As filed with the Securities and Exchange Commission on May 19,
2004
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
INTEL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-1672743
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
2200 Mission College Blvd. 95052-8119
Santa Clara, CA (Zip Code)
(Address of Principal Executive
Offices)
Intel Corporation 2004 Equity Incentive Plan
(Full Title of the Plan)
Cary I. Klafter, Esq.
Vice President and Secretary
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052-8119
(Name and Address of Agent for Service)
(408) 765-8080
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
RONALD O. MUELLER, ESQ.
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 300
Washington, DC 20036
(202) 955-8500
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CALCULATION OF REGISTRATION FEE
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Title of Amount to Proposed Proposed Amount of
Securities be Maximum Maximum Registration
to be Registered Offering Aggregate Fee (3)
Registered (1) Price Per Offering Price
Share (2) (2)
---------- -------- -------- -------- --------
Common
Stock, par 240,000,000 $26.87 $6,448,800,000 $817,062.96
value .00
$0.001 per
share
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(1) Pursuant to Rule 416(a), this Registration Statement also
covers additional securities that may be offered under the
Intel Corporation 2004 Equity Incentive Plan as a result
of stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of determining the
registration fee.
(3) Calculated pursuant to Rule 457(c)and Rule 457(h)(1) based
upon the average of the high and low prices of the Common
Stock on the Nasdaq National Market on May 17, 2004, which
was $26.87.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Intel
Corporation, a Delaware corporation (the "Corporation" or the
"Registrant"), relating to 240,000,000 shares of its common
stock, par value $0.001 per share (the "Common Stock") issuable
to eligible directors and employees of the Corporation under the
Intel Corporation 2004 Equity Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not filed as part of this Registration Statement
pursuant to Note to Part 1 of Form S-8.
Item 2. Registrant Information and Employee Plan Annual
Information.
Not filed as part of this Registration Statement
pursuant to Note to Part 1 of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of the Registrant heretofore filed with
the Securities and Exchange Commission (the "Commission") are
hereby incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") or latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of
1933, as amended (the "Securities Act"), that contains
audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed;
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year
covered by Registrant's latest annual report or prospectus
referred to in (1) above;
(3) The description of the Common Stock set forth under the
caption "Description of Capital Stock" in the Registrant's
registration statement on Form S-3, as amended, filed with
the Commission on April 18, 1995, File No. 33-56107,
together with any amendment or report filed with the
Commission for the purpose of updating such description.
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All reports and other documents subsequently filed by the
Registrant pursuant to Sections 13(a) and (c), 14 and 15(d) of
the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered hereunder
have been sold or which deregisters all such securities then
remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the
date of filing of such reports and documents.
Any statement contained herein or in a document incorporated
or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes
such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the
"DGCL") makes provision for the indemnification of officers and
directors of corporations in terms sufficiently broad to
indemnify the officers and directors of the Corporation under
certain circumstances from liabilities (including reimbursement
of expenses incurred) arising under the Securities Act of 1933,
as amended (the "Act"). Section 102(b)(7) of the DGCL permits a
corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally liable to the
corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
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As permitted by the DGCL, the Corporation's Certificate of
Incorporation (the "Charter") provides that, to the fullest
extent permitted by the DGCL or decisional law, no director shall
be personally liable to the Corporation or to its stockholders
for monetary damages for breach of his fiduciary duty as a
director. The effect of this provision in the Charter is to
eliminate the rights of the Corporation and its stockholders
(through stockholders' derivative suits on behalf of the
Corporation) to recover monetary damages against a director for
breach of fiduciary duty as a director thereof (including
breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i)-(iv),
inclusive, above. These provisions will not alter the liability
of directors under federal securities laws.
The Corporation's Bylaws (the "Bylaws") provide that 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 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 any other corporation or
enterprise (including an employee benefit plan), against all
expenses, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes and penalties, and amounts
paid or to be paid in settlement, and any interest, assessments,
or other charges imposed thereof, and any taxes imposed on such
person as a result of such payments) reasonably incurred or
suffered by such person in connection with investigating,
defending, being a witness in, or participating in (including on
appeal), or preparing for any of the foregoing in such action,
suit or proceeding, to the fullest extent authorized by the DGCL,
provided that the Corporation shall indemnify such person in
connection with any such action, suit or proceeding initiated by
such person only if authorized by the Board of Directors of the
Corporation or brought to enforce certain indemnification rights.
The Bylaws also provide that expenses incurred by an officer
or director of the Corporation (acting in his capacity as such)
in defending any such action, suit or proceeding shall be paid by
the Corporation, provided that if required by the DGCL such
expenses shall be advanced only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation. Expenses
incurred by other agents of the Corporation may be advanced upon
such terms and conditions as the Board of Directors of the
Corporation deems appropriate. Any obligation to reimburse the
Corporation for expenses advanced under such provisions shall be
unsecured and no interest shall be charged thereon.
II-4
The Bylaws also provide that indemnification provided for in
the Bylaws shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; that any right of
indemnification or protection provided under the Bylaws shall not
be adversely affected by any amendment, repeal, or modification
of the Bylaws; and that the Corporation may purchase and maintain
insurance to protect itself and any such person against any such
expenses, liability and loss, whether or not the Corporation
would have the power to indemnify such person against such
expenses, liability or loss under the DGCL or the Bylaws.
In addition to the above, the Corporation has entered into
indemnification agreements with each of its directors and certain
of its officers. The indemnification agreements provide
directors and officers with the same indemnification by the
Corporation as described above and assure directors and officers
that indemnification will continue to be provided despite future
changes in the Bylaws of the Corporation. The Corporation also
provides indemnity insurance pursuant to which officers and
directors are indemnified or insured against liability or loss
under certain circumstances, which may include liability or
related loss under the Securities Act and the Exchange Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits
Unless otherwise indicated below as being incorporated by
reference to another filing of the Corporation with the
Commission, each of the following exhibits is filed herewith:
4.1 Intel Corporation Second Restated Certificate of
Incorporation dated March 13, 2003 (incorporated by
reference to Exhibit 3.1 of Registrant's Form 10-Q for the
quarter ended March 29, 2003, as filed on May 7, 2003).
4.2 Intel Corporation Bylaws as amended.
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24. Power of Attorney (contained on signature page hereto).
II-5
Item 9. Undertakings.
(1) The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which
was registered) and any deviation from the low or
high and of the estimated maximum offering range
may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
provided, however, , that paragraphs (1)(a)(i) and
(1)(a)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this registration statement.
(b) That, for the purpose of determining any
liability under the Securities Act, each such
post-effective amendment shall be deemed to be a
new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to
be the initial bona fide offering thereof.
