSION OF RECEIPTS........................................................................ 2
SECTION 2.01. Form and Transferability of Receipts............................................... 2
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect
Thereof........................................................................... 3
SECTION 2.03. Redemption of Stock................................................................ 4
SECTION 2.04. Transfer of Receipts............................................................... 5
SECTION 2.05. Combinations and Split-ups of Receipts............................................. 5
SECTION 2.06. Surrender of Receipts and Withdrawal of Stock...................................... 5
SECTION 2.07. Limitations on Execution and Delivery, Transfer and Surrender of Receipts.......... 6
SECTION 2.08. Lost Receipts, Etc. ............................................................... 6
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts............................... 6
SECTION 2.10. Conversion of Stock into Common Stock.............................................. 6
ARTICLE III -- CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY................................. 7
SECTION 3.01. Filing Proofs, Certificates and Other Information.................................. 7
SECTION 3.02. Payment of Taxes or Other Governmental Charges..................................... 8
SECTION 3.03. Warranties as to Stock............................................................. 8
SECTION 3.04. Covenants and Warranties as to Common Stock........................................ 8
ARTICLE IV -- THE DEPOSITED SECURITIES; NOTICES........................................................... 8
SECTION 4.01. Cash Distributions................................................................. 8
SECTION 4.02. Distributions Other Than Cash...................................................... 9
SECTION 4.03. Subscription Rights, Preferences or Privileges..................................... 9
SECTION 4.04. Notice of Dividends, Fixing of Record Date for Holders of Receipts................. 10
SECTION 4.05. Voting Rights...................................................................... 10
SECTION 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations,
Etc. ............................................................................. 10
SECTION 4.07. Reports............................................................................ 11
SECTION 4.08. Lists of Receipt Holders; Access to Certain Information............................ 11
ARTICLE V -- THE DEPOSITARY AND THE COMPANY............................................................... 11
SECTION 5.01. Maintenance of Offices, Agencies, Transfer Books by the Depositary; Registrar...... 11
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the Depositary's Agents or
the Company....................................................................... 11
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents and the Company............. 12
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary..... 12
SECTION 5.05. Corporate Notices and Reports...................................................... 13
SECTION 5.06. Deposit of Stock by the Company.................................................... 13
SECTION 5.07. Indemnification by the Company..................................................... 13
SECTION 5.08. Charges and Expenses............................................................... 13
SECTION 5.09. Authorization of Agreement......................................................... 13
</TABLE>
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<TABLE>
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PAGE
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<S> <C> <C>
ARTICLE VI -- AMENDMENT; TERMINATION...................................................................... 13
SECTION 6.01. Amendment.......................................................................... 13
SECTION 6.02. Termination........................................................................ 14
ARTICLE VII -- MISCELLANEOUS.............................................................................. 14
SECTION 7.01. Counterparts....................................................................... 14
SECTION 7.02. Exclusive Benefit of Parties....................................................... 14
SECTION 7.03. Invalidity of Provisions........................................................... 14
SECTION 7.04. Notices............................................................................ 14
SECTION 7.05. Depositary's Agents................................................................ 15
SECTION 7.06. Holders of Receipts are Parties.................................................... 15
SECTION 7.07. Governing Law...................................................................... 15
SECTION 7.08. Headings........................................................................... 15
EXHIBIT A: DEPOSITARY RECEIPT FOR DEPOSITARY CONVERTIBLE PREFERRED SHARES
</TABLE>
ii
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of October 5, 1992, among National Semiconductor
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware with its principal office in Santa Clara, California, The
First National Bank of Boston, a national banking association duly organized and
acting under the laws of the United States of America with its principal office
in Boston, Massachusetts, and all holders from time to time of Depositary
Receipts issued hereunder.
WITNESSETH:
Whereas, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of $ Convertible Preferred
Shares, par value $.50 per share, liquidation value $500 per share, of National
Semiconductor Corporation with The First National Bank of Boston, as Depositary,
for the purposes set forth in this Deposit Agreement and for the issuance
hereunder of Depositary Receipts evidencing Depositary Convertible Preferred
Shares, in respect of the $ Convertible Preferred Shares so
deposited; and
WHEREAS, the Depositary Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
Now, THEREFORE, in consideration of the premises, it is agreed by and among
the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
SECTION 1.01. The term "Authorizing Resolution" shall mean the resolution
adopted by the Company's Board of Directors establishing and setting forth the
rights, preferences and privileges of the Stock.
SECTION 1.02. The term "Certificate of Incorporation" shall mean the
Restated Certificate of Incorporation, as amended from time to time, of the
Company.
SECTION 1.03. The term "Common Stock" shall mean any stock of any class of
the Company which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to redemption by the Company.
However, subject to the provisions of Clause (v) of the Authorizing Resolution,
shares issuable on conversion of the Stock shall include only shares of the
class designated as Common Stock of the Company at the date of this Deposit
Agreement or shares of any class or classes resulting from any reclassification
or reclassifications thereof and which have no preference in respect of
dividends or amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and which are not subject
to redemption by the Company; provided that if at any time there shall be more
than one such resulting class, the shares of each such class then so issuable
shall be substantially in the proportion which the total number of shares of
such class resulting from any such reclassification bears to the total number of
shares of all such classes resulting from all such reclassifications.
SECTION 1.04. The term "Company" shall mean National Semiconductor
Corporation, incorporated under the laws of the State of Delaware and having its
principal office at 2900 Semiconductor Drive, P.O. Box 58090, Santa Clara,
California 95052-8090, and its successors.
SECTION 1.05. The term "Deposit Agreement" shall mean this Agreement, as the
same may be amended or supplemented from time to time.
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SECTION 1.06. The term "Depositary" shall mean The First National Bank of
Boston, a national banking association duly organized and existing under the
laws of the United States of America, with its principal office at 100 Federal
Street, Boston, Massachusetts 02110, and any successor as depositary hereunder.
SECTION 1.07. The term "Depositary's Agent" shall mean an agent appointed by
the Depositary as provided, and for the purposes specified, in Section 7.05.
SECTION 1.08. The term "Depositary Shares" shall mean the Depositary
Convertible Preferred Shares, evidenced by the Depositary Receipts issued
hereunder and representing the interests in Stock deposited with the Depositary
hereunder. Each Depositary Share shall, as provided herein, represent an
interest in one-tenth (1/10) of one share of Stock and the same proportionate
interest in any and all other property received by the Depositary in respect of
such shares of Stock and held at the time under this Deposit Agreement.
SECTION 1.09. The term "Receipt" shall mean one or more of the Depositary
Receipts issued hereunder.
SECTION 1.10. The term "record holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books of the Depositary
maintained for such purpose.
SECTION 1.11. The term "Registrar" shall mean any bank or trust company
which shall be appointed to register Receipts as herein provided.
SECTION 1.12. The term "Securities Act of 1933" shall mean the Act of May
27, 1933 (15 U.S. Code, Secs. 77a-77aa), as from time to time amended.
SECTION 1.13. The term "Shareholder Services Division" shall mean the
Shareholder Services Division of the Depositary, which at the date of this
Deposit Agreement is located at 150 Royall Street, Canton, Massachusetts, 02021.
SECTION 1.14. The term "Stock" shall mean the Company's $
Convertible Preferred Shares, par value $.50 per share, liquidation value $500
per share, heretofore validly issued, fully paid and nonassessable.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY,
TRANSFER, SURRENDER, REDEMPTION AND CONVERSION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS. Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary, provided that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized signatory of the Registrar. No Receipt
shall be entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose, unless it shall have been executed manually or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature of a duly authorized
officer and, if executed by facsimile signature of the Depositary, shall have
been countersigned manually by such Registrar by the signature of a duly
authorized signatory. Receipts executed as provided in this Section may be
issued notwithstanding that any authorized officer of the Depositary signing
such Receipts shall have ceased to hold office at the time of issuance of such
Receipts. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Except as the Depositary and the Company may otherwise determine, Receipts
shall be in denominations of any number of whole Depositary Shares. All receipts
shall be dated the date of their execution.
