<PAGE>
As filed with the Securities and Exchange Commission on ___________
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NATIONAL SEMICONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 95-2095071
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2900 Semiconductor Drive
P.O. Box 58090
Santa Clara, California 95052-8090
(Address of principle executive offices)
Registrant's telephone number including area code: (408)721-5000
-----------------------------
NATIONAL SEMICONDUCTOR CORPORATION DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
-----------------
JOHN M. CLARK III, Esq.
Senior Vice President, General Counsel
and Secretary
NATIONAL SEMICONDUCTOR CORPORATION
2900 Semiconductor Drive, P.O. Box 58090
Santa Clara, CA 95052-8090
(408)721-5000
(Name, address and telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
Title of Shares Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered Per Share (1) Offering Price (1) Fee (1)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,000,000 $ 41.21875 $ 41,218,750 $ 12,491
$0.50 par value
- --------------------------------------------------------------------------------------------------
Preferred Stock
Purchase Rights (2)
- --------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated 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
Common Stock on September 26, 1997 of $ 41.21875 per share, as reported on
the New York Stock Exchange Composite Transactions, which is used as the
estimate offering price solely for the purpose of determining the
registration fee.
(2) 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.
<PAGE>
PART I
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this Registration Statement omits the information specified in
Part I of Form S-8. The documents containing the information specified in Part
I will be delivered to the participants in the Plan as required by Securities
Act Rule 428(b). Such documents are not being filed as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
This Registration Statement covers the grant of options, and the sale of
shares to the holders of such options upon exercise thereof, under the Director
Stock Option Plan of National Semiconductor Corporation (the "Plan"). The Plan
was approved by stockholders of the Company on September 26, 1997.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed with the Commission
under Commission File Number 1-6453 by the Company are hereby incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended May
25, 1997, including the portions of the Company's 1997 Annual Report
and the Company's Proxy Statement for the 1997 Annual Meeting of
Stockholders incorporated therein by reference;
(b) All other reports filed by the Company pursuant to Section 13(a) and
15(d) of the Securities and Exchange Act of 1934 ("Exchange Act")
since May 25, 1997;
(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
and any amendments thereto filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 and 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be 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 shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed documents which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statements. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
II-1
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
In connection with the filing of the Registration Statement, John M.
Clark III, Esq. has rendered an opinion to the Company upon the legality of
the Common Stock being registered hereunder. At the time of rendering such
opinion, Mr. Clark had a substantial interest in the Company, as defined by
the rules of the Securities and Exchange Commission, in that the fair market
value of the 15,291 shares of Common Stock owned directly and indirectly by
him and the 101,000 shares of Common Stock subject to options held by him
exceeds $50,000. Also at such time, Mr. Clark was connected with the Company
in that he was Senior Vice President, General Counsel and Secretary of the
Company.
ITEM 6. 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 the Company 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 attorney's
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.
II-2
<PAGE>
Article Thirteenth of the Company's Certificate provides that the
Company 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 the
Company or that, at the request of the Company, he is or was serving another
corporation or enterprise in any capacity. Article VIII of the Company'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.
The Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. TABLE OF EXHIBITS
4.1 Second Restated Certificate of Incorporation of the Company, as amended
(incorporated by reference from the Exhibits to the Company's Registration
Statement on Form S-3 Registration No. 33-52775, which became effective
March 22, 1994); Certificate of Amendment of Certificate of Incorporation
dated September 30, 1994 (incorporated by reference from the Exhibits to
the Company's Registration Statement on Form S-8 Registration No. 333-09957
which became effective August 12, 1996.)
4.2 By-Laws of the Company
4.3 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.)
4.4 Rights Agreement (incorporated by reference from the Exhibits to the
Company's Registration Statement on Form 8-A filed August 10, 1988). First
Amendment to the Rights Agreement dated as of October 31, 1995
(incorporated by reference from the Exhibits to the Company's Amendment No.
1 to the Registration Statement on Form 8-A filed December 11, 1995).
Second Amendment to the Rights Agreement dated as of December 17, 1997
(incorporated by reference from the Exhibits to the Company's Amendment No.
2 to the Registration Statement on Form 8-A filed January 17, 1997.)
