SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
January 23, 1997
(Date of earliest event reported)
LAM RESEARCH CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 000-12701 94-2634797
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(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification
incorporation) Number)
4650 Cushing Parkway, Fremont, California 94538
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(Address of principal executive offices) (Zip Code)
(510) 659-0200
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(Registrant's telephone number, including area code)
N/A
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(Former name or former address, if changed since last report)
Item 5. Other Events.
Pursuant to Rule 12b-15 of the Securities and
Exchange Act of 1934, as amended, this amendment to the
Current Report on Form 8-K amends the Current Report on Form
8-K filed on February 4, 1997.
On January 23, 1997, the Board of Directors of Lam
Research Corporation (the "Company") adopted a shareholder
rights plan, as set forth in the Rights Agreement (the
"Rights Agreement") entered into between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
Pursuant to the Rights Agreement, one right ("Right") will be
issued for each share of common stock, par value $0.001 per
share, of the Company outstanding as of the close of business
on January 31, 1997. Each of the Rights will entitle the
registered holder to purchase from the Company one one-
thousandth of a share of Series A Junior Participating
Preferred Stock, par value $0.001 per share, at a price of
$250. The Rights generally will not become exercisable
unless and until, among other things, any person acquires
beneficial ownership of 15% or more of the outstanding stock.
The Rights are generally redeemable at $0.001 per Right at
any time until 10 business days following a public
announcement that a 15% or greater position in the Company's
common stock has been acquired. The Rights will expire,
unless earlier redeemed or exchanged, on January 31, 2007. A
description of the Rights is set forth in Exhibit C to the
Rights Agreement, a copy of which is incorporated herein by
reference as Exhibit 4.1.
On January 23, 1997, the Board of Directors of the
Company also adopted a number of amendments to the Company's
Bylaws (the "Bylaw Amendments"). The Bylaw Amendments
provide, among other things, that special meetings of
stockholders may be called only at the direction of the Board
of Directors, the chairman of the board or the president of
the Company. The Bylaw Amendments also establish an advance
notice procedure for the nomination, other than by or at the
direction of the Board of Directors, of candidates for
election as directors as well as for other stockholder
proposals to be considered at annual meetings of
stockholders. The Bylaw Amendments further provide for the
Board of Directors to fix a record date for the Company to
determine the stockholders entitled to consent to corporate
action in writing without a meeting. The Bylaw Amendments
make additional provisions for cumulative voting at the
election of the directors of the Company and prompt special
board meetings. Certain of the provisions of the Bylaw
Amendments may have the effect of delaying or deferring a
change in control of the Company. A copy of the Restated and
Amended Bylaws of the Company, incorporating all Bylaw
Amendments, is incorporated herein by reference as Exhibit
3.1.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit No. Description
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3.1 Amended and Restated Bylaws of the Company,
dated as of January 23, 1997.
4.1 Rights Agreement, dated as of January 23,
1997, between Lam Research Corporation and
ChaseMellon Shareholder Services, L.L.C.,
which includes as Exhibit B thereto the Form
of Rights Certificate.*
99.1 Press Release of the Company, dated January
24, 1997.
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* Incorporated herein by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A/A, dated
January 30, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, as amended, the registrant has duly caused this
report to be signed on its behalf by the undersigned,
thereunto duly authorized.
LAM RESEARCH CORPORATION
BY:/s/ Richard H. Lovgren
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Richard H. Lovgren
Vice President, General Counsel
and Secretary
Dated: March 14, 1997
INDEX TO EXHIBITS
Exhibit No. Description
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3.1 Amended and Restated Bylaws of the Company,
dated January 23, 1997.
4.1 Rights Agreement, dated as of January 23,
1997, between Lam Research Corporation and
ChaseMellon Shareholder Services, L.L.C.,
which includes as Exhibit B thereto the
Form of Rights Certificate.*
99.1 Press Release of the Company, dated January
24, 1997.
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* Incorporated herein by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A/A, dated
January 30, 1997.
EXHIBIT 3.1
AMENDED AND RESTATED
BYLAWS
OF
LAM RESEARCH CORPORATION
ARTICLE I
CORPORATE OFFICES
1.1 REGISTERED OFFICE
The registered office of the corporation shall be in the
City of Wilmington, County of New Castle, State of Delaware.
The name of the registered agent of the corporation at such
location is The Corporation Trust company.
1.2 OTHER OFFICES
The board of directors may at any time establish other
offices at any place or places where the corporation is
qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS
Meetings of stockholders shall be held at any place,
within or outside the State of Delaware, designated by the
board of directors. In the absence of any such designation,
stockholders' meetings shall be held at the registered office
of the Corporation.
2.2 ANNUAL MEETING
The annual meeting of stockholders shall be held each
year on a date and at a time designated by the board of
directors. In the absence of such designation, the annual
meeting of stockholders shall be held on the second Thursday
of November in each year at 2:00 p.m. However, if such day
falls on a legal holiday, then the meeting shall be held at
the same time and place on the next succeeding full business
day. At the meeting, directors shall be elected and any
other proper business may be transacted.
Only persons who are nominated in accordance with the
following procedures shall be eligible for election as
directors of the corporation. Nominations of persons for
election to the board of directors may be made at any annual
meeting of stockholders (a) by or at the direction of the
board of directors (or any duly authorized committee thereof)
or (b) by any stockholder of the corporation (i) who is a
stockholder of record on the date of the giving of the notice
provided for in this Section 2.2 and on the record date for
the determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice
procedures set forth in this Section 2.2.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must
have given timely notice thereof in proper written form to
the secretary of the corporation.
To be timely, a stockholder's notice to the secretary
must be delivered to or mailed and received at the principal
executive offices of the corporation not less than sixty (60)
days nor more than ninety (90) days prior to the date of the
annual meeting of stockholders; provided, however, that in
the event that less than seventy (70) days' notice or prior
public disclosure of the date of the meeting is given to
stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever first
occurs.