II-6
(c) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(2) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
(3) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Corporation certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-8
and has duly caused this Registration Statement to be signed on
its behalf by the undersigned, there-unto duly authorized, in the
City of Santa Clara, State of California, on this 19th day of
May, 2004.
INTEL CORPORATION
/s/Andy D. Bryant
---------------------
By: Andy D. Bryant
Executive Vice President,
Chief Financial and
Enterprise Services Officer
Each person whose signature appears below constitutes and
appoints F. Thomas Dunlap, Jr., Andy D. Bryant and Cary I.
Klafter and each of them, his true and lawful attorneys-in-fact
and agents, each with full power of substitution and
resubstitution, severally, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
/s/Andrew S. Grove Chairman of the Board May 19, 2004
Andrew S. Grove and Director
/s/Craig R. Barrett Chief Executive Officer May 19, 2004
Craig R. Barrett and Director
/s/Paul S. Otellini President, Chief Operating May 19, 2004
Paul S. Otellini Officer and Director
/s/Charlene Barshefsky Director May 19, 2004
Charlene Barshefsky
II-8
/s/E. John P. Browne Director May 19, 2004
E. John P. Browne
/s/Andy D. Bryant Executive Vice President, May 19, 2004
Andy Bryant Chief Financial Officer
and Principal Accounting
Officer
/s/D. James Guzy Director May 19, 2004
D. James Guzy
/s/Reed E. Hundt Director May 19, 2004
Reed E. Hundt
/s/David S. Pottruck Director May 19, 2004
David S. Pottruck
/s/Jane E. Shaw Director May 19, 2004
Jane E. Shaw
/s/John L. Thornton Director May 19, 2004
John L. Thornton
/s/David B. Yoffie Director May 19, 2004
David B. Yoffie
II-9
EXHIBIT INDEX
Exhibit
Number Description
-------- -----------------------------------------------------
4.2 Intel Corporation Bylaws as amended.
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
Exhibit 4.2
INTEL CORPORATION
BYLAWS
ARTICLE I
Offices
Section 1. Registered Office. The registered office
of the corporation in the State of Delaware shall be in the City
of Wilmington, County of New Castle.
Section 2. Other Offices. The corporation shall also
have and maintain an office or principal place of business at
2200 Mission College Boulevard, Santa Clara, County of Santa
Clara, State of California, and 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' Meetings
Section 1. Place of Meetings.
(a) Meetings of the stockholders of the corporation
shall be held at such place, either within or without the State
of Delaware, as may be designated from time to time by the Board
of Directors, or, if not so designated, then at the office of the
corporation required to be maintained pursuant to Section 2 of
Article I hereof.
(b) The Board of Directors may, in its sole
discretion, determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote
communication in accordance with Section 211(a)(2) of the
Delaware General Corporation Law. If authorized by the Board of
Directors in its sole discretion, and subject to such guidelines
and procedures as the Board of Directors may adopt, stockholders
and proxyholders not physically present at a meeting of
stockholders may, by means of remote communication (a)
participate in a meeting of stockholders; and (b) be deemed
present in person and vote at a meeting of stockholders whether
such meeting is to be held at a designated place or solely by
means of remote communication, provided that (i) the corporation
shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder; (ii) the
corporation shall implement reasonable measures to provide such
stockholders and proxyholders a reasonable opportunity to
participate in the meeting and to vote on matters submitted to
the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such
proceedings; and (iii) if any stockholder or proxyholder votes or
takes other action at the meeting by means of remote
communication, a record of such vote or other action shall be
maintained by the corporation.
Section 2. Annual Meetings. The annual meetings of
the stockholders of the corporation for the purpose of election
of directors and for such other business as may lawfully come
before it, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors, but in no
event more then fifteen (15) months after the date of the
preceding annual meeting.
Section 3. Special Meetings. Special meetings of the
stockholders of the corporation may be called, for any purpose or
purposes, by the Chairman of the Board or the President or the
Board of Directors at any time.
Section 4. Notice of Meetings.
(a) Except as otherwise provided by law or the
Certificate of Incorporation, written notice (as the term
"written" is defined in Article XII hereof) of each meeting of
stockholders, specifying the place, if any, date and hour of the
meeting; the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in
person and vote at such meeting; and the purpose or purposes of
the meeting, shall be given not less than ten (10) nor more than
sixty (60) days before the date of the meeting to each
stockholder entitled to vote thereat, directed to the stockholder
in accordance with the procedures set forth in Article X hereof.
Notice shall be deemed to have been given to all stockholders of
record who share an address if notice is given in accordance with
the "householding" rules set forth in Rule 14a-3(e) under the
Securities Exchange Act of 1934, as amended ("Exchange Act").
(b) If at any meeting action is proposed to be taken
which, if taken, would entitle stockholders fulfilling the
requirements of Section 262(d) of the Delaware General
Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of
that purpose and to that effect and shall be accompanied by a
copy of that statutory section.
(c) When a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the
time and place, if any, thereof, and the means of remote
communications, if any, by which stockholders and proxyholders
may be deemed to be present in person and vote at such meeting,
are announced at the meeting at which the adjournment is taken
unless the adjournment is for more than thirty days, or unless
after the adjournment a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned
meeting shall be given to each stockholder of record entitled to
vote at the meeting.
(d) Notice of the time, place and purpose of any
meeting of stockholders may be waived in writing, either before
or after such meeting, and to the extent permitted by law, will
be waived by any stockholder by his attendance thereat, in person
or by proxy. Any stockholder so waiving notice of such meeting
shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e) Unless and until voted, every proxy shall be
revocable at the pleasure of the person who executed it or of his
legal representatives or assigns, except in those cases where an
irrevocable proxy permitted by statute has been given.
Section 5. Quorum and Voting.
(a) At all meetings of stockholders, except where
otherwise provided by law, the Certificate of Incorporation, or
these Bylaws, the presence, in person or by proxy duly
authorized, of the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum for
the transaction of business. Shares, the voting of which at said
meeting have been enjoined, or which for any reason cannot be
lawfully voted at such meeting, shall not be counted to determine
a quorum at said meeting. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, by
vote of the holders of a majority of the shares represented
thereat, but no other business shall be transacted at such
meeting. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted which might have
been transacted at the original meeting. The stockholders
present at a duly called or convened 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.
(b) Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, all action taken by
the holders of a majority of the voting power represented at any
meeting at which a quorum is present shall be valid and binding
upon the corporation.
Section 6. Voting Rights.