5.1 Opinion re Legality
II-3
<PAGE>
10.1 National Semiconductor Corporation Director Stock Option Plan
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (Included in Exhibit 5)
24.1 Power of Attorney
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) to reflect in the Prospectus any facts or events arising
after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would
not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement; and
(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)
shall not apply to information required to be included in a
post-effective amendment by those paragraphs that is contained
in periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement;
II-4
<PAGE>
(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; and
(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
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered herein, 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,
unenforeceable. 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 Act and will be
governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Santa Clara, California, on the 29th day of
September, 1997.
NATIONAL SEMICONDUCTOR CORPORATION
By BRIAN L. HALLA*
--------------------------------------------
Brian L. Halla
Chairman of the Board, and Chief
Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY OR ON BEHALF OF THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON THE 29TH DAY OF SEPTEMBER, 1997.
BRIAN L. HALLA* Chairman of the Board, President and
- ------------------------------- Executive Offficer Chief (Principal Executive
(Brian L. Halla) Officer)
DONALD MACLEOD* Executive Vice President, Finance and
- ------------------------------- Chief Financial Officer (Principal Financial
(Donald MacLeod) Officer)
RICHARD D. CROWLEY, JR.* Vice President and Controller (Principal
- ------------------------------- Accounting Officer)
(Richard D. Crowley, Jr.)
GARY P. ARNOLD* Director
- -------------------------------
(Gary P. Arnold)
ROBERT BESHAR* Director
- -------------------------------
(Robert Beshar)
EDWARD R. McCRACKEN* Director
- -------------------------------
(Edward R. McCracken)
MODESTO A. MAIDIQUE* Director
- -------------------------------
(Modesto A. Maidique)
J. TRACY O'ROURKE* Director
- -------------------------------
(J. Tracy O'Rourke)
CHARLES E. SPORCK* Director
- -------------------------------
(Charles E. Sporck)
DONALD E. WEEDEN* Director
- -------------------------------
(Donald E. Weeden)
*By: /s/ John M. Clark III
--------------------------
John M. Clark III
Attorney-in-Fact
II-6
<PAGE>
NATIONAL SEMICONDUCTOR CORPORATION
EXHIBIT INDEX
Exhibit Page
Number Description of Exhibit Number
- -----------------------------------------------------------------------------
4.1 Second Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference from the
Exhibits to the Company's Registration Statement on Form
S-3 Registration No. 33-52775, which became effective
March 22, 1994); Certificate of Amendment of Certificate
of Incorporation dated September 30, 1994 (incorporated
by reference from the Exhibits to the Company's
Registration Statement on Form S-8 Registration No.
333-09957 which became effective August 12, 1996.)
4.2 By-Laws of the Company
4.3 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).
4.4 Rights Agreement (incorporated by reference from the
Exhibits to the Company's Registration Statement on Form
8-A filed August 10, 1988). First Amendment to the
Rights Agreement dated as of October 31, 1995
(incorporated by reference from the Exhibits to the
Company's Amendment No. 1 to the Registration Statement
on Form 8-A filed December 11, 1995). Second Amendment
to the Rights Agreement dated as of December 17, 1997
(incorporated by reference from the Exhibits to the
Company's Amendment No. 2 to the Registration Statement
on Form 8-A filed January 17, 1997.)
5.1 Opinion re Legality
10.1 National Semiconductor Corporation Director Stock Option Plan
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (Included in Exhibit 5)
24.1 Power of Attorney
II-7
<PAGE>
EXHIBIT 4.2
AMENDED AND RESTATED
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.
Section 3. SPECIAL MEETINGS. Subject to the rights of the holders of
any series of stock having a preference over the Common Stock of the
corporation as to dividends or upon liquidation ("Preferred Stock") with
respect to such series of Preferred Stock, special meetings of the
stockholders may be called only by the chairman of the board or by the board
of directors pursuant to a resolution adopted by a majority of the total
number of directors which the corporation would have if there were no
vacancies (the "Whole Board").
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
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vote at his address as it appears on the stock transfer books of the
corporation, stating the time and place of the meeting and the purpose or
purposes for which the meeting is called, not less than ten nor more than
sixty days before the date 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 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. Only such
business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the corporation's notice of
meeting. Any previously scheduled meeting of the stockholders may be
postponed, and (unless the Certificate of Incorporation otherwise provides)
any special meeting of the stockholders may be cancelled, by resolution of
the board of directors upon public notice given prior to the date previously
scheduled for such meeting of stockholders.
