Apple Amended Bylaws
AMENDED BYLAWS
OF
APPLE INC.
(as of April 20, 2011)
APPLE INC.
AMENDED BYLAWS
ARTICLE I
CORPORATE OFFICES
| 1.1 |
Principal Office |
The Board of Directors shall fix the location of the
principal executive office of Apple Inc. (the “Corporation“) at any place
within or outside the State of California. If the principal executive office is
located outside California and the Corporation has one or more business offices
in California, then the Board of Directors shall fix and designate a principal
business office in California.
| 1.2 |
Other Offices |
The Board of Directors may at any time establish branch or
subordinate offices at any place or places.
ARTICLE II
DIRECTORS
| 2.1 |
Powers |
Subject to the provisions of the California Corporation Code
(the “Code“), any limitations in the Restated Articles of Incorporation
(the “Articles of Incorporation) and these Amended Bylaws (these
“Bylaws“) relating to action required to be approved by the shareholders
or by the outstanding shares, the business and affairs of the Corporation shall
be managed and all corporate powers shall be exercised under the direction of
the Board of Directors. The Board of Directors may delegate the management of
the day-to-day operation of the business of the Corporation to a management
company or other person provided that the business and affairs of the
Corporation shall be managed and all corporate powers shall be exercised under
the ultimate direction of the Board of Directors.
| 2.2 |
Number |
The number of directors of the Corporation shall be not less
than five (5) nor more than nine (9). The exact number of directors shall be
eight (8) until changed within the limits specified above, by a bylaw amending
this Section 2.2, duly adopted by the Board of Directors or by the
shareholders. The indefinite number of directors may be changed, or a definite
number fixed without provision for an indefinite number, by a duly adopted
amendment to the Articles of Incorporation or by amendment to these Bylaws duly
adopted by the vote or written consent of holders of a majority of the
outstanding
shares entitled to vote; provided, however, that an amendment
reducing the fixed number or the minimum number of directors to a number less
than five (5) cannot be adopted if the votes cast against its adoption at a
meeting of the shareholders, or the shares not consenting in the case of action
by written consent, are equal to more than sixteen and two-thirds percent
(16-2/3%) of the outstanding shares entitled to vote. No amendment may change
the stated maximum number of authorized directors to a number greater than two
times the stated minimum number of directors minus one.
| 2.3 |
Compensation |
Directors and members of committees may receive such
compensation, if any, for their services, and may be reimbursed for expenses, as
fixed or determined by resolution of the Board of Directors. This
Section 2.3 shall not be construed to preclude any director from serving
the Corporation in any other capacity and receiving compensation for those
services.
| 2.4 |
Election and Term of Office |
Each director shall be elected to serve until the annual
meeting of shareholders held in the following fiscal year and until his or her
successor shall have been duly elected and qualified.
| 2.5 |
Vacancies and Resignations |
(a) A vacancy or vacancies on the Board of Directors
shall be deemed to exist (i) in the event of the death, resignation or removal
of any director, (ii) if the authorized number of directors is increased,
(iii) if the shareholders fail, at any meeting of shareholders at which any
director or directors are elected, to elect the full authorized number of
directors to be elected at that meeting or (iv) if the Board of Directors
declares vacant the office of a director who has been declared of unsound mind
by an order of court or convicted of a felony.
(b) Except for a vacancy caused by the removal of a
director as provided in Section 2.7 of these Bylaws, a vacancy may be
filled (i) by a person selected by a majority of the remaining directors then in
office, whether or not less than a quorum or (ii) by a sole remaining director.
Vacancies created by the removal of a director shall be filled only by the
affirmative vote of shares holding a majority of the voting power represented
and voting a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute a least a majority of the voting power required to
constitute a quorum), or by the unanimous written consent of all shares entitled
to vote thereon.
(c) The shareholders may elect a director at any time
to fill a vacancy or vacancies not filled by the directors, but any such
election by written consent, other than to fill a vacancy created by removal,
shall require the consent of shares holding a majority of the voting power that
are entitled to vote thereon. A director may not be elected by written consent
to fill a vacancy created by removal except by unanimous consent of all shares
entitled to vote for the election of directors.