(a) Except as otherwise provided by law, only persons
in whose names shares entitled to vote stand on the stock records
of the corporation on the record date for determining the
stockholders entitled to vote at said meeting shall be entitled
to vote at such meeting. Shares standing in the names of two (2)
or more persons shall be voted or represented in accordance with
the determination of the majority of such persons, or, if only
one (1) of such persons is present in person or represented by
proxy, such person shall have the right to vote such shares and
such shares shall be deemed to be represented for the purpose of
determining a quorum.
(b) Every person entitled to vote or execute consents
shall have the right to do so either in person or by an agent or
agents authorized by a written proxy executed by such person or
his duly authorized agent, which proxy shall be filed with the
Secretary of the corporation at or before the meeting at which it
is to be used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three (3) years
from its date unless the proxy provides for a longer period.
Section 7. List of Stockholders. The officer who has
charge of the stock ledger of the corporation shall prepare and
make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to
vote at said meeting, arranged in alphabetical order, showing the
address of and the
number of shares registered in the name of each stockholder.
Nothing contained in Section 219 of the Delaware General
Corporation Law shall require the corporation to include
electronic mail addresses or other electronic contact information
on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period
of at least ten (10) days prior to the meeting, either (a) on a
reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with
the notice of the meeting, or (b) during ordinary business hours,
at the principal place of business of the corporation. In the
event that the corporation determines to make the list available
on an electronic network, the corporation may take reasonable
steps to ensure that such information is available only to
stockholders of the corporation. If the meeting is to be held at
a place, the list shall 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. If the meeting is
to be held solely by means of remote communication, the list
shall also be open to the examination of any stockholder during
the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such
list shall be provided with the notice of the meeting.
Section 8. Action Without Meeting.
(a) Unless otherwise provided in the Certificate of
Incorporation, any action required by statute to be taken at any
annual or special meeting of stockholders of the corporation, or
any action which may be taken at any annual or special meeting of
such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, are signed by the holders of
outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at
a meeting at which all shares entitled to vote thereon were
present and voted. To be effective, a written consent must be
delivered to the corporation by delivery to its registered office
in Delaware, its principal place of business, or an officer or
agent of the corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery
made to the corporation's registered office shall be by hand or
by certified or registered mail, return receipt requested. 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 consent
delivered in the manner required by this section to the
corporation, written consents signed by a sufficient number of
holders to take action are delivered to the corporation in
accordance with this section.
(b) A telegram, cablegram or other electronic
transmission consenting to an action to be taken and transmitted
by a stockholder or proxyholder, or by a person or persons
authorized to act for a stockholder or proxyholder, shall be
deemed to be written, signed and dated for the purposes of this
section, provided that any such telegram, cablegram or other
electronic transmission sets forth or is delivered with
information from which the corporation can determine (a) that the
telegram, cablegram or other electronic transmission was
transmitted by the stockholder or proxyholder or by
a person or persons authorized to act for the stockholder or
proxyholder, and (b) the date on which such stockholder or
proxyholder or authorized person or persons transmitted such
telegram, cablegram or electronic transmission. The date on
which such telegram, cablegram or electronic transmission is
transmitted shall be deemed to be the date on which such consent
was signed. Except to the extent and in the manner authorized by
the Board of Directors, no consent given by telegram, cablegram
or other electronic transmission shall be deemed to have been
delivered until such consent is reproduced in paper form and
until such paper form shall be delivered to the corporation by
delivery to its registered office in Delaware, its principal
place of business or an officer or agent of the corporation
having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the corporation's
registered office shall be made by hand or by certified or
registered mail, return receipt requested.
(c) Any copy, facsimile or other reliable reproduction
of a consent in writing may be substituted or used in lieu of the
original writing for any and all purposes for which the original
writing could be used, provided that such copy, facsimile or
other reproduction shall be a complete reproduction of the entire
original writing.
(d) Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in
writing and who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting if the record date of
such meeting had been the date that written consents signed by a
sufficient number of stockholders to take the action were
delivered to the corporation in the manner required by this
section.
Section 9. Nominations and Stockholder Business.
(a) 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 is a stockholder
of record at the time of giving of notice provided for in this
Section 9, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this Section 9.
(b) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to
this Section 9, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation, and such
business must be a proper subject for stockholder action under
the Delaware General Corporation Law. To be timely, a
stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the corporation (if delivered by
electronic mail or facsimile, the stockholder's notice shall be
directed to the Secretary at the electronic mail address or
facsimile number, as the case may be, specified in the company's
most recent proxy statement) not less than forty-five (45) days
nor more than one hundred twenty (120) days prior to the date on
which the corporation first mailed its proxy materials for the
prior year's annual meeting of stockholders; provided,
however, that in the event that the date of the annual meeting is
advanced by more than thirty (30) days or delayed (other than as
a result of adjournment) by more than thirty (30) days from the
anniversary of the previous year's annual meeting, notice by the
stockholder to be timely must be delivered not later than the
close of business on the later of the sixtieth (60th) day prior
to such annual meeting or the tenth (10th) day following the day
on which public announcement of the date of such meeting is first
made. 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, or is otherwise required, in each case
pursuant to Regulation 14A under the Exchange Act (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 owners 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.
(c) Notwithstanding anything in this Section 9 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 specifying the size of the
increased Board of Directors made by the corporation at least
seventy (70) days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this
Section 9 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 tenth (10th) day following the day on which such public
announcement is first made by the corporation.
(d) 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) by
any stockholder of the corporation who is a stockholder of record
at the time of giving of notice provided for in this section, who
is entitled to vote at the meeting and who complies with the
notice procedures set forth in this section. Nominations by
stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the
stockholder's notice required by this section shall be delivered
to the Secretary at the principal executive offices of the
corporation (if delivered by electronic mail or facsimile, the
stockholder's notice shall be directed to the Secretary at the
electronic mail address or facsimile number, as the case may be,
specified in the company's most recent proxy statement) not
earlier than
the one hundred twentieth (120th) day prior to such special
meeting and not later than the close of business on the later of
the sixtieth (60th) day prior to such special meeting or the
tenth (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.
(e) Only those persons who are nominated in accordance
with the procedures set forth in this section shall be eligible
for election as directors at any meeting of stockholders. 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 section. 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 in accordance with the procedures set forth in
this section and, if any proposed nomination or business is not
in compliance with this section, to declare that such defective
proposal shall be disregarded.
(f) For purposes of this section, "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 9, 13, 14 or 15(d) of the Exchange Act.