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 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. 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 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 7. QUORUM AND ADJOURNMENT. Except as otherwise provided by law
or by the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the corporation entitled to vote generally in the
election of directors (the "Voting Stock"), present in person or represented
by proxy, shall constitute a quorum at all meetings of stockholders for the
2
<PAGE>
transaction of business, except that when specified business is to be voted
on by a class or series of stock voting as a class, the holders of a majority
of the shares of such class or series shall constitute a quorum of such class
or series for the transaction of such business. The chairman of the meeting
or a majority of the shares so represented may adjourn the meeting from time
to time, whether or not there is such a quorum. The stockholders present at
a duly called meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. 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 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 8. 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 9. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
a. ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the board of
directors of the corporation and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders (a)
pursuant to the corporation's notice of meeting, (b) by or at the direction
of the board of directors or (c) by any stockholder of the corporation who
was a stockholder of record at the time of giving of notice provided for in
this By-Law, who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this By-Law.
3
<PAGE>
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (a)(1) of this By-Law, the stockholder must have given timely
notice thereof in writing to the secretary of the corporation and such
other business must otherwise be a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to the secretary at
the principal executive offices of the corporation not later than the close
of business on the 60th day nor earlier than the close of business on the
90th day prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 90th day prior to
such annual meeting and not later than the close of business on the later
of the 60th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made
by the corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving
of a stockholder's notice as described above. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating
to such person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as to
any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if any, on
whose behalf the nomination or proposal is made (i) the name and address of
such stockholder, as they appear on the corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the board of directors of the corporation is
increased and there is no
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<PAGE>
public announcement by the corporation naming all of the nominees for
director or specifying the size of the increased board of directors at least
70 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this By-Law shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the 10th day following the day on which such public announcement
is first made by the corporation.
b. SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the corporation's notice of meeting.
Nominations of persons for election to the board of directors may be made at
a special meeting of stockholders at which directors are to be elected
pursuant to the corporation's notice of meeting (a) by or at the direction of
the board of directors or (b) provided that the board of directors has
determined that directors shall be elected at such meeting, by any
stockholder of the corporation who is a stockholder of record at the time of
giving of notice provided for in this By-Law, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
By-Law. In the event the corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the board of directors,
any such stockholder may nominate a person or persons (as the case may be),
for election to such position(s) as specified in the corporation's notice of
meeting, if the stockholder's notice required by paragraph (a)(2) of this
By-Law shall be delivered to the secretary at the principal executive offices
of the corporation not earlier than the close of business on the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the board of directors to be elected
at such meeting. In no event shall the public announcement of an adjournment
of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
c. GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as
shall have been brought before the meeting in accordance with the
procedures set forth in this By-Law. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, the
5
<PAGE>
chairman of the meeting shall have the power and duty to determine whether
a nomination or any business proposed to be brought before the meeting was
made or proposed, as the case may be, in accordance with the procedures set
forth in this By-Law and, if any proposed nomination or business is not in
compliance with this By-Law, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed
to affect any rights (i) of stockholders to request inclusion of proposals
in the corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of Preferred Stock to
elect directors under specified circumstances.
Section 10. VOTING. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the capital stock having
voting power present in person or represented by proxy and entitled to vote
on the matter shall decide any question brought before such meeting, except
(i) in respect of elections of directors which shall be decided, subject to
the rights of the holders of any series of Preferred Stock, by a plurality of
the votes cast, and (ii) when the question is one which by express provision
of statute or Certificate of Incorporation 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.
Section 11. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS. The
board of directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the corporation in
other capacities, including, without limitation, as officers, employees,
agents or representatives, to act at the meetings of stockholders and make a
written report thereof. One or more persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate has been appointed to act or is able to act at a meeting of
stockholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or
her duties, shall take and
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sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting
the date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
Section 12. RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order that the
corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the board of directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the board of directors, and which date
shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the board of directors. Any stockholder
of record seeking to have the stockholders authorize or take corporate
action by written consent shall, by written notice to the secretary, request
the board of directors to fix a record date. The board of directors shall
promptly, but in all events within ten (10) days after the date on which such
a request is received, adopt a resolution fixing the record date (unless a
record date has previously been fixed by the board of directors pursuant to
the first sentence of this Section). If no record date has been fixed by the
board of directors pursuant to the first sentence of this Section or
otherwise within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
board of directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the corporation by delivery to its registered office
in Delaware, its principal place of business, or to any officer or agent of
the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed
by the board of directors and prior action by the board of directors is
required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be
at the close of business on the date on which the board of directors adopts
the resolution taking such prior action.