To be in proper written form, a stockholder's notice to
the secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as a director
(i) the name, age, business address and residence address of
the person, (ii) the principal occupation or employment of
the person, (ii) the class or series and number of shares of
capital stock of the corporation that are owned beneficially
or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address
of such stockholder, (ii) the class or series and number of
shares of capital stock of the corporation that are owned
beneficially or of record by such stockholder, (iii) a
description of all arrangements or understandings between
such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which
the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in
person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to
such stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the
rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed
nominee to being named as a nominee and to serve as a
director if elected.
No person shall be eligible for election as a director
of the corporation unless nominated in accordance with the
procedures set forth in this Section 2.2. If the chairman of
the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
No business may be transacted at an annual meeting of
stockholders, other than business that is either (a)
specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of
directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the annual meeting by or at
the direction of the board of directors (or any duly
authorized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of the
corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section 2.2 and
on the record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who complies
with the notice procedure set forth in this Section 2.2.
In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice
thereof in proper written form to the secretary of the
corporation.
To be timely, a stockholder's notice to the secretary
must be delivered to or mailed and received at the principal
executive offices of the corporation not less than sixty (60)
days nor more than ninety (90) days prior to the date of the
annual meeting of stockholders; provided, however, that in
the event that less than seventy (70) days' notice or prior
public disclosure of the date of the meeting is given to
stockholders, notice by the stockholder to be timely must be
so received not later than the close of business on the tenth
(10th) day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure of
the date of the annual meeting was made, whichever first
occurs.
To be in proper written form, a stockholder's notice to
the secretary must set forth as to each matter such
stockholder proposes to bring before the annual meeting (i) a
brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and
number of shares of capital stock of the corporation that are
owned beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between
such stockholder and any other person or persons (including
their names) in connection with the proposal of such business
by such stockholder and any material interest of such
stockholder in such business and (v) a representation that
such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual
meeting in accordance with the procedures set forth in this
Section 2.2, provided, however, that, once business has been
properly brought before the annual meeting in accordance with
such procedures, nothing in this Section 2.2 shall be deemed
to preclude discussion by any stockholder of any such
business. If the chairman of an annual meeting determines
that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the business was
not properly brought before the meeting and such business
shall not be transacted.
2.3 SPECIAL MEETING
Unless otherwise expressly provided in the Certificate
of Incorporation of the corporation, special meetings of the
stockholders may only be called by the chairman of the board,
by the president or at the request in writing of a majority
of the board of directors. Special meetings of stockholders
of the corporation may not be called by any other person or
persons.
If a special meeting is called by any person or persons
other than the board of directors, the request shall be in
writing, specifying the time of such meeting and the general
nature of the business proposed to be transacted, and shall
be delivered personally or sent by registered mail or by
telegraphic or other facsimile transmission to the chairman
of the board, the president, any vice president or the
secretary of the corporation. No business may be transacted
at such special meeting otherwise than specified in such
notice. The officer receiving the request shall cause notice
to be promptly given to the stockholders entitled to vote, in
accordance with the provisions of Sections 2.4 and 2.5, and
that a meeting will be held at the time requested by the
person or persons who called the meeting, not less than
thirty-five (35) nor more than sixty (60) days after the
receipt of the request. If the notice is not given within
twenty (20) days after the receipt of the request, the person
or persons requesting the meeting may give the notice.
Nothing contained in this paragraph of this Section 2.3 shall
be construed as limiting, fixing, or affecting the time when
a meeting of stockholders called by action of the board of
directors may be held.
2.4 NOTICE OF STOCKHOLDERS' MEETINGS
All notices of meetings with stockholders shall be in
writing and shall be sent or otherwise given in accordance
with Section 2.5 of these bylaws not less than ten (10) nor
more than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at such meeting. The
notice shall specify the place, date, and hour of the
meeting, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called.
2.5 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE
Written notice of any meeting of stockholders, if
mailed, is 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. An
affidavit of the secretary or an assistant secretary or of
the transfer agent of the corporation that the notice has
been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein.
2.6 QUORUM
The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person
or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the certificate
of incorporation. If, however, such quorum is not present or
represented at any meeting of the stockholders, then either
(i) the chairman of the meeting or (ii) the stockholders
entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting,
until a quorum is present or represented. At such adjourned
meeting at which a quorum is present or represented, any
business may be transacted that might have been transacted at
the meeting as originally noticed.
2.7 ADJOURNED MEETING; NOTICE
When a meeting is adjourned to another time or place,
unless these Bylaws otherwise require, notice need not be
given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the corporation may transact
any business that might have been transacted at the original
meeting. If the adjournment is for more than thirty (30)
days, or if 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
at the meeting.
2.8 VOTING
The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the
provisions of Section 2.11 of these bylaws, subject to the
provisions of Sections 217 and 218 of the General Corporation
Law of Delaware (relating to voting rights of fiduciaries,
pledgors and joint owners of stock and to voting trusts and
other voting agreements).
Except as set forth in the immediately following
paragraph of this Section 2.8 or otherwise provided in the
Certificate of Incorporation, each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote
for each share of the capital stock entitled to vote thereat
held by such stockholder. The board of directors, in its
discretion, or the officer of the corporation presiding at a
meeting of stockholders, in his discretion, may require that
any votes cast at such meeting shall be cast by written
ballot.
At the election of directors of the corporation, each
holder of stock or of any class or classes or of a series or
series thereof shall be entitled to as many votes as shall
equal the number of which (except for such provision as to
cumulative voting) he would be entitled to cast for the
election of directors with respect to his shares of stock
multiplied by the number of directors to be elected by him,
and he may cast all of such votes for a single director or
may distribute them among the number for, or for any two or
more of them as he may see fit; provided, however, that no
stockholder shall be entitled to so cumulate such
stockholder's votes unless the candidates for which such
stockholder is voting have been placed in nomination in
accordance with Section 2.2 of this Article II and a
stockholder has given timely notice of an intention to
cumulate votes. To be timely, a stockholder's notice shall
be delivered to or mailed and received at the principal
executive offices of the corporation not less than sixty (60)
days nor more than ninety (90) days prior to the meeting;
provided, however, that in the event that less than seventy
(70) days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than
the close of business on the tenth (10th) day following the
day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first
occurs. If any one stockholder has given proper notice of an
intention to cumulate votes pursuant to this Section 2.8, all
stockholders may cumulate their votes for candidates properly
in nomination.
