<PAGE>
As filed with the Securities and Exchange Commission on April 28, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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 2900 Semiconductor Drive (I.R.S. Employer
incorporation or organization) P.O. Box 58090 Identification Number)
Santa Clara, California 95052-8090
(Address of principle executive offices)
Registrant's telephone number including area code: (408)721-5000
-----------------------------
NATIONAL SEMICONDUCTOR CORPORATION STOCK OPTION PLAN
and
NATIONAL SEMICONDUCTOR CORPORATION 1997 EMPLOYEES STOCK OPTION PLAN
(Full title of the plans)
-----------------
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
$0.50 par value 20,000,000 shs $13.125 $262,500,000 $72,975.00
- ----------------------------------------------------------------------------------------
Preferred Stock (2)
Purchase Rights
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
</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 April 26, 1999 of $13.125 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, in accordance with Rule 457(h).
(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.
* Pursuant to Rule 429 under the Securities Act of 1933, the prospectus which
forms a part of this Registration statement also relates to 59,354,929
shares under the Registrant's Stock Option Plan and 1977 Employees Stock
Option Plan that were previously registered under Registration Statements
2-92468, 33-189-13, 33-48941, 33-61377, 333-26625 and 333-57029 with
respect thereto.
<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 Plans 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.
National Semiconductor Corporation (the "Company") has amended its
1997 Employees Stock Option Plan (the "1997 Plan") to add 20,000,000
shares. This Registration Statement covers the grant of options and the
sale of shares upon exercise of the options by the holders thereof under
the 1997 Plan and the Company's Stock Option Plan (the "Plan"). No shares
have been added to the Company's Stock Option Plan (the "Plan").
I-I
<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 by
the Company (also referred to herein as the "Registrant") 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
31, 1998, including the portions of the Company's 1998 Annual Report
and the Company's Proxy Statement for the 1998 Annual Meeting of
Stockholders incorporated therein by reference;
(b) The Company's Quarterly Report on Form 10-Q for the period ended
August 30, 1998; the Company's Quarterly Report on Form 10-Q for the
period ended November 24, 1998; the Company's Quarterly Report on Form
10-Q for the period ended February 28, 1999; the Company's Current
Report on Form 8-K dated October 8, 1998;
(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.
II-1
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES
The Company's Common Stock is registered under Section 12 of the
Exchange Act and thus, the requirements of Item 4 with respect thereto are not
applicable.
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
17,903 shares of Common Stock owned directly and indirectly by him and the
165,000 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
II-2
<PAGE>
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 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, 1996
(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).
II-3
<PAGE>
5.1 Opinion re Legality.
10.1 National Semiconductor Corporation 1997 Employees Stock Option Plan, as
amended through April 8, 1999.
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;
(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 20 percent 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 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 (the "Exchange Act") that are incorporated by reference
in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities
II-4
<PAGE>
Act of 1933 (the "Securities Act"), each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; 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, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 27th day of April
1999.
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 27th DAY OF APRIL, 1999.
BRIAN L. HALLA* Chairman of the Board, President and Chief
- ------------------------------ Executive Officer (Principal Executive
(Brian L. Halla) Officer)
DONALD MACLEOD* Executive Vice President, Finance and Chief
- ------------------------------ Financial Officer (Principal Financial
(Donald Macleod) Officer)
LEWIS CHEW* Vice President and Controller
- ------------------------------ (Principal Accounting Officer)
(Lewis Chew)
GARY P. ARNOLD* Director
- ------------------------------
(Gary P. Arnold)
ROBERT J. FRANKENBERG* Director
- ------------------------------
(Robert J. Frankenberg)
E. FLOYD KVAMME* Director
- ------------------------------
(E. Floyd Kvamme)
EDWARD R. McCRACKEN* Director
- ------------------------------
(Edward R. McCracken)
Director
- ------------------------------
(Modesto A. Maidique)
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
<TABLE>
<CAPTION>
Exhibit Page
Number Description of Exhibit Number
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<S> <C> <C>
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, 1996 (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 1997 Employees Stock Option Plan,
as amended through April 8, 1999.
23.1 Consent of Independent Auditors.
23.2 Consent of Counsel (Included in Exhibit 5).
24.1 Power of Attorney.
</TABLE>
<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
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
1
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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 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 adjourn-
2
<PAGE>
ment 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.
(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
3
<PAGE>
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 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
4
<PAGE>
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 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.
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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
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
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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 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 seven
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.
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
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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.
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
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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 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:
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(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.
(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
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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 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.
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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 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
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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 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.
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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.
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 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
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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 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.
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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.
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EXHIBIT 5.1
April 27, 1999
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 20,000,000 shares of Common Stock,
par value $0.50 per share (the "Shares") of National Semiconductor Corporation
(the "Company") to be issued under the Company's 1997 Employees Stock Option
Plan as amended (the 1997 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
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Exhibit 10.1
NATIONAL SEMICONDUCTOR CORPORATION
1997 EMPLOYEES STOCK OPTION PLAN
(as amended through April 8, 1999)
1. TITLE OF PLAN
The title of this Plan is the National Semiconductor Corporation 1997
Employees Stock Option Plan, hereinafter referred to as the "Plan".