(d) Any director may resign effective upon giving
written notice to the General Counsel and Secretary of the Corporation, unless
the notice specifies a later time for the effectiveness of such resignation. If
the resignation of a director is effective at a future time, the Board of
Directors may elect a successor to take office when the resignation becomes
effective. A reduction of the authorized number of directors shall not remove
any director prior to the expiration of such director’s term of office.
| 2.6 |
Chairman of the Board and Lead Directors |
The Corporation may have at the discretion of the Board of
Directors, a Chairman of the Board of Directors and/or one or more Lead
Directors. The Chairman of the Board of Directors, if there be one, or a Lead
Director, shall have the power to preside at all meetings of the Board of
Directors and shall have such other powers and shall be subject to such other
duties as the Board of Directors may from time to time prescribe or as may be
prescribed by these Bylaws. If there is more than one Lead Director, the Board
of Directors may prescribe different responsibilities to each Lead Director.
| 2.7 |
Removal |
The entire Board of Directors or any individual director may
be removed without cause from office by an affirmative vote of a majority of the
outstanding shares entitled to vote; provided that, unless the entire Board of
Directors is removed, no director shall be removed when the votes cast against
removal, or not consenting in writing to such removal, would be sufficient to
elect such director if voted cumulatively (without regard to whether such shares
may be voted cumulatively) at an election at which the same total number of
votes were cast, or, if such action is taken by written consent, all shares
entitled to vote were voted, and either the number of directors elected at the
most recent annual meeting of shareholders, or if greater, the number of
directors for whom removal is being sought, were then being elected. If any or
all directors are so removed, new directors may be elected at the same meeting
or at a subsequent meeting. If at any time a class or series of shares is
entitled to elect one or more directors under authority granted by the Articles
of Incorporation, the provisions of this Section 2.7 shall apply to the
vote of that class or series and not to the vote of the outstanding shares as a
whole.
ARTICLE III
OFFICERS
| 3.1 |
Officers |
The officers of the Corporation shall be a Chief Executive
Officer or a President, a Secretary and a Chief Financial Officer. The
Corporation may also have, at the discretion of the Board of Directors, a
Chairman of the Board of Directors, one or more Lead Directors, one or more Vice
Presidents, a Treasurer, one or more Assistant Secretaries and one or more
Assistant Treasurers and such officers as may be appointed in accordance with
the provisions of Section 3.3 of these Bylaws. Any number of offices may
be held by the same person.
| 3.2 |
Appointment of Officers |
The officers of the Corporation, except such officers as may
be appointed in accordance with the provisions of Section 3.3 of these
Bylaws, shall be chosen by the Board of Directors and serve at the pleasure of
the Board of Directors, subject to the rights, if any, of an officer under any
contract of employment.
| 3.3 |
Subordinate Officers |
The Board of Directors may appoint, or may empower the
Chairman of the Board of Directors, a Lead Director, the Chief Executive Officer
or the President to appoint such other officers as the business of the
Corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in these Bylaws or as the
Board of Directors may from time to time determine.
| 3.4 |
Term of Office and Compensation |
The term of office and salary of each of said officers and
the manner and time of the payment of such salaries shall be fixed and
determined by the Board of Directors and may be altered by the Board of
Directors from time to time at its pleasure, subject to the rights, if any, of
an officer under any contract of employment.
| 3.5 |
Removal or Resignation |
(a) Subject to the rights, if any, of an officer under
any contract of employment, all officers serve at the pleasure of the Board of
Directors and any officer may be removed, either with or without cause, by the
Board of Directors at any regular or special meeting of the Board of Directors,
or, except in the case of an officer chosen by the Board of Directors, by any
officer upon whom such power of removal may be conferred by the Board of
Directors.
(b) Any officer may resign at any time upon written
notice to the Corporation, without prejudice to the rights, if any, of the
Corporation under any contract to which the officer is a party. Any resignation
shall take effect at the date of the receipt of that notice or at any later time
specified in that notice, and, unless otherwise necessary to make it effective,
the acceptance of the resignation shall not be necessary to make it effective.
| 3.6 |
Vacancies |
A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
prescribed by these Bylaws for regular appointments to that office.
| 3.7 |
Chief Executive Officer |
The powers and duties of the Chief Executive Officer are:
(a) To act as the general manager and chief executive
officer of the Corporation and, subject to the control of the Board of
Directors, to have general supervision, direction and control of the business
and affairs of the Corporation.
(b) To preside at all meetings of the shareholders
and, in the absence of the Chairman of the Board of Directors and a Lead
Director or if there be no Chairman of the Board of Directors or Lead Director,
at all meetings of the Board of Directors.
(c) To call meetings of the shareholders and meetings
of the Board of Directors to be held at such times and, subject to the
limitations prescribed by law or by these Bylaws, at such places as he or she
shall deem proper.
(d) To affix the signature of the Corporation to all
deeds, conveyances, mortgages, leases, obligations, bonds, certificates and
other papers and instruments in writing which have been authorized by the Board
of Directors or which, in the judgment of the Chief Executive Officer, should be
executed on behalf of the Corporation; to sign certificates for shares of stock
of the Corporation; and, subject to the direction of the Board of Directors, to
have general charge of the property of the Corporation and to supervise and
control all officers, agents and employees of the Corporation.
| 3.8 |
President |
The powers and duties of the President are:
(a) To act as the general manager of the Corporation
and, subject to the control of the Board of Directors, to have general
supervision, direction and control of the business and affairs of the
Corporation.