(g) Notwithstanding the foregoing provisions of this
Section 9, 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 Section
9. Nothing in this Section 9 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
ARTICLE III
Directors
Section 1. Number and the Term of Office. The number
of directors which shall constitute the whole of the Board of
Directors shall be eleven (11). With the exception of the first
Board of Directors, which shall be elected by the incorporator,
and except as provided in Section 3 of this Article III, the
directors shall be elected by a plurality vote of the shares
represented in person or by proxy, at the stockholders annual
meeting in each year and entitled to vote on the election of
directors. Elected directors shall hold office until the next
annual meeting and until their successors shall be duly elected
and qualified. Directors need not be stockholders. If, for any
cause, the Board of Directors shall not have been elected at an
annual meeting, they may be elected as soon thereafter as
convenient at a special meeting of the stockholders called for
that purpose in the manner provided in these Bylaws.
Section 2. Powers. The powers of the corporation
shall be exercised, its business conducted and its property
controlled by or under the direction of the Board of Directors.
Section 3. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors
then in office, although less than a quorum, or by a sole
remaining director, and each director so elected shall hold
office for the unexpired portion of the term of the director
whose place shall be vacant, and until his successor shall have
been duly elected and qualified. A vacancy in the Board of
Directors shall be deemed to exist under this section in the case
of the death, removal or resignation of any director, or if the
stockholders fail at any meeting of stockholders at which
directors are to be elected (including any meeting referred to in
Section 4 below) to elect the number of directors then
constituting the whole Board.
Section 4. Resignations and Removals.
(a) Any director may resign at any time by delivering
his written resignation to the Secretary, such resignation to
specify whether it will be effective at a particular time, upon
receipt by the Secretary or at the pleasure of the Board of
Directors. If no such specification is made, it shall be deemed
effective at the pleasure of the Board of Directors. When one
(1) or more directors shall resign from the Board, effective at a
future date, a majority of the directors then in office,
including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when
such resignation or resignations shall become effective, and each
director so chosen shall hold office for the unexpired portion of
the term of the director whose place shall be vacated and until
his successor shall have been duly elected and qualified.
(b) Except as provided in Section 141 of the Delaware
General Corporation Law, at a special meeting of stockholders
called for the purpose in the manner hereinabove provided, the
Board of Directors, or any individual director, may be removed
from office, with or without cause, and a new director or
directors elected by a vote of stockholders holding a majority of
the outstanding shares entitled to vote at an election of
directors.
Section 5. Meetings.
(a) The annual meeting of the Board of Directors shall
be held immediately after the annual stockholders' meeting and at
the place where such meeting is held or at the place announced by
the Chairman at such meeting. No notice of an annual meeting of
the Board of Directors shall be necessary and such meeting shall
be held for the purpose of electing officers and transacting such
other business as may lawfully come before it.
(b) Except as hereinafter otherwise provided, regular
meetings of the Board of Directors shall be held in the office of
the corporation required to be
maintained pursuant to Section 2 of Article I hereof. Regular
meetings of the Board of Directors may also be held at any place
within or without the State of Delaware which has been designated
by resolutions of the Board of Directors or the written consent
of all directors. Notice of regular meetings of the directors is
hereby dispensed with and no notice whatever of any such meetings
need be given.
(c) Special meetings of the Board of Directors may be
held at any time and place within or without the State of
Delaware whenever called by the Chairman of the Board, the
President or by any two of the directors.
(d) Written notice of the time and place of all
special meetings of the Board of Directors shall be delivered to
each director at least twenty-four (24) hours before the start of
the meeting, or if sent by first class mail, at least seventy-two
(72) hours before the start of the meeting. Notice of any
meeting may be waived in writing at any time before or after the
meeting and will be waived by any director by attendance thereat.
Section 6. Quorum and Voting.
(a) A quorum of the Board of Directors shall consist
of a majority of the exact number of directors fixed from time to
time in accordance with Section 1 of Article III of these Bylaws,
but not less than one (1); provided, however, at any meeting
whether a quorum be present or otherwise, a majority of the
directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors,
without notice other than by announcement at the meeting.
(b) At each meeting of the Board at which a quorum is
present, all questions and business shall be determined by a vote
of a majority of the directors present, unless a different vote
be required by law, the Certificate of Incorporation, or these
Bylaws.
(c) Any member of the Board of Directors, or of any
committee thereof, may participate in a meeting by means of
conference telephone or other communication equipment by means of
which all persons participating in the meeting can hear each
other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of
Directors, or any committee thereof, however called or noticed,
or wherever held, shall be as valid as though had at a meeting
duly held after regular call and notice, if a quorum be present
and if, either before or after the meeting, each of the directors
not present shall deliver to the corporation a written waiver of
notice, or a consent to holding such meeting, or an approval of
the minutes thereof. All such waivers, consents or approvals
shall be filed with the corporate records or made a part of the
minutes of the meeting.
Section 7. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of
the Board of Directors or of any committee thereof may be
taken without a meeting, if all members of the Board or of such
committee, as the case may be, consent thereto in writing, and
such writing or writings are filed with the minutes of
proceedings of the Board or committee. Such filing shall be in
paper form if the minutes are maintained in paper form or shall
be in electronic form if the minutes are maintained in electronic
form.
Section 8. Fees and Compensation. Directors shall not
receive any stated salary for their services as directors but by
resolution of the Board, a fixed fee, with or without expense of
attendance, may be allowed for attendance at each meeting and at
each meeting of any committee of the Board of Directors. Nothing
herein contained shall be construed to preclude any director from
serving the corporation in any other capacity as an officer,
agent, employee, or otherwise, and receiving compensation
therefor.
Section 9. Committees.
(a) Executive Committee: The Board of Directors may
appoint an Executive Committee of not less than one (1) member,
each of whom shall be a director. The Executive Committee, to
the extent permitted by Delaware law, these Bylaws, the Executive
Committee Charter or other resolutions of the Board of Directors,
shall have and may exercise, when the Board of Directors is not
in session, all powers of the Board of Directors in the
management of the business and affairs of the corporation,
including, without limitation, the power and authority to declare
a dividend or to authorize the issuance of stock, except such
committee shall not have the power or authority to (a) approve or
adopt, or recommend to the corporation's stockholders, any action
or matter expressly required by the Delaware General Corporation
Law to be submitted to stockholders for approval, or (b) adopt,
amend or repeal any bylaw of the corporation.
(b) Other Committees: The Board of Directors may
appoint such other committees as may be permitted by law. Such
other committees appointed by the Board of Directors shall have
such powers and perform such duties as may be prescribed by the
resolution or resolutions creating such committee, but in no
event shall any such committee have the powers denied to the
Executive Committee in these Bylaws.