2. PURPOSE
The Plan is intended to align the interests of eligible employees of
National Semiconductor Corporation (hereinafter called the "Corporation") and
its subsidiaries (as hereinafter defined) with the interests of the stockholders
of the Corporation and to provide incentives for such employees to exert maximum
efforts for the success of the Corporation. By extending to eligible employees
the opportunity to acquire proprietary interests in the Corporation and to
participate in its success, the Plan may be expected to benefit the Corporation
and its stockholders by making it possible for the Corporation to attract and
retain the best available talent and by rewarding key personnel for their part
in increasing the value of the Corporation's shares. It is further intended
that options granted pursuant to this Plan shall only be options which are not
incentive stock options, as that term is defined in Section 422A of the Internal
Revenue Code of 1986, as amended (the "Code"). Such options which may be
granted under this Plan shall be referred to herein as non-qualified stock
options.
3. STOCK SUBJECT TO THE PLAN
There will be reserved for issue upon the exercise of options granted under
the Plan 40,000,000 shares of the Corporation's $.50 par value Common Stock,
subject to adjustment as provided in Paragraph 8, 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
(a) The Plan shall be administered by a committee of the Board of
Directors of the Corporation (the "Committee") which shall be appointed by a
majority of the whole Board. The Committee shall be constituted to permit the
Plan to comply with Rule 16b-3 promulgated under the Securities Exchange Act of
1934 ("Exchange Act") and any successor rule.
(b) The Committee shall have the plenary power, subject to and within the
limits of the express provisions of the Plan:
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(i) To determine from time to time which of the eligible persons
shall be granted options under the Plan; the time or times (during the term of
the option) within which all or portions of each option may be exercised and the
number of shares for which an option or options shall be granted to each of
them. Notwithstanding the foregoing, no person may be granted more than 500,000
options during any one fiscal year of the Corporation.
(ii) To construe and interpret the Plan and options granted under
it, and to establish, amend, and revoke rules and regulations for its
administration. The Committee, in the exercise of this power, shall generally
determine all questions of policy and expediency that may arise, may correct any
defect, or supply any omission or reconcile any inconsistency in the Plan or in
any option agreement in a manner and to the extent it shall deem necessary or
expedient to make the Plan fully effective.
(iii) To prescribe the terms and provisions of each option granted
(which need not be identical).
(iv) To determine whether options granted shall be transferable
without consideration to immediate family members or family trusts for the
benefit of optionee's immediate family members. As used herein, "immediate
family" means parents, spouses and children.
(c) The Committee may grant new options in exchange for the cancellation
of stock options previously granted under the Plan or under any other stock
option plan of the Corporation, and the purchase price of such new options shall
be as determined by the Committee (and such purchase price may be lower than the
purchase price of the cancelled options).
5. ELIGIBILITY
Options may be granted only to regular salaried employees of the
Corporation and its subsidiaries who are not executive officers of the
Corporation. The term "subsidiary" corporation shall mean any corporation in
which the Corporation controls, directly or indirectly, fifty percent (50%) or
more of the combined voting power of all classes of stock, and the term
"executive officer" means any officer of the corporation subject to the
reporting requirements of Section 16 of the Exchange Act. Directors of the
Corporation shall not be eligible to be granted options under the Plan.
6. TERMS OF OPTION AND OPTION AGREEMENTS
Each option shall be evidenced by a written Stock Option Agreement which
shall be in such form and contain such provisions as the Committee shall from
time to time deem appropriate; provided, however, that the grant of an option
pursuant to this Plan shall in no way be construed to be an alternative to the
right of an employee to purchase stock pursuant to any other stock option
heretofore or hereafter granted to an employee pursuant to any stock option
plans now in existence or hereafter adopted by the Corporation. The terms of
the option agreements need not
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be identical, but each option agreement shall include, by appropriate language,
or be subject to, the substance of all of the applicable following provisions:
(a) The purchase price under each option granted shall be as determined by
the Committee but shall in no instance be less than 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 is such trading).
(b) The maximum term of any stock option shall be ten years and one day
from the date it was granted.
(c) An option may not be exercised to any extent, either by the person to
whom it was granted or by the grantee's transferee, or by any person after the
grantee's death, unless the person to whom the option was granted has remained
in the continuous employ of the Corporation, or of a subsidiary, for not less
than six months from the date when the option was granted. Otherwise, each
option shall be exercisable as determined by the Committee.
(d) 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.
(e) 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.
(f) Neither a person to whom an option is granted nor his or her
transferee, 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 or she has exercised his
or her option pursuant to the terms thereof.
(g) An option shall terminate and may not be exercised if the person to
whom it is granted ceases to be continuously employed by the Corporation, or by
a subsidiary of the Corporation, except (subject nevertheless to the last
sentence of this subparagraph (g)): (1) if the grantee's continuous employment
is terminated for any reason other than (i) retirement, (ii) permanent
disability, or (iii) death, the grantee or the grantee's transferee may exercise
the option to the extent that the grantee 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 the grantee shall die within the
period of three (3) months following the date of such termination without having
exercised such option, the option may be exercised within a period of one year
following the grantee's death by the grantee's
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transferee or the person or persons to whom the grantee's 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; (2) if the grantee's
continuous employment is terminated by (i) retirement, (ii) permanent
disability, or (iii) death, the 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 the grantee or the grantee's transferee, or in the
event of the grantee's death, by the persons to whom the grantee's rights under
the option shall pass by will or by the laws of descent or distribution; (3) if
the grantee's continuous employment is terminated and within a period of ninety
(90) days thereafter the grantee is recalled to the active payroll, the
Committee may reinstate any portion of the option previously granted but not
exercised. Nothing contained in this subparagraph (g) 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.
(h) Nothing in this Plan or in any option granted hereunder shall confer
on any optionee any right to continue in the employ of the Corporation or any of
its subsidiaries, or to interfere in any way with the right of the Corporation
or any of its subsidiaries to terminate his or her employment at any time.
7. TIME OF GRANTING OPTION
The Committee shall determine the date on which options are granted under
the Plan. All options granted must be approved at a meeting of the Committee by
a majority of the members of the Committee. If an option agreement is not
executed by an employee and returned to the Corporation on or prior to ninety
(90) days after the date the option is granted (or such earlier date as the
Committee may specify), such option shall terminate.
8. 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 by the Committee.
9. 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, with the consent
of the Committee, in Common Stock of the Corporation that has been held by the
optionee for at least six (6) months 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.
(b) The Committee may permit the payment of all or part of the applicable
required withholding taxes due upon exercise of an option by
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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.
10. CHANGE IN CONTROL
In the event of a Change-of-Control (as defined in the attached Exhibit A)
of the Corporation, any options granted hereunder which are outstanding as of
the date such change-of-control is determined to have occurred, and which are
not then exercisable and vested, shall become fully exercisable and vested to
the full extent of the original grant.
11. 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. 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, 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 until all shares available for
issuance under the Plan have been issued. An option may not be granted while
the Plan is suspended or after it is terminated.
(c) 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 the grantee's transferee or to whom rights under an option
shall have passed by will or by the laws of descent and distribution.
12. EFFECTIVE DATE
The Plan shall become effective on April 18, 1997.
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EXHIBIT A
A "change of control" means:
(a) The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of either (x) the then outstanding shares of common stock of the
Corporation (the "Outstanding Corporation Common Stock") or (y) the combined
voting power of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors (the "Outstanding
Corporation Voting Securities"); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not be deemed to result in a
change of control: (i)any acquisition directly from the Corporation, (ii) any
acquisition by the Corporation, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Corporation or any
corporation controlled by the Corporation or (iv) any acquisition by any
corporation pursuant to a transaction that complies with clauses (i), (ii) and
(iii) of subsection (c) below; or
(b) individuals who, as of the date hereof, constitute the Board of
Directors of the Corporation (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election, or
nomination for election by the Corporation's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(c) the approval by the shareholders of the Corporation of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of the Corporation or the acquisition of assets
of another corporation ("Business Combination") or, if consummation of such
Business Combination is subject, at the time of such approval by shareholders,
to the consent of any government or governmental agency, the obtaining of such
consent (either explicitly or implicitly by consummation) unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation that as a result of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either directly or through one or
more
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subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as the case may be,
(ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Corporation
or any corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) approval by the shareholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
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Exhibit 23.1
Consent of Independent Auditors
The Board of Directors and Shareholders
National Semiconductor Corporation:
We consent to incorporation by reference in the registration statement on
Form S-8 of National Semiconductor Corporation dated April 28, 1999 of our
report dated June 10, 1998, relating to the consolidated balance sheets of
National Semiconductor Corporation as of May 31, 1998 and May 25, 1997, and
the related consolidated statements of operations, shareholders' equity, and
cash flows for each of the years in the three-year period ended May 31, 1998,
and the related financial statement schedule, which report appears in the May
31, 1998 Annual Report on Form 10-K of National Semiconductor Corporation.
//s// KPMG LLP
Mountain View, California
April 28, 1999
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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 April 19, 1999
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Brian L. Halla
/S/ GARY P. ARNOLD April 20, 1999
- ----------------------------------------
Gary P. Arnold
/S/ ROBERT J. FRANKENBERG April 22, 1999
- ----------------------------------------
Robert J. Frankenberg
/S/ E. FLOYD KVAMME April 20, 1999
- ----------------------------------------
E. Floyd Kvamme
- ----------------------------------------
Modesto A. Maidique
/S/ EDWARD R. McCRACKEN April 26, 1999
- ----------------------------------------
Edward R. McCracken
/S/ DONALD E. WEEDEN April 20, 1999
- ----------------------------------------
Donald E. Weeden
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/S/ DONALD MACLEOD April 20, 1999
- ----------------------------------------
Donald Macleod
/S/ LEWIS CHEW April 21, 1999
- ----------------------------------------
Lewis Chew