When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power
present in person or represented by proxy shall decide any
question brought before such meeting, unless the question is
one upon which, by express provision of the statutes or of
the Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern
and control the decision of the question.
2.9 WAIVER OF NOTICE
Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of
the certificate of incorporation or these bylaws, a written
waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not
lawfully called or convened. 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 unless so required by the certificate of
incorporation or these bylaws.
2.10 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A
MEETING
Unless otherwise provided in the certificate of
incorporation, any action required by this chapter to be
taken at any annual or special meeting of stockholders of a
corporation, or any action that may be taken at any annual or
special meeting of such stockholders, may be taken without a
meeting, without prior notice, and without a vote if a
consent in writing, setting forth the action so taken, is
signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented
in writing. If the action which is consented to is such as
would have required the filing of a certificate under any
section of the General Corporation Law of Delaware if such
action had been voted on by stockholders at a meeting
thereof, then the certificate filed under such section shall
state, in lieu of any statement required by such section
concerning any vote of stockholders, that written notice and
written consent have been given as provided in Section 228 of
the General Corporation Law of Delaware.
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. If no record date has been fixed by
the board of directors 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
the State of Delaware, its principal place of business or an
officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are
recorded, to the attention of the secretary of the
corporation. 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.
In the event of the delivery to the corporation of a
written consent or consents purporting to authorize or take
corporate action and/or related revocations (each such
written consent and any revocation thereof is referred to in
this Section 2.10 as a "Consent"), the secretary of the
corporation shall provide for the safekeeping of such
Consents and shall as soon as practicable thereafter conduct
such reasonable investigation as he deems necessary or
appropriate for the purpose of ascertaining the validity of
such Consents and all matters incident thereto, including,
without limitation, whether the holders of shares having the
requisite voting power to authorize or take the action
specified in the Consents have given consents. No consent to
corporate action in writing without a meeting shall be
effective unless delivered to the corporation within sixty
(60) days following the record date relating thereto fixed
pursuant to this Section 2.10.
2.11 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING
CONSENTS
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 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 be
not more than sixty (60) nor less than ten (10) days before
the date of such meeting, nor more than sixty (60) days prior
to any other action.
If the board of directors does not so fix a record date:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding
the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on
which the meeting is held.
(ii) The record date for determining stockholders for
any other purpose shall be at the close of business on the
day on which the board of directors adopts the resolution
relating thereto.
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.
2.12 PROXIES
Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another
person or persons to act for him by a written proxy, signed
by the stockholder and filed with the secretary of the
corporation, but no such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy
provides for a longer period. A proxy shall be deemed signed
if the stockholder's name is placed on the proxy (whether by
manual signature, typewriting, telegraphic transmission or
otherwise) by the stockholder or the stockholder's attorney-
in-fact. The revocability of a proxy that states on its face
that it is irrevocable shall be governed by the provisions of
Section 212(c) of the General Corporation Law of Delaware.
2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE
The officer who has charge of the stock ledger of a
corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, 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 the
examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of
at least ten (10) 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. Such
list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number
of shares held by each of them.
2.14 CONDUCT OF BUSINESS
The chairman of any meeting of stockholders shall
determine the order of business and the procedures at the
meeting, including such matters as the regulation of the
manner of voting and the conduct of business.
ARTICLE III
DIRECTORS
3.1 POWERS
Subject to the provisions of the General Corporation Law
of Delaware and any limitations in the certificate of
incorporation or these bylaws relating to action required to
be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed
and all corporate powers shall be exercised by or under the
direction of the board of directors.
3.2 NUMBER OF DIRECTORS
The number of directors of the corporation shall be not
less than four (4) nor more than (7). The exact number of
directors shall be five (5) until changed, within the limits
specified above, by a bylaw amending this Section 3.2, duly
adopted by the board of directors or by the stockholders.
The indefinite number of directors may be changed, or a
definite number may be fixed without provision for an
indefinite number, by a duly adopted amendment to the
certificate of incorporation or by an amendment to this bylaw
duly adopted by the vote or written consent of the holders of
a majority of the stock issued and outstanding and entitled
to vote.
No reduction of the authorized number of directors shall
have the effect of removing any director before that
director's term of office expires.
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF
DIRECTORS
Except as provided in Section 3.4 of these bylaws,
directors shall be elected at each annual meeting of
stockholders to hold. office until the next annual meeting.
Directors need not be stockholders unless so required by the
certificate of incorporation or these bylaws, wherein other
qualifications for directors may be prescribed. Each
director, including a director elected to fill a vacancy,
shall hold office until his successor is elected and
qualified or until his earlier resignation or removal.
Elections of directors need not be by written ballot.
3.4 RESIGNATION AND VACANCIES
Any director may resign at any time upon written notice
to the corporation. When one or more directors so resigns
and the resignation is effective at a future date, a majority
of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies,
the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so
chosen shall hold office as provided in this section in the
filling of other vacancies.
A vacancy created by the removal of a director by the
vote or written consent of the stockholders or by a court
order may be filled only by the vote of a majority of the
outstanding shares entitled to vote thereon represented at a
duly held meeting at which a quorum is present, or by the
unanimous written consent of all shares entitled to vote
thereon. Each director so elected shall hold office until
the next annual meeting of the stockholders and until a
successor has been elected and qualified.
Unless otherwise provided in the certificate of
incorporation or these bylaws:
(i) Vacancies and newly created directorships resulting
from any increase in the authorized number of directors
elected by all of the stockholders having the right to vote
as a single class may be filled by a majority of the
directors then in office, although less than a quorum, or by
a sole remaining director.