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Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Stock or the Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the Stock or
otherwise.
Title to a Receipt which is properly endorsed or accompanied by a properly
executed instrument of transfer and to the Depositary Shares evidenced thereby,
shall be transferable by delivery with the same effect as in the case of a
negotiable instrument; provided however, that until a Receipt shall be
transferred on the books of the Depositary as provided in Section 2.04, the
Depositary, each Depositary's Agent and the Company may, notwithstanding any
notice to the contrary, treat the record holder thereof at such time as the
absolute owner thereof for the purpose of determining the person entitled to
distribution of dividends or other distributions, the exercise of conversion
rights or any notice provided for in this Deposit Agreement and for all other
purposes.
SECTION 2.02. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
any holder of Stock may deposit such Stock under this Deposit Agreement by a
delivery to the Depositary of a certificate or certificates for the Stock to be
deposited, properly endorsed or accompanied, if required by law, by a duly
executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for the number of Depositary Shares representing such
deposited Stock.
If required by the Depositary, Stock presented for deposit at any time,
whether or not the register of stockholders of the Company is closed, shall also
be accompanied by an agreement or assignment, or other instrument satisfactory
to the Depositary, which will provide for the prompt transfer to the Depositary
or its nominee of any dividend or right to subscribe for additional Stock or to
receive other property which any person in whose name the Stock is or has been
recorded may thereafter receive upon or in respect of such deposited Stock, or
in lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Subject to the terms and conditions of this Deposit Agreement, Stock may
also be deposited hereunder in connection with the delivery of Receipts to
represent distributions under Section 4.02 and upon exercise of the rights to
subscribe referred to in Section 4.03.
Upon each delivery to the Depositary of a certificate or certificates for
Stock to be deposited hereunder, together with the other documents above
specified, the Depositary shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company for
transfer and recordation in the name of the Depositary or its nominee of the
Stock being deposited. Deposited Stock shall be held by the Depositary at the
Depositary's Shareholder Services Division or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified and upon recordation of the Stock on
the books of the Company in the name of the Depositary or its nominee, the
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
execute and deliver to or upon the order of the person or persons named in the
written order delivered to the Depositary referred to in the first paragraph of
this Section, a Receipt or Receipts for the number of Depositary Shares
representing the Stock so deposited and registered in such name or names as may
be requested by such person or persons. The Depositary shall execute and deliver
such Receipt or Receipts at its Shareholder Services Division and at such other
offices, if any, as it may designate. Delivery at other offices shall be at the
risk and expense of the person requesting such delivery. However, in each case,
any such delivery of a Receipt or Receipts will be made only upon payment to the
Depositary of the fee of
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the Depositary for the execution and delivery of such Receipt, as provided in
Section 5.08, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the deposited Stock.
SECTION 2.03. REDEMPTION OF STOCK. Whenever the Company shall elect to
redeem shares of Stock for shares of Common Stock pursuant to Clause (iii) of
the Authorizing Resolution, it shall give the Depositary not less than 45 nor
more than 90 days' notice of the date fixed by the Company for such redemption,
the number of shares of the Stock held by the Depositary to be so redeemed and
the number of shares of Common Stock required pursuant to the Authorizing
Resolution in order to effect a redemption of the number of shares of Stock to
be redeemed. On the date of such redemption, provided that the Company shall
then have deposited with the Depositary the certificates representing the number
of shares of Common Stock required pursuant to the Certificate in order to
effect a redemption of the number of shares of Stock to be redeemed (together
with a cash payment equal to all amounts payable pursuant to the Authorizing
Resolution in respect of dividends and fractional shares), the Depositary shall
redeem the number of Depositary Shares representing such Stock. The Depositary
shall mail notice of such redemption and the simultaneous redemption of the
number of Depositary Shares representing the Stock to be redeemed, by first
class mail, postage prepaid, not less than 30 and not more than 60 days prior to
the date fixed for redemption of such Stock and Depositary Shares (the
"Redemption Date"), to the holders of record on the record date for such
redemption (determined pursuant to Section 4.04) of the Receipts evidencing the
Depositary Shares to be so redeemed, at the address of such holders as the same
appear on the records of the Depositary, but neither failure to mail any such
notice, nor any defect in any notice, to one or more holders shall affect the
sufficiency of the proceedings for redemption as to other holders. Each such
notice shall state (i) the record date for the purposes of such redemption; (ii)
the redemption date; (iii) the number of Depositary Shares to be redeemed and,
if less than all the Depositary Shares evidenced by Receipts held by any such
holder are to be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed; (iv) the redemption price (expressed as a number of
shares of Common Stock); (v) the place or places where Receipts are to be
surrendered for certificates representing shares of Common Stock; and (vi) that
dividends in respect of the Stock represented by the Depositary Shares to be
redeemed will cease to accrue, and the conversion rights in respect thereof will
terminate, at the close of business on the Redemption Date. In case less than
all the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be so redeemed shall be selected by lot or pro rata (as nearly as may be) or
in any other equitable manner selected by the Company.
Notice having been mailed by the Depositary as aforesaid, from and after the
close of business on the Redemption Date (unless the Company shall have failed
to deliver to the Depositary certificates representing shares of Common Stock
and cash sufficient to redeem the shares of Stock to be redeemed by it as set
forth in the Company's notice provided for in the preceding paragraph), all
dividends in respect of the shares of Stock so called for redemption shall cease
to accrue, the right to convert such Stock to Common Stock shall terminate and
all rights, except the right to receive the number of shares of Common Stock and
cash required to redeem such Stock, shall cease. On the Redemption Date, if the
Company shall have redeemed the shares of underlying Stock, the Depositary
Shares being redeemed shall be deemed no longer to be outstanding, all rights of
the holders of Receipts evidencing such Depositary Shares (except the right to
receive the number of shares of Common Stock and cash required to redeem such
Stock) shall, to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with said notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary at a redemption price per share equal to one-tenth (1/10) (as such
fraction may from time to time be adjusted, in certain events, so as to equal at
all times the fraction of an interest represented by one Depositary Share in one
share of Stock) of the redemption price per share paid in respect of the shares
of Stock plus all money and other property, if any, represented thereby
including all amounts paid by the Company in respect of dividends pursuant to
the Authorizing Resolution.
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If less than all of the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt,
without service charge, upon its surrender to the Depositary (with, if the
Depositary so requires, due endorsement or a written instrument of transfer in
form satisfactory to the Depositary, duly executed by the holder thereof or his
attorney duly authorized in writing), together with the payment of the
redemption price (in shares of Common Stock and cash in respect of dividends and
fractional shares), a new Receipt evidencing the Depositary Shares evidenced by
such prior Receipt and not called for redemption.
SECTION 2.04. TRANSFER OF RECEIPTS. Subject to the terms and conditions of
this Deposit Agreement, the Depositary shall register transfer on its books from
time to time of Receipts upon any surrender thereof at the Depositary's
Shareholder Services Division or at such other offices as it may designate for
such purpose by the holder in person or by duly authorized attorney, properly
endorsed or accompanied by a properly executed instrument of transfer, and duly
stamped as may be required by law. Thereupon the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered.