(b) To preside at all meetings of the shareholders
and, in the absence of the Chairman of the Board of Directors, a Lead Director
and the Chief Executive Officer or if there be no Chairman of the Board of
Directors, Lead Director or Chief Executive Officer, at all meetings of the
Board of Directors.
(c) To affix the signature of the Corporation to all
deeds, conveyances, mortgages, leases, obligations, bonds, certificates and
other papers and instruments in writing which have been authorized by the Board
of Directors or which, in the judgment of the President, should be executed on
behalf of the Corporation; to sign certificates for shares of stock of the
Corporation; and, subject to the direction of the Board of Directors, to have
general charge of the property of the Corporation and to supervise and control
all officers, agents and employees of the Corporation.
| 3.9 |
President Pro Tem |
If neither the Chairman of the Board of Directors, any Lead
Director, the Chief Executive Officer, the President, nor any Vice President is
present at any meeting of the Board of Directors, a President pro tem may be
chosen to preside and act at such meeting. If neither the Chief Executive
Officer, the President nor any Vice President is present at
any meeting of the shareholders, a President pro tem may be
chosen to preside at such meeting.
| 3.10 |
Vice President |
The titles, powers and duties of the Vice President or Vice
Presidents shall be prescribed by the Board of Directors. In case of the
absence, disability or death of the Chief Executive Officer, the President, the
Vice President, or one of the Vice Presidents, shall exercise all his or her
powers and perform all his or her duties. If there is more than one Vice
President, the order in which the Vice Presidents shall succeed to the powers
and duties of the Chief Executive Officer or President shall be as fixed by the
Board of Directors.
| 3.11 |
Secretary |
The powers and duties of the Secretary are:
(a) To keep a book of minutes at the principal
executive office of the Corporation, or such other place as the Board of
Directors may order, of all meetings of its directors and shareholders with the
time and place of holding, whether regular or special, and, if special, how
authorized, the notice thereof given, the names of those present at directors’
meetings, the number of shares present or represented at shareholders’ meetings
and the proceedings thereof.
(b) To keep the seal of the Corporation and to affix
the same to all instruments which may require it.
(c) To keep or cause to be kept at the principal
executive office of the Corporation, or at the office of the transfer agent or
agents, a record of the shareholders of the Corporation, giving the names and
addresses of all shareholders and the number and class of shares held by each
shareholder, the number and date of any certificates issued for shares,
appropriate records with respect to uncertificated shares issued, the number and
date of cancellation of every certificate surrendered for cancellation and the
number and date of every replacement certificate or the appropriate records for
uncertificated shares issued for lost, stolen or destroyed certificates.
(d) To keep a supply of certificates for shares of the
Corporation, to fill and sign in all certificates issued or prepare the initial
transaction statement or written statements for uncertificated shares, and to
make a proper record of each such issuance; provided that so long as the
Corporation shall have one or more duly appointed and acting transfer agents of
the shares, or any class or series of shares, of the Corporation, such duties
with respect to such shares shall be performed by such transfer agent or
transfer agents.
(e) To transfer upon the share books of the
Corporation or in accordance with a direct registration program as provided in
Section 7.4(b) of these Bylaws any and all shares of the Corporation;
provided that so long as the Corporation shall have one or more duly appointed
and acting transfer agents of the shares, or any class or series of
shares, of the Corporation, such duties with respect to such
shares shall be performed by such transfer agent or transfer agents, and the
method of transfer of each share shall be subject to the reasonable regulations
of the transfer agent to which the shares are presented for transfer and, also,
if the Corporation then has one or more duly appointed and acting registrars,
subject to the reasonable regulations of the registrar to which a new
certificate or a new issuance of shares is presented for registration; and
provided, further, that no shares shall be issued, recorded or delivered or, if
issued, recorded or delivered, shall have any validity whatsoever until and
unless it has been signed or authenticated, as applicable, in the manner
provided in Section 7.4 of these Bylaws.
(f) To make service and publication of all notices
that may be necessary or proper and without command or direction from anyone. In
case of the absence, disability, refusal or neglect of the Secretary to make
service or publication of any notices, then such notices may be served and/or
published by the Chief Executive Officer, the President or a Vice President, or
by any person thereunto authorized by either of them or by the Board of
Directors or by the holders of a majority of the outstanding shares of the
Corporation.
(g) Generally to do and perform all such duties as
pertain to such office and as may be required by the Board of Directors or these
Bylaws.
| 3.12 |
Chief Financial Officer |
The powers and duties of the Chief Financial Officer are:
(a) To supervise and control the keeping and
maintaining of adequate and correct accounts of the Corporation’s properties and
business transactions, including accounts of its assets, liabilities, receipts,
disbursements, gains, losses, capital, surplus and shares. The books of account
shall at all reasonable times be open to inspection by any director.