(ii) Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more
directors by the provisions of the certificate of6
incorporation, vacancies and newly created directorships of
such class or classes or series may be filled by a majority
of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so
elected.
If at any time, by reason of death or resignation or
other cause, the corporation should have no directors in
office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, or other
fiduciary entrusted with like responsibility for the person
or estate of a stockholder, may call a special meeting of
stockholders in - accordance with the provisions of the
certificate of incorporation or these bylaws, or may apply to
the Court of Chancery for a decree summarily ordering an
election as provided in Section 211 of the General
Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly
created directorship, the directors then in office constitute
less than a majority of the whole board (as constituted
immediately prior to any such increase), then the Court of
Chancery may, upon application of any stockholder or
stockholders holding at least ten (10) percent of the total
number of the shares at the time outstanding having the right
to vote for such directors, summarily order an election to be
held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the
directors then in office as aforesaid, which election shall
be governed by the provisions of Section 211 of the General
Corporation Law of Delaware as far as applicable.
A director elected or appointed to fill a vacancy shall
serve until the next annual meeting of stockholders or until
a successor shall be elected and qualified.
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE
The board of directors of the corporation may hold
meetings, both regular and special, either within or outside
the State of Delaware.
Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the board of
directors, or any committee designated by the board of
directors, may participate in a meeting of the board of
directors, or any committee, by means of conference telephone
or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and
such participation in a meeting shall constitute presence in
person at the meeting.
3.6 FIRST MEETINGS
The first meeting of each newly elected board. of
directors shall be held at such time and place as shall be
fixed by the vote of the stockholders at the annual meeting
and no notice of such meeting shall be necessary to the newly
elected directors in order legally to constitute the meeting,
provided a quorum shall be present. In the event of the
failure of the stockholders to fix the time or place of such
first meeting of the newly elected board of directors , or in
the event such meeting is not held at the time and place so
fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as
hereinafter provided for special meetings of the board of
directors, or as shall be specified in a written waiver
signed by all of the directors.
3.7 REGULAR MEETINGS
Regular meetings of the board of directors may be held
without notice if the times of such meetings are fixed by the
board of directors.
3.8 SPECIAL MEETINGS; NOTICE
Notice of the time and place of special meetings shall
be given to each director at that director's address as it is
shown on the records of the corporation. Notice of such
special meeting stating the place, date and hour of the
meeting shall be given to each director either (i) by mail
not less than four (4) days before the date of the meeting,
or (ii) personally, by telephone, telecopy, telegram, telex
or other similar means of communication on twenty-four (24)
hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or
appropriate in the circumstances. Any oral notice given
personally or by telephone may be communicated either to the
director or to a person at the office of the director whom
the person giving the notice has reason to believe will
promptly communicate it to the director.
3.9 QUORUM
At all meetings of the board of directors, a majority of
the authorized number of directors shall constitute a quorum
for the transaction of business 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, except as
may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum is not present at
any meeting of the board of directors, then the directors
present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until
a quorum is present.
3.10 WAIVER OF NOTICE
Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of
the certificate of incorporation or these bylaws, a written
waiver thereof, signed by the person entitled to notice,
whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special
meeting of the directors, or members of a committee of
directors, need be specified in any written waiver of notice
unless so required by the certificate of incorporation or
these bylaws.
3.11 ADJOURNED MEETING; NOTICE
If a quorum is not present at any meeting of the board
of directors, then the directors present thereat may adjourn
the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present.
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING
Unless otherwise restricted by the certificate of
incorporation or these bylaws, any action required or
permitted to be taken at any meeting of the board of
directors, or of any committee thereof, may be taken without
a meeting if all members of the board or committee, as the
case may be, consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the
board or committee.
3.13 FEES AND COMPENSATION OF DIRECTORS
Unless otherwise restricted by the certificate of
incorporation or these bylaws, the board of directors shall
have the authority to fix the compensation of directors. The
directors may be paid their expenses, if any, of attending
each meeting of the board of directors and may be paid a
fixed sum for attending each meeting of the board of
directors or a stated salary as director. No such payment
shall preclude any director from serving the corporation in
any other capacity and receiving compensation therefor.
Members of special or standing committees may be allowed like
compensation for attending committee meetings.
3.14 APPROVAL OF LOANS TO OFFICERS
The corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other
employee of the corporation or of its subsidiary, including
any officer or employee who is a director of the corporation
or its subsidiary, whenever in the judgment of the directors,
such loan, guaranty or assistance may reasonably be expected
to benefit the corporation. The loan, guaranty or other
assistance may be with or without interest and may be
unsecured, or secured in such manner as the board of
directors shall approve, including, without limitation, a
pledge of shares of stock of the corporation. Nothing in
this section contained shall be deemed to deny, limit or
restrict the powers of guaranty or warranty of the
corporation at common law or under any statute.
3.15 REMOVAL OF DIRECTORS
Unless otherwise restricted by statute, by the
certificate of incorporation or by these bylaws, any director
or the entire board of directors may be removed, with or
without cause, by the holders of a majority of the shares
then entitled to vote at an election of directors; provided,
however, that, so long as stockholders of the corporation are
entitled to cumulative voting, if less than the entire board
is to be removed, no director may be removed without cause if
the votes cast against his or her removal would be sufficient
to elect him or her if then cumulatively voted at an election
of the entire board of directors.
No reduction of the authorized number of directors shall
have the effect of removing any director prior to the
expiration of such director's term of office.