SECTION 2.05. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, upon surrender of a Receipt or
Receipts at the Depositary's corporate trust office in New York City or at such
other offices as it may designate for the purpose of effecting a split-up or
combination of such Receipt or Receipts, by the holder in person or by duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer, together with written instructions specifying the number
of Receipts to be received upon such split-up or combination, the Depositary
shall execute and deliver a new Receipt or Receipts in the authorized
denominations requested, evidencing the same aggregate number of Depositary
Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Any holder of
a Receipt or Receipts representing any number of whole shares of Stock may
withdraw the Stock and all money and other property, if any, represented thereby
by surrendering such Receipt or Receipts, at the Depositary's Shareholder
Services Division or at such other offices as the Depositary may designate for
such withdrawals (unless the Depositary Shares represented thereby shall have
been theretofore called for redemption). Thereafter, without unreasonable delay,
the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole shares of
Stock and all money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal. If the Receipt or Receipts delivered by
the holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Stock to be so withdrawn, the
Depositary shall at the same time, in addition to such number of whole shares of
Stock and such money and other property, if any, to be so withdrawn, deliver to
such holder, or (subject to Section 2.04) upon his order, a new Receipt
evidencing such excess number of Depositary Shares. Delivery of the Stock and
money and other property being withdrawn may be made by the delivery of such
certificates, documents of title and other instruments as the Depositary may
deem appropriate, which, if required by law, shall be properly endorsed or
accompanied by proper instruments of transfer.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the record holder of the Receipt or
Receipts being surrendered for withdrawal of Stock, such holder shall execute
and deliver to the Depositary a written order (accompanied by a signature
guarantee) so directing the Depositary and the Depositary may require that the
Receipt or Receipts surrendered by such holder for withdrawal of such shares of
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer in blank.
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Delivery of the Stock and the money and other property, if any, represented
by Receipts surrendered for withdrawal shall be made by the Depositary at its
Shareholder Services Division, except that, at the request, risk and expense of
the holder surrendering such Receipt and for the account of the holder thereof,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.07. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS. As a condition precedent to the execution and delivery, transfer,
split-up, combination, surrender or exchange or any Receipt, or the exercise of
any conversion right as specified in Section 2.10, the Depositary or any of the
Depositary's Agents, or the Company, may require payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to Stock being deposited or withdrawn or with respect to the Common
Stock upon conversion), may require the production of proof satisfactory to it
as to the identity and genuineness of any signature and may also require
compliance with such regulations, if any, as the Depositary may establish
consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, or the delivery of Receipts against
Stock may be suspended or the transfer of Receipts may be refused, or the
exercise of any conversion right as specified in Section 2.10 may be suspended,
provided that conversion rights in respect of the Stock are also then lawfully
suspended, or the transfer or surrender of outstanding Receipts may be
suspended, (a) during any period when the register of stockholders of the
Company is closed, or (b) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or, with the approval of the Company, for any other reason. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any shares of Stock which are required to
be registered under the Securities Act of 1933, unless a registration statement
under such Act is in effect as to such shares of Stock.
SECTION 2.08. LOST RECEIPTS, ETC. In case any Receipt shall be mutilated
or destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his ownership thereof and (ii)
the furnishing of the Depositary with reasonable indemnification satisfactory to
it, and payment of any expense (including fees and expenses of the Depositary)
in connection therewith.
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
SECTION 2.10. CONVERSION OF STOCK INTO COMMON STOCK.
(a) Receipts may be surrendered with written instructions to the Depositary
to convert any specified number of whole shares of Stock represented by the
Depositary Shares evidenced thereby (subject to the provisions of subparagraph
(f) below) into shares of Common Stock at the conversion price specified in the
Authorizing Resolution with respect to each share of Stock, as such conversion
price may be adjusted by the Company from time to time as provided in the
Authorizing Resolution. Subject to the terms and conditions of the Deposit
Agreement and the Authorizing Resolution, a holder of a Receipt or Receipts
evidencing Depositary Shares representing at least one whole share of Stock may
surrender such Receipt or Receipts at the Depositary's Shareholder Services
Division or at such other office as the Depositary may designate for such
purpose, together with the notice of conversion thereon duly completed and
executed, thereby instructing the Depositary to convert the number of whole
shares of underlying Stock specified in such notice of conversion into shares of
Common Stock.
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(b) Upon receipt by the Depositary of a Receipt or Receipts, together with
notice of conversion instructing the Depositary to convert a specified number of
whole shares of Stock duly completed and executed, the Depositary shall (i) give
written notice to the Company, or its authorized agent, of the number of whole
shares of Common Stock to be delivered upon conversion of such shares of Stock
and the amount of immediately available funds, if any, to be delivered to the
holder of such Receipt or Receipts pursuant to subparagraph (f) below and (ii)
deliver to the Company or its authorized agent such Receipt or Receipts,
together with certificates for the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts. As promptly as practicable after the
receipt of such Receipt or Receipts and certificates from the Depositary, the
Company shall furnish or cause to be furnished to the Depositary a certificate
or certificates evidencing such number and type of whole shares of Common Stock,
and such amount of immediately available funds, if any, as is specified in the
written notice to the Company and the Depositary shall deliver at its
Shareholder Services Division or otherwise as contemplated by subparagraph (e)
below to such holder (x) a certificate or certificates evidencing whole shares
of Common Stock into which the Stock represented by the Depositary Shares
evidenced by such Receipt or Receipts has been converted, (y) a Receipt
evidencing the number of Depositary Shares, if any, evidenced by such Receipt or
Receipts in excess of the number of Depositary Shares representing Stock which
has been so converted and (z) any money or other property to which the holder is
entitled.
(c) Upon any such conversion of the Stock underlying the Depositary Shares,
no allowance, adjustment or payment shall be made with respect to dividends upon
such Stock or shares of Common Stock issued upon the conversion thereof.
(d) If any Depositary Shares shall be called for redemption, the Stock
underlying such shares may be converted into Common Stock as provided in this
Section until and including, but not after (unless the Company shall default in
the delivery to the Depositary of certificates representing the number of shares
of Common Stock and cash sufficient to redeem such underlying Stock), the close
of business on the Redemption Date.
(e) Delivery of Common Stock and other property may be made by the delivery
of certificates and other proper documents of title, which, if required by law,
shall be properly endorsed or accompanied by proper instruments of transfer. If
such delivery is to be made otherwise than at the Depositary's corporate trust
office in New York City, such delivery shall be made, as hereinafter provided,
without unreasonable delay, at the risk and expense of any holder surrendering
Receipts, and for the account of such holder, to such place designated in
writing by such holder.
(f) No fractional shares of Common Stock shall be issuable upon conversion
of Stock underlying the Depositary Shares. If, except for the provisions of this
paragraph and the Authorizing Resolution, any holder of Receipts surrendered
with instructions to the Depositary for conversion of the underlying Stock would
be entitled to a fractional share of Common Stock, the Company shall deliver to
the Depositary for delivery to such holder, in accordance with subparagraph (b)
above, an amount in immediately available funds for such fractional share based
upon the current market value of the Common Stock computed as set forth in the
Authorizing Resolution.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
person presenting Stock for deposit or seeking to convert the underlying Stock
represented by the Depositary Shares or any holder of a Receipt may be required
from time to time to file such proof of residence, or other matters or other
information, to execute such certificates and to make such representations and
warranties as the Depositary may reasonably deem necessary or proper. The
Depositary may withhold the delivery or delay the transfer or redemption of any
Receipt or the withdrawal of the Stock represented by the Depositary Shares
evidenced by any Receipt or the distribution or sale of any dividend or other
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distribution or rights or of the proceeds thereof or the exercise of any
conversion right as specified in Section 2.10 until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to any Receipt evidencing Depositary Shares or with
respect to the Depositary Shares evidenced by such Receipt or with respect to
the Stock (or any fractional interest therein) represented by such Depositary
Shares or with respect to the exercise of any conversion right referred to in
Section 2.10, such tax (including transfer taxes, if any) or governmental charge
shall be payable by the holder of such Receipt. Transfer of any Receipt or any
withdrawal of Stock and all money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused until such payment is
made, and any dividends or other distributions may be withheld, and such
conversion right may be refused, and any part or all of the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends or other distributions or the proceeds of any such sale may be
applied to any payment of such tax or other governmental charge, the holder of
such Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTIES AS TO STOCK. In the case of the initial deposit
of the Stock, the Company and, in the case of subsequent deposits thereof, each
person so depositing Stock under this Deposit Agreement shall be deemed thereby
to represent and warrant that such Stock and each certificate therefor are
valid, that the person making such deposit, or the person on whose behalf such
deposit is made, has good and marketable title to such Stock, free and clear of
any liens, claims or encumbrances, and that the person making such deposit is
duly authorized so to do. The Company hereby further represents and warrants
that the Stock, when issued, will be validly issued, fully paid and
non-assessable. Such representations and warranties shall survive the deposit of
the Stock and the issuance of Receipts.