(c) Term: The members of all committees of the Board
of Directors shall serve a term coexistent with that of the Board
of Directors which shall have appointed such committee. The
Board, subject to the provisions of subsections (a) or (b) of
this Section 9, may at any time increase or decrease the number
of members of a committee or terminate the existence of a
committee; provided, that no committee shall consist of less than
one (1) member. The membership of a committee member shall
terminate on the date of his death or voluntary resignation, but
the Board may at any time for any reason remove any individual
committee member and the Board may fill any committee vacancy
created by death, resignation, removal or increase in the number
of members of the committee. The Board of Directors may
designate one (1) or more directors as alternate members of any
committee, who may replace any absent
or disqualified member at any meeting of the committee, and, in
addition, in the absence or disqualification of any member of a
committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not the member or
members constitutes a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.
(d) Meetings: Unless the Board of Directors shall
otherwise provide, regular meetings of the Executive Committee or
any other committee appointed pursuant to this Section 9 shall be
held at such times and places as are determined by the Board of
Directors, or by any such committee, and when notice thereof has
been given to each member of such committee, no further notice of
such regular meetings need be given thereafter; special meetings
of any such committee may be held at the principal office of the
corporation required to be maintained pursuant to Section 2 of
Article I hereof, or at any place which has been designated from
time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director
who is a member of such committee, upon written notice to the
members of such committee of the time and place of such special
meeting given in the manner provided for the giving of written
notice to members of the Board of Directors of the time and place
of special meetings of the Board of Directors. Notice of any
special meeting of any committee may be waived in writing at any
time before or after the meeting and will be waived by any
director by attendance thereat. A majority of the authorized
number of members of any such committee shall constitute a quorum
for the transaction of business, and the act of a majority of
those present at any meeting at which a quorum is present shall
be the act of such committee.
Section 10. Emeritus Director. The Board of Directors
may, from time to time, elect one (1) or more Emeritus Directors,
each of whom shall serve, at the pleasure of the Board, until the
first meeting of the Board next following the Annual Meeting of
Stockholders and for a maximum period of three (3) years, subject
to an annual review, or until earlier resignation or removal by
the Board (except that founders of the company may remain as
Emeritus Directors, subject to the annual review, or until
earlier resignation or removal by the Board). Emeritus Directors
shall serve as advisors and consultants to the Board of Directors
and may be appointed by the Board to serve as advisors and
consultants to committees of the Board. Emeritus Directors may
be invited to attend meetings of the Board or any committee of
the Board for which they have been appointed to serve as advisors
and consultants and, if present, may participate in the
discussions occurring during such meetings. Emeritus Directors
shall not be permitted to vote on matters brought before the
Board or any committee thereof and shall not be counted for the
purpose of determining whether a quorum of the Board or the
committee is present. Emeritus Directors shall receive no fee
for their services as Emeritus Directors. Emeritus Directors
will not be entitled to receive reimbursement for expenses of
meeting attendance, except as approved by the Chairman of the
Board. Emeritus Directors may be removed at any time by the
Board of Directors.
Section 11: Emergency Bylaws. In the event of any
emergency, disaster or catastrophe, as referred to in Section 110
of the Delaware General Corporation Law,
or other similar emergency condition, as a result of which a
quorum of the Board of Directors or a standing committee of the
Board cannot readily be convened for action, then the director or
directors in attendance at the meeting shall constitute a quorum.
Such director or directors in attendance may further take action
to appoint one (1) or more of themselves or other directors to
membership on any standing or temporary committees of the Board
as they shall deem necessary and appropriate.
ARTICLE IV
Officers
Section 1. Officers Designated. The officers of the
corporation shall be a Chairman of the Board of Directors who
shall be a member of the Board of Directors, a President, one (1)
or more Vice Presidents, a Secretary, and a Treasurer. The order
of the seniority of the Vice Presidents shall be in the order of
their nomination, unless otherwise determined by the Board of
Directors. The Board of Directors or the Chairman of the Board
or the President may also appoint one (1) or more assistant
secretaries, assistant treasurers, and such other officers and
agents with such powers and duties as it or he or she shall deem
necessary. The Board of Directors may assign such additional
titles to one (1) or more of the officers as they shall deem
appropriate. Any one (1) person may hold any number of offices
of the corporation at any one time unless specifically prohibited
therefrom by law. The salaries and other compensation of the
officers of the corporation shall be fixed by or in the manner
designated by the Board of Directors.
Section 2. Tenure and Duties of Officers.
(a) General: All officers shall hold office at the
pleasure of the Board of Directors and until their successors
shall have been duly elected and qualified, unless sooner
removed. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors.
If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors. Nothing in
these Bylaws shall be construed as creating any kind of
contractual right to employment with the corporation.
(b) Duties of the Chairman of the Board of Directors:
The Chairman of the Board of Directors shall preside at all
meetings of the stockholders and the Board of Directors. The
Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall
designate from time to time.
(c) Duties of President: The President shall preside
at all meetings of the stockholders and at all meetings of the
Board of Directors, unless the Chairman of the Board of Directors
has been appointed and is present. The President shall perform
such other duties and have such other powers as the Board of
Directors shall designate from time to time.
(d) Duties of Vice Presidents: The Vice Presidents,
in the order of their seniority, may assume and perform the
duties of the President in the absence or disability of the
President or whenever the office of the President is vacant. The
Vice President shall perform such other duties and have such
other powers as the Board of Directors or the President shall
designate from time to time.
(e) Duties of Secretary: The Secretary shall attend
all meetings of the stockholders and of the Board of Directors
and any committee thereof, and shall record all acts and
proceedings thereof in the minute book of the corporation and
shall keep the seal of the corporation in safe custody. The
Secretary shall give notice, in conformity with these Bylaws, of
all meetings of the stockholders, and of all meetings of the
Board of Directors and any Committee thereof requiring notice.
The Secretary shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to
time. The President may direct any Assistant Secretary to assume
and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall
perform such other duties and have such other powers as the Board
of Directors or the President shall designate from time to time.
(f) Duties of Chief Financial Officer and Treasurer:
Each of the Chief Financial Officer and the Treasurer shall
control, audit and arrange the financial affairs of the
corporation, consistent with the responsibilities delegated to
each of them by the corporation's President. The Chief Financial
Officer or Treasurer, as the case may be, shall receive and
deposit all monies belonging to the corporation and shall pay out
the same only in such manner as the Board of Directors may from
time to time determine, and shall perform such other further
duties as the Board of Directors may require. It shall be the
duty of the assistant treasurers to assist the Treasurer in the
performance of the Treasurer's duties and generally to perform
such other duties as may be delegated to them by the Board of
Directors.
ARTICLE V
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
Section 1. Execution of Corporate Instruments.
(a) The Board of Directors may, in its discretion,
determine the method and designate the signatory officer or
officers, or other person or persons, to execute any corporate
instrument or document, or to sign the corporate name without
limitation, except where otherwise provided by law, and such
execution or signature shall be binding upon the corporation.