ARTICLE IV
COMMITTEES
4.1 COMMITTEES OF DIRECTORS
The board of directors may, by resolution passed by a
majority of the whole board, designate one or more
committees, with each committee to consist of one or more of
the directors of the corporation. The board may designate
one or more directors as alternate members of any committee,
who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification
of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors
to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent
provided in the resolution of the board of directors or in
the bylaws of the corporation, shall have and may exercise
all the powers and authority 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 that may require it; but no such committees
shall have the power or authority to (i) amend the
certificate of incorporation (except that a committee may, to
the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the
board of directors as provided in Section 151(a) of the
General Corporation Law of Delaware, fix any of the
preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of
the corporation), (ii) adopt an agreement of merger or
consolidation under Sections 251 or 252 of the General
Corporation Law of Delaware, (iii) recommend to the
stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets,
(iv) recommend to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or (v) amend
the bylaws of the corporation; and, unless the board
resolution establishing the committee, the bylaws or the
certificate of incorporation expressly so provide, no such
committee shall have the power or authority to declare a
dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to section 253
of the General Corporation Law of Delaware.
4.2 COMMITTEE MINUTES
Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when
required.
4.3 MEETINGS AND ACTION OF COMMITTEES
Meetings and actions of committees shall be governed by,
and held and taken in accordance with, the provisions of
Article III of these bylaws, Section 3.5 (place of meetings
and meetings by telephone), Section 3.7 (regular meetings),
Section 3.8 (special meetings and notice), Section 3.9
(quorum), Section 3.10 (waiver of notice), Section 3.11
(adjournment and notice of adjournment), and Section 3.12
(action without a meeting), with such changes in the context
of those bylaws as are necessary to substitute the committee
and its members for the board of directors and its members;
provided, however, that the time of regular meetings of
committees may also be called by resolution of the board of
directors and that notice of special meeting of committees
shall also be given to all alternate members, who shall have
the right to attend all meetings of the committee. The board
of directors may adopt rules for the government of any
committee not inconsistent with the provisions of these
bylaws.
ARTICLE V
OFFICERS
5.1 OFFICERS
The officers of the corporation shall be a president,
one or more vice presidents, a secretary, and a treasurer.
The corporation may also have, at the discretion of the board
of directors, a chairman of the board, one or more assistant
vice presidents, assistant secretaries, assistant treasurers,
and any such other officers as may be appointed in accordance
with the provisions of Section 5.3 of these bylaws. Any
number of offices may be held by the same person.
5.2 ELECTION OF OFFICERS
The officers of the corporation, except such officers as
may be appointed in accordance with the provisions of Section
5.3 or 5.5 of these bylaws, shall be chosen by the board of
directors, subject to the rights, if any, of any officer
under any contract of employment.
5.3 SUBORDINATE OFFICERS
The board of directors may appoint or empower the
president to appoint, such other officers and agents as the
business of the corporation may require, each of whom shall
hold office for such period, have such authority, and perform
such duties as are provided in these bylaws or as the board
of directors may from time to time determine.
5.4 REMOVAL AND RESIGNATION OF OFFICERS
Subject to the rights, if any, of an officer under any
contract of employment, any officer may be removed, either
with or without cause, by an affirmative vote of the majority
of the board of directors at any regular or special meeting
of the board or, except in the case of an officer chosen by
the board of directors, by any officer upon whom such power
of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written
notice to the corporation. Any resignation shall take effect
at the date of the receipt of that notice or at any later
time specified in that notice; the acceptance of the
resignation shall not be necessary to make it effective. Any
resignation is without prejudice to the rights, if any, of
the corporation under any contract to which the officer is a
party.
5.5 VACANCIES IN OFFICES
Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
5.6 CHAIRMAN OF THE BOARD
The chairman of the board shall be the chief executive
officer of the corporation and shall, subject to the control
of the board of directors, have general supervision,
direction and control of the business and the officers of the
corporation. He shall preside at all meetings of the board
of directors and shareholders. He shall have the general
powers and duties of management generally vested in the
office of chief executive officer of a corporation, and shall
have such other powers and duties as may be prescribed by the
board of directors or these bylaws.
5.7 PRESIDENT
The president shall be the chief operating officer of
the corporation and shall, subject to the control of the
board of directors, have general supervision, direction, and
control of the internal affairs and operations of the
corporation. He shall have the general powers and duties of
management usually vested in the office of chief operating
officer of a corporation, and shall have such other powers
and duties as may be prescribed by the board of directors or
these bylaws.
5.8 VICE PRESIDENTS
In the absence or disability of the president, the vice
presidents, if any, in order of their rank as fixed by the
board of directors or, if not ranked, a vice president
designated by the board of directors, shall perform all the
duties of the president and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the
president. The vice presidents shall have such other powers
and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors,
these bylaws, the president or the chairman of the board.
5.9 SECRETARY
The secretary shall keep or cause to be kept, at the
principal office of the corporation or such other place as
the board of directors may direct, a book of minutes of all
meetings and actions of directors, committees of directors,
and shareholders. The minutes shall show the time and place
of each meeting, whether regular or special (and, if special,
how authorized and the notice given), the names of those
present at directors' meetings or committee meetings, the
number of shares present or represented at shareholders'
meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the
office of the corporation's transfer agent or registrar, as
determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of
all shareholders and their addresses, the number and classes
of shares held by each, the number and date of certificates
evidencing such shares, and the number and date of
cancellation of every certificate surrendered for
cancellation.
The secretary shall give, or cause to be given, notice
of all meetings of the shareholders and of the board of
directors required to be given by law or by these bylaws. He
shall keep the seal of the corporation, if one be adopted, in
safe custody and shall have such other power and perform such
other duties as may be prescribed by the board of directors
or by these bylaws.
5.10 CHIEF FINANCIAL OFFICER
The chief financial officer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books
and records of accounts of the properties and business
transactions of the corporation, including accounts of its
assets, liabilities, receipts, disbursements, gains, losses,
capital, retained earnings, and shares. The books of account
shall at all reasonable times be open to inspection by any
director.
The chief financial officer shall deposit all money and
other valuables in the name and to the credit of the
corporation with such depositories as may be designated by
the board of directors. He shall disburse the funds of the
corporation as may be ordered by the board of directors,
shall render to the president and directors, whenever they
request it, an account of all of his transactions as chief
financial officer and of the financial condition of the
corporation, and shall have such other powers and perform
such other duties as may be prescribed by the board of
directors or these bylaws.