Section 13. INSPECTORS OF WRITTEN CONSENT. In the event of the
delivery, in the manner provided by Section 12 of this Article to the
corporation of the requisite written consent or consents to take corporate
action and/or any related revocation or revocations, the corporation shall
engage independent inspectors of elections for the purpose of promptly
performing a ministerial review of the
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validity of the consents and revocations. For the purpose of permitting the
inspectors to perform such review, no action by written consent without a
meeting shall be effective until such date as the independent inspectors
certify to the corporation that the consents delivered to the corporation in
accordance with Section 12 of this Article represent at least the minimum
number of votes that would be necessary to take the corporate action. Nothing
contained in this Section shall in any way be construed to suggest or imply
that the board of directors or any stockholder shall not be entitled to
contest the validity of any consent or revocation thereof, whether before or
after such certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement, prosecution, or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
Section 14. EFFECTIVENESS OF WRITTEN CONSENT. Every written consent
shall bear the date of signature of each stockholder who signs the consent
and no written consent shall be effective to take the corporate action
referred to therein unless, within sixty (60) days of the earliest dated
written consent received in accordance with Section 12 of this Article, a
written consent or consents signed by a sufficient number of holders to take
such action are delivered to the corporation in the manner prescribed in
Section 12 of this Article.
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 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.
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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.
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 notice given to each director,
either personally (including by telephone) or by hand delivery, first-class
mail, overnight mail, courier service, telegram or facsimile transmission
sent to his business or home address, stating the place, date and hour of the
meeting. If mailed by first-class mail, such notice shall be deemed to have
been adequately given when deposited in the United States mail, postage
prepaid, directed to the director at his business or home address, at least
five (5) days before such meeting. Notice given by telegraph, overnight mail
or courier service shall be deemed adequately given upon delivery of the
message to the telegraph company or to the overnight mail or courier service
company at least two days before such meeting. Notice given by facsimile
transmission shall be deemed adequately given upon transmission of the
message at least twelve (12) hours before such meeting. Notice given by hand
delivery or personally shall be deemed adequately given when delivered at
least twelve (12) hours before such meeting. 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.
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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.
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.
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
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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.
(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.
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(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 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
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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 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.
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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 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
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.
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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 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 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.
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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.
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 contenders 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 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
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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.
Section 3. AMOUNT 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 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
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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
corporation would have the power to indemnify him against such liability
under the provisions of this section.
<PAGE>
EXHIBIT 5.1
September 29, 1997
Board of Directors
National Semiconductor Corporation
2900 Semiconductor Drive
Santa Clara, California 95051
Gentlemen:
At your request, I have examined the registration statement on Form S-8
(the "Registration Statement") which you are filing with the United States
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, for registration of an additional 1,000,000 shares of Common Stock,
par value $0.50 per share (the "Shares") of National Semiconductor
Corporation (the "Company") pursuant to the Company's Director Stock Option
Plan (the "Plan").
In connection with this opinion, I have examined the Plan, the Company's
Certificate of Incorporation and By-Laws, as amended, and such other
documents and records as deemed necessary as a basis for this opinion.
Based on the foregoing, I am of the opinion that the Shares, when sold
and issued in accordance with the Plan, the Registration Statement and
related final prospectus, and applicable state laws, will be legally issued,
fully paid and nonassessable.
I consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
//s// JOHN M. CLARK III
JOHN M. CLARK III
Senior Vice President,
General Counsel &
Secretary
<PAGE>
Exhibit 10.1
NATIONAL SEMICONDUCTOR CORPORATION
DIRECTOR STOCK OPTION PLAN
1. PURPOSE
The purposes of the Director Stock Option Plan (the "Plan") of National
Semiconductor Corporation (the "Corporation") are to promote the recruiting
and retention of highly qualified individuals to serve in the capacity of
non-employee members of the Board of Directors of the Corporation
("Directors") and to strengthen the commonality of interest between Directors
and stockholders.
2. NON-QUALIFIED OPTIONS
It is intended that options to purchase shares of the Corporation's $.50
par value common stock (the "Common Stock") granted under this Plan shall
constitute non-qualified or non-statutory stock options, and not incentive
stock options within the meaning of Section 422A of the Internal Revenue Code
of 1986, as amended.
3. STOCK SUBJECT TO THE PLAN
There will be reserved for issue upon the exercise of options granted
under the Plan 1,000,000 shares of the Corporation's Common Stock, subject to
adjustment as provided in Paragraph 7, which may be unissued shares,
reacquired shares, or shares bought on the market. If any option which shall
have been granted shall expire or terminate for any reason without having
been exercised in full, the unpurchased shares shall again become available
for the purposes of the Plan (unless the Plan shall have been terminated).