(b) Unless otherwise specifically determined by the
Board of Directors or otherwise required by law, formal contracts
of the corporation, promissory notes, deeds of trust, mortgages
and other evidences of indebtedness of the corporation, and other
corporate instruments or documents requiring the corporate seal,
and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the
Board, the President, any Vice President or the Secretary. All
other instruments and documents requiring the corporate
signature, but not requiring the corporate seal, may be executed
as aforesaid or in such other manner as may be directed by the
Board of Directors.
(c) All checks and drafts drawn on banks or other
depositaries on funds to the credit of the corporation, or in
special accounts of the corporation, shall be signed by such
person or persons as the Board of Directors shall authorize so to
do.
Section 2. Voting of Securities Owned by Corporation.
All stock and other securities of other corporations owned or
held by the corporation for itself, or for other parties in any
capacity, shall be voted, and all proxies with respect thereto
shall be executed, by the person authorized so to do by
resolution of the Board of Directors or, in the absence of such
authorization, by the Chairman of the Board (if there be such an
officer appointed), or by the President, or by any Vice
President.
ARTICLE VI
Shares of Stock
Section 1. Form and Execution of Certificates.
Certificates for the shares of stock of the corporation shall be
in such form as is consistent with the Certificate of
Incorporation and applicable law. Every holder of stock in the
corporation shall be entitled to have a certificate signed by, or
in the name of the corporation by, the Chairman of the Board (if
there be such an officer appointed), or by the President or any
Vice President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares
owned by him in the corporation. Any or all of the signatures on
the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile
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 with the same effect as
if he or she were such officer, transfer agent, or registrar at
the date of issue. If the corporation shall be authorized to
issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth
in full or summarized on the face or back of the certificate
which the corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in
Section 202 of the Delaware General Corporation Law, in lieu of
the foregoing requirements, there may be set forth on the face or
back of the certificate which the corporation shall issue to
represent such class or series of stock, a statement that the
corporation will furnish without charge to each stockholder who
so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. Lost Certificates. The Board of Directors
may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by
the corporation alleged to have been lost or destroyed, upon the
making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to
indemnify the corporation in such manner as it shall require
and/or to give the corporation a surety bond in such form and
amount 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 or destroyed.
Section 3. Transfers. Transfers of record of shares
of stock of the corporation shall be made only upon its books by
the holders thereof, in person or by attorney duly authorized,
and upon the surrender of a certificate or certificates for a
like number of shares, properly endorsed.
Section 4. Fixing Record Dates.
(a) 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, 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 record date shall not be
more than sixty (60) nor less than ten (10) days before the date
of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which
notice is given, or, if notice is waived, at the close of
business on the day next preceding the date on which the meeting
is held. 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.
(b) 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. If no record date has been
fixed by the Board of Directors, 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 the Delaware General Corporation Law, shall be the
first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered (a) to the
corporation by delivery to its registered office in Delaware, its
principal place of business, or an officer or agent of the
corporation having custody of the book in which proceedings of
meetings of stockholders are recorded, or (b) directly to the
corporation, if authorized by the Board of Directors in the case
of consents
submitted by electronic transmission. Delivery made to a
corporation's registered office 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 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 day on which the Board of Directors adopts the resolution
taking such prior action.
(c) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders
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 a record date,
which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record
date shall be not more than sixty (60) days prior to such action.
If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the
resolution relating thereto.
Section 5. 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 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 VII
Other Securities of the Corporation
All bonds, debentures and other corporate securities of
the corporation, other than stock certificates, may be signed by
the Chairman of the Board or the President or any Vice President
or such other person as may be authorized by the Board of
Directors and the corporate seal impressed thereon or a facsimile
of such seal imprinted thereon and attested by the signature of
the Secretary or an Assistant Secretary, or the Treasurer or an
Assistant Treasurer; provided, however, that where any such bond,
debenture or other corporate security shall be authenticated by
the manual signature of a trustee under an indenture pursuant to
which such bond, debenture or other corporate security shall be
issued, the signature of the persons signing and attesting the
corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond,
debenture or other corporate security, authenticated by a trustee
as aforesaid, shall be signed by the Treasurer or Assistant
Treasurer of the corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon
the facsimile signature of such person. In case any officer who
shall have signed or attested any bond, debenture or other
corporate security, or whose facsimile signature shall appear
thereon shall have ceased to be such officer of the corporation
before the bond, debenture or other
corporate security so signed or attested shall have been
delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the corporation and issued and
delivered as though the person who signed the same or whose
facsimile signature shall have been used thereon had not ceased
to be such officer of the corporation.
ARTICLE VIII
Corporate Seal
The corporation shall have a common seal, upon which
shall be inscribed:
"Intel Corporation
Incorporated March 1, 1989
Delaware"
In the event the corporation changes its name, the
corporate seal shall be changed to reflect such new name.
ARTICLE IX
Indemnification of
Officers, Directors, Employees and Agents
Section 1. Right to Indemnification. Each person who
was or is a party or is threatened to be made a party to or is
involved (as a party, witness, or otherwise), in any threatened,
pending, or completed action, suit, arbitration, alternative
dispute mechanism, inquiry, administrative or legislative
hearing, investigation or any other actual, threatened or
completed proceeding, including any and all appeals, whether
civil, criminal, administrative, or investigative (hereinafter a
"Proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a
director, officer, employee, or agent of the corporation
(including service with respect to employee benefit plans) or is
or was serving at the request of the corporation as a director,
officer, employee, or agent of another corporation or of a
partnership, joint venture, trust, or other enterprise, whether
the basis of the Proceeding is alleged action in an official
capacity as a director, officer, employee, or agent or in any
other capacity while serving as a director, officer, employee, or
agent (hereafter an "Agent"), shall be indemnified and held
harmless by the corporation to the fullest extent authorized by
the Delaware General Corporation Law, as the same exists or may
hereafter be amended or interpreted (but, in the case of any such
amendment or interpretation, only to the extent that such
amendment or interpretation permits the corporation to provide
broader indemnification rights than were permitted prior thereto)
against all expenses, liability, and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties, and
amounts paid or to be paid in settlement, and any interest,
assessments, or other charges imposed thereon, and any federal,
state, local, or foreign taxes imposed on any Agent as a result
of the actual or deemed receipt of any payments under this
Article)
reasonably incurred or suffered by such person in connection with
investigating, defending, being a witness in, or participating in
(including on appeal), or preparing for any of the foregoing in,
any Proceeding (hereinafter "Expenses"); provided, however, that
except as to actions to enforce indemnification rights pursuant
to Section 3 of this Article, the corporation shall indemnify any
Agent seeking indemnification in connection with a Proceeding (or
part thereof) initiated by such person only if the Proceeding (or
part thereof) was authorized by the Board of Directors of the
corporation. The right to indemnification conferred in this
Article shall be a contract right.