5.11 ASSISTANT SECRETARY
The assistant secretary, or if there is more than one,
the assistant secretaries in the order determined by the
stockholders or board of directors (or if there be no such
determination then in the order of their election) shall, in
the absence of the secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise
the powers of the secretary and shall perform such other
duties and have such other powers as the board of directors
or the stockholders may from time to time prescribe.
5.12 ASSISTANT TREASURERS
The assistant treasurer, or, if there is more than one,
the assistant treasurer, in the order determined by the
stockholders or board of directors (or if there be no such
determination, then in the order of their election), shall,
in the absence of the chief financial officer or in the event
of his or her inability or refusal to act, perform the duties
and exercise the powers of the chief financial officer and
shall perform such other duties and have such other powers as
the board of directors or the stockholders may from time to
time prescribe.
5.13 AUTHORITY AND DUTIES OF OFFICERS
In addition to the foregoing authority and duties, all
officers of the corporation shall respectively have such
authority and perform such duties in the management of the
business of the corporation as may be designated form time to
time by the board of directors or the stockholders.
ARTICLE VI
INDEMNITY
6.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation shall, to the maximum extent and in the
manner permitted by the General Corporation Law of Delaware,
indemnify each of its directors and officers against expenses
(including attorneys' fees), judgments, fines, settlements,
and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact
that such person is or was an agent of the corporation. For
purposes of this Section 6.1, a "director" or "officer" of
the corporation includes any person (i) who is or was a
director or officer of the corporation, (ii) who is or was
servicing at the request of the corporation as a director or
officer of another corporation, partnership, joint venture,
trust or other enterprise, or (iii) who was a director or
officer of a corporation which was a predecessor corporation
of the corporation or of another enterprise at the request of
such predecessor corporation.
6.2 INDEMNIFICATION OF OTHERS
The corporation shall have the power, to the extent and
in the manner permitted by the General Corporation Law of
Delaware, to indemnify each of its employees and agents
(other than directors and officers) against expenses
(including attorneys' fees), judgments, fines, settlements,
and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact
that such person is or was an agent of the corporation. For
purposes of this Section 6.2, an "employee" or "agent" of the
corporation (other than a director or officer) incudes any
person (i) who is or was an employee or agent of the
corporation, (ii) who is or was serving at the request of the
corporation as an employee or agent or another corporation,
partnership, joint venture, trust or other enterprise, or
(iii) who was an employee or agent of a corporation which was
a predecessor corporation of the corporation or of another
enterprise at the request of such predecessor corporation.
6.3 INSURANCE
The corporation may 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 the General
Corporation Law of Delaware.
ARTICLE VII
RECORDS AND REPORTS
7.1 MAINTENANCE AND INSPECTION OF RECORDS
The corporation shall, either at its principal executive
office or at such place or places as designated by the board
of directors, keep a record of its shareholders listing their
names and addresses and the number and class of shares held
by each shareholder, a copy of these bylaws as amended to
date, accounting books, and other records.
Any stockholder of record, in person or by attorney or
other agent, shall, upon written demand under oath stating
the purpose thereof, have the right during the usual hours
for business to inspect for any proper purpose the
corporation's stock ledger, a list of its stockholders, and
its other books and records and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably
related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who
seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney of such other writing that
authorizes the attorney or other agent to so act on behalf of
stockholder. The demand under oath shall be directed to the
corporation at its registered office in Delaware or at its
principal place of business.
The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, 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 the
examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for, a period of
at least ten (10) 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 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.
7.2 INSPECTION BY DIRECTORS
Any director shall have the right to examine the
corporation's stock ledger, a list of its stockholders, and
its other books and records for a purpose reasonably related
to his position as a director. The Court of Chancery is
hereby vested with the exclusive jurisdiction to determine
whether a director is entitled to the inspection sought. The
Court may summarily order the corporation to permit the
director to inspect any and all books and records, the stock
leger, and the stock list and to make copies or extracts
therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection,
or award such other and further relief as the Court may deem
just and proper.
7.3 ANNUAL STATEMENT TO STOCKHOLDERS
The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when
called for by vote of the stockholders, a full and clear
statement of the business and condition of the corporation.
7.4 REPRESENTATION OF SHARES OF OTHER CORPORATIONS
The chairman of the board, the president, any vice
president, the chief financial officer, the secretary or
assistant secretary of this corporation, or any other person
authorized by the board of directors or the president or a
vice president, is authorized to vote, represent, and
exercise on behalf of this corporation all rights incident to
any and all shares of any other corporation or corporations
standing in the name of this corporation. The authority
granted herein may be exercised either by such person
directly or by any other person authorized to do so by proxy
or power of attorney duly executed by such person having the
authority.
ARTICLE VIII
8.1 CHECKS
From time to time, the board of directors, shall
determine by resolution which person or persons may sign or
endorse all checks, drafts, other orders for payment of
money, notes or other evidences of indebtedness that are
issued in the name of or payable to the corporation, and only
the persons so authorized shall sign or endorse those
instruments.
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS
The board of directors, except as otherwise provided in
these bylaws, may authorize any officer or officers, or agent
or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation;
such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of
directors or within the agency power of any officer, no
officer, agent or employee shall have any power or authority
to bind the corporation by any contract or engagement or to
pledge its credit or to render it liable for any purpose or
for any amount.
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES
The shares of the corporation shall be represented by
certificates, provided that the board of directors may
establish by resolution or resolutions that some or all of
any or all classes or series of the corporation's stock shall
be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such
certificate is surrendered to the corporation.
Notwithstanding the adoption of such a resolution by the
board of directors, every holder of stock represented by
certificates and, upon request, every holder of
uncertificated shares shall be entitled to have a certificate
signed by, or in the name of the corporation by the chairman
or vice chairman of the board of directors, or the president
or vice president, and by the chief financial officer or an
assistant treasurer, or the secretary or an assistant
secretary of the corporation representing the number of
shares registered in certificate form. Any or all of the
signatures on the certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed or
whose facsimile signatures has been placed upon a certificate
has 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 or she were such
officer, transfer agent or registrar at the date of issue.