(b) To have the custody of all funds, securities,
evidences of indebtedness and other valuable documents of the Corporation and,
at his or her discretion, to cause any or all thereof to be deposited for the
account of the Corporation with such depository as may be designated from time
to time by the Board of Directors.
(c) To receive or cause to be received, and to give or
cause to be given, receipts and acquittances for moneys paid in for the account
of the Corporation.
(d) To disburse, or cause to be disbursed, all funds
of the Corporation as may be directed by the Chief Executive Officer, the
President or the Board of Directors, taking proper vouchers for such
disbursements.
(e) To render to the Chief Executive Officer, the
President or to the Board of Directors, whenever either may require, accounts of
all transactions as Chief Financial Officer and of the financial condition of
the Corporation.
(f) Generally to do and perform all such duties as
pertain to such office and as may be required by the Board of Directors or these
Bylaws.
| 3.13 |
Officers Appointed by Chief Executive Officer |
(a) The Chief Executive Officer of the Corporation
shall have the power, in the exercise of his or her discretion, to appoint
additional persons to hold positions and titles such as vice president of the
Corporation or a division of the Corporation or president of a division of the
Corporation, or similar such titles, as the business of the Corporation may
require, subject to such limits in appointment power as the Board of Directors
may determine. The Board of Directors shall be advised of any such appointment
at a meeting of the Board of Directors, and the appointment shall be noted in
the minutes of the meeting. The minutes shall clearly state that such persons
are non-corporate officers appointed pursuant to this Section 3.13.
(b) Each such appointee shall have such title, shall
serve in such capacity and shall have such authority and perform such duties as
the Chief Executive Officer shall determine. Appointees may hold titles such as
“president” of a division or other group within the Corporation, or “vice
president” of the Corporation or of a division or other group within the
Corporation. However, any such appointee, absent specific election by the Board
of Directors as an elected corporate officer, (i) shall not be considered an
officer elected by the Board of Directors pursuant to this Article III
and shall not have the executive powers or authority of corporate officers
elected pursuant to this Article III, (ii) shall not be considered (a) an
“officer” of the Corporation for the purposes of Rule 3b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (collectively, the “Exchange Act“) or an
“executive officer” of the Corporation for the purposes of Rule 3b-7 promulgated
under the Exchange Act, and similarly shall not be considered an “officer” of
the Corporation for the purposes of Section 16 of the Exchange Act (as such
persons shall not be given the access to inside information of the Corporation
enjoyed by officers of the Corporation) or an “executive officer” of the
Corporation for the purposes of Section 14 of the Exchange Act or (b) a
“corporate officer” for the purposes of Section 312 of the Code, except in any
such case as otherwise required by law, and (iii) shall be empowered to
represent himself or herself to third parties as an appointed vice president,
etc., only, and shall be empowered to execute documents, bind the Corporation or
otherwise act on behalf of the Corporation only as authorized by the Chief
Executive Officer or the President or by resolution of the Board of Directors.
(c) An elected officer of the Corporation may also
serve in an appointed capacity hereunder.
ARTICLE IV
COMMITTEES
| 4.1 |
Committees of the Board of Directors |
The Board of Directors may, by resolution adopted by a
majority of the authorized number of directors, designate one or more
committees, each consisting of two (2) or more directors, to serve at the
pleasure of the Board of Directors. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
member at any meeting of the committee. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number
of directors. Any such committee shall have authority to act in a manner and to
the extent provided in the resolution of the Board of Directors and may have all
the authority of the Board of Directors, except with respect to:
(a) the approval of any action which, under the Code,
also requires shareholders’ approval or approval of the outstanding shares;
(b) the filling of vacancies on the Board of Directors
or in any committee;
(c) the fixing of compensation of the director for
serving on the Board of Directors or on any committee;
(d) the amendment or repeal of these Bylaws or the
adoption of new bylaws;
(e) the amendment or repeal of any resolution of the
Board of Directors which by its express terms is not so amendable or repealable;
(f) a distribution to the shareholders of the
Corporation, except at a rate, in a periodic amount or within a price range set
forth in the Articles of Incorporation or determined by the Board of Directors;
and
(g) the appointment or designation of any other
committee of the Board of Directors or the members thereof.
ARTICLE V
MEETINGS OF SHAREHOLDERS
| 5.1 |
Place of Meetings |
(a) Meetings (whether regular, special or adjourned)
of the shareholders of the Corporation shall be held at the principal executive
office for the transaction of business of the Corporation, or at any place
within or without the State which may be designated by written consent of all
the shareholders entitled to vote thereat, or which may be designated by
resolution of the Board of Directors. Any meeting shall be valid wherever
held if held by the written consent of all the shareholders
entitled to vote thereat, given either before or after the meeting and filed
with the Secretary.