SECTION 3.04. COVENANTS AND WARRANTIES AS TO COMMON STOCK. The Company
covenants that it will keep reserved or otherwise available a sufficient number
of authorized and unissued shares of Common Stock to meet conversion
requirements in respect of the Stock and that it will give written notice to the
Depositary of any adjustments in the conversion price as set forth in Clause (v)
of the Authorizing Resolution. The Company represents and warrants that the
Common Stock issued upon conversion or redemption of Stock will be validly
issued, fully paid and non-assessable.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution with respect to the Stock, the
Depositary shall, subject to Section 3.02, promptly distribute to record holders
of Receipts on the record date fixed pursuant to Section 4.04 such amounts of
such sum as are, as nearly as practicable, in proportion to the respective
numbers of Depositary Shares evidenced by the Receipts held by such holders;
provided, however, that in case the Company or the Depositary shall be required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of the Stock an amount on account of taxes, the amount made available
for distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for distribution,
as the case may be, only such amount, however, as can be distributed without
attributing to any owner of Depositary Shares a fraction of one cent and any
balance not so distributable shall be held by the Depositary (without liability
for interest thereon) and shall be added to and be treated as part of the next
sum received by the Depositary for distribution to record holders of Receipts
then outstanding.
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SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the Depositary shall
receive any distribution other than cash with respect to the Stock, the
Depositary shall, subject to Section 3.02, promptly distribute to record holders
of Receipts on the record date fixed pursuant to Section 4.04 such amounts of
the securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the opinion
of the Depositary such distribution cannot be made proportionately among such
record holders, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Section 3.02, be distributed or made available for distribution, as
the case may be, by the Depositary to record holders of Receipts as provided by
Section 4.01 in the case of a distribution received in cash.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts on the record date fixed pursuant to Section 4.04
in such manner as the Depositary may determine, either by the issue to such
record holders of warrants representing such rights, preferences or privileges
or by such other method as may be approved by the Depositary in its discretion
with the approval of the Company; provided, however, that (a) if at the time of
issue or offer of any such rights, preferences or privileges the Depositary
determines that it is not lawful or (after consultation with the Company) not
feasible to make such rights, preferences or privileges available to holders of
Receipts by the issue of warrants or otherwise, or (b) if and to the extent so
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, then the Depositary, in its discretion (with the
approval of the Company, in any case where the Depositary has determined that it
is not feasible to make such rights, preferences or privileges available), may,
if applicable laws and the terms of such rights, preferences or privileges
permit such transfer, sell such rights, preferences or privileges at public or
private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Section 3.02, be distributed
by the Depositary to the record holders of Receipts entitled thereto as provided
by Section 4.01 in the case of a distribution received in cash.
If registration under the Securities Act of 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees with the Depositary that it will file
promptly a registration statement pursuant to such Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees with the Depositary that the Company will use its best
efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
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SECTION 4.04. NOTICE OF DIVIDENDS; FIXING OF RECORD DATE FOR HOLDERS OF
RECEIPTS. Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to Stock,
or whenever the Depositary shall receive notice of (a) any meeting at which
holders of Stock are entitled to vote or of which holders of Stock are entitled
to notice or (b) any election on the part of the Company to redeem any shares of
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company with respect to the
Stock) for the determination of the holders of Receipts who shall be entitled to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to notice of such
meeting, or whose Depositary Shares are to be redeemed.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (a) such information as is contained in such notice of meeting,
and (b) a statement that the holders of Receipts at the close of business on a
specified record date determined pursuant to Section 4.04 will be entitled,
subject to any applicable provisions of law and of the Company's Certificate of
Incorporation or the Authorizing Resolution, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Stock represented
by their respective Receipts, and a brief statement as to the manner in which
such instructions may be given. Upon the written request of a holder of a
Receipt on such record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Stock represented by the
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all action which
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Stock represented by the Depositary Shares evidenced
by such Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS,
RECAPITALIZATIONS, ETC. Upon any change in par or stated value, split-up,
consolidation or any other reclassification of Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation or sale,
lease or transfer of all or substantially all of the Company's assets affecting
the Company or to which it is a party, the Depositary may, in its discretion
(with the approval of) and shall (upon the instructions of) the Company and, in
either case, in such manner as the Depositary may deem equitable, treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities under this
Deposit Agreement, and Receipts then outstanding shall thenceforth represent the
new deposited securities so received upon conversion or in respect of such
Stock. In any such case the Depositary may, in its discretion, with the approval
of the Company, execute and deliver additional Receipts, or call for the
surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value, split-up,
consolidation or other reclassification of the Stock or any such
recapitalization, reorganization, merger, amalgamation or consolidation or sale,
lease or transfer of substantially all of the assets of the Company to surrender
such Receipts to the Depositary with instructions to convert or surrender the
Stock represented thereby only into or for, as the case may be, the kind and
amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts might have been converted or for which
such Stock might have been surrendered immediately prior to the effective date
of such transaction. The Company shall cause effective provision to be made by
the resulting or surviving corporation (if other than the Company) for
protection of the conversion rights of holders of Stock or such rights as may be
applicable upon exchange of such Stock for securities, cash or other property of
the surviving corporation in connection with the transactions set forth above.
The Company shall cause any such surviving corporation (if other than the
Company) expressly to assume the obligations of the Company hereunder.
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SECTION 4.07. REPORTS. The Depositary shall make available for inspection
by holders of Receipts at its Shareholder Services Division, and at such other
places as it may from time to time deem advisable, copies of this Deposit
Agreement and the form of Depositary Receipt and any reports and communications
received from the Company which are both (a) received by the Depositary as the
holder of Stock and (b) made generally available to the holders of Stock by the
Company.
SECTION 4.08. LISTS OF RECEIPT HOLDERS; ACCESS TO CERTAIN
INFORMATION. Promptly upon request from time to time by the Company, the
Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of Depositary Shares by all persons in whose names
Receipts are registered on the books of the Depositary. Any holder of Depositary
Receipts, in person or by attorney or other agent, shall have the right to
inspect the transfer books of the Depositary, a list of the holders of the
Depositary Receipts, and the Depositary's other books and records pertaining to
the Depositary Receipts and Depositary Shares and to make copies therefrom at
such holder's expense; provided, however, that the foregoing shall be subject to
the limitations and requirements imposed on a stockholder requesting equivalent
information from a Delaware corporation pursuant to Section 220(b) of the
General Corporation Law of the State of Delaware.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES, TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Until termination of this Deposit Agreement in accordance
with its terms, the Depositary shall maintain in the Borough of Manhattan, City
of New York, State of New York, an office or agency for the execution and
delivery, transfer, surrender and exchange, split-up, combination, redemption
and conversion of Receipts and deposit and withdrawal of Stock and for any other
purposes for which such an office or agency is required under the rules of any
national securities exchange on which the Depositary Shares are listed.