The corporation may issue the whole or any part of its
shares as partly paid and subject to call for the remainder
of the consideration to be paid therefor. Upon the face or
back of each stock certificate issued to represent any such
partly paid shares, or upon the books and records of the
corporation in the case of uncertificated partly paid shares,
the total amount of the consideration to be paid therefor and
the amount paid thereon shall be stated. Upon the
declaration of any dividend on fully paid shares, the
corporation shall declare a dividend upon partly paid shares
of the same class, but only upon the basis of the percentage
of the consideration actually paid thereon.
8.4 SPECIAL DESIGNATION CERTIFICATES
If the corporation is authorized to issue more than one
class of stock or more than one series of any class, then the
powers, the designations, the preferences, and the relative,
participating, optional or other special rights of each class
of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back
of the certificate that the corporation shall issue to
represent such class or series of stock; provided, however,
that, except as otherwise provided in Section 202 of the
General Corporation Law of Delaware, in lieu of the foregoing
requirements there may be set forth on the face or back of
the certificate that the corporation shall issue to represent
such class or series of stock a statement that the
corporation will furnish without charge to each stockholder
who so requests the powers, the designations, the
preferences, and the relatives, participating, optional or
other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such
preferences and/or rights.
8.5 LOST CERTIFICATES
Except as provided in this Section 8.5, no new
certificates for shares shall be issued to replace a
previously issued certificate unless the latter is
surrendered to the corporation and canceled at the same time.
The corporation may issue a new certificate of stock or
uncertificated shares in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the corporation may require the owner of
the lost, stolen or destroyed certificate, or his legal
representative, to give the corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any
uncertificated shares.
8.6 CONSTRUCTION; DEFINITIONS
Unless the context requires otherwise, the general
provisions rules of construction, and definitions in the
Delaware General Corporation Law shall govern the
construction of these bylaws. Without limiting the
generality of this provision, the singular number includes
the plural, the plural number includes the singular, the
masculine gender includes the feminine, the feminine gender
includes the masculine, and the term "Person" includes both a
corporation and a natural person.
8.7 DIVIDENDS
The directors of the corporation, subject to any
restrictions contained in the certificate of incorporation,
may declare and pay dividends upon the shares of its capital
stock pursuant to the General Corporation Law of Delaware.
Dividends may be paid in cash, in property, or in shares of
the corporation's capital.
The directors of the corporation may set apart out of
any of the funds of the corporation available for dividends a
reserve or reserves for any proper purpose and may abolish
any such reserves. Such purposes shall include but not be
limited to equalizing dividends, repairing or maintaining any
property of the corporation, and meeting contingencies.
8.8 FISCAL YEAR
The fiscal year of the corporation shall be fixed by
resolution of the board of directors and may be changed by
the board of directors. Unless otherwise designated, the
fiscal year of the corporation shall end on June 30.
8.9 SEAL
The corporation may adopt a corporate seal, which may be
altered at pleasure, and may use the same by causing it or a
facsimile thereof to be impressed or affixed or in any other
manner reproduced.
8.10 TRANSFER OF STOCKS
Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation
or authority to 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 in its books.
8.11 STOCK TRANSFER AGREEMENTS
The corporation shall have power to enter into and
perform, any agreement with any number of shareholders of any
one or more classes of stock of the corporation to restrict
the transfer of shares of stock of the corporation of any one
or more classes owned by such stockholders in any manner not
prohibited by the General Corporation Law of Delaware.
8.12 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, shall be entitled to hold liable for calls and
assessments the 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 another person, whether or not it shall have express
or other notice thereof, except as otherwise provided by the
laws of Delaware.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be
adopted, amended or repealed by the stockholders entitled to
vote, provided, however, that the corporation may, in its
certificate of incorporation, confer the power to adopt,
amend or repeal bylaws upon the directors. The fact that
such power has been so conferred upon the directors shall not
divest the stockholders of the power, nor limit their power
to adopt, amend or repeal bylaws.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the
board of directors of the corporation that the corporation
should be dissolved, the board, after the adoption of a
resolution to that effect by a majority of the whole board at
any meeting called for that purpose, shall cause notice to be
mailed to each stockholder entitled to vote thereon of the
adoption of the resolution and of a meeting of stockholders
to take action upon the resolution.
At the meeting a vote shall be taken for and against the
proposed dissolution. If a majority of the outstanding stock
of the corporation entitled to vote thereon votes for the
proposed dissolution, then a certificate stating that the
dissolution has been authorized in accordance with the
provision of section 275 of the General Corporation Law of
Delaware and setting forth the names and residences of the
directors and officers shall be executed, acknowledged, and
filed and shall become effective in accordance with Section
103 of the Federal Corporation Law of Delaware. Upon such
certificates becoming effective in accordance with Section
103 of the General Corporation Law of Delaware, the
corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a
dissolution consent in writing, either in person or by duly
authorized attorney, to a dissolution, no meeting of
directors or stockholders shall be necessary. The consent
shall be filed and shall become effective in accordance with
Section 103 of the General Corporation Law of Delaware. Upon
such consents becoming effective in accordance with Section
103 of the General Corporation Law of Delaware, the
corporation shall be dissolved. If the consent is signed by
an attorney, then the original power of attorney or a
photocopy thereof shall be attached to and filed with the
consent. The consent filed with the Secretary of State shall
have attached to it the affidavit of the secretary of some
other officer of the corporation stating that the consent has
been signed by or on behalf of all the stockholders entitled
to vote on a dissolution; in addition, there shall be
attached to the consent a certification by the secretary or
some other officer of the corporation setting forth the names
and residences of the directors and officers of the
corporation.