4. ADMINISTRATION
The Plan shall be administered by the Board of Directors of the
Corporation, whose construction and interpretation of the terms
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and provisions of the Plan shall be final and conclusive. Grants of options
under the Plan and the amount and nature of the awards to be granted shall be
automatic and non-discretionary in accordance with Paragraph 6.
5. ELIGIBILITY
Options may be granted only to non-employee Directors.
6. TERMS OF OPTION AND OPTION AGREEMENTS
Each option shall be evidenced by a written agreement in such form as the
Board of Directors shall from time to time approve, which agreements shall
comply with and be subject to all of the applicable following provisions:
(a) The purchase price under each option granted shall be 100% of fair
market value on the date of grant. The fair market value on the date of
grant shall be the opening price of the Common Stock on the New York Stock
Exchange on such date (or if there shall be no trading on such date, then on
the first previous date on which there was such trading).
(b) Options shall be granted automatically and without further action by
the Board of Directors to all eligible Directors as follows: (i) on the date
of the adoption of the Plan by the Corporation's stockholders, each eligible
Director shall be granted an option to purchase 10,000 shares of Common
Stock; (ii) each person who becomes an eligible Director after the date of
adoption of the Plan shall be granted an option to purchase 10,000 shares of
Common Stock on the date of the appointment of such person to the Board of
Directors; and (iii) each eligible Director shall be granted an additional
option to purchase 5,000 shares of Common Stock on the date of each
subsequent election of such person to the Board of Directors by the
stockholders.
(c) The term of the non-qualified stock options granted under this Plan
shall be ten years and one day from the date the option was granted.
(d) Options shall become fully exercisable six months after the date of
grant.
(e) An option may not be exercised to any extent, either by the person
to whom it was granted, or by any person after his
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death, unless the person to whom the option was granted has remained as a
Director of the Corporation for not less than six months from the date when
the option was granted.
(f) The Corporation, during the terms of options granted under the Plan,
at all times will keep available the number of shares of stock required to
satisfy such options.
(g) The Corporation will seek to obtain from each regulatory commission
or agency having jurisdiction such authority as may be required to issue and
sell shares of stock to satisfy such options. Inability of the Corporation
to obtain from any such regulatory commission or agency authority which
counsel for the Corporation deems necessary for the lawful issuance and sale
of its stock to satisfy such options shall relieve the Corporation from any
liability for failure to issue and sell stock to satisfy such options pending
the time when such authority is obtained or is obtainable.
(h) Neither a person to whom an option is granted nor his legal
representative, heir, legatee, or distributee, shall be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any
shares subject to such option unless and until he has exercised his option
pursuant to the terms thereof.
(i) An option shall not be transferable except by will or by the laws of
descent and distribution, and during the lifetime of the person to whom the
option is granted he alone may exercise it.
(j) An option shall terminate and may not be exercised if the person to
whom it is granted ceases to be a Director of the Corporation, except
(subject nevertheless to the last sentence of this subparagraph (j)): (1) if
his status as a Director is terminated for any reason other than (i)
retirement, (ii) permanent disability, or (iii) death, he may exercise his
option to the extent that he was entitled to exercise such option at the date
of such termination at any time within a period of three (3) months following
the date of such termination, or if he shall die within the period of three
(3) months following the date of such termination without having exercised
such option, his option may be exercised within a period of one year
following his death by the person or persons to whom his rights under the
option pass by will or by the laws of descent or distribution but only to the
extent exercisable at the date of such termination; or (2) if his status as a
Director is terminated by (i) retirement, (ii) permanent disability, or (iii)
death, his option may be exercised in accordance with its terms and
conditions at any time within a period of five (5) years following the date
of such termination by
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him, or in the event of his death, by the persons to whom his rights under
the option shall pass by will or by the laws of descent or distribution.
Nothing contained in this subparagraph (j) is intended to extend the stated
term of the option and in no event may an option be exercised by anyone after
the expiration of its stated term.
(k) Nothing in this Plan or in any option granted hereunder shall confer
on any optionee any right to continue as a Director of the Corporation.
(l) If an option agreement is not executed by the optionee and returned
to the Corporation on or prior to ninety (90) days after the date the option
is granted, such option shall terminate.