The Depositary shall maintain, or cause one of the Depositary's Agents to
maintain, appropriate records which shall reflect registrations, registrations
of transfers, exchanges, split-ups and combinations and conversions of Receipts.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Stock
represented by such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registry of such Receipts or Depositary Shares in accordance with
any requirements of such Exchange. Such Registrar (which may be the Depositary
if so permitted by the requirements of such Exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts or such Depositary Shares or such Stock
are listed on one or more other stock exchanges, the Depositary will, at the
request of the Company, arrange such facilities for the delivery, transfer,
surrender and exchange of such Receipts, such Depositary Shares or such Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE
DEPOSITARY'S AGENTS OR THE COMPANY. Neither the Depositary nor any Depositary's
Agent nor the Company shall incur any liability to any holder of any Receipt, if
by reason of any provision of any present or future law, or regulation
thereunder, of the United States of America, or of any other governmental
authority or, in the case of the Depositary or the Depositary's Agent, by reason
of any provision, present or future, of the Company's Certificate of
Incorporation or the Authorizing Resolution or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of this
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent or the Company incur any liability to any holder of a
Receipt by reason of any non-
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performance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND
THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability under this Deposit
Agreement or any Receipt to holders of Receipts other than that each of them
agrees to use its best judgment and good faith in the performance of such duties
as are specifically set forth in this Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of Stock, Depositary Shares, Common Stock or Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
liable for any action taken, suffered or omitted by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Stock for deposit, any holder of a Receipt or any other person believed by it in
good faith to be competent to give such advice or information. The Depositary,
any Depositary's Agent and the Company may each rely and shall each be protected
in taking or omitting to take any action upon any written notice, request,
direction or other document believed by it to be genuine and to have been signed
or presented by the proper party or parties.
The Depositary will indemnify the Company against, and hold it harmless
from, any liability which may arise out of acts performed or omitted by the
Depositary due to negligence or bad faith.
The Depositary and the Depositary's Agents may own and deal in any class of
securities of the Company and its affiliates and in Receipts. The Depositary may
also act as transfer agent or registrar of any of the securities of the Company
and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
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Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the address
recorded in the Depositary's books, copies of all notices and reports
(including, without limitation, financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Certificate of
Incorporation and the Authorizing Resolution to be furnished by the Company to
holders of Stock. Such transmission will be at the Company's expense and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request. In addition, the Depositary will
transmit to the holders of Receipts (at the Company's expense) such other
documents as may be requested by the Company.
SECTION 5.06. DEPOSIT OF STOCK BY THE COMPANY. The Company agrees with the
Depositary that neither the Company nor any company controlled by the Company
will at any time deposit any Stock, if such Stock is required to be registered
under the provisions of the Securities Act of 1933 and no registration statement
is at such time in effect as to such Stock.
SECTION 5.07. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, (i) any liability which may arise out of acts
performed or omitted in accordance with the provisions of this Deposit Agreement
or the Receipts, as the same may be amended, modified or supplemented from time
to time, (a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence or bad faith on the part of any such person or persons, or (b) by the
Company or any of its agents, or (ii) any liability or expense which may arise
out of or in connection with the registration of Stock or the offer or sale to
the public of the Stock or the offer or sale of the Receipts except to the
extent that such liability or expense arises out of information furnished by the
Depositary.
SECTION 5.08. CHARGES AND EXPENSES. If, at the election of a holder of
Stock or Receipts, any delivery or communication from the Depositary to such
holder is by telegram or telex or if the Depositary incurs charges or expenses
for which it is not otherwise liable hereunder at the election of such holder,
such holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary and any Depositary's Agent hereunder and of any
Registrar (including, in each case, fees and expenses of counsel) incident to
the performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary shall present its
statement for charges and expenses to the Company every month.
SECTION 5.09. AUTHORIZATION OF AGREEMENT. The Depositary represents and
warrants that this Deposit Agreement has been duly and validly authorized by the
Depositary.
ARTICLE VI
AMENDMENT; TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least 66 2/3% of the Depositary Shares then outstanding. Upon the execution of
any such agreement to so amend this Deposit Agreement, except as hereinafter
provided, such amendment shall become effective and shall form a part of
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this Deposit Agreement for all purposes. Every holder of an outstanding Receipt
at the time any such amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, subject to the provisions of Sections 2.06 and 2.10
and Article III, of any owner of any Depositary Shares to surrender the Receipt
evidencing such Depositary Shares with instructions to the Depositary to convert
such shares into Common Stock or to deliver to the holder the Stock and all
money and other property, if any, represented thereby, except in order to comply
with mandatory provisions of applicable law or the rules and regulations of any
governmental body, agency or commission, the National Association of Securities
Dealers, Inc. or any applicable stock exchange.
SECTION 6.02. TERMINATION. This Agreement may be terminated by the Company
or the Depositary only after (i) all outstanding Depositary Shares shall have
been redeemed pursuant to Section 2.03 and all shares of Common Stock, cash and
other property shall have been distributed to holders of Depositary Shares, (ii)
there shall have been made a final distribution in respect of the Stock in
connection with any voluntary or involuntary liquidation, dissolution or
winding-up of the Company and such distribution shall have been distributed to
the holders of Depositary Shares pursuant to Section 4.01 or 4.02, as
applicable, or (iii) each share of Stock shall have been converted into shares
of Common Stock and all shares of Common Stock, cash and other property shall
have been distributed to holders of Depositary Shares.
Upon the termination of this Deposit Agreement, the parties hereto shall be
discharged from all obligations under this Deposit Agreement except for their
respective obligations under Sections 5.03, 5.07 and 5.08.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Copies of this Deposit Agreement shall be filed
with the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Depositary's Shareholder Services Division by any
holder of a Receipt.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the Company
hereunder or under the Depositary Receipts shall be in writing and shall be
deemed to have been duly given if personally delivered or sent by mail or
telegram or telex confirmed by letter, addressed to the Company at 2900
Semiconductor Drive, Santa Clara, California 95052-8090, Attention: Corporate
Secretary, or at any other place to which the Company may have transferred its
principal executive office.
Any and all notices to be given to the Depositary hereunder or under the
Depositary Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail or by telegram or telex confirmed
by letter, addressed to the Depositary at its Shareholder Services Division.
Any and all notices to be given to any record holder of a Receipt hereunder
or under the Depositary Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such record holder at the address of
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such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed to
be effected at the time when a duly addressed letter containing the same (or a
confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex message received by it from the other or
from any holder of a Receipt, notwithstanding that such telegram or telex
message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts
from time to time shall be deemed to be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. GOVERNING LAW. The Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 7.08. HEADINGS. The headings of Articles and Sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, NATIONAL SEMICONDUCTOR CORPORATION AND THE FIRST
NATIONAL BANK OF BOSTON have duly executed this Agreement and affixed their
respective seals hereto as of the day and year first above set forth and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
<TABLE>
<S> <C>
[SEAL] NATIONAL SEMICONDUCTOR CORPORATION
Attest:
/s/ JOHN M. CLARK III By /s/ DONALD MACLEOD
- -------------------------------------------- -----------------------------------------
John M. Clark III Donald Macleod
Authorized Officer
Secretary
[SEAL] THE FIRST NATIONAL BANK OF BOSTON
Attest:
/s/ KENYON BISSELL By /s/ CRAIG A. ALIE
- -------------------------------------------- -----------------------------------------
Kenyon Bissell Craig A. Alie
Authorized Officer
Secretary
</TABLE>
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EXHIBIT A
DEPOSITARY RECEIPT
FOR
DEPOSITARY CONVERTIBLE PREFERRED SHARES,
EACH REPRESENTING ONE-TENTH (1/10)
$ CONVERTIBLE PREFERRED SHARE
($.50 PAR VALUE PER SHARE,
$500 LIQUIDATION VALUE PER SHARE)
OF
NATIONAL SEMICONDUCTOR CORPORATION
(INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE)
No. ______________ Depositary Convertible Preferred Shares (each
representing one-tenth (1/10) $ Convertible
Preferred Share ($.50 par value per share, $500
liquidation value per share))
1. The First National Bank of Boston, a national banking association duly
organized and existing under the laws of the United States of America, as
Depositary (the "Depositary"), hereby certifies that is the
registered owner of Depositary Convertible Preferred Shares
("Depositary Shares"), each Depositary Share representing one-tenth (1/10) (as
such fraction may from time to time be adjusted in the event of certain
amendments to the Certificate of Incorporation) of one $ Convertible
Preferred Share ($.50 par value per share, $500 liquidation value per share)
(the "Stock"), of NATIONAL SEMICONDUCTOR CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware (the "Company")
deposited with, and held by, the Depositary. The rights, preferences and
limitations of the Stock are set forth in the resolution adopted by the
Company's Board of Directors (the "Authorizing Resolution"), copies of which are
on file at the Depositary's Shareholder Services Division at 150 Royall Street,
Canton, Massachusetts 02021.