Section 2. Authority to Advance Expenses. Expenses
incurred by an officer or director (acting in his capacity as
such) in defending a Proceeding shall be paid by the corporation
in advance of the final disposition of such Proceeding, provided,
however, that if required by the Delaware General Corporation
Law, as amended, such Expenses shall be advanced only upon
delivery to the corporation of an undertaking by or on behalf of
such director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be
indemnified by the corporation as authorized in this Article or
otherwise. Expenses incurred by other Agents of the corporation
(or by the directors or officers not acting in their capacity as
such, including service with respect to employee benefit plans)
may be advanced upon such terms and conditions as the Board of
Directors deems appropriate. Any obligation to reimburse the
corporation for Expense advances shall be unsecured and no
interest shall be charged thereon.
Section 3. Right of Claimant to Bring Suit. If a
claim under Section 1 or 2 of this Article is not paid in full by
the corporation within thirty (30) days after a written claim has
been received by the corporation, the claimant may at any time
thereafter bring suit, in a court of competent jurisdiction in
the state of Delaware, against the corporation to recover the
unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense
(including attorneys' fees) of prosecuting such claim. It shall
be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending a Proceeding
in advance of its final disposition where the required
undertaking has been tendered to the corporation) that the
claimant has not met the standards of conduct that make it
permissible under the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount claimed.
The burden of proving such a defense shall be on the corporation.
Neither the failure of the corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the
circumstances because he or she has met the applicable standard
of conduct set forth in the Delaware General Corporation Law, nor
an actual determination by the corporation (including its Board
of Directors, independent legal counsel, or its stockholders)
that the claimant had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
Section 4. Provisions Nonexclusive. The rights
conferred on any person by this Article shall not be exclusive of
any other rights that such person may have or
hereafter acquire under any statute, provision of the Certificate
of Incorporation, 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. To the extent that any provision of the
Certificate, agreement, or vote of the stockholders or
disinterested directors is inconsistent with these Bylaws, the
provision, agreement, or vote shall take precedence.
Section 5. Authority to Insure. The corporation may
purchase and maintain insurance to protect itself and any Agent
against any Expense, whether or not the corporation would have
the power to indemnify the Agent against such Expense under
applicable law or the provisions of this Article.
Section 6. Survival of Rights. The rights provided by
this Article shall continue as to a person who has ceased to be
an Agent and shall inure to the benefit of the heirs, executors,
and administrators of such a person.
Section 7. Settlement of Claims. The corporation
shall not be liable to indemnify any Agent under this Article (a)
for any amounts paid in settlement of any action or claim
effected without the corporation's written consent, which consent
shall not be unreasonably withheld; or (b) for any judicial award
if the corporation was not given a reasonable and timely
opportunity, at its expense, to participate in the defense of
such action.
Section 8. Effect of Amendment. Any amendment,
repeal, or modification of this Article shall not adversely
affect any right or protection of any Agent existing at the time
of such amendment, repeal, or modification.
Section 9. Subrogation. In the event of payment under
this Article, the corporation shall be subrogated to the extent
of such payment to all of the rights of recovery of the Agent,
who shall execute all papers required and shall do everything
that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation
effectively to bring suit to enforce such rights.
Section 10. No Duplication of Payments. The
corporation shall not be liable under this Article to make any
payment in connection with any claim made against the Agent to
the extent the Agent has otherwise actually received payment
(under any insurance policy, agreement, vote, or otherwise) of
the amounts otherwise indemnifiable hereunder.
ARTICLE X
Notices
(a) Whenever, under any provisions of these Bylaws,
notice is required to be given to any stockholder, the same shall
be given in writing, either (a) timely and duly deposited in the
United States Mail, postage prepaid, and addressed to the
stockholder's last known post office address as shown by the
stock record of the
corporation or its transfer agent or (b) by a form of electronic
transmission consented to by the stockholder to whom the notice
is given, except to the extent prohibited by Section 232(e) of
the Delaware General Corporation Law. Any consent to receive
notice by electronic transmission shall be revocable by the
stockholder by written notice to the corporation. Any such
consent shall be deemed revoked if (i) the corporation is unable
to deliver by electronic transmission two (2) consecutive notices
given by the corporation in accordance with such consent and (ii)
such inability becomes known to the Secretary or an Assistant
Secretary of the corporation or to the transfer agent, or other
person responsible for the giving of notice; provided, however,
the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action.
(b) Any notice required to be given to any director
may be given by the method hereinabove stated. Any such notice,
other than one which is delivered personally, shall be sent to
such post office address, facsimile number or electronic mail
address as such director shall have filed in writing with the
Secretary of the corporation, or, in the absence of such filing,
to the last known post office address of such director. It shall
not be necessary that the same method of giving notice be
employed in respect of all directors, but one (1) permissible
method may be employed in respect of any one or more, and any
other permissible method or methods may be employed in respect of
any other or others.
(c) If no post office address of a stockholder or
director be known, such notice may be sent to the office of the
corporation required to be maintained pursuant to Section 2 of
Article I hereof. An affidavit executed by a duly authorized and
competent employee of the corporation or the transfer agent or
other agent of the corporation appointed with respect to the
class of stock affected, specifying the name and post office
address or the names and post office addresses of the stockholder
or stockholders, director or directors, to whom any such notice
or notices was or were given, and the time and method of giving
the same (or, for any stockholder or director to whom notice has
been directed by electronic transmission, the form of electronic
transmission and the facsimile number, electronic mail address or
other location to which such notice was directed and the time at
which such notice was directed to each such director or
stockholder), shall be prima facie evidence of the statements
therein contained.
(d) All notices given by mail, as above provided,
shall be deemed to have been given as at the time of mailing.
All notices given to stockholders by a form of electronic
transmission, as above provided, shall be deemed to have been
given: (a) if by facsimile, when directed to a number at which
the stockholder has consented to receive notice; (b) if by
electronic mail, when directed to an electronic mail address at
which the stockholder has consented to receive notice; (c) if by
a posting on an electronic network together with separate notice
to the stockholder of such specific posting, upon the later of
(i) such posting and (ii) the giving of such separate notice; and
(d) if by any other form of electronic transmission, when
directed to the stockholder. All notices given to directors by a
form of electronic transmission, as above provided, shall be
deemed to have been given when directed to the electronic mail
address, facsimile
number, or other location filed in writing by the director with
the Secretary of the corporation.