(m) The following definitions shall apply for purposes of this Plan:
(1) "retirement": termination as a Director after reaching age
sixty-five (65) or after reaching age fifty-five (55) and the optionee's
age plus years of service as a Director is sixty-five (65) or more;
(2) "permanent disability": a permanent and total incapacity to
perform any services as a Director.
7. ADJUSTMENT IN NUMBER OF SHARES AND IN OPTION PRICE
In the event there is any change in the shares of the Corporation through
the declaration of stock dividends or a stock split-up, or through
recapitalization resulting in share split-ups, or combinations or exchanges
of shares, or otherwise, the number of shares available for option, as well
as the shares subject to any option and the option price thereof, shall be
appropriately adjusted, provided that the number of shares subject to any
option shall always be a whole number.
8. PAYMENT OF PURCHASE PRICE AND WITHHOLDING TAXES
(a) The purchase price for all shares purchased pursuant to options
exercised must be either paid in full in cash, or paid in full in Common
Stock of the Corporation and valued at fair market value on the date of
exercise or a combination of cash and Common Stock. Fair market value on the
date of exercise is the opening price of the Common Stock on the New York
Stock Exchange on such date, or if there shall be no trading on such date,
then on the first previous date on which there was such trading.
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(b) All or part of required withholding taxes that may be due upon the
exercise of an option, up to the highest marginal rates then in effect, may
be paid by the withholding of shares otherwise issuable upon exercise of the
option. Option shares withheld in payment of such taxes shall be valued at
the fair market value of the Corporation's Common Stock on the date of
exercise as defined herein.
9. AMENDMENT, SUSPENSION, OR TERMINATION OF THE PLAN
(a) The Board may amend, modify, suspend or terminate the Plan for the
purpose of meeting or addressing any changes in legal requirements or for any
other purpose permitted by law; provided, however, that the provisions of
Paragraphs 5, 6(a), 6(b), 6(c), 6(d), 6(e) and 6(j) of the Plan may not be
amended more than once every six months, other than to comport with changes
in the Internal Revenue Code of 1986, as amended, the Employee Retirement
Income Security Act, or the rules thereunder. The Board will seek
stockholder approval of an amendment if determined to be required by or
advisable under regulations of the Securities and Exchange Commission or the
Internal Revenue Service, the rules of any stock exchange on which the
Corporation's stock is listed or other applicable law or regulation.
(b) The Plan shall continue in effect unless sooner terminated. An
option may not be granted while the Plan is suspended or after it is
terminated.
(c) Subject to the limitations of Paragraph 9, the rights and
obligations under any options granted while the Plan is in effect shall not
be altered or impaired by amendment, suspension or termination of the Plan,
except with the consent of the person to whom the option was granted or to
whom rights under an option shall have passed by will or by the laws of
descent and distribution.
10. EFFECTIVE DATE
The Plan shall become effective on June 26, 1997, subject to approval by
the stockholders of the Corporation within twelve months after such date. No
option shall be granted under the Plan until the Plan has been approved by
the stockholders of the Corporation.
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<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
National Semiconductor Corporation:
We consent to the use of our report contained in National Semiconductor
Corporation's May 25, 1997 annual report on Form 10-K incorporated herein by
reference. Our report refers to a change in accounting for depreciation in
fiscal 1996.
//s//KPMG PEAT MARWICK LLP
San Jose, California
September 30, 1997
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned persons hereby
constitutes and appoints Brian L. Halla, 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/ BRIAN L. HALLA September 25, 1997
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Brian L. Halla
/S/ GARY P. ARNOLD September 25, 1997
- ------------------------------
Gary P. Arnold
/S/ ROBERT BESHAR September 25, 1997
- ------------------------------
Robert Beshar
/S/ MODESTO A. MAIDIQUE September 23, 1997
- ------------------------------
Modesto A. Maidique
/S/ EDWARD R. McCRACKEN September 25, 1997
- ------------------------------
Edward R. McCracken
/S/ J. TRACY O'ROURKE September 22, 1997
- ------------------------------
J. Tracy O'Rourke
/S/ CHARLES E. SPORCK September 25, 1997
- ------------------------------
Charles E. Sporck
/S/ DONALD E. WEEDEN September 22, 1997
- ------------------------------
Donald E. Weeden
<PAGE>
/S/ DONALD MACLEOD September 22, 1997
- ------------------------------
Donald Macleod
/S/ RICHARD D. CROWLEY, JR. September 24, 1997
- ------------------------------
Richard D. Crowley, Jr.