(b) A meeting of the shareholders may be conducted in
whole or in part, by electronic transmission by and to the Corporation or by
electronic video screen communication if:
(i) the Corporation implements reasonable
measures to provide shareholders (in person or by proxy) a reasonable
opportunity to participate in the meeting and to vote on matters submitted to
the shareholders; and
(ii) the Corporation maintains a record of the
vote or action and any shareholder votes or other shareholder action is taken at
the meeting by means of electronic transmission to the Corporation or electronic
video screen communication.
Any request by the Corporation to a shareholder under
Section 20(b) of the Code for consent to conduct a meeting of shareholders by
electronic transmission must include a notice that absent consent of the
shareholder, the meeting will be held at a physical location.
| 5.2 |
Annual Meetings |
An annual meeting of shareholders shall be held each year on
a date and at a time designated by the Board of Directors. The annual meeting
shall be held for the purpose of electing directors and for making reports of
the affairs of the Corporation. Any other proper business may be transacted at
the annual meeting of shareholders.
| 5.3 |
Special Meetings |
Special meetings of the shareholders for any purpose or
purposes whatsoever may be called at any time by the President or by the Board
of Directors, or by two or more members thereof, or by one or more holders of
shares entitled to cast not less than ten percent (10%) of the votes on the
record date established pursuant to Section 5.9 of these Bylaws. Upon
request in writing sent by registered mail to the Chief Executive Officer,
President, Vice President or Secretary, or delivered to any such officer in
person, by any person or persons entitled to call a special meeting of
shareholders (such request, if sent by a shareholder or shareholders, to include
the information required by Section 5.14 of these Bylaws), it shall be
the duty of such officer, subject to the immediately succeeding sentence, to
cause notice to be given to the shareholders entitled to vote that a meeting
will be requested by the person or persons calling the meeting, the date of
which meeting, which shall be set by such officer, to be not less than
thirty-five (35) days nor more than sixty (60) days after such request or, if
applicable, determination of the validity of such request pursuant to the
immediately succeeding sentence. Within seven (7) days after receiving such a
written request from a shareholder or shareholders of the Corporation, the Board
of Directors shall determine whether shareholders owning not less than ten
percent (10%) of the shares as of the record date established pursuant to
Section 5.9 of these Bylaws for such request support the call of a
special meeting and notify the requesting party or parties of its finding.
Nothing contained in this paragraph of this
Section 5.3 shall be construed as limiting, fixing or
affecting the time when a meeting of shareholders called by action of the Board
of Directors may be held.
| 5.4 |
Notice of Meetings |
Notice of any meeting of shareholders shall be given in
writing not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each shareholder entitled to vote thereat by the Secretary or an
Assistant Secretary, or other person charged with that duty, or if there be no
such officer or person, or in case of his or her neglect or refusal, by any
director or shareholder. The notice shall state the place, date and hour of the
meeting and (a) in the case of a special meeting, the general nature of the
business to be transacted, and no other business may be transacted, or (b) in
the case of the annual meeting, those matters which the Board of Directors, at
the time of the mailing of the notice, intends to present for action by the
shareholders, but any proper matter may be presented at the meeting for such
action except as otherwise provided by Section 601(f) of the Code. The notice of
any meeting at which directors are to be elected shall include the names of
nominees intended at the time of the notice to be presented by management for
election. If the meeting is to be held in whole or in part by electronic
transmission, the notice shall state the means of electronic transmission by and
to the Corporation to electronic video screen communication, if any, by which
shareholders may participate in the meeting.
| 5.5 |
Manner of Giving Notice; Affidavit of Notice |
Written notice shall be given by the Corporation to any
shareholder, either (a) personally or (b) by mail or other means of written
communication (including electronic transmission by the Corporation), charges
prepaid, addressed to such shareholder at such shareholder’s physical or
electronic address appearing on the books of the Corporation or given by such
shareholder to the Corporation for the purpose of notice. If a shareholder gives
no address or no such address appears on the books of the Corporation, notice
shall be deemed to have been given if sent by mail or other means of written
communication addressed to the place where the principal executive office of the
Corporation is located, or if published at least once in a newspaper of general
circulation in the county in which such office is located. The notice shall be
deemed to have been given at the time when delivered personally or deposited in
the United States mail, postage prepaid, or sent by other means of written
communication and addressed as hereinbefore provided. An affidavit of delivery
or mailing, or other authorized means of transmitting, of any notice in
accordance with the provisions of this Section 5.5, executed by the
Secretary, Assistant Secretary or any transfer agent, shall be prima facie
evidence of the giving of the notice. If any notice addressed to the shareholder
at the address of such shareholder appearing on the books of the Corporation is
returned to the Corporation by the United States Postal Service marked to
indicate that the United States Postal Service is unable to deliver the notice
to the shareholder at such address, all future notices shall be deemed to have
been duly given without further mailing if the same shall be available for the
shareholder upon written demand of the shareholder at the principal executive
office of the Corporation for a period of one year from the date of the giving
of the notice to all other shareholders. Notice shall not be given by electronic
transmission by the Corporation after either one of
the following: (i) the Corporation is unable to deliver two
consecutive notices to the shareholder by that means or (ii) the inability to so
deliver such notices to the shareholder becomes known to the Secretary, any
Assistant Secretary, the transfer agent, or other person responsible for the
giving of the notice.
| 5.6 |
Consent to Shareholders’ Meetings |
The transactions of any meeting of shareholders, however
called and noticed, and wherever held, are as valid as though had at a meeting
duly held after regular call and notice, if a quorum is present either in person
or by proxy, and if, either before or after the meeting, each of the
shareholders entitled to vote, not present in person or by proxy, signs a
written waiver of notice or a consent to the holding of 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. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person objects, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened and except that attendance at a meeting is not a waiver of
any right to object to the consideration of matters required by law to be
included in the notice but not so included, if such objection is expressly made
at the meeting. Neither the business to be transacted at nor the purpose of any
regular or special meeting of shareholders need be specified in any written
waiver of notice, except as to approval of contracts between the Corporation and
any of its directors, amendment of the Articles of Incorporation, reorganization
of the Corporation or winding up the affairs of the Corporation.
| 5.7 |
Quorum |
The presence in person or by proxy of the holders of a
majority of the shares entitled to vote at any meeting of shareholders shall
constitute a quorum for the transaction of business. Shares shall not be counted
to make up a quorum for a meeting if voting of such shares at the meeting has
been enjoined or for any reason they cannot be lawfully voted at the meeting.
The shareholders present at a duly called or held meeting at which a quorum is
present may continue to transact business until adjournment notwithstanding the
withdrawal of enough shareholders to leave less than a quorum, if any action
taken (other than adjournment) is approved by at least a majority of the shares
required to constitute a quorum.
| 5.8 |
Adjourned Meetings |
Any shareholders’ meeting, whether or not a quorum is
present, may be adjourned from time to time by the vote of a majority of the
shares, the holders of which are either present in person or represented by
proxy thereat, but, except as provided in Section 5.7 of these Bylaws, in
the absence of a quorum, no other business may be transacted at such meeting.
When any meeting of shareholders, either annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if its
time and place (or the means of electronic transmission by and to the
Corporation or electronic video screen communication, if any, by which the
shareholders may participate) are
announced at the meeting at which the adjournment is taken.
When a meeting is adjourned for more than forty-five (45) days or if after
adjournment a new record date is fixed for the adjourned meeting, a notice of
the time and place adjourned meeting shall be given to each shareholder of
record entitled to vote at a meeting. At any adjourned meeting the shareholders
may transact any business which might have been transacted at the original
meeting.
| 5.9 |
Record Date for Shareholder Notice; Voting; |
(a) In order that the Corporation may determine the
shareholders entitled to notice of any meeting or to vote, the Board of
Directors may fix, in advance, a record date, which shall not be more than sixty
(60) days nor less than ten (10) days prior to the date of such meeting nor more
than sixty (60) days before any other action. Only shareholders of record at the
close of business on the record date are entitled to notice of, and to vote at,
a meeting of shareholders, notwithstanding any transfer of any shares on the
books or the Corporation after the record date, except as otherwise provided by
in the Articles of Incorporation or the Code. In the absence of any contrary
provision in the Articles of Incorporation or in any applicable statute relating
to the election of directors or to other particular matters, each such person
shall be entitled to one vote for each share.
(b) A determination of the shareholders of record
entitled to notice of, and to vote at, a meeting of shareholders shall apply to
any adjournment of the meeting unless the Board of Directors fixes a new record
date for the adjourned meeting, but the Board of Directors shall fix a new
record date if the meeting is adjourned for more than forty-five (45) days from
the date set for the original meeting.
(c) If the Board of Directors does not so fix a record
date:
(i) the record date for determining shareholder
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the business day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the business day next
preceding the day on which the meeting is held; and
(ii) the record date for determining shareholders
entitled to given consent to corporate action in writing without a meeting
(1) when no prior action by the Board of Directors has been taken, shall be the
day on which the first written consent is given, or (2) when prior action by the
Board of Directors has been taken, shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto, or the
sixtieth (60th) day prior to the date of such other action, whichever
is later.
| 5.10 |
Action by Written Consent |
(a) Any action which may be taken at any annual or
special meeting of shareholders may be taken without a meeting and without prior
notice, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding shares 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.
(b) If the consents of all shareholders entitled to
vote have not been solicited in writing, the Secretary shall give prompt notice
of any corporate action approved by the shareholders without a meeting by less
than unanimous written consent to those shareholders entitled to vote who have
not consented in writing. Such notice shall be given in the manner specified in
Section 5.5 of these Bylaws and applicable law.
(c) In the case of approval of (i) a contract or
transaction in which a director has a direct or indirect financial interest,
pursuant to Section 310 of the Code, (ii) an amendment of the Articles of
Incorporation, pursuant to Section 902 of the Code, (iii) a reorganization of
the Corporation, pursuant to Section 1201 of the Code, (iv) a voluntary
dissolution of the Corporation pursuant to Section 1900 of the Code or (v) a
distribution in dissolution other than in accordance with the rights of any
outstanding preferred shares, pursuant to Section 2007 of the Code, the notice
shall be given at least ten (10) days before the consummation of any action
authorized by that approval, unless the consents of all shareholders entitled to
vote have been solicited in writing.
(d) When written consents are given with respect to
any shares, they shall be given by and accepted from the persons in whose names
such shares stand on the books of the Corporation at the time such respective
consents are given, or any shareholder’s proxy holder, or a transferee of the
shares or a personal representative of the shareholder or their respective proxy
holders, may revoke the consent by a writing received by the Corporation prior
to the time that written consents of the number of shares required to authorize
the proposed action have been filed with the Secretary, but may not do so
thereafter. Such revocation is effective upon its receipt by the Secretary.
(e) Notwithstanding anything to the contrary,
directors may not be elected by written consent except by unanimous written
consent of all shares entitled to vote for the election of directors; provided
that the shareholders may elect a director to fill a vacancy not filled by the
Board of Directors, other than a vacancy creased by removal, by the written
consent of a majority of the outstanding shares entitled to vote.
| 5.11 |
Election of Directors |
In any election of directors, the candidates receiving the
highest number of affirmative votes of the shares entitled to be voted for them
up to the number of directors to be elected by such shares are elected; votes
against the directors and votes withheld with respect to the election of the
directors shall have no legal effect. Elections of directors need not be by
ballot except upon demand made by a shareholder at the meeting and before the
voting begins.
| 5.12 |
Proxies |
(a) Every person entitled to vote or execute consents
shall have the right to do so either in person or by one or more agents
authorized by a written proxy executed by such person or such person’s duly
authorized agent and filed with the Secretary. No
proxy shall be valid (a) after revocation thereof, unless the
proxy is specifically made irrevocable and otherwise conforms to this
Section 5.12 and applicable law, or (b) after the expiration of eleven
(11) months from the date thereof, unless the person executing it specifies
therein the length of time for which such proxy is to continue in force.
Revocation may be effected by a writing delivered to the Secretary stating that
the proxy is revoked or by a subsequent proxy executed by, or by attendance at
the meeting and voting in person by, the person executing the proxy. A proxy is
not revoked by the death or incapacity of the maker unless, before the vote is
counted, a written notice of such death or incapacity is received by the
Corporation.
(b) A proxy which states that it is irrevocable is
irrevocable for the period specified therein when it is held by any of the
following or a nominee of any of the following: (i) a pledgee, (ii) a person who
has purchased or agreed to purchase or holds an option to purchase the shares or
a person who has sold a portion of such person’s shares in the Corporation to
the maker of the proxy, (iii) a creditor or creditors of the Corporation or the
shareholder who extended or continued credit to the Corporation or the
shareholder in consideration of the proxy if the proxy states that it was given
in consideration of such extension or continuation of credit and the name of the
person extending or continuing the credit, (iv) a person who has contracted to
perform services as an employee of the Corporation, if a proxy is required by
the contract of employment and if the proxy states that it was given in
consideration of such contract of employment, the name of the employee and the
period of employment contracted for, (v) a person designated by or under a close
corporation shareholder agreement or a voting trust agreement. In addition, a
proxy may be made irrevocable if it is given to secure the performance of a duty
or to protect a title, either legal or equitable, until the happening of events
which, by its terms, discharge the obligation secured by it.
Notwithstanding the period of irrevocability specified, the
proxy becomes revocable when the pledge is redeemed, the option or agreement to
purchase is terminated or the seller no longer owns any shares of the
Corporation or dies, the debt of the Corporation or the shareholder is paid, the
period of employment provided for in the contract of employment has terminated
or the close corporation shareholder agreement or the voting trust agreement has
terminated. In addition, a proxy may be revoked, notwithstanding a provision
making it irrevocable, by a purchaser of shares without knowledge of the
existence of the provision unless the existence of the proxy and its
irrevocability appears on the certificate representing such shares or, in the
case of uncertificated shares, on the initial transaction statement and written
statements. Every form of proxy or written consent, which provides an
opportunity to specify approval or disapproval with respect to any proposal,
shall also contain an appropriate space marked “abstain”, whereby a shareholder
may indicate a desire to abstain from voting his or her shares on the proposal.