2. THE DEPOSIT AGREEMENT. Depositary Receipts (the "Receipts"), of which
this Receipt is one, are made available upon the terms and conditions set forth
in the Deposit Agreement, dated as of September , 1992 (the "Deposit
Agreement"), among the Company, the Depositary and all holders from time to time
of Receipts. The Deposit Agreement (copies of which are on file at the
Depositary's Shareholder Services Division) sets forth the rights of holders of
receipts and the rights and duties of the Depositary in respect of the Stock
deposited, and any and all other property and cash from time to time held
thereunder. The statements made on the face and the reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are subject to the
detailed provisions thereof, to which reference is hereby made. Unless otherwise
expressly herein provided, all defined terms used herein shall have the meanings
ascribed thereto in the Deposit Agreement.
3. REDEMPTION OF STOCK. Whenever the Company shall elect to redeem shares
of Stock pursuant to the Authorizing Resolution, it shall give the Depositary
not less than 45 nor more than 90 days' notice of the date fixed by the Company
for such redemption, the number of shares of Stock held by the Depositary to be
redeemed and the redemption price (expressed as a number of shares of Common
Stock) for the Stock to be so redeemed (which shall include full cumulative
dividends thereon to the Redemption Date). The Depositary shall mail notice of
such redemption and the simultaneous redemption of a corresponding number of
Depositary Shares relating to the Stock to be redeemed not less than 30 and not
more than 60 days prior to the date fixed for redemption of such Stock and
Depositary Shares to the holders of record on the record date for such
redemption (determined as provided in Paragraph 16 below) of the Depositary
Shares to be so redeemed. In case less than all the outstanding Depositary
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Shares are to be so redeemed, the Depositary Shares to be so redeemed shall be
selected by lot or pro rata (as nearly as may be) or in any other equitable
manner selected by the Company. Notice having been mailed as aforesaid, from and
after the close of business on the date set for redemption (unless the Company
shall have failed to deliver to the Depositary certificates representing shares
of Common Stock and cash sufficient to redeem the shares of Stock to be redeemed
by it on such date), all dividends in respect of the Stock so called for
redemption shall cease to accrue, the right to convert such Stock for Common
Stock shall terminate, the Depositary Shares so called for redemption shall be
deemed to be no longer outstanding, all rights of holders of Receipts evidencing
such Depositary Shares (except the right to receive the redemption price) shall,
to the extent of such Depositary Shares, cease and terminate and, upon surrender
in accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary for the
number of shares of Common Stock specified in said notice, plus all money and
other property, if any, represented by such Depositary Shares, including all
amounts payable by the Company pursuant to the Authorizing Resolution in respect
of dividends and fractional shares. If less than all of the Depositary Shares
evidenced by this Receipt are called for redemption, the Depositary will deliver
to the record holder of this Receipt, without service charge, upon its surrender
to the Depositary (with, if the Depositary so requires, due endorsement or a
written instrument of transfer in form satisfactory to the Depositary, duly
executed by the holder thereof or his attorney duly authorized in writing),
together with the payment of the redemption price (in shares of Common Stock
plus cash in respect of dividends payable and fractional shares, if any), a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
4. SURRENDER OF RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of this
Receipt to the Depositary at its Shareholder Services Division, or at such other
offices as it may designate, and subject to the provisions of the Deposit
Agreement (unless the Depositary Shares evidenced hereby have been theretofore
called for redemption), the holder hereof is entitled to withdraw, and to obtain
delivery, to or upon the order of such holder, of the Stock and all money and
other property, if any, at the time represented thereby; provided, however, that
in the event this Receipt shall evidence a number of Depositary Shares in excess
of the number of Depositary Shares representing the number of whole shares of
Stock to be so withdrawn, the Depositary shall, in addition to such number of
whole shares of Stock and the money and other property, if any, to be so
withdrawn, deliver, to or upon the order of such holder, a new Receipt
evidencing such excess number of Depositary Shares.
5. CONVERSION OF STOCK. Receipts may be surrendered at the place or places
specified in the preceding paragraph with written instructions to the Depositary
to convert any specified number of whole shares of Stock represented by
Depositary Shares evidenced hereby into shares of Common Stock of the Company at
the conversion price specified in the Authorizing Resolution, as such conversion
price may be adjusted from time to time by the Company as provided in the
Authorizing Resolution. Upon conversion of such whole shares of Stock, no
allowance, adjustment or payment shall be made with respect to dividends on such
Stock or Common Stock and no fractional shares of Common Stock shall be issued;
however, a cash payment will be made by the Company in lieu thereof on the basis
of the then current market value of such fractional shares, as provided in the
Authorizing Resolution.
6. TRANSFERS, SPLIT-UPS, COMBINATIONS. This Receipt is transferable on the
books of the Depositary upon surrender of this Receipt to the Depositary,
properly endorsed or accompanied by a properly executed instrument of transfer,
and upon such transfer the Depositary shall sign and deliver a Receipt to or
upon the order of the person entitled thereto, as provided in the Deposit
Agreement. This Receipt may be split into other Receipts or combined with other
Receipts into one Receipt evidencing the same aggregate number of Depositary
Shares and evidenced by the Receipt or Receipts surrendered.
7. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC., OF RECEIPTS. Prior
to the execution and delivery, transfer, split-up, combination, delivery for
purposes of conversion, surrender or exchange of this Receipt, the Depositary,
or any of the Depositary's Agents, or the Company, may require payment to it of
a sum sufficient for the payment (or, in the event that the Depositary or the
Company shall have made such payment, the reimbursement to it) of any tax or
other governmental charge with respect thereto
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(including any such tax or charge with respect to Stock being deposited or
withdrawn, converted or exchanged), may require proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with such regulations, if any, as it may establish pursuant to the Deposit
Agreement. Any person presenting Stock for deposit, or any holder of this
Receipt, may be required to file such information, and to execute such
certificates, as the Depositary or the Company may reasonably deem necessary or
proper.
8. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock, the
delivery of this Receipt against Stock, the transfer, surrender or exchange of
this Receipt or the exercise of any conversion right may be refused or suspended
(a) during any period when the register of stockholders of the Company is
closed, or (b) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit Agreement
or, with the approval of the Company, for any other reason.
9. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. If any tax or other
governmental charge shall become payable by or on behalf of the Depositary with
respect to this Receipt or with respect to the Depositary Shares evidenced
hereby or with respect to the Stock (or any fractional interest therein)
represented by such Depositary Shares, or with respect to the exercise of any
conversion right, such tax (including transfer taxes, if any) or governmental
charge shall be payable by the holder hereof. Transfer of this Receipt or any
withdrawal of the Stock and all money and other property, if any, represented by
the Depositary Shares evidenced by this Receipt may be refused until such
payment is made, and any dividends or other distributions may be withheld, and
such conversion right may be refused, or any part or all of the Stock or other
property represented by the Depositary Shares evidenced by this Receipt and not
theretofore sold may be sold for the account of the holder hereof, and such
dividends or other distributions or the proceeds of any such sale may be applied
to any payment of such tax or other governmental charge, the holder of this
Receipt remaining liable for any deficiency.
10. WARRANTIES BY DEPOSITOR. In the case of the initial deposit of Stock,
the Company and, in the case of subsequent deposits thereof, each person so
depositing Stock under the Deposit Agreement shall be deemed thereby to
represent and warrant that such Stock and each certificate therefor are valid,
that the person making such deposit, or the person on whose behalf such deposit
is made, has good and marketable title to such Stock, free and clear of any
liens, claims or encumbrances, and that the person making such deposit is duly
authorized so to do.