(e) The period or limitation of time within which any
stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any
director may exercise any power or right, or enjoy any privilege,
pursuant to any notice sent him in the manner above provided,
shall not be affected or extended in any manner by the failure of
such a stockholder or such director to receive such notice.
(f) Whenever any notice is required to be given under
the provisions of the statutes or of the Certificate of
Incorporation, or of these Bylaws, a waiver thereof in writing
given by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed
equivalent thereto.
(g) Whenever notice is required to be given, under any
provision of law or of the Certificate of Incorporation or Bylaws
of the corporation, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be
required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice
to such person. Any action or meeting which shall be taken or
held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the
corporation is such as to require the filing of a certificate
under any provision of the Delaware General Corporation Law, the
certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to
receive notice except such persons with whom communication is
unlawful.
(h) Whenever notice is to be given to the corporation
by a stockholder under any provision of law or of the Certificate
of Incorporation or Bylaws of the corporation, such notice shall
be delivered to the Secretary at the principal executive offices
of the corporation. If delivered by electronic mail or
facsimile, the stockholder's notice shall be directed to the
Secretary at the electronic mail address or facsimile number, as
the case may be, specified in the company's most recent proxy
statement.
ARTICLE XI
Amendments
Unless otherwise provided in the Certificate of
Incorporation, these Bylaws may be repealed, altered or amended
or new Bylaws adopted by written consent of the stockholders in
the manner authorized by Section 8 of Article II, or at any
meeting of the stockholders, either annual or special, by the
affirmative vote of a majority of the stock entitled to vote at
such meeting. The Board of Directors shall also have the
authority to repeal, alter or amend these Bylaws or adopt new
Bylaws (including, without limitation, the amendment of any
Bylaws setting forth the number of directors who shall constitute
the whole Board of Directors) by unanimous written consent or at
any annual, regular,
or special meeting by the affirmative vote of a majority of the
whole number of directors, subject to the power of the
stockholders to change or repeal such Bylaws and provided that
the Board of Directors shall not make or alter any Bylaws fixing
the qualifications, classifications, term of office or
compensation of directors.
ARTICLE XII
Electronic Transmission
When used in these Bylaws, the terms "written" and "in writing"
shall include any "electronic transmission," as defined in
Section 232(c) of the Delaware General Corporation Law, including
without limitation any telegram, cablegram, facsimile
transmission and communication by electronic mail.
Exhibit 5.1
May 19, 2004
Intel Corporation
2200 Mission College Blvd.
Santa Clara, CA 95052-8119
Re: Proposed Offering of up to 240,000,000 Shares of Common
Stock
Pursuant to the Intel Corporation 2004 Equity Incentive Plan
Ladies and Gentlemen:
We refer to an aggregate of 240,000,000 shares of Common
Stock, par value $.001 per share ("the Shares"), of Intel
Corporation, a Delaware corporation (the "Company"), which are
the subject of a registration statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"). The shares of Common Stock (the
"Shares") subject to the Registration Statement are to be issued
under the Intel Corporation 2004 Equity Incentive Plan (the
"Plan").
For the purpose of rendering this opinion, we have made such
factual and legal examination as we deemed necessary under the
circumstances, and in that connection we have examined, among
other things, originals or copies of the following:
1) Intel Corporation Second Restated Certificate of
Incorporation dated March 13, 2003 (incorporated by
reference to Exhibit 3.1 of Registrant's Form 10-Q for the
quarter ended March 29, 2003, as filed on May 7, 2003);
2) Intel Corporation Bylaws as of May 19, 2004;
3) The description of the Shares set forth under the
caption "Description of Capital Stock" in the Company's
registration statement on Form S-3, as amended, filed with
the Commission on April 18, 1995, File No. 33-56107;
4) The Plan; and
5) Such records of the corporate proceedings of the
Company, such certificates and assurances from public
officials, officers and representatives of the Company, and
such other documents as we have considered necessary or
appropriate for the purpose of rendering this opinion.
In rendering the opinion expressed below, we have
assumed:
a) The genuineness of all signatures on, and the
authenticity of, all documents submitted to us as originals
and the conformity to original documents of all documents
submitted to us as copies. With respect to agreements and
instruments executed by natural persons, we have assumed the
legal competency of such persons.
b) There are no agreements or understandings between or
among the Company and any participants in the Plan that
would expand, modify or otherwise affect the terms of the
Plan or the respective rights or obligations of the
participants thereunder.
Based upon our examination mentioned above, we are of the
opinion that the Shares have been validly authorized for issuance
and, when issued and sold in accordance with the terms set forth
in the Plan and the payment therefore has been received, and when
the Registration Statement has become effective under the Act,
the Shares so issued will be legally issued and will be fully
paid and nonassessable.
The opinions set forth herein are subject to the following
assumptions:
A) Our opinions set forth herein are limited to the
effect of the present corporate laws of the State of
Delaware and to the present judicial interpretations thereof
and to the facts as they presently exist. Although we are
not admitted to practice in the State of Delaware, we are
familiar with the Delaware General Corporation Law and have
made such investigation thereof as we deemed necessary for
the purpose of rendering the opinion contained herein. We
assume no obligation to revise or supplement our opinions
should the present laws, or the interpretation thereof, be
changed or to revise or supplement these opinions in respect
of any circumstances or events that occur subsequent to the
date hereof.
B) Our opinions set forth herein are subject to (i) the
effect of any bankruptcy, insolvency, reorganization,
moratorium, arrangement or similar laws affecting the
enforcement of creditors' rights generally (including,
without limitation, the effect of statutory or other laws
regarding fraudulent transfers or preferential transfers)
and (ii) general principles of equity, regardless of whether
a matter is considered in a proceeding in equity or at law,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or
other equitable remedies.
C) We express no opinion regarding the effectiveness of
any waiver (whether or not stated as such) contained in the
Plan of rights of any party, or duties owing to it, that is
broadly or vaguely stated or does not describe the right or
duty purportedly waived with reasonable specificity or any
provision in the Plan relating to indemnification,
exculpation or contribution.
This opinion may be filed as an exhibit to the Registration
Statement. Consent is also given to the reference to this firm
under the caption "Legal Matters" in the prospectus contained in
or incorporated by reference to the Registration Statement. In
giving this consent, we do not
admit we are included in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations
of the Commission promulgated thereunder.
Very truly yours,
/s/Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Intel
Corporation 2004 Equity Incentive Plan, of our report dated
January 13, 2004, with respect to the consolidated financial
statements and schedule of Intel Corporation included in its
Annual Report (Form 10-K/A) for the year ended December 27, 2003,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
May 18, 2004