ARTICLE XI
CUSTODIAN
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES
The Court of Chancery, upon application of any
stockholder, may appoint one or more persons to be custodians
and, if the corporation is insolvent, to be receivers, of and
for the corporation when:
(i) at any meeting held for the
election of directors the stockholders are so
divided that they have failed to elect successors
to directors whose terms have expired or would have
expired upon qualification of their successors; or
(ii) the business of the corporation
is suffering or is threatened with irreparable
injury because the directors are so divided
respecting the management of the affairs of the
corporation that the required vote for action by
the board of directors cannot be obtained and the
stockholders are unable to terminate this division;
or
(iii) the corporation has abandoned
its business and has failed within a reasonable
time to take steps to dissolve, liquidate or
distribute its assets.
11.2 DUTIES OF CUSTODIAN
The custodian shall have all the powers and title of a
receiver appointed under Section 291 of the General
Corporation Law of Delaware, but the authority of the
custodian shall be to continue the business of the
corporation and not to liquidate its affairs and distribute
its assets, except when the Court of Chancery otherwise
orders and except in cases arising under Sections 226(a)(3)
or 352 (a)(2) of the General Corporation Law of Delaware.
CERTIFICATE OF ADOPTION OF AMENDED AND RESTATED BYLAWS
OF
LAM RESEARCH CORPORATION
Certificate of Adoption
The undersigned hereby certifies that he is the duly elected,
qualified, and acting Secretary of Lam Research Corporation
(the "Company") and that the foregoing Amended and Restated
Bylaws, comprising thirty-five (35) pages, were adopted as
the Amended and Restated Bylaws of the Company on January 23,
1997 at a duly called meeting of the Board of Directors of
the Company.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and affixed the corporate seal this ___ day of March,
1997.
/s/ Richard H. Lovgren
----------------------------
Richard H. Lovgren, Secretary
EXHIBIT 99.1
FOR IMMEDIATE RELEASE CONTACT: David Ringler
Investor Relations/
Corporate Communications
Lam Research Corporation
4650 Cushing Parkway
Fremont, California 94538
Tel (510) 572-6848
Fax (510) 572-6454
email [email protected]
LAM RESEARCH CORPORATION ADOPTS
SHAREHOLDER RIGHTS PLAN
Fremont, California, January 24, 1997 - Lam
Research Corporation (Nasdaq: LRCX) today announced that its
Board of Directors had adopted a Shareholder Rights Plan in
which rights will be distributed as a dividend at the rate of
one right for each share of common stock, par value $.001 per
share, of the Company held by stockholders of record as of
the close of business on January 31, 1997. In connection
with the adoption of the Shareholder Rights Plan, the Board
of Directors also adopted a number of amendments to the
Company's bylaws, including amendments requiring advance
notice of stockholder nominations of directors, stockholder
proposals, actions by written consent by stockholders and a
stockholder's intention to cumulate votes. The bylaw
amendments also eliminate the right of stockholders to call
special meetings of stockholders.
The Rights Plan is intended to protect stockholders
by deterring coercive takeover tactics, including the
accumulation of shares in the open market or through private
transactions, and to prevent an acquiror from gaining control
of the Company without offering a fair price to all of the
Company's stockholders. The Rights will expire on January
31, 2007. The bylaw amendments are intended to provide
advance notice of stockholder initiatives so that the Board
of Directors, as well as all stockholders of the Company, can
evaluate such initiatives with the benefit of full disclosure
of information and in an orderly manner.
Under the Rights Plan, each right initially will
entitle stockholders to buy one unit of a share of preferred
stock for $250. The rights will be exercisable only if a
person or group (other than stockholders currently owning 15
percent of the Company's common stock) acquires beneficial
ownership of 15 percent or more of the Company's common stock
or commences a tender or exchange offer upon consummation of
which such person or group would beneficially own 15 percent
or more of the Company's common stock.
If any person becomes the beneficial owner of 15
percent or more of the Company's common stock, other than
pursuant to a tender or exchange offer for all outstanding
shares of the Company approved by a majority of the
independent directors not affiliated with such person, then
each right not owned by such person or related parties will
entitle its holder to purchase, at the right's then current
exercise price, shares of the Company's common stock (or, in
certain circumstances as determined by the Board, cash, other
property or other securities) having a value of twice the
right's then current exercise price. In addition, if after
any person has become a 15 percent stockholder, the Company
is involved in a merger or other business combination
transaction with another person in which the Company does not
survive or in which its common stock is changed or exchanged,
or if the Company sells 50 percent or more of its assets or
earning power to another person, each right will entitle its
holder to purchase, at the right's then current exercise
price, shares of common stock of such other person having a
value of twice the right's then current exercise price.
The Company will generally be entitled to redeem
the Rights at $.001 per Right at any time until 10 business
days (subject to extension) following a public announcement
that a 15 percent position has been acquired.
Details of the Shareholder Rights Plan are outlined
in a letter to be mailed to all stockholders of the Company.
Safe Harbor Statement Under the Private Securities
Litigation Act of 1995: This press release contains certain
forward-looking statements, including those relating to
distribution of dividends and operation of the Shareholder
Rights Plan, that are subject to various risks and
uncertainties that could cause results to differ materially.
These risks include the risk that future action or inaction
by the Board with respect to the Shareholder Rights Plan,
including any future decision relating to redemption of the
Rights or amendment of the terms of the Rights, could become
the subject of litigation and other risks detailed from time
to time in the Company's SEC reports, including the report on
Form 10-Q for the quarter ended September 30, 1996. The
Company assumes no obligation to update the information in
this release.
Lam Research Corporation is a leading supplier of
wafer processing equipment to the worldwide semiconductor
industry. The Company's broad product offerings are focused
on etch and deposition, two of the most vital steps in the
fabrication of current and future integrated circuits.
Founded in 1980, Lam is headquartered in Fremont and
maintains customer support centers throughout the United
States, Europe, Japan and the Asia/Pacific region to support
its global customer base. The Company's common stock trades
on the Nasdaq National Market under the symbol LRCX. Lam's
World Wide Web address is http://www.lamrc.com.