A proxy marked “abstain” by the shareholder with respect to a particular
proposal shall not be voted either for or against such proposal. In any election
of directors, any form of proxy in which the directors to be voted upon are
named therein as candidates and which is marked by a shareholder “withhold” or
otherwise marked in a manner indicating that the authority to vote for the
election of directors is withheld shall not be voted either for or against the
election of a director.
| 5.13 |
Inspectors of Elections |
Before any meeting of shareholders, the Board of Directors
may appoint any persons other than nominees for office to act as inspectors of
election at the meeting or its adjournment. If no inspectors of election are so
appointed, the Chairman of the meeting may, and on the request of any
shareholder or a shareholder’s proxy shall, appoint inspectors of election at
the meeting. The number of inspectors shall be either one (l) or three (3). If
inspectors are appointed at a meeting on the request of one or more shareholders
or proxies, the holders of a majority of shares or their proxies present at the
meeting shall determine whether one (l) or three (3) inspectors are to be
appointed. If any person appointed as inspector fails to appear or fails or
refuses to act, the Chairman of the meeting may, and upon the request of any
shareholder or a shareholder’s proxy shall, appoint a person to fill that
vacancy. These inspectors shall:
(a) determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots, or consents;
(c) hear and determine all challenges and questions in
any way arising in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct
the election or vote with fairness to all shareholders.
| 5.14 |
Advance Notice of Shareholder Business and |
|
(a) |
Annual Meetings of Shareholders. |
(i) Nominations of persons for election to the
Board of Directors and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders only (a) pursuant
to the Corporation’s notice of meeting (or any supplement thereto), (b) by or at
the direction of the Board of Directors or any duly authorized committee
thereof, or (c) by any shareholder of the Corporation who was a shareholder of
record of the Corporation at the time the notice provided for in this
Section 5.14 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting, and who complies with the notice procedures set
forth in this Section 5.14.
(ii) For nominations or other business to be
properly brought before an annual meeting of shareholders by a shareholder, the
shareholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation and any such
proposed business must constitute a proper matter for
shareholder action under the Code. To be timely, a shareholder’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 ninetieth (90th) day nor earlier
than the close of business on the one hundred twentieth (120th) 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 thirty days
before or more than sixty (60) days after such anniversary date, notice by the
shareholder must be so delivered not earlier than the close of business on the
one hundred twentieth (120th) day prior to such annual meeting and not later
than the close of business on the later of the ninetieth (90th) 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 by the Corporation). In
no event shall the public announcement of an adjournment or postponement of an
annual meeting of shareholders commence a new time period (or extend any time
period) for the giving of a shareholder’s notice as described above. To be in
proper written form, a shareholder’s notice to the Secretary (whether pursuant
to this Section 5.14(a)(ii) or Section 5.14(b)) must set forth:
(A) as to each person, if any, whom the shareholder
proposes to nominate for election as a director (x) 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 and in accordance with Regulation 14A under the Exchange Act
and (y) such person’s written consent to being named in the proxy statement as a
nominee and to serving as a director if elected;
(B) if the notice relates to any business (other than
the nomination of persons for election as directors) that the shareholder
proposes to bring before the meeting, (w) a brief description of the business
desired to be brought before the meeting, (x) the text of the proposal or
business (including the text of any resolutions proposed for consideration and
in the event that such business includes a proposal to amend the Bylaws of the
Corporation, the language of the proposed amendment), (y) the reasons for
conducting such business at the meeting, and (z) any material interest in such
business of such shareholder and the beneficial owner, if any, on whose behalf
the proposal is made; and
(C) as to the shareholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made
(w) the name and address of such shareholder, as they appear on the
Corporation’s books, and of such beneficial owner, (x) the class or series and
number of shares of capital stock of the Corporation that are, directly or
indirectly, owned beneficially and of record by such shareholder and by such
beneficial owner, (y) any derivative positions with respect to shares of capital
stock of the Corporation held or beneficially held by or on behalf of such
shareholder and by or on behalf of such beneficial owner, the extent to which
any hedging or other transaction or series of transactions has been entered into
with respect to the shares of capital stock of the Corporation by or on behalf
of such shareholder and by or on behalf of such beneficial owner, and the extent
to which any other agreement, arrangement or understanding has been made, the
effect or intent of which is to increase or decrease the voting power of such
shareholder and such beneficial owner with respect
to shares of capital stock of the Corporation, (z) a
representation that the shareholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose such business or nomination, and (aa) a