UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 19, 2005
NATIONAL SEMICONDUCTOR CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-6453 95-2095071
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(State of Incorporation) (Commission (I.R.S. Employer
File Number) Identification Number)
2900 SEMICONDUCTOR DRIVE, P.O. BOX 58090
SANTA CLARA, CALIFORNIA 95052-8090
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(Address of Principal Executive Offices)
(408) 721-5000
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communication pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
NATIONAL SEMICONDUCTOR CORPORATION
Table of Contents
Page
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Section 1 - Registrant's Business and Operations
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Item 1.01 Entry into a Material Definitive Agreement 3
Section 5 - Corporate Governance and Management
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Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year 3
Section 9 - Financial Statements and Exhibits
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Item 9.01 Financial Statements and Exhibits 8
Exhibits:
3.2 Bylaws of the Company
10.1 Management Contract or Compensatory Plan or Arrangement:
Fiscal Year 2006 Executive Officer Incentive Plan Agreement
10.2 Management Contract or Compensatory Plan or Arrangement:
Amended and Restated Restricted Stock Plan
10.3 Management Contract or Compensatory Plan or Arrangement:
Form of Restricted Stock Unit Grant Agreement
10.4 Management Contract or Compensatory Plan or Arrangement:
Form of Restricted Stock Grant Agreement
Signature 9
NATIONAL SEMICONDUCTOR CORPORATION
Item 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
a. The stockholders of National Semiconductor Corporation
("National" or the "Company") approved the Executive Officer
Incentive Plan, as amended ("EOIP") at the Company's annual
meeting of stockholders held on October 1, 2004. A copy of the
EOIP was filed with the SEC with the Company's 2004 Form 10-K.
Under SEC rules, the EOIP is considered a material agreement of
the Company. The EOIP is administered each fiscal year with an
agreement that is effective for that fiscal year. On July 19,
2005, the Compensation Committee (the "Committee") of the
Company's Board of Directors approved the form of the EOIP
Agreement effective for fiscal year 2006. A copy of the FY06 EOIP
Agreement is attached hereto as Exhibit 10.1. In administering
the EOIP and determining incentives for fiscal year 2005, the
Committee decided on July 19, 2005 to approve an incentive for
Suneil Parulekar, who served as Senior Vice President, Analog
Products Group during fiscal 2005, in excess of the amount
permitted by the terms of the EOIP. The Committee made this
decision based on Mr. Parulekar's leadership of the Analog
Products Group, which performed extremely well during the fiscal
year and contributed significantly to the Company's overall
financial performance.
b. The Company has a Restricted Stock Plan which authorizes grants
of restricted stock to non-officer employees. The Restricted
Stock Plan is considered a material agreement of the Company
under SEC rules. On July 20, 2005, the Board of Directors amended
the Restricted Stock Plan to, inter alia, allow for grants of
restricted stock units under the Restricted Stock Plan. A copy of
the Amended and Restated Restricted Stock Plan is attached hereto
as Exhibit 10.2. In connection with the plan amendments, the
Compensation Committee of the Board of Directors approved the
form of the restricted stock unit grant agreement and revisions
to the form of the restricted grant agreement. A copy of the form
of restricted stock unit grant agreement is attached hereto as
Exhibit 10.3 and a copy of the form of the revised restricted
stock grant agreement is attached hereto as Exhibit 10.4.
c. The Committee determined on July 19, 2005 to increase the salary
of Lewis Chew, Senior Vice President, Finance and Chief Financial
Officer, to $400,000 effective July 24, 2005. Under SEC rules,
salary adjustments for certain of the Company's executive
officers constitute material agreements of the Company.
Item 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS, CHANGE IN
FISCAL YEAR
a. The Company's Board of Directors has amended the Bylaws of the
Company effective July 20, 2005. Article IV, Section 3 previously
read as follows:
Section 3. Duties of Officers. In addition to those duties that
may from time to time be delegated to them by the board of
directors, the officers of the corporation shall have the
following duties:
(a) Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and of the board of
directors at which he is present, shall be ex-officio a member of
all committees formed by the board of directors and shall have
such other duties and powers as the board of directors may
prescribe.
(b) President. The president shall be the chief executive
officer of the corporation, shall have general and active
management of the business of the corporation, shall see that all
orders and resolutions of the board of directors are carried into
effect, and, in the absence or nonelection of the chairman of the
board of directors, shall preside at all meetings of the
stockholders and the board of directors at which he is present if
he is also a director. The president also shall execute bonds,
mortgages, and other contracts requiring a seal under the seal of
the corporation, except where required or permitted by law to be
otherwise signed and executed and except where the signing and
execution thereof shall be delegated expressly by the board of
directors to some other officer or agent of the corporation and
shall have such other powers and duties as the board of directors
may prescribe.
(c) Group President. The group president or group
presidents, if any, shall have general and active management of
the group for which they are designated as president by the board
of directors and shall have such other duties and powers as
vice-presidents or as the board of directors or the president may
prescribe.
(d) Vice-President. The vice-president or vice-presidents,
if any, shall have such duties and powers as the board of
directors or the president may prescribe. In the absence of the
president or in the event of his inability or refusal to act, the
group president or vice president, if any, or if there be more
than one, the group presidents or vice-presidents, in the order
designated by the board of directors, or, in the absence of such
designation, then in the order of their election, shall perform
the duties and exercise the powers of the president.
(e) Secretaries and Assistant Secretaries. The secretary
shall record the proceedings of all meetings of the stockholders
and all meetings of the board of directors in books to be kept
for that purpose, shall perform like duties for the standing
committees when required, and shall give, or cause to be given,
call and/or notices of all meetings of the stockholders and
meetings of the board of directors in accordance with these
by-laws. The secretary also shall have custody of the corporate
seal of the corporation, affix the seal to any instrument
requiring it and attest thereto when authorized by the board of
directors or the president, and shall have such other duties and
powers as the board of directors may prescribe.
The assistant secretary, if any, or if there be more than
one, the assistant secretaries, in the order designated by the
board of directors, or, if there be no such designation, then in
order of their election, shall, in the absence of the secretary
or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall have
such other duties and powers as the board of directors may
prescribe.
In the absence of the secretary or an assistant secretary at
a meeting of the stockholders or the board of directors, an
acting secretary shall be chosen by the stockholders or
directors, as the case may be, to exercise the duties of the
secretary at such meeting.
In the absence of the secretary or an assistant secretary or
in the event of the inability or refusal of the secretary or an
assistant secretary to give, or cause to be given, any call
and/or notice required by law or these by-laws, any such call
and/or notice may be given by any person so directed by the board
of directors, the president or stockholders, upon whose
requisition the meeting is called in accordance with these
by-laws.
(f) Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and 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.
As amended, Article IV, Section 3 now reads:
Section 3. Duties of Officers. In addition to those duties that
may from time to time be delegated to them by the board of
directors, the officers of the corporation shall have the
following duties:
(a) Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and of the board of
directors at which he is present, shall be ex-officio a member of
all committees formed by the board of directors and shall have
such other duties and powers as the board of directors may
prescribe.
(b) Chief Executive Officer. 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 chief executive officer 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) President. Unless the board of directors expressly
designates another officer as chief executive officer, the
president shall be the chief executive officer of the corporation
and shall perform the duties and exercise the powers of the chief
executive officer. If the president is not the chief executive
officer, in the absence of the chief executive officer or in the
event of his inability or refusal to act, the president shall
perform the duties and exercise the powers of the chief executive
officer. The president shall otherwise have such other duties and
powers as the board of directors may prescribe.
(d) 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.
(e) 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.
(f) Secretaries and Assistant Secretaries. The secretary
shall record the proceedings of all meetings of the stockholders
and all meetings of the board of directors in books to be kept
for that purpose, shall perform like duties for the standing
committees when required, and shall give, or cause to be given,
call and/or notices of all meetings of the stockholders and
meetings of the board of directors in accordance with these
by-laws. The secretary also shall have custody of the corporate
seal of the corporation, affix the seal to any instrument
requiring it and attest thereto when authorized by the board of
directors or the president, and shall have such other duties and
powers as the board of directors may prescribe.
The assistant secretary, if any, or if there be more than
one, the assistant secretaries, in the order designated by the
board of directors, or, if there be no such designation, then in
order of their election, shall, in the absence of the secretary
or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the secretary and shall have
such other duties and powers as the board of directors may
prescribe.
In the absence of the secretary or an assistant secretary at
a meeting of the stockholders or the board of directors, an
acting secretary shall be chosen by the stockholders or
directors, as the case may be, to exercise the duties of the
secretary at such meeting.
In the absence of the secretary or an assistant secretary or
in the event of the inability or refusal of the secretary or an
assistant secretary to give, or cause to be given, any call
and/or notice required by law or these by-laws, any such call
and/or notice may be given by any person so directed by the board
of directors, the president or stockholders, upon whose
requisition the meeting is called in accordance with these
by-laws.
(g) 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.
(h) Other Officers. Any other officer shall have such powers
and duties as the board of directors may prescribe.
A copy of the complete Bylaws as amended is attached hereto as
Exhibit 3.2.
Item 9.01 FINANCIAL STATEMENTS AND EXHIBITS
Exhibits
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Exhibit No. Description of Exhibit
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3.2 Bylaws of the Company
10.1 Management Contract or Compensatory Plan or Arrangement:
Fiscal Year 2006 Executive Officer Incentive Plan Agreement
10.2 Management Contract or Compensatory Plan or Arrangement:
Amended and Restated Restricted Stock Plan
10.3 Management Contract or Compensatory Plan or Arrangement:
Form of Restricted Stock Unit Grant Agreement
10.4 Management Contract or Compensatory Plan or Arrangement:
Form of Restricted Stock Grant Agreement
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NATIONAL SEMICONDUCTOR CORPORATION
Dated: July 22, 2005 //S// JOHN M. CLARK III
-----------------------------------
John M. Clark III
Senior Vice President
Signing on behalf of the registrant
Exhibit 3.2
BY-LAWS
OF
NATIONAL SEMICONDUCTOR CORPORATION
AMENDED AS OF JULY 20, 2005
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 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 adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote.
Section 8. Proxies. At all meetings of stockholders, each stockholder
entitled to vote shall have one vote, to be exercised in person or by proxy, for
each share of capital stock having voting power, held by such stockholder. All
proxies shall be in writing, shall relate only to a specific meeting (including
continuations and adjournments of the same), and shall be filed with the
secretary at or before the time of the meeting. Each proxy must be signed by the
shareholder or his attorney-in-fact. The person or persons named in a proxy for
a specific meeting may vote at any adjournment of the meeting for which the
proxy was given. If more than one person is named as proxy, a majority of such
persons so named present at the meeting, or if only one shall be present, then
that one, shall have and exercise all the powers conferred upon all of the
persons unless the proxy shall provide otherwise. A proxy purporting to be
executed by or on behalf of a stockholder shall be deemed valid unless
challenged prior to or at its exercise and the burden of proving invalidity
shall rest on the challenger.
Section 9. Notice of Stockholder Business and Nominations.
a. Annual Meetings of Stockholders.
(1) Nominations of persons for election to the board of
directors of the corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the corporation's notice of
meeting, (b) by or at the direction of the board of directors or
(c) by any stockholder of the corporation who was a stockholder
of record at the time of giving of notice provided for in this
By-Law, who is entitled to vote at the meeting and who complies
with the notice procedures set forth in this By-Law.
(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 120th day nor earlier than the close of business
on the 150th 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 120 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 150th day prior to such annual
meeting and not later than the close of business on the later of
the 120th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of
such meeting is first made by the corporation. In no event shall
the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if
elected); (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons
for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination or proposal is made (i) the
name and address of such stockholder, as they appear on the
corporation's books, and of such beneficial owner and (ii) the
class and number of shares of the corporation which are owned
beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this By-Law to the contrary, in the event
that the number of directors to be elected to the board of
directors of the corporation is increased and there is no public
announcement by the corporation naming all of the nominees for
director or specifying the size of the increased board of
directors at least 130 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required
by this By-Law shall also be considered timely, but only with
respect to nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the
close of business on the 10th day following the day on which such
public announcement is first made by the corporation.
b. Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the corporation's notice
of meeting. Nominations of persons for election to the board of
directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the corporation's
notice of meeting (a) by or at the direction of the board of
directors or (b) provided that the board of directors has
determined that directors shall be elected at such meeting, by
any stockholder of the corporation who is a stockholder of record
at the time of giving of notice provided for in this By-Law, who
shall be entitled to vote at the meeting and who complies with
the notice procedures set forth in this By-Law. In the event the
corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board of
directors, any such stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as
specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this By-Law
shall be delivered to the secretary at the principal executive
offices of the corporation not earlier than the close of business
on the 90th day prior to such special meeting and not later than
the close of business on the later of the 60th day prior to such
special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and
of the nominees proposed by the board of directors to be elected
at such meeting. In no event shall the public announcement of an
adjournment of a special meeting commence a new time period for
the giving of a stockholder's notice as described above.
c. General.
(1) Only such persons who are nominated in accordance with
the procedures set forth in this By-Law shall be eligible to
serve as directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
By-Law. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the chairman of the meeting shall
have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with the procedures
set forth in this By-Law and, if any proposed nomination or
business is not in compliance with this By-Law, to declare that
such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or
in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law,
a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this By-Law. Nothing in this
By-Law shall be deemed to affect any rights (i) of stockholders
to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii)
of the holders of any series of Preferred Stock to elect
directors under specified circumstances.
Section 10. Voting. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the capital stock having voting
power present in person or represented by proxy and entitled to vote on the
matter shall decide any question brought before such meeting, except (i) in
respect of elections of directors which shall be decided, subject to the rights
of the holders of any series of Preferred Stock, by a plurality of the votes
cast, and (ii) when the question is one which by express provision of statute or
Certificate of Incorporation a different vote is required, in which case such
express provision shall govern and control the decision of such question. No
vote need be taken by ballot unless required by statute.
Section 11. Inspectors of Elections; Opening and Closing the Polls. The
board of directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
Section 12. Record Date for Action by Written Consent. In order that the
corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the board of directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the board of directors, and which date
shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the board of directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by
written consent shall, by written notice to the secretary, request the board of
directors to fix a record date. The board of directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date (unless a record date has
previously been fixed by the board of directors pursuant to the first sentence
of this Section). If no record date has been fixed by the board of directors
pursuant to the first sentence of this Section or otherwise within ten (10) days
of the date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the board of directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or to any officer or agent of the corporation having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the board of directors and prior
action by the board of directors is required by applicable law, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
board of directors adopts the resolution taking such prior action.
Section 13. Inspectors of Written Consent. In the event of the delivery, in
the manner provided by Section 12 of this Article to the corporation of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the corporation shall engage independent
inspectors of elections for the purpose of promptly performing a ministerial
review of the validity of the consents and revocations. For the purpose of
permitting the inspectors to perform such review, no action by written consent
without a meeting shall be effective until such date as the independent
inspectors certify to the corporation that the consents delivered to the
corporation in accordance with Section 12 of this Article represent at least the
minimum number of votes that would be necessary to take the corporate action.
Nothing contained in this Section shall in any way be construed to suggest or
imply that the board of directors or any stockholder shall not be entitled to
contest the validity of any consent or revocation thereof, whether before or
after such certification by the independent inspectors, or to take any other
action (including, without limitation, the commencement, prosecution, or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
Section 14. Effectiveness of Written Consent. Every written consent shall
bear the date of signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate action referred to
therein unless, within sixty (60) days of the earliest dated written consent
received in accordance with Section 12 of this Article, a written consent or
consents signed by a sufficient number of holders to take such action are
delivered to the corporation in the manner prescribed in Section 12 of this
Article.
ARTICLE III.
THE BOARD OF DIRECTORS
Section 1. Composition. The board of directors shall consist of eight
directors subject to such automatic increase as may be required by the
corporation's Restated Articles of Incorporation. The board may enlarge or
reduce the size of the board in a vote of the majority of the directors in
office. No director need be a stockholder.
Section 2. Election and Term. Except as provided in Section 3 of this
Article, the directors shall be elected by a plurality vote at the annual
meeting of the stockholders. Each director shall hold office until his successor
is elected and qualified or until his earlier resignation or removal.
Section 3. Vacancies and Newly Created Directorships. Any vacancy on the
board of directors, or any newly created directorships, however occurring, may
be filled by a majority of the directors then in office, though less than a
quorum or by a sole remaining director. Any vacancy in the board of directors
may also be filled by a plurality vote of the stockholders unless such vacancy
shall have been previously filled by the board of directors.
Section 4. Powers. The business of the corporation shall be managed by its
board of directors which shall have and may exercise all such powers of the
corporation, including the power to make, alter or repeal the bylaws of the
corporation, and do all such lawful acts and things as are not by statute
directed or required to be exercised or done by the stockholders.
Section 5. Place of Meetings. The board of directors of the corporation may
hold meetings both regular and special, either within or without the State of
Delaware. Members of the board of directors or any committee designated by the
board, may participate in a meeting of such board or committee by means of a
conference telephone by means of which all persons participating in the meeting
can hear each other, and participation shall constitute presence in person at
such meeting.
Section 6. Regular Meetings. Regular meetings of the board of directors may
be held without call or notice immediately following the annual meeting of the
stockholders and at such time and at such place as shall from time to time be
selected by the board of directors, provided that in respect of any director who
is absent when such selection is made, the notice, waiver and attendance
provisions of Section 7 of this Article shall apply to such regular meetings.
Section 7. Special Meetings and Notice. Special meetings of the board of
directors may be called by the chairman of the board of directors, a majority of
the directors or the president on notice given to each director, either
personally (including by telephone) or by hand delivery, first-class mail,
overnight mail, courier service, telegram or facsimile transmission sent to his
business or home address, stating the place, date and hour of the meeting. If
mailed by first-class mail, such notice shall be deemed to have been adequately
given when deposited in the United States mail, postage prepaid, directed to the
director at his business or home address, at least five (5) days before such
meeting. Notice given by telegraph, overnight mail or courier service shall be
deemed adequately given upon delivery of the message to the telegraph company or
to the overnight mail or courier service company at least two days before such
meeting. Notice given by facsimile transmission shall be deemed adequately given
upon transmission of the message at least twelve (12) hours before such meeting.
Notice given by hand delivery or personally shall be deemed adequately given
when delivered at least twelve (12) hours before such meeting. Notice of a
meeting need not be given to any director who signs a waiver of notice, whether
before or after the meeting. The attendance of any director at a meeting,
without protesting either prior thereto or at its commencement the lack of
notice of such meeting, shall constitute a waiver of notice by him. Any notice
or waiver of notice of a meeting of the board of directors need not specify the
purposes of the meeting.
Section 8. Quorum and Voting. At all meetings of the board of directors a
majority less one of the total number of directors then in office shall
constitute a quorum for the transaction of business, except that in no case
shall less than two directors be deemed to constitute a quorum, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the board of directors. If a quorum shall not be present at
any meeting of the board of directors, a majority of less than a quorum may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. Action by Consent. Any action required or permitted to be taken
at any meeting of the board of directors may be taken without a meeting, if all
members of the board of directors, then in office, consent thereto in writing,
and the writing or writings are filed with the minutes of proceedings of the
board of directors.
Section 10. Resignation. Any director may resign at any time upon written
notice delivered to the corporation at its principal office. The resignation
shall take effect at the time specified therein, and if no time be specified, at
the time of its dispatch to the corporation.
Section 11. Removal. A director may be removed for cause by the vote of a
majority of the stockholders at a special or annual meeting after the director
has been given reasonable notice and opportunity to be heard before the
stockholders.
Section 12. Committees. The board of directors may, by resolution passed by
a majority of the whole board of directors, designate one or more committees,
each committee to consist of one or more of the directors of the corporation,
which committee, to the extent provided in the resolution, shall have and may
exercise the powers of the board of directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the board of directors. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
ARTICLE IV.
OFFICERS
Section 1. Designation. The officers of the corporation shall consist of a
president, a treasurer, a secretary, and such other officers including a
chairman of the board of directors, one or more group presidents, vice
presidents (including group executive vice presidents, corporate vice presidents
and senior vice presidents), assistant treasurers and assistant secretaries, as
the board of directors or the stockholders may deem warranted. With the
exception of the chairman of the board of directors who must be a director, no
officer need be a director or a stockholder. Any number of offices may be held
by the same person.
Section 2. Election and Term. Except for officers to fill vacancies and
newly created offices provided for in Section 6 of this Article, the officers
shall be elected by the board of directors at the first meeting of the board of
directors after the annual meeting of the stockholders. All officers shall hold
office at the pleasure of the board of directors.
Section 3. Duties of Officers. In addition to those duties that may from
time to time be delegated to them by the board of directors, the officers of the
corporation shall have the following duties:
(a) Chairman of the Board. The chairman of the board shall preside at
all meetings of the stockholders and of the board of directors at which he
is present, shall be ex-officio a member of all committees formed by the
board of directors and shall have such other duties and powers as the board
of directors may prescribe.
(b) Chief Executive Officer. 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 chief executive officer 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) President. Unless the board of directors expressly designates
another officer as chief executive officer, the president shall be the
chief executive officer of the corporation and shall perform the duties and
exercise the powers of the chief executive officer. If the president is not
the chief executive officer, in the absence of the chief executive officer
or in the event of his inability or refusal to act, the president shall
perform the duties and exercise the powers of the chief executive officer.
The president shall otherwise have such other duties and powers as the
board of directors may prescribe.
(d) 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.
(e) 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.
(f) Secretaries and Assistant Secretaries. The secretary shall record
the proceedings of all meetings of the stockholders and all meetings of the
board of directors in books to be kept for that purpose, shall perform like
duties for the standing committees when required, and shall give, or cause
to be given, call and/or notices of all meetings of the stockholders and
meetings of the board of directors in accordance with these by-laws. The
secretary also shall have custody of the corporate seal of the corporation,
affix the seal to any instrument requiring it and attest thereto when
authorized by the board of directors or the president, and shall have such
other duties and powers as the board of directors may prescribe.
The assistant secretary, if any, or if there be more than one, the
assistant secretaries, in the order designated by the board of directors,
or, if there be no such designation, then in order of their election,
shall, in the absence of the secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the secretary
and shall have such other duties and powers as the board of directors may
prescribe.
In the absence of the secretary or an assistant secretary at a meeting
of the stockholders or the board of directors, an acting secretary shall be
chosen by the stockholders or directors, as the case may be, to exercise
the duties of the secretary at such meeting.
In the absence of the secretary or an assistant secretary or in the
event of the inability or refusal of the secretary or an assistant
secretary to give, or cause to be given, any call and/or notice required by
law or these by-laws, any such call and/or notice may be given by any
person so directed by the board of directors, the president or
stockholders, upon whose requisition the meeting is called in accordance
with these by-laws.
(g) 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.
(h) Other Officers. Any other officer shall have such powers and
duties as the board of directors may prescribe.
Section 4. Resignation. Any officer may resign at any time upon written
notice delivered to the corporation at its principal office. The resignation
shall take effect at the time specified therein, and if no time be specified, at
the time of its dispatch to the corporation.
Section 5. Removal. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the board of directors.
Section 6. Vacancies and Newly Created Offices. A vacancy in office,
however occurring, and newly created offices, shall be filled by the board of
directors.
ARTICLE V.
CAPITAL STOCK
Section 1. Stock Certificates. Each holder of stock in the corporation
shall be entitled to have a certificate signed in an officer's official capacity
or in the name of the corporation by the chairman of the board of directors, or
the president or a vice-president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation. Where a certificate is
countersigned (a) by a transfer agent other than the corporation or its
employee, or, (b) by a registrar other than the corporation or its employee, any
other signature on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent, or
registrar at the date of issue.
Section 2. Lost, Stolen or Destroyed Certificates. The board of directors,
or at their direction any officer of the company, may direct a new certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors, or at their direction any officer of the company, may, in its (his)
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or certificates, or his
legal representative, to advertise the same in such manner as it shall require
and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
Section 3. Transfer. Upon surrender to the secretary or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, and upon
compliance with any provisions respecting restrictions on transfer, it shall be
the duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 4. Issue of Stock. From time to time, the board of directors may,
by vote of a majority of the directors, issue any of the authorized capital
stock of the corporation for cash, property, services rendered or expenses, or
as a stock dividend and on any terms permitted by law.
Section 5. Fixing Record Date. In order that the corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
Section 6. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE VI.
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation
may be declared by the board of directors in any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
capital stock. Before payment of any dividend, there may be set aside out of any
funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 2. Checks. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person or
persons as the board of directors may from time to time designate.
Section 3. Fiscal Year. The fiscal year of the corporation shall be fixed
by a resolution of the board of directors.
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 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.
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.
Exhibit 10.1
NATIONAL SEMICONDUCTOR CORPORATION
2006 EXECUTIVE OFFICER INCENTIVE PLAN AGREEMENT
ARTICLE 1
Definitions
-----------
Whenever used in the Agreement, unless otherwise indicated, the following
terms shall have the respective meanings set forth below:
Agreement: This Executive Officer Incentive Plan Agreement.
Award: The amount to be paid to a Plan Participant.
Award Date: The date set by the Committee for payment of Awards.
Annual Incentive
Base Salary: Generally, the annualized base remuneration received by a
Participant from the Company at the end of the fiscal year.
Extraordinary items, including but not limited to prior
awards, relocation expenses, car allowances, international
assignment allowances and tax adjustments, sales incentives,
amounts recognized as income from stock, stock options or
other stock based compensation, disability benefits (whether
paid by the Company or a third party) and other similar
kinds of extra or additional remuneration are excluded from
the computation of Annual Incentive Base Salary.
Company: National Semiconductor Corporation ("NSC"), a Delaware
corporation, and any other corporation in which NSC controls
directly or indirectly fifty percent (50%) or more of the
combined voting power of voting securities, and which has
adopted this Plan.
Disability: Inability to perform any services for the Company and
eligible to receive disability benefits under the standards
used by the Company's disability benefit plan or any
successor plan thereto.
Executive Officer: Any officer of the Company identified by the Company in its
annual report on Form 10-K filed with the Securities and
Exchange Commission as an executive officer of the Company.
Participant: An Executive Officer designated as a Participant in
accordance with the provisions of Article 3.
Performance
Goal: Factors considered and scored to determine the amount of a
Participant's Award, which shall be based on one or more of
the business criteria listed in Section 5(b) of the Plan.
Retirement: Permanent termination of employment with the Company, and
(a) the Participant's age is either sixty-five (65) or age
is at least fifty-five (55) and age plus years of service in
the employ of the Company is sixty-five (65) or more, and
(b) the retiring Participant has confirmed to the Chief
Financial Officer of the Company that he or she does not
intend to engage in a full-time vocation.
Target Award: The Award, expressed as a percentage of Annual Incentive
Base Salary that may be earned by a Participant for
achievement of the target level of performance.
All capitalized terms used in this Agreement and not otherwise defined
herein have the meanings assigned to them in the Executive Officer Incentive
Plan.
ARTICLE 2
Effective Date
--------------
The Agreement will become effective as of May 30, 2005, to be effective for
the Company's fiscal year 2006.
ARTICLE 3
Eligibility for Plan Participation
----------------------------------
A. Within ninety (90) days after the commencement of the Company's fiscal year,
the Committee shall designate those Executive Officers who shall be Plan
Participants for the fiscal year.
B. Participants will be notified once the Committee has designated Participants
for the fiscal year. Participation will be re-evaluated by the Committee
annually pursuant to Article 3A supra at the beginning of the fiscal year.
C. Newly hired Executive Officers and persons who are promoted to Executive
Officers may be added as Participants to the Plan by the Committee during the
fiscal year. Such Participants will receive a prorated Award based on time of
participation in the Plan.
D. Participants may be removed from the Plan during the fiscal year at the
discretion of the Committee. Participants so removed will receive a prorated
Award based on length of participation in the Plan.
ARTICLE 4
Target Awards/Incentive Levels
------------------------------
A. Each Participant will be assigned an incentive level which shall be expressed
as a percentage of the Participant's Annual Incentive Base Salary. Target Awards
will also be identified for each Participant, which shall constitute the Award
which can be earned for the target level of performance, taking into account the
assigned incentive level.
B. In the event that a Participant changes positions during the Plan Period and
the change results in a change in incentive level, whether due to promotion or
demotion, the incentive level will be prorated to reflect the time spent in each
position.
ARTICLE 5
Plan Performance Goals
----------------------
A. Performance Goals and associated weights will be established by the Committee
within ninety (90) days after the start of the fiscal year. Each Performance
Goal will define the source for scoring and the measurement metric. Performance
Goals and their associated weights may change from one fiscal year to another
fiscal year to reflect the Company's financial, operational and strategic goals,
but must be based on one or more of the business criteria listed in Section 5(b)
of the Plan.
B. Actual Award amounts may vary from the Target Award, depending on actual
achievement on Performance Goals.
ARTICLE 6
Calculation and Payment of Awards
---------------------------------
A. A Participant's Award will be calculated as a percentage of Annual Incentive
Base Salary at the end of the fiscal year as follows:
1) The Participant's Target Award is determined prior to the beginning of
the fiscal year.
2) The performance of each Participant on their assigned Performance
Goals is scored at the end of the fiscal year to determine a
performance level.
3) The total performance level shall be multiplied by the Participant's
assigned incentive level. No one individual Award may exceed the
lesser of 600% of the Participant's Annual Incentive Base Salary at
the end of fiscal 2005 or $6 million (six million dollars).
4) The Committee may adjust Awards to reflect discretion permitted under
the Plan as it deems appropriate. As a result, some or all Award
amounts may be adjusted to reflect the exercise of the Committee's
discretion.
B. The Committee will score the performance of the Plan Participants. Awards
will be paid only after the Committee certifies in writing that the ratings on
the Performance Goals have been attained and that the Committee has approved the
Awards.
C. Awards will be paid in cash on or about the Award Date.
D. Awards will reflect the Participant's Annual Incentive Base Salary in effect
at the end of the fiscal year. Participants who take a leave of absence during
the fiscal year for good cause shown to the satisfaction of the Committee will
have their Awards prorated to reflect actual pay earned during the fiscal year.
E. Any Awards that are prorated for any reason under the terms of the Plan or
this Agreement will be prorated based on the effective date of the change that
resulted in the proration.
ARTICLE 7
Termination of Employment
-------------------------
A. To be eligible to receive an Award, the Participant must be employed by the
Company on the last day of the fiscal year. A Participant whose employment has
terminated prior to that date will forfeit the Award, except as otherwise
provided in this Article 7.
B. If a Participant's employment is terminated during the fiscal year by
Disability, Retirement, or death, the Participant will receive an Award
reflecting the Participant's performance and actual period of full-time
employment during the fiscal year.
C. Unless local law or regulation provides otherwise, payments of Awards made
upon termination of employment by death shall be made on the Award Date to: (a)
beneficiaries designated by the Participant; if none, then (b) to a legal
representative of the Participant; if none, then (c) to the persons entitled
thereto as determined by a court of competent jurisdiction.
D. Participants whose employment is terminated by reduction in force during the
fiscal year will receive no Award. If a Participant's employment is terminated
by reduction in force after the fiscal year but before the Award Date, the
Participant will receive the Award on the Award Date.
E. The Committee reserves the right to reduce an Award to reflect a
Participant's absence from work during a fiscal year.
F. Notwithstanding any other provisions of this Agreement to the contrary, the
right of a Participant to receive an Award, including Awards deferred pursuant
to the provisions of Article 8, shall be forfeited if the Participant's
employment is terminated for good cause shown such as acts of moral turpitude, a
reckless disregard of the rights of other employees or because of or the
Participant is discovered to have engaged in fraud, embezzlement, dishonesty
against the Company, obtaining funds or property under false pretenses,
assisting a competitor without permission, or interfering with the relationship
of the Company with a customer. An Award may also be forfeited if a Participant
terminates employment by reason of Retirement and subsequently engages in
full-time employment or any activity in competition with the business of the
Company. A Participant's Award will be forfeited for any of the above reasons
regardless of whether such act is discovered prior to or subsequent to the
Participant's termination of employment or payment of an Award. If an Award has
been paid, such payment shall be repaid to the Company by the Participant. The
determination of whether an Award is forfeited or must be repaid under the
provisions of this Article 7 shall be made by the Committee in its sole
discretion.
ARTICLE 8
Deferral of Awards
------------------
Participants eligible to participate in the Company's Deferred Compensation
Plan (the "Deferred Compensation Plan") may elect to make an irrevocable
election to defer receipt of all or any portion of any Award pursuant to and in
accordance with the terms of the Deferred Compensation Plan.
ARTICLE 9
Interpretations and Rule-Making
-------------------------------
The Committee shall have the sole right and power to: (i) interpret the
provisions of the Agreement, and resolve questions thereunder, which
interpretations and resolutions shall be final and conclusive; (ii) adopt such
rules and regulations with regard to the administration of the Plan as are
consistent with the terms of the Plan and the Agreement, and (iii) generally
take all action to equitably administer the operation of the Plan and this
Agreement.
ARTICLE 10
Declaration of Incentives, Amendment, or Discontinuance
-------------------------------------------------------
The Committee may on or before the Award Date: (i) determine not to make
any Awards to any or all Participants for any fiscal year; (ii) make any
modification or amendment to this Agreement for any or all Participants provided
such modification or amendment is in accordance with the terms of the Plan; or
(iii) discontinue this Agreement for any or all Participants provided such
modification or amendment is otherwise in accordance with the Plan.
ARTICLE 11
Miscellaneous
-------------
A. Except as provided in the Deferred Compensation Plan, no right or interest in
the Plan is transferable or assignable except by will or the laws of descent and
distribution.
B. Participation in the Plan does not guarantee any right to continued
employment and the Committee and management reserve the right to dismiss
Participants for any reason whatsoever. Participation in one fiscal year does
not guarantee a Participant the right to participation in any subsequent fiscal
year.
C. The Company reserves the right to deduct from all Awards under this Plan any
sums due the Company as well as any taxes or other amounts required by law to be
withheld with respect to Award payments.
D. Maintenance of financial information relevant to measuring performance during
the fiscal year will be the responsibility of the Chief Financial Officer of the
Company.
E. The provisions of the Plan shall not limit, or restrict, the right or power
of the Committee to continue to adopt such other plans or programs, or to make
salary, bonus, incentive, or other payments, with respect to compensation of
Executive Officers, as in its sole judgment it may deem proper.
F. Except to the extent superseded by federal law, this Agreement shall be
construed in accordance with the laws of the State of California.
G. No member of the Company's board of directors or any officer, employee, or
agent of the Company shall have any liability to any person, firm or corporation
based on or arising out of this Agreement or the Plan.
H. Any dispute relating to or arising from this Agreement shall be determined by
binding arbitration by a three member panel chosen under the auspices of the
American Arbitration Association and acting pursuant to its Commercial Rules,
sitting in San Jose, California. The panel may assess all fees, costs and other
expenses, including reasonable counsel fees, as the panel sees fit.
Notwithstanding the parties' election to use arbitration to resolve disputes
under this Agreement, nothing contained in that election shall preclude either
party, if the circumstances warrant, from seeking extraordinary relief, such as
injunction and attachment, from any court of competent jurisdiction in
California.
Exhibit 10.2
NATIONAL SEMICONDUCTOR CORPORATION
RESTRICTED STOCK PLAN
(AS AMENDED AND RESTATED JULY 20, 2005)
1. Objective
The National Semiconductor Corporation Restricted Stock Plan is designed to
further the growth, development and financial success of the Company by
providing additional incentives to certain Employees by assisting them to become
owners of capital stock of the Company and thus to benefit directly from its
growth, development and financial success.
2. Definitions
Whenever used in this Plan, the following terms shall have the meaning set
forth below unless the context clearly indicates to the contrary.
Award: Restricted Stock Unit or Restricted Stock awarded to a Participant
pursuant to the Plan.
Board: The Board of Directors of National Semiconductor Corporation.
Committee: The Compensation Committee of the Board.
Common Stock: National Semiconductor Corporation's common stock, par value $.50
per share.
Company: National Semiconductor Corporation ("NSC"), a Delaware corporation, and
any corporation in which NSC controls directly or indirectly more than fifty
percent (50%) of the combined voting power of voting securities.
Disability: Inability to perform any services for the Company and eligible to
receive disability benefits under the standards used by the Company's disability
benefit plans or any successor plan thereto.
Employee: An individual in the regular employ of the Company at any time.
Fair Market Value: As of given date, the Fair Market Value of a share of the
Common Stock shall be the opening stock price of the Common Stock on the New
York Stock Exchange on such date or if the Common Stock is not traded on such
day, then on the immediately preceding trading day on the New York Stock
Exchange.
Officer: An Employee of the Company who is appointed or elected by the Board to
serve as an officer of National Semiconductor Corporation.
Participant: An Employee who has been granted an Award pursuant to the Plan.
Plan: This National Semiconductor Corporation Restricted Stock Plan.
Restricted Stock: Common Stock issued pursuant to the terms of this Plan that is
subject to certain restrictions and may be subject to the risk of forfeiture.
Restricted Stock Unit: An Award issued pursuant to Section 6 of the Plan.
Retirement: Permanent termination of employment with the Company and (a) age is
either sixty-five (65) or age is at least fifty-five (55) and years of service
in the employ of the Company is then (10) or more, and (b) the terminating
employee has certified to the Secretary that he or she does not intend to engage
in a full-time vocation.
Secretary: The Secretary of National Semiconductor Corporation.
Termination of Employment: The time when the employee-employer relationship
between the Participant and the Participant's employer is terminated for any
reason, with or without cause, including, but not by way of limitation, a
termination upon the sale , merger or other disposition of Participant's
employer; by reduction in force; resignation; discharge; death; Disability; or
Retirement, but excluding (i) terminations where there is a simultaneous
reemployment by the Company, or (ii) terminations where the Participant
continues a relationship (e.g., as a director or as a consultant) with the
Company.
Vesting Date: Date that the restrictions and/or risk of forfeiture of an Award
lapse.
3. Shares Subject to the Plan
A. The shares of stock which may be issued pursuant to Awards shall be
shares of Common Stock. The aggregate number of such shares which may
be issued pursuant to Awards shall not exceed 4,000,000.
B. Any shares issued pursuant to an Award that are reacquired by National
Semiconductor Corporation pursuant to the restrictions thereon may
again be utilized under this Plan, subject to the limitations of
Section 3A.
C. In the event that the outstanding shares of Common Stock are hereafter
changed into or exchanged for a different number or kind of shares or
other securities of National Semiconductor Corporation, or of another
corporation, by reason of reorganization, merger, consolidation,
recapitalization, reclassification, or the number of shares is
increased or decreased by reason of a stock split-up, stock dividend,
combination of shares or any other increase or decrease in the number
of such shares of Common Stock effected without receipt of
consideration by National Semiconductor Corporation (provided,
however, that conversion of any convertible securities or notes of
National Semiconductor Corporation shall not be deemed to have been
"effected without receipt of consideration"), the Committee shall make
appropriate adjustments in the number and kind of shares which may be
issued pursuant to Awards, including adjustments of the limitations in
Section 3.A on the maximum number and kind of shares which may be
issued pursuant to Awards.
4. Granting of Awards
A. Any Employee of the Company who is not an Officer shall be eligible to
be granted an Award. Officers are not eligible to be granted Awards
under this Plan.
B. The Committee shall from time to time, in its absolute discretion:
(i) Select from among Employees (including Employees to whom Awards
have previously been granted) those to be granted Awards;
(ii) Determine the number of shares of Common Stock to be issued
pursuant to any Award to such selected Employees; and
(iii)Determine the purchase price, if any, and other terms and
conditions applicable to the shares subject to an Award,
consistent with the Plan.
C. Shares of Common Stock issued pursuant to an Award may be either
previously authorized but unissued shares or issued shares which have
been reacquired by National Semiconductor Corporation. The Committee
shall establish the purchase price (if any) and form of payment for
shares of Common Stock subject to an Award. In all cases legal
consideration shall be required for each issuance of shares of Common
Stock pursuant to an Award.
D. Upon the selection of an Employee to be issued Restricted Stock, the
Committee shall instruct the Secretary to issue such Restricted Stock
and may impose such conditions on issuance as it deems appropriate.
5. Terms of Restricted Stock
A. Restricted Stock shall be issued only pursuant to a written Restricted
Stock Agreement, which shall be executed by the Participant and the
Secretary and which shall contain such terms and conditions as the
Committee shall determine, consistent with the Plan.
B. The consideration for the issuance of Restricted Stock shall be set by
the Committee; provided, however, that such price shall not be less
than the par value of a share of Common Stock on the date of grant,
unless otherwise permitted by applicable state law.
C. Upon delivery of the shares of Restricted Stock to the escrow holder
pursuant to Section 5.F, the Participant awarded Restricted Stock
shall have all the rights of a stockholder with respect to said
shares, subject to the restrictions in his or her Restricted Stock
Agreement, including the right to vote the shares and to receive all
dividends or other distributions paid or made with respect to the
shares.
D. Unless otherwise approved in writing by the Committee, no shares of
Restricted Stock issued under this Plan may be sold, assigned or
otherwise transferred until at least one year has elapsed from the
date the Restricted Stock was issued. All shares of Restricted Stock
issued under this Plan (including any shares received by holders
thereof as a result of stock dividends, stock splits or any other
forms of recapitalization) shall be subject to such other restrictions
as the Committee shall provide in the terms of each individual
Restricted Stock Agreement; provided, however, that by a resolution
adopted after the Restricted Stock is issued, the Committee may, on
such terms and conditions as it determines to be appropriate, remove
any or all of the restrictions imposed by the terms of the Restricted
Stock Agreement. All restrictions imposed pursuant to this Section 5.D
shall expire within ten years of the date of issuance. Restricted
Stock may not be sold or encumbered until all restrictions are
terminated or expire.
E. Each individual Restricted Stock Agreement shall provide that
Restricted Stock subject to restrictions under the Restricted Stock
Agreement shall be reacquired by National Semiconductor Corporation
immediately upon a Termination of Employment for any reason; provided,
however, that the Committee may provide that no such reacquisition
shall occur in the event of a Termination of Employment because of the
Restricted Stockholder's Retirement or Disability or death, in which
event the restrictions imposed under the Restricted Stock Agreement
shall immediately expire. The Committee shall have the discretion to
determine the effect of all matters and questions relating to
Termination of Employment, including but not by way of limitation, the
question of whether a Termination of Employment resulted from a
discharge for cause, the question of whether a Termination of
Employment has occurred upon the sale, merger or other disposition of
the Participant's employing company, and all questions of whether
particular leaves of absence constitute Termination of Employment.
F. The Secretary or such other escrow holder as the Committee may appoint
shall retain physical custody of the certificates representing
Restricted Stock until all of the restrictions imposed under the
Restricted Stock Agreement expire or are removed. In no event shall
any Participant awarded Restricted Stock retain physical custody of
any certificates representing Restricted Stock issued to him or her.
G. The Committee shall cause a legend or legends to be placed on
certificates representing all shares of Restricted Stock that are
still subject to restrictions under Restricted Stock Agreements, which
legend or legends shall make appropriate reference to the conditions
imposed thereby.
6. Restricted Stock Units
A. The Committee is authorized to make Awards of Restricted Stock Units
to any Participant selected by the Committee in such amounts and
subject to such terms and conditions as determined by the Committee.
At the time of grant, the Committee shall specify the date or dates on
which the Restricted Stock Units shall become fully vested and
nonforfeitable, and may specify such conditions to vesting as it deems
appropriate. Unless otherwise approved in writing by the Committee,
the minimum vesting period for Restricted Stock Units shall be one
year. On the Vesting Date, National Semiconductor Corporation shall
transfer to the Participant one unrestricted, fully transferable share
of Common Stock for each Restricted Stock Unit scheduled to be paid
out on such date and not previously forfeited.
B. The term of any Restricted Stock Units shall be set by the Committee
in its discretion but shall not be longer than ten years.
C. The Committee may establish the purchase price, if any, of any
Restricted Stock Units; provided, however, that such price shall not
be less than the par value of a share of Common Stock on the date of
grant, unless otherwise permitted by applicable state law.
D. An Award of Restricted Stock Units shall only be payable while the
Participant is an Employee; provided, however, that the Committee in
its sole and absolute discretion may provide that an Award of
Restricted Stock Units may be paid subsequent to a Termination of
Employment as a result of the Participant's Retirement, death or
Disability. The Committee shall have the discretion to determine the
effect of all matters and questions relating to Termination of
Employment, including but not by way of limitation, the question of
whether a Termination of Employment resulted from a discharge for
cause, the question of whether a Termination of Employment has
occurred upon the sale, merger or disposition of the Participant's
employing company, and all questions of whether particular leaves of
absence constitute Termination of Employment.
E. Any Award granted pursuant to this Section 6 shall be subject to such
additional terms and conditions as determined by the Committee and
shall be evidenced by a written Award Agreement.
7. Provisions Applicable to Awards
A. Upon the merger or consolidation of National Semiconductor Corporation
with or into another corporation, the acquisition by another
corporation or person (excluding any employee benefit plan of National
Semiconductor Corporation or any trustee or other fiduciary holding
securities under an employee benefit plan of National Semiconductor
Corporation) of all or substantially all of National Semiconductor
Corporation's assets or 51% or more of National Semiconductor
Corporation's then outstanding voting stock, or the liquidation or
dissolution of National Semiconductor Corporation, the restrictions
imposed under the Restricted Stock Agreements and Award Agreements
shall immediately expire.
B. Nothing in this Plan or in any Restricted Stock Agreement or Award
Agreement shall confer upon any Participant any right to continue in
the employ of Participant's employer, or interfere with or restrict in
any way the rights of Participant's employer to terminate or discharge
any Participant at any time for any reason whatsoever. The
Participant's employer shall retain the absolute and unrestricted
right to terminate a Participant's employment at any time for any
reason.
C. National Semiconductor Corporation's obligation to issue or deliver to
the Participant any certificate or certificates for unrestricted
shares of stock or to pay to the Participant any dividends or make any
distributions with respect to any Award is expressly conditioned upon
receipt from the Participant, on or prior to the date the same is
required to be withheld, of:
(i) Full payment (in cash or by check) of any amount that must be
withheld by the Participant's employer for federal, state, local
and/or other tax purposes; or
(ii) Subject to the Committee's consent and Section 7.C.(iii), full
payment by delivery to National Semiconductor Corporation of
unrestricted shares of Common Stock previously owned by the
Participant duly endorsed for transfer to National Semiconductor
Corporation by the Participant with an aggregate Fair Market
Value (determined, as applicable, as of the date of the lapse of
the restrictions or vesting, or as of the date of the
distribution) equal to the amount that must be withheld by the
Participant's employer for federal, state, local and/or other tax
purposes; or
(iii)With respect to the withholding obligation for shares of
Restricted Stock that become unrestricted shares of stock as of a
Vesting Date or shares of unrestricted Common Stock issued
pursuant to an Award, subject to the Committee's consent and to
the timing requirements set forth in this Section 7.C.(iii), full
payment by retention by the Company of a portion of such shares
of unrestricted Common Stock with an aggregate Fair Market Value
(determined as of the Vesting Date) equal to the amount that must
be withheld by the Participant's employer for federal, state
and/or local tax purposes; or
(iv) Subject to the Committee's consent, any combination of payments
provided for in the foregoing subsections (i), (ii), or (iii).
8. Administration
A. The Committee shall have the duty to conduct the general
administration of the Plan in accordance with its provisions. The
Committee shall have the power to interpret the Plan and all other
documents relating to Awards and to adopt such rules for the
administration, interpretation and application of the Plan as are
consistent therewith and to interpret, amend or revoke any such rules.
The Committee may delegate any of its rights and duties under this
Plan to the Chief Executive Officer of National Semiconductor
Corporation.
B. All actions taken and all interpretations and determinations made by
the Committee in good faith shall be final and binding upon all
Participants, the Company and all other interested persons. No member
of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to the
Plan or Award.
9. Other Provisions
A. No Award, or interest or right therein or part thereof, shall be
liable for the debts, contracts or engagements of the Participant or
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other
means whether such disposition be voluntary or involuntary or by
operation of law by judgment, levy, attachment, garnishment or any
other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect;
provided, however, that nothing in this Section 9.A shall prevent
transfers by will or by the applicable laws at descent and
distribution.
B. The Plan may be wholly or partially amended or otherwise modified,
suspended or terminated at any time or from time to time by the Board.
Neither the amendment, suspension nor termination of the Plan shall,
without the consent of the Participant, alter or impair any rights or
obligations under any Award theretofore issued. No Award may be issued
during any period of suspension or after termination of the Plan.
C. This Plan shall not affect any other compensation or incentive plans
in effect for the Company. Nothing in this Plan shall be construed to
limit the right of the Company to establish any other forms of
incentives or compensation for Employees of the Company, to issue
restricted or unrestricted stock other than under this Plan in
connection with any proper corporate purpose, including, but not by
way of limitation, the issuance of restricted or unrestricted stock in
connection with the acquisition in any form of the business, stock or
assets of any corporation, firm or association.
Exhibit 10.3
NATIONAL SEMICONDUCTOR CORPORATION
RESTRICTED STOCK PLAN
RESTRICTED STOCK UNIT AGREEMENT
-------------------------------
THIS RESTRICTED STOCK UNIT AGREEMENT, dated as of xxxx, xxxx (the "Award
Date"), is made by and between NATIONAL SEMICONDUCTOR CORPORATION, a Delaware
corporation, and (A), an Employee of the Company (the "Employee"):
WHEREAS, National Semiconductor Corporation has established the NATIONAL
SEMICONDUCTOR CORPORATION Restricted Stock Plan, as amended and restated (the
"Plan"); and
WHEREAS, National Semiconductor Corporation wishes to carry out the Plan
(the terms of which are hereby incorporated by reference and made a part of this
Agreement); and
WHEREAS, the Plan provides for the grant of Restricted Stock Units ("RSUs")
subject to certain restrictions thereon; and
WHEREAS, the Committee has determined that it would be to the advantage and
best interest of National Semiconductor Corporation and its stockholders to
grant the RSUs provided for herein to the Employee in partial consideration of
past services to the Company, and has advised National Semiconductor Corporation
thereof;
WHEREAS, the Committee has instructed the Secretary to issue the Common
Stock from time to time to holders of RSUs which have vested;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Definitions
Capitalized Terms not otherwise defined herein have the meanings set forth in
the Plan.
2. Grant of Restricted Stock Units
A. In consideration of past services rendered to the Company and for other
good and valuable consideration which the Committee has determined to be equal
to the par value of its Common Stock, on the Award Date National Semiconductor
Corporation issues to the Employee xxxx RSUs, upon the terms and conditions set
forth in this Agreement.
B. By entering into this Agreement, Employee acknowledges that:
(i) the Plan is discretionary in nature and may be amended, suspended
or terminated by National Semiconductor Corporation at any time;
(ii) the grant of RSUs is a one-time benefit which does not create any
contractual or other right to receive future grants of RSUs,
other Awards, or benefits in lieu of RSUs or other Awards;
(iii)all determinations with respect to any grants of RSUs,
including, but not limited to, the times when RSUs shall be
granted, the number of RSUs, the time or times when the RSUs
shall vest and shares of Common Stock shall be issuable
thereunder will be at the sole discretion of National
Semiconductor Corporation and the Committee;
(iv) the Employee's receipt of these RSUs and any shares of Common
Stock issuable thereunder shall not create a right to further
employment with the Company and shall not interfere with the
ability of the Company to terminate the Employee's employment
relationship at any time with or without cause;
(v) the Employee's participation in the Plan is voluntary;
(vi) the value of the RSUs and any shares of the Common Stock issuable
thereunder is an extraordinary item of compensation which is
outside the scope of the Employee's employment contract, if any;
(vii)the RSUs and any shares of the Common Stock issuable thereunder
are not part of normal or expected compensation for purposes of
calculating any severance, resignation, redundancy, end of
service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments;
(viii) the future value of the RSUs and any shares of the Common Stock
issuable thereunder is unknown and cannot be predicted with
certainty.
3. Vesting and Payment
A. All RSUs granted to the Employee are initially subject to cancellation
without any additional action by National Semiconductor Corporation immediately
upon a Termination of Employment; provided, however, that no cancellation shall
occur in the event of a Termination of Employment because of the Employee's
Disability or death, in which event all RSUs shall immediately fully vest. In
all other cases, the RSUs granted to Employee hereunder shall become vested with
respect to thirty three and one third percent (33?%) of such RSUs, rounded down
to the nearest whole number of RSUs with any remainder carried over to any
subsequent vesting, on the second anniversary of the Award Date; shall become
vested with respect to thirty three and one third percent (33?%) of such RSUs,
plus any remainder from previous vesting and rounded down to the nearest whole
number of RSUs, on the fourth anniversary of the Award Date; and shall become
vested with respect to the remaining thirty three and one third percent (33?%)
of such RSUs, rounded up to the nearest whole number of RSUs, on the sixth
anniversary of the Award Date.
B. Upon the vesting of the RSUs and subject to Section 5.C and payment of
taxes as required by Section 5.H, National Semiconductor Corporation shall cause
a share of the Common Stock to be issued for each vested RSU, new certificates
to be issued with respect to shares so issued and such certificates to be
delivered to the Employee or his legal representative, free from legend (except
as determined by National Semiconductor Corporation pursuant to Section 5.F
below) and any other restrictions. Shares so issued shall cease to be subject to
the terms and conditions of this Agreement.
C. Upon the merger or consolidation of National Semiconductor Corporation
into another corporation, the acquisition by another corporation or person
(excluding any employee benefit plan of National Semiconductor Corporation or
any trustee or other fiduciary holding securities under an employee benefit plan
of National Semiconductor Corporation) of all or substantially all of National
Semiconductor Corporation's assets or 51% or more of National Semiconductor
Corporation's then outstanding voting stock, or the liquidation or dissolution
of National Semiconductor Corporation, all RSUs shall fully vest. Such RSUs
shall be immediately paid pursuant to Section 3.B (subject to Sections 5.C and
5.H).
D. In the event that the outstanding shares of the Common Stock are changed
into or exchanged for a different number or kind of shares or other securities
of National Semiconductor Corporation or of another corporation pursuant to a
merger of National Semiconductor Corporation into another corporation, or the
exchange of all or substantially all of the assets of National Semiconductor
Corporation for the securities of another corporation, or the acquisition by
another corporation or person (excluding any employee benefit plan of National
Semiconductor Corporation or any trustee or other fiduciary holding securities
under an employee benefit plan of National Semiconductor Corporation) of 51% or
more of National Semiconductor Corporation's then outstanding voting stock, or
the liquidation or dissolution of National Semiconductor Corporation, or a stock
split-up or stock dividend, the Committee shall make such adjustments to the
RSUs and the number and kind of shares which may be issued pursuant to the RSUs
as the Committee, in its sole discretion, determines appropriate.
4. Non-Disclosure
It is understood and agreed that this Agreement shall be confidential and
shall not be disclosed by Employee to any person, including other Company
employees, without the express written consent of the Company; provided,
however, that Employee may disclose this Agreement to Employee's spouse and
legal and financial advisors subject to the Employee ensuring that the recipient
of the disclosure agrees to comply with this non-disclosure provision.
5. Miscellaneous
A. The Committee has the power to interpret the Plan, this Agreement and
all other documents relating to RSUs and any shares of the Common Stock issuable
thereunder and to adopt rules for the administration, interpretation and
application of the Plan, and to interpret, amend or revoke any such rules. All
actions taken and all interpretations and determinations made by the Committee
in good faith shall be final and binding upon the Employee, the Company and all
other interested persons. No member of the Committee shall be personally liable
for any action, determination or interpretation made in good faith.
B. No RSU or any interest or right therein or part thereof shall be liable
for the debts, contracts or engagements of the Employee or his or her successors
in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such
disposition is voluntary or involuntary or by operation of law by judgment,
levy, attachment, garnishment or any other legal or equitable proceedings
(including bankruptcy), and any attempted disposition thereof shall be null and
void and of no effect; provided, however, that this Section 5.B shall not
prevent transfers by will or by applicable laws of descent and distribution, and
the Employee may provide written notice to the Company designating a third party
who, in the event of Employee's death, shall thereafter be entitled to receive
any benefits pursuant to this Agreement.
C. National Semiconductor Corporation shall not be required to issue or
deliver any certificate or certificates for shares of stock pursuant to this
Agreement prior to fulfillment of all of the following conditions:
(i) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed;
(ii) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or
regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable;
(iii)The obtaining of any approval or other clearance from any state,
federal, or other governmental agency which the Committee shall,
in its absolute discretion, determine to be necessary or
advisable;
(iv) Subject to the provisions of Section 5.H, the payment by the
Employee of all amounts required to be withheld under federal,
state, local and other applicable tax laws, with respect to the
vesting of RSUs and any shares of the Common Stock issued or
issuable thereunder; and
(v) The lapse of such reasonable period of time as the Committee may
from time to time establish for reasons of administrative
convenience.
D. Any notice to be given under the terms of this Agreement to National
Semiconductor Corporation shall be addressed to National Semiconductor
Corporation in care of its Secretary, and any notice to be given to the Employee
shall be addressed to him or her at the address given beneath Employee's
signature hereto. By a notice given pursuant to this Section 5.D, either party
may designate a different address for notices to be given to it. Any notice
which is required to be given to the Employee shall, if the Employee is then
deceased, be given to the Employee's personal representative if such
representative has previously informed the Company of his or her status and
address by written notice under this Section 5.D. Any notice shall have been
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the postal service in the country of
residence of the party sending the notice.
E. Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
F. This Agreement shall be administered, and the RSUs shall be granted and
any of the Common Stock isssuable thereunder shall be issued, only in such a
manner as to conform to all applicable laws, rules and regulations. Common Stock
issued under any RSUs shall be endorsed with appropriate legends, if any,
determined by National Semiconductor Corporation.
G. This Agreement may be amended only by a writing executed by the parties
hereto which specifically states that it is amending this Agreement.
H. National Semiconductor Corporation's obligation to issue or deliver to
the Employee any certificate or certificates for shares of stock is expressly
conditioned upon receipt from the Employee, on or prior to the date the same is
required to be withheld, of:
(i) Full payment (in cash or by check) of any amount that must be
withheld by the Employee's employer for federal, state, local
and/or other tax purposes; or
(ii) Subject to Section 5.H(iii), full payment by delivery to National
Semiconductor Corporation of unrestricted shares of the Common
Stock previously owned by the Employee for such period of time as
is sufficient to avoid the imposition on National Semiconductor
Corporation of adverse accounting consequences duly endorsed for
transfer to National Semiconductor Corporation by the Employee
with an aggregate Fair Market Value (determined, as applicable,
as of the date of vesting, or as of the date of the distribution)
equal to the amount that must be withheld by the Employee's
employer for federal, state, local and/or other tax purposes; or
(iii)With respect to the withholding obligation for the RSUs as of a
Vesting Date and subject to the timing requirements set forth in
this Section 5.H(iii), payment by retention by National
Semiconductor Corporation of a portion of such vested RSUs with
the shares of the Common Stock issuable thereunder having an
aggregate Fair Market Value (determined as of the Vesting Date)
equal to the statutory minimum amount that must be withheld by
the Company for federal, state, local and/or other tax purposes;
provided, however, that any fractional share amounts shall be
settled by payroll deductions.
(iv) Any combination of payments provided for in the foregoing
subsections (i), (ii) or (iii).
I. For Employees employed at international locations: National
Semiconductor Corporation and/or the Employee's employer will assess its
requirements regarding tax, social insurance and any other payroll tax
("Tax-Related Items") withholding and reporting in connection with the RSUs and
any shares of the Common Stock issuable thereunder. These requirements may
change from time to time as laws or interpretations change. Regardless of the
actions of National Semiconductor Corporation and/or the Employee's employer in
this regard, Employee hereby acknowledges and agrees that the ultimate liability
for any and all Tax-Related Items is and remains his or her responsibility and
liability and that National Semiconductor Corporation and the Employee's
employer make no representations nor undertakings regarding treatment of any
Tax-Related Items in connection with any aspect of the grant of RSUs and any
shares of Common Stock issuable thereunder and do not commit to structure the
terms of the grant or any aspect of the RSUs to reduce or eliminate the
Employee's liability regarding Tax-Related Items. In the event that National
Semiconductor Corporation and/or the Employee's employer must withhold any
Tax-Related Items as a result of the grant or vesting of the RSUs, Employee
agrees to make arrangements satisfactory to National Semiconductor Corporation
and/or the Employee's employer to satisfy all withholding requirements. Employee
authorizes National Semiconductor Corporation and/or the Employee's employer to
withhold all applicable Tax-Related Items legally due from the Employee from his
or her wages or other cash compensation paid him or her by National
Semiconductor Corporation and/or the Employee's employer.
J. As a condition of the grant of the RSU, Employee consents to the
collection, use and transfer of personal data as described in this Section 5.J.
Employee understands that the Company and its subsidiaries hold certain personal
information about the Employee, including the Employee's name, home address and
telephone number, date of birth, social security number or identification
number, salary, nationality, job title, any shares of stock or directorships
held in the Company, details of all options, RSUs or any other entitlement to
shares of stock (restricted or otherwise) awarded, cancelled, exercised, vested,
unvested or outstanding in Employee's favor, for the purpose of managing and
administering the Plan ("Data"). Employee further understands that the Company
and/or its subsidiaries will transfer Data amongst themselves as necessary for
the purpose of implementation, administration and management of Employee's
participation in the Plan, and that the Company and/or any of its subsidiaries
may each further transfer Data to any third parties assisting the Company in the
implementation, administration and management of the Plan. Employee understands
that these recipients may be located in the European Economic Area, or
elsewhere, such as the United States. Employee authorizes the Company, its
subsidiaries, and such third parties to receive, possess, use, retain and
transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing Employee's participation in the Plan,
including any requisite transfer to a broker or other third party with whom
Employee may elect to deposit any shares of stock acquired upon vesting and
payment of the RSUs. Employee understands that he or she may, at any time, view
Data, require any necessary amendments to it or withdraw the consents herein in
writing by contacting his or her local Human Resources representative.
Withdrawal of consent may, however, affect Employee's ability to realize
benefits from the Plan.
K. RSUs granted pursuant to this Agreement are unfunded, and holders of
vested RSUs shall be considered unsecured creditors of National Semiconductor
Corporation with respect to National Semiconductor Corporation's obligations, if
any, to issue shares of Common Stock pursuant to this Agreement. Employee shall
not have voting or any other rights as a stockholder of National Semiconductor
Corporation with respect to shares of Common Stock issued pursuant to this
Agreement until such shares have been issued to the Employee pursuant to Section
3 of this Agreement. Upon such issuance, the Employee will obtain full voting
and other rights as a stockholder of National Semiconductor Corporation. Nothing
contained in this Agreement, and no action taken pursuant to its provisions,
shall create or be construed to create a trust of any kind or a fiduciary
relationship between the Employee and National Semiconductor Corporation or any
other person.
L. The rights and obligations of National Semiconductor Corporation under
this Agreement shall be transferable by National Semiconductor Corporation to
any one or more persons or entities, and all covenants and agreements hereunder
shall inure to the benefit of, and be enforceable by National Semiconductor
Corporation's successors and assigns.
M. Employee agrees upon request to execute any further documents or
instruments necessary or desirable in the sole determination of National
Semiconductor Corporation to carry out the purposes or intent of this Agreement.
N. Employee acknowledges and agrees that he or she has reviewed this
Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing and accepting this Agreement and fully understands
all provisions of this Agreement.
O. All obligations of National Semiconductor Corporation under the Plan and
this Agreement shall be binding on any successor to National Semiconductor
Corporation, whether the existence of such successor is the result of a direct
or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of National Semiconductor
Corporation.
P. If all or any part of this Agreement or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any portion of this Agreement or the Plan not
declared to be unlawful or invalid. Any section of this Agreement (or part of
such a section) so declared to be unlawful or invalid shall, if possible, be
construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful and
valid.
Q. The laws of the State of Delaware, USA shall govern the interpretation,
validity, administration, enforcement and performance of the terms of this
Agreement regardless of the law that might be applied under principles of
conflicts of laws.
IN WITNESS HEREOF, this Agreement has been executed and delivered by the
parties hereto.
NATIONAL SEMICONDUCTOR CORPORATION
By ___________________________
Its Senior Vice President
---------------------
____________________________
Employee Signature
Print Name of Employee:
Print Address:
Exhibit 10.4
NATIONAL SEMICONDUCTOR CORPORATION
RESTRICTED STOCK PLAN
RESTRICTED STOCK AGREEMENT
--------------------------
THIS RESTRICTED STOCK AGREEMENT, dated as of xxxx, xxxx (the "Award Date"),
is made by and between NATIONAL SEMICONDUCTOR CORPORATION, a Delaware
corporation and (A), an Employee of the Company (the "Employee"):
WHEREAS, National Semiconductor Corporation has established the NATIONAL
SEMICONDUCTOR CORPORATION Restricted Stock Plan, as amended and restated (the
"Plan"); and
WHEREAS, National Semiconductor Corporation wishes to carry out the Plan
(the terms of which are hereby incorporated by reference and made a part of this
Agreement); and
WHEREAS, the Plan provides for the issuance of shares of the Common Stock
subject to certain restrictions thereon; and
WHEREAS, the Committee has determined that it would be to the advantage and
best interest of National Semiconductor Corporation and its stockholders to
issue the shares of Restricted Stock provided for herein to the Employee in
partial consideration of past services to the Company, and has advised National
Semiconductor Corporation thereof and instructed the Secretary to issue said
Restricted Stock;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Definitions
Whenever used in this Agreement, the following terms shall have the meaning
set forth below.
Restrictions: Reacquisition and transferability restrictions imposed upon
Restricted Stock under this Agreement.
Vested Shares: Number of shares of Restricted Stock derived from the percentage
specified in Section 3.A. Capitalized Terms not otherwise defined herein have
the meanings set forth in the Plan.
2. Issuance of Restricted Stock
A. In consideration of past services rendered to the Company and for other
good and valuable consideration which the Committee has determined to be equal
to the par value of the Common Stock, on the Award Date National Semiconductor
Corporation issues to the Employee xxxx shares of its Common Stock, upon the
terms and conditions set forth in this Agreement.
B. By entering into this Agreement, Employee acknowledges that:
(i) the Plan is discretionary in nature and may be amended, suspended
or terminated by National Semiconductor Corporation at any time;
(ii) the grant of shares of Restricted Stock is a one-time benefit
which does not create any contractual or other right to receive
future grants of shares of Restricted Stock, or benefits in lieu
of shares of Restricted Stock;
(iii)all determinations with respect to any grants of Restricted
Stock, including, but not limited to, the times when shares of
Restricted Stock shall be granted, the number of shares of
Restricted Stock, and the time or times when the restrictions on
the shares of Restricted Stock shall expire, will be at the sole
discretion of National Semiconductor Corporation and the
Committee;
(iv) the Employee's receipt of these shares of Restricted Stock shall
not create a right to further employment with the Company and
shall not interfere with the ability of the Company to terminate
the Employee's employment relationship at any time with or
without cause;
(v) the Employee's participation in the Plan is voluntary;
(vi) the value of the shares of Restricted Stock is an extraordinary
item of compensation which is outside the scope of the Employee's
employment contract, if any;
(vii)the shares of Restricted Stock are not part of normal or
expected compensation for purposes of calculating any severance,
resignation, redundancy, end of service payments, bonuses,
long-service awards, pension or retirement benefits or similar
payments;
(viii) the future value of the shares of Restricted Stock is unknown
and cannot be predicted with certainty.
3. Restrictions
A. All shares of Restricted Stock issued to the Employee are initially
subject to reacquisition by National Semiconductor Corporation immediately upon
a Termination of Employment; provided, however, that no reacquisition shall
occur in the event of a Termination of Employment because of the Restricted
Stockholder's Disability or death, in which event all shares of Restricted Stock
shall immediately fully vest and all Restrictions shall immediately expire. In
all other cases, all Restrictions on the Restricted Stock issued to Employee
hereunder shall expire with respect to thirty three and one third percent (33?%)
of such shares, rounded down to the nearest whole number with any remainder
carried over to any subsequent vesting, on the second anniversary of the Award
Date; shall expire with respect to thirty three and one third percent (33?%) of
such shares, rounded down to the nearest whole number with any remainder carried
over to any subsequent vesting, on the fourth anniversary of the Award Date; and
shall expire with respect to the remaining thirty three and one third percent
(33?%) of such shares, rounded up to the nearest whole number of the shares on
the sixth anniversary of the Award Date. Once Restrictions have expired on the
Restricted Stock, such shares will become Vested Shares and the Restrictions
subjecting the Restricted Stock to reacquisition by the Company shall not apply
to any Vested Shares held by the Employee.
B. Certificates representing shares of Restricted Stock issued pursuant to
this Agreement shall, until all Restrictions lapse and new certificates are
issued pursuant to Section 3.C, bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
VESTING REQUIREMENTS AND MAY BE SUBJECT TO REACQUISITION BY NATIONAL
SEMICONDUCTOR CORPORATION UNDER THE TERMS OF THAT CERTAIN RESTRICTED STOCK
AGREEMENT BY AND BETWEEN NATIONAL SEMICONDUCTOR CORPORATION AND THE HOLDER
OF THE SECURITIES. PRIOR TO VESTING OF OWNERSHIP IN THE SECURITIES, THEY
MAY NOT BE, DIRECTLY OR INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED,
PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES.
COPIES OF THE ABOVE REFERENCED AGREEMENT ARE ON FILE AT THE OFFICES OF
NATIONAL SEMICONDUCTOR CORPORATION AT 2900 SEMICONDUCTOR DRIVE, M/S G3-135,
SANTA CLARA, CA 95051.
C. Upon the vesting of the shares of Restricted Stock and subject to
Section 5.C and payment of taxes as required by Section 5.J, National
Semiconductor Corporation shall cause new certificates to be issued with respect
to the Vested Shares and delivered to the Employee or his legal representative,
free from legend and any other Restrictions. Vested Shares shall cease to be
Restricted Stock subject to the terms and conditions of this Agreement.
D. Upon the merger or consolidation of National Semiconductor Corporation
into another corporation, the acquisition by another corporation or person
(excluding any employee benefit plan of National Semiconductor Coporation or any
trustee or other fiduciary holding securities under an employee benefit plan of
National Semiconductor Corporation) of all or substantially all of National
Semiconductor Corporation's assets or 51% or more of National Semiconductor
Corporation's then outstanding voting stock, or the liquidation or dissolution
of National Semiconductor Corporation, all shares of Restricted Stock shall
fully vest and all Restrictions shall immediately expire.