11. AMENDMENT. The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment that shall materially and
adversely alter the rights of the holders of Receipts shall be effective unless
such amendment shall have been approved by the holders of at least 66 2/3% of
the Depositary Shares then outstanding. The holder of this Receipt at the time
any such amendment so becomes effective shall be deemed, by continuing to hold
this Receipt, to consent and agree to such amendment and to be bound by the
Deposit Agreement as amended thereby. In no event shall any amendment impair the
right, subject to the provisions of Paragraphs 8 and 9 hereof and of Sections
2.06 and 2.10 and Article III of the Deposit Agreement, of the owner of the
Depositary Shares evidenced by this Receipt to surrender this Receipt with
instructions to the Depositary to convert such shares into Common Stock or to
deliver to the holder the Stock and all money and other property, if any,
represented thereby, except in order to comply with mandatory provisions of
applicable law or the rules and regulations of any governmental body, agency or
commission, the National Association of Securities Dealers, Inc. or any
applicable stock exchange.
12. CHARGES OF DEPOSITARY. The Company will pay all charges of the
Depositary, except for taxes and other governmental charges, and such telegram,
telex, delivery and other charges as are expressly provided in the Deposit
Agreement to be at the expense of persons depositing Stock or holders of
Depositary Receipts.
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13. TITLE TO RECEIPTS. It is a condition of this Receipt, and every
successive holder thereof by accepting or holding the same consents and agrees,
that title to this Receipt (and to the Depositary Shares evidenced hereby), when
properly endorsed or accompanied by a properly executed instrument of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until this Receipt shall be transferred on
the books of the Depositary as provided in Section 2.04 of the Deposit
Agreement, the Depositary, each Depositary's Agent and the Company may,
notwithstanding any notice to the contrary, treat the record holder hereof at
such time as the absolute owner hereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or the exercise of
conversion rights or to any notice provided for in the Deposit Agreement and for
all other purposes.
14. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary receives any cash
dividend or other cash distribution with respect to the Stock, the Depositary
will, subject to the provisions of the Deposit Agreement, promptly distribute to
the holders of Receipts such amounts of such sum as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that the
amount distributed will be reduced by any amounts required to be withheld by the
Company or the Depositary on account of taxes.
Whenever the Depositary receives any distribution other than cash with
respect to the Stock, the Depositary will, subject to the provisions of the
Deposit Agreement, promptly distribute to the holders of Receipts such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that if in the opinion of the
Depositary such distribution cannot be made proportionately among such record
holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes), the Depositary deems
such distribution not to be feasible, the Depositary may effect such
distribution in the manner provided in the Deposit Agreement.
15. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall
at any time offer to the record holders of the Stock any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
on the record date fixed as determined in Paragraph 16 in such manner as the
Depositary may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Company; provided, however, that (a) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (b) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary, in its discretion (with the approval of the Company,
in any case where the Depositary has determined that it is not feasible to make
such rights, preferences or privileges available), may, if applicable laws or
the terms of such rights, preferences or privileges permit such transfer, sell
such rights, preferences or privileges at public or private sale, at such place
or places and upon such terms as it may deem proper. The net proceeds of any
such sale shall, subject to the provisions of Paragraph 9 hereof, be distributed
by the Depositary to the record holders of Receipts entitled hereto as in the
case of a distribution received in cash.
If any other action (including the registration under the Securities Act of
1933 of the securities to which any rights, preferences or privileges relate)
under the laws of any jurisdiction or any governmental or administrative
authorization, consent or permit is required in order for such rights,
preferences or privileges to be made available to holders of Receipts, the
Company will use its best efforts and take all steps available to it to obtain
such registration, authorization, consent or permit sufficiently in advance of
the expiration of such rights, preferences or privileges to enable holders of
Receipts to exercise such rights, preferences or privileges. In no event shall
the Depositary make available to the holders of
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Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless or until the relevant registration statement shall have become
effective, or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of such Act.
16. FIXING OF RECORD DATE. Whenever any cash dividend or other cash
distribution shall become payable or any distribution other than cash shall be
made, or if rights, preferences or privileges shall at any time be offered, with
respect to the Stock, or whenever the Depositary shall receive notice of (a) any
meeting at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or (b) any election on the part of the Company to
redeem any shares of Stock, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Receipts who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights at any such meeting, or who shall
be entitled to notice of such meeting, or whose Depositary Shares are to be
redeemed.
17. VOTING RIGHTS. Upon receipt of notice of any meeting at which the
holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable, mail to the record holders of Receipts a notice which shall contain
(a) such information as is contained in such notice of meeting, and (b) a
statement that the holders of Receipts at the close of business on a specified
record date determined as provided in Paragraph 16 will be entitled, subject to
any applicable provisions of law and of the Company's Certificate of
Incorporation or the Authorizing Resolution, to instruct the Depositary as to
the exercise of the voting rights pertaining to the amount of Stock represented
by the Depositary Shares evidenced by their respective Receipts, and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of a Receipt on such record date, the Depositary
shall endeavor insofar as practicable to vote or cause to be voted the amount of
Stock represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. In the absence of
specific instructions from the holder of a Receipt, the Depositary will abstain
from voting to the extent of the Stock represented by the Depositary Shares
evidenced by such Receipt.
18. CHANGES AFFECTING DEPOSITED SECURITIES. Upon any change in par or
stated value, split-up, consolidation or any other reclassification of the
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation or sale, lease or transfer of all or substantially all of the
Company's assets affecting the Company or to which it is a party, the Depositary
may, in its discretion (with the approval of) and shall (upon the instructions
of) the Company and, in either case, in such manner as the Depositary may deem
equitable, treat any securities which shall be received by the Depositary in
exchange for or in respect of the Stock as new deposited securities under the
Deposit Agreement, and Receipts then outstanding shall thenceforth represent the
new deposited securities so received in exchange for or in respect of such
Stock. In any such case the Depositary may, in its discretion, with the approval
of the Company, execute and deliver additional Receipts, or may call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new deposited securities.
19. REPORTS; INSPECTION OF TRANSFER BOOKS. The Depositary shall make
available for inspection by holders of Receipts at its Shareholder Services
Division and at such other places as it may from time to time deem advisable any
reports and communications received from the Company which are both (a) received
by the Depositary as the holder of Stock and (b) made generally available to the
holders of Stock by the Company. The Depositary shall also send to record
holders of Receipts copies of such notices, reports and other financial
statements to the extent provided in the Deposit Agreement when furnished by the
Company. The Depositary shall maintain, or cause one of the Depositary's Agents
to maintain, appropriate records which shall reflect registrations,
registrations of transfers, exchanges, split-ups and combinations and
conversions of Receipts. The Depositary shall make available at its office or
agency in New York City for inspection by any holder of a Receipt in the same
manner and for the same purposes that holders of Stock are entitled to inspect
the list of holders of Stock of the Company, a list of holders of record of the
Receipts.
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20. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND THE
COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation of any governmental
authority or, in the case of the Depositary or any Depositary's Agent, by reason
of any provision, present or future, of the Company's Certificate of
Incorporation or the Authorizing Resolution or by reason of any act of God or
war or other circumstance beyond the control of the relevant party, the
Depositary, any Depositary's Agent or the Company shall be prevented or
forbidden from doing or performing any act or thing which the terms of the
Deposit Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent or the Company incur any liability to any holder of a
Receipt by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of the Deposit Agreement provide
shall or may be done or performed, or by reason of any exercise of, or failure
to exercise, any discretion provided for in the Deposit Agreement.
21. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS AND THE
COMPANY. Neither the Depositary nor any Depositary's Agent nor the Company
assumes any obligation or shall be subject to any liability under the Deposit
Agreement or any Receipt to holders of Receipts other than that each of them
agrees to use its best judgment and good faith in the performance of such duties
as are specifically set forth in the Deposit Agreement.
Neither the Depositary nor any Depositary's Agent nor the Company shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of Stock, Depositary Shares, Common Stock or Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense and liability be furnished as often as
may be required.
Neither the Depositary nor any Depositary's Agent nor the Company will be
liable for any action taken, suffered or omitted by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Stock for deposit, any holder of a Receipt or any other person believed by it in
good faith to be competent to give such advice or information. The Company will
indemnify the Depositary against any liability which may arise out of acts
performed or omitted in accordance with the provisions of the Deposit Agreement
or the Receipts, (a) by the Depositary or any Registrar, or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of their negligence or bad faith, or (b) by the Company or any of
its agents. The Depositary will indemnify the Company against any liability
which may arise out of acts performed or omitted by the Depositary or its agents
due to negligence or bad faith. The Depositary and the Depositary's Agents may
own and deal in any class of securities of the Company and its affiliates and in
Receipts. The Depositary may also act as transfer agent or registrar of any of
the securities of the Company and its affiliates.
22. RESIGNATION AND REMOVAL OF DEPOSITARY. The Depositary may at any time
(a) resign by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment, or (b) be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor depositary and its acceptance of such
appointment, all as provided in the Deposit Agreement.
23. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be
terminated by the Company or the Depositary only upon or after the occurrence of
any of the following events: (i) all outstanding Depositary Shares shall have
been redeemed and all shares of Common Stock, cash and other property shall have
been distributed to holders of Depositary Shares; (ii) there shall have been
made a final distribution in respect of the Stock in connection with any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and such distribution shall have been distributed to the holders of Depositary
Shares; or (iii) each share of Stock shall have been converted into shares of
Common Stock and all shares of Common Stock, cash and other property shall have
been distributed to holders of Depositary Shares. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations
thereunder except for its obligations thereunder to the Depositary with respect
to indemnification, charges and expenses.
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24. GOVERNING LAW. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the laws of the State of New York.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed manually, or if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and, if executed by such facsimile
signature, shall have been countersigned manually by such Registrar by the
signature of a duly authorized signatory.
Dated:
THE FIRST NATIONAL BANK OF BOSTON
Depositary
By ___________________________________
Authorized Officer
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<PAGE>
[FORM OF NOTICE OF CONVERSION]
The undersigned holder of this Receipt for Depositary Convertible Preferred
Shares (the "Depositary Shares"), hereby irrevocably exercises the option to
convert whole shares of the underlying $ Convertible Preferred
Stock (the "Stock"), represented by this Receipt into shares of Common Stock
(and any other applicable securities or property) of National Semiconductor
Corporation in accordance with the terms of and conditions of the Stock
including the Authorizing Resolution in respect thereof and further as provided
in Section 2.10 of the Deposit Agreement, dated as of September , 1992, among
National Semiconductor Corporation, The First National Bank of Boston as
Depositary, and the holders from time to time of Receipts referred to in such
Deposit Agreement, and directs that the securities deliverable upon such
conversion be registered in the name of and delivered, together with a check in
payment for any fractional share and any other property deliverable upon such
conversion, to the undersigned unless a different name has been indicated below.
If securities are to be registered in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. If the number of shares of the Stock indicated above is less than the
number of shares of such Stock on deposit in respect of this Receipt, the
undersigned directs that the Depositary issue to the undersigned, unless a
different name is indicated below, a new Receipt eviden-
cing Depositary Shares for the balance of the Stock not to be converted.
Dated:
Signature ____________________________
NOTE: The above signature
should correspond exactly with the
name on the face of this Receipt or
with the name of the assignee
appearing in the assignment form
below.
(Please print name and address of registered holder)
Name _________________________________
Address ______________________________
(Please indicate other delivery instructions, if applicable)
Name _________________________________
Address ______________________________
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<PAGE>
[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned hereby settles, assigns and transfers
unto the within Receipt and all rights and interests
represented by the Depositary Shares evidenced thereby, and hereby irrevocably
constitutes and appoints his attorney, to transfer the same on the
books of the within-named Depositary, with full power of substitution in the
premises.
Dated:
Signature ____________________________
NOTE: The above signature
should correspond exactly with the
name on the face of this Receipt.
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<PAGE>
EXHIBIT 5
Letterhead of Latham & Watkins
March 22, 1994
National Semiconductor Corporation
2900 Semiconductor Drive
P.O. Box 58090
Santa Clara, California 95052
Re: National Semiconductor Corporation
Common Stock, Par Value $.50
----------------------------
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by National
Semiconductor Corporation, a Delaware corporation (the "Company"), of its
Registration Statement on Form S-3 (the "Registration Statement") with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
with respect to the offer and sale of up to 8,250,000 shares of the Company's
Common Stock, par value of $.50 per share (the "Common Stock"). We have acted
as counsel to the Company in connection with the preparation of the Registration
Statement.
In our capacity as such counsel, we are familiar with the proceedings
taken and to be taken by the Company in connection with the authorization,
issuance and sale of the Common Stock. In addition, we have made such legal and
factual examinations and inquiries, including an examination of originals (or
copies certified or otherwise identified to our satisfaction as being true
reproductions of originals) of such documents, corporate records and other
instruments, and have obtained from officers of the Company and agents thereof
such certificates and other representations and assurances, as we have deemed
necessary or appropriate for the purposes of this opinion.
In such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, the
legal capacity of natural persons executing such documents and the authenticity
and conformity to original documents of documents submitted to us as certified
or photostatic copies.
<PAGE>
Page 2
Based upon the foregoing and the proceedings to be taken by the
Company as referred to above, we are of the opinion that the Common Stock has
been duly authorized, and upon issuance, delivery and payment therefor, the
Common Stock will be validly issued, fully paid and nonassessable.
Our opinion herein is limited to the effect on the subject transaction
of United States Federal law and the General Corporation Law of the State of
Delaware. We assume no responsibility regarding the applicability to, or the
effect thereon, of the laws of any other jurisdiction.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm contained under the
heading "Legal Matters" of the prospectus included therein.
Very truly yours,
/s/ LATHAM & WATKINS
<PAGE>
EXHIBIT 23-A
CONSENT OF INDEPENDENT AUDITORS
THE BOARD OF DIRECTORS AND SHAREHOLDERS
NATIONAL SEMICONDUCTOR CORPORATION
We consent to the use of our reports dated June 11, 1993, incorporated
herein by reference, and to the reference to our firm under the heading
"Experts" in the prospectus.
/s/ KPMG PEAT MARWICK
San Jose, California
March 21, 1994
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned persons hereby
constitutes and appoints Gilbert F. Amelio, Donald Macleod, and John M. Clark
III, and each of them singly, his true and lawful attorney-in-fact and in his
name, place, and stead, and in any and all of his offices and capacities with
National Semiconductor Corporation, to sign the Registration Statement with
which this Power of Attorney is filed, and any and all amendments to said
Registration Statement, and generally to do and perform all things and acts
necessary or advisable in connection therewith, and each of the undersigned
hereby ratifies and confirms all that each of said attorneys-in-fact may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto executed this
Power of Attorney as of the date set forth opposite his signature.
SIGNATURE DATE
--------- ----
/s/ GILBERT F. AMELIO
- ----------------------------------- March 14, 1994
Gilbert F. Amelio
/s/ PETER J. SPRAGUE
- ----------------------------------- March 15, 1994
Peter J. Sprague
/s/ GARY P. ARNOLD
- ----------------------------------- March 10, 1994
Gary P. Arnold
/s/ ROBERT BESHAR
- ----------------------------------- March 10, 1994
Robert Beshar
/s/ MODESTO A. MAIDIQUE
- ----------------------------------- March 15, 1994
Modesto A. Maidique
/s/ J. TRACY O'ROURKE
- ----------------------------------- March 10, 1994
J. Tracy O'Rourke
/s/ CHARLES E. SPORCK
- ----------------------------------- March 11, 1994
Charles E. Sporck
/s/ DONALD E. WEEDEN
- ----------------------------------- March 10, 1994
Donald E. Weeden
<PAGE>
POWER OF ATTORNEY (Page 2)
/s/ DONALD MACLEOD
- ----------------------------------- March 11, 1994
Donald Macleod
/s/ ROBERT B. MAHONEY
- -----------------------------------
March 14, 1994
Robert B. Mahoney