E. In the event that the outstanding shares of the Common Stock are changed
into or exchanged for a different number or kind of shares or other securities
of National Semiconductor Corporation or of another corporation pursuant to a
merger of National Semiconductor Corporation into another corporation, or the
exchange of all or substantially all of the assets of National Semiconductor
Corporation for the securities of another corporation, or the acquisition by
another corporation or person (excluding any employee benefit plan of National
Semiconductor Corporation or any trustee or other fiduciary holding securities
under an employee benefit plan of National Semiconductor Corporation) of 51% or
more of National Semiconductor Corporation's then outstanding voting stock, or
the liquidation or dissolution of National Semiconductor Corporation, or a stock
split-up or stock dividend, such new, additional or different shares or
securities which are held or received by the Employee in his or her capacity as
a holder of Restricted Stock shall be considered to be Restricted Stock and
shall be subject to all of the Restrictions.
4. Non-Disclosure
It is understood and agreed that this Agreement shall be confidential and
shall not be disclosed by Employee to any person, including other Company
employees, without the express written consent of the Company; provided,
however, that Employee may disclose this Agreement to Employee's spouse and
legal and financial advisors subject to the Employee ensuring that the recipient
of the disclosure agrees to comply with this non-disclosure provision.
5. Miscellaneous
A. The Committee has the power to interpret the Plan, this Agreement and
all other documents relating to Restricted Stock and to adopt rules for the
administration, interpretation and application of the Plan, and to interpret,
amend or revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Employee, the Company and all other interested persons. No member of
the Committee shall be personally liable for any action, determination or
interpretation made in good faith.
B. No Restricted Stock or any interest or right therein or part thereof
shall be liable for the debts, contracts or engagements of the Employee or his
or her successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition is voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided, however, that this Section 5.B
shall not prevent transfers by will or by applicable laws of descent and
distribution and the Employee may provide written notice to the Company
designating a third party who, in the event of Employee's death, shall
thereafter be entitled to receive any benefits pursuant to this Agreement.
C. National Semiconductor Corporation shall not be required to issue or
deliver any certificate or certificates for shares of stock pursuant to this
Agreement prior to fulfillment of all of the following conditions:
(i) The admission of such shares to listing on all stock exchanges on
which such class of stock is then listed;
(ii) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or
regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Committee shall, in
its absolute discretion, deem necessary or advisable;
(iii)The obtaining of any approval or other clearance from any state,
federal or other governmental agency which the Committee shall,
in its absolute discretion, determine to be necessary or
advisable;
(iv) Subject to the provisions of Section 5.J, the payment by the
Employee of all amounts required to be withheld under federal,
state, local and other applicable tax laws, with respect to the
issuance of Restricted Stock and/or the lapse or removal of any
of the Restrictions; and
(v) The lapse of such reasonable period of time as the Committee may
from time to time establish for reasons of administrative
convenience.
D. The Secretary or such other escrow holder as the Committee may appoint
shall retain physical custody of the certificates representing Restricted Stock,
including shares of Restricted Stock issued pursuant to Section 3.E, until all
of the Restrictions expire or are removed.
E. Any notice to be given under the terms of this Agreement to National
Semiconductor Corporation shall be addressed to National Semiconductor
Corporation in care of its Secretary, and any notice to be given to the Employee
shall be addressed to him or her at the address given beneath Employee's
signature hereto. By a notice given pursuant to this Section 5.E, either party
may designate a different address for notices to be given to it. Any notice
which is required to be given to the Employee shall, if the Employee is then
deceased, be given to the Employee's personal representative if such
representative has previously informed National Semiconductor Corporation of his
or her status and address by written notice under this Section 5.E. Any notice
shall have been deemed duly given when enclosed in a properly sealed envelope or
wrapper addressed as aforesaid, deposited (with postage prepaid) in a post
office or branch post office regularly maintained by the postal service in the
country of residence of the party sending the notice.
F. Upon delivery of the shares of Restricted Stock to the escrow holder
pursuant to Section 5.D, the Employee shall have all the rights of a stockholder
with respect to said shares, subject to the Restrictions herein (including the
provisions of Section 5.J), including the right to vote the shares and to
receive all dividends or other distributions paid or made with respect to the
shares.
G. Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
H. This Agreement shall be administered, and the Restricted Stock shall be
issued, only in such a manner as to conform to all applicable laws, rules and
regulations.
I. This Agreement may be amended only by a writing executed by the parties
hereto which specifically states that it is amending this Agreement.
J. National Semiconductor Corporation's obligation to issue or deliver to
the Employee any certificate or certificates for unrestricted shares of stock or
to pay to the Employee any dividends or make any distributions with respect to
the Restricted Stock is expressly conditioned upon receipt from the Employee, on
or prior to the date the same is required to be withheld, of:
(i) Full payment (in cash or by check) of any amount that must be
withheld by the Employee's employer for federal, state, local,
and/or other tax purposes; or
(ii) Subject to Section 5.J(iii), full payment by delivery to National
Semiconductor Corporation of unrestricted shares of Common Stock
previously owned by the Employee for such period of time as is
sufficient to avoid the imposition on National Semiconductor
Corporation of adverse accounting consequences duly endorsed for
transfer to National Semiconductor Corporation by the Employee
with an aggregate Fair Market Value (determined, as applicable,
as of the date of the lapse of the Restrictions or vesting, or as
of the date of the distribution) equal to the amount that must be
withheld by for federal, state, local, and/or other tax purposes;
or
(iii)With respect to the withholding obligation for shares of
Restricted Stock that become unrestricted shares as of a Vesting
Date and subject to the timing requirements set forth in this
Section 5.J(iii), payment by retention by National Semiconductor
Corporation of a portion of such shares of Restricted Stock which
become unrestricted or vested with an aggregate Fair Market Value
(determined as of the Vesting Date) equal to the statutory
minimum amount that must be withheld by the Employee's employer
for federal, state, local, and/or other tax purposes; provided,
however, that any fractional share amounts shall be settled by
payroll deductions.
(v) Any combination of payments provided for in the foregoing
subsections (i), (ii) or (iii).
K. For Employees employed at international locations: National
Semiconductor Corporation and/or the Employee's employer will assess its
requirements regarding tax, social insurance and any other payroll tax
("Tax-Related Items") withholding and reporting in connection with the shares of
Restricted Stock. These requirements may change from time to time as laws or
interpretations change. Regardless of the actions of National Semiconductor
Corporation and/or the Employee's employer in this regard, Employee hereby
acknowledges and agrees that the ultimate liability for any and all Tax-Related
Items is and remains his or her responsibility and liability and that National
Semiconductor Corporation and the Employee's employer make no representations
nor undertakings regarding treatment of any Tax-Related Items in connection with
any aspect of the grant of Restricted Stock and do not commit to structure the
terms of the grant or any aspect of the Restricted Stock to reduce or eliminate
the Employee's liability regarding Tax-Related Items. In the event that National
Semiconductor Corporation and/or the Employee's employer must withhold any
Tax-Related Items as a result of the grant or vesting of the Restricted Stock,
Employee agrees to make arrangements satisfactory to National Semiconductor
Corporation and/or the Employee's employer to satisfy all withholding
requirements. Employee authorizes National Semiconductor Corporation and/or the
Employee's employer to withhold all applicable Tax-Related Items legally due
from the Employee from his or her wages or other cash compensation paid him or
her by National Semiconductor Corporation and/or the Employee's employer.
L. As a condition of the grant of the Restricted Stock, Employee consents
to the collection, use and transfer of personal data as described in this
Section 5.L. Employee understands that the Company and its subsidiaries hold
certain personal information about the Employee, including the Employee's name,
home address and telephone number, date of birth, social security number or
identification number, salary, nationality, job title, any shares of stock or
directorships held in the Company, details of all options or any other
entitlement to shares of stock (restricted or otherwise) awarded, cancelled,
exercised, vested, unvested or outstanding in Employee's favor, for the purpose
of managing and administering the Plan ("Data"). Employee further understands
that the Company and/or its subsidiaries will transfer Data amongst themselves
as necessary for the purpose of implementation, administration and management of
Employee's participation in the Plan, and that the Company and/or any of its
subsidiaries may each further transfer Data to any third parties assisting the
Company in the implementation, administration and management of the Plan.
Employee understands that these recipients may be located in the European
Economic Area, or elsewhere, such as the United States. Employee authorizes the
Company, its subsidiaries, and such third parties to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing Employee's participation in the Plan,
including any requisite transfer to a broker or other third party with whom
Employee may elect to deposit any shares of stock acquired upon vesting of the
shares of Restricted Stock. Employee understands that he or she may, at any
time, view Data, require any necessary amendments to it or withdraw the consents
herein in writing by contacting his or her local Human Resources representative.
Withdrawal of consent may, however, affect Employee's ability to realize
benefits from the Plan.
M. The rights and obligations of National Semiconductor Corporation under
this Agreement shall be transferable by National Semiconductor Corporation to
any one or more persons or entities, and all covenants and agreements hereunder
shall inure to the benefit of, and be enforceable by National Semiconductor
Corporation's successors and assigns.
N. Employee agrees upon request to execute any further documents or
instruments necessary or desirable in the sole determination of National
Semiconductor Corporation to carry out the purposes or intent of this Agreement.
O. Employee acknowledges and agrees that he or she has reviewed this
Agreement in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing and accepting this Agreement and fully understands
all provisions of this Agreement.
P. All obligations of National Semiconductor Corporation under the Plan and
this Agreement shall be binding on any successor to National Semiconductor
Corporation, whether the existence of such successor is the result of a direct
or indirect purchase, merger, consolidation, or otherwise, of all or
substantially all of the business and/or assets of National Semiconductor
Corporation.
Q. If all or any part of this Agreement or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any portion of this Agreement or the Plan not
declared to be unlawful or invalid. Any section of this Agreement (or part of
such a section) so declared to be unlawful or invalid shall, if possible, be
construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful and
valid.
R. The laws of the State of Delaware, USA shall govern the interpretation,
validity, administration, enforcement and performance of the terms of this
Agreement regardless of the law that might be applied under principles of
conflicts of laws.
IN WITNESS HEREOF, this Agreement has been executed and delivered by the
parties hereto.
NATIONAL SEMICONDUCTOR CORPORATION
By ___________________________
Its Senior Vice President
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____________________________
Employee Signature
Print Name of Employee:
Print Address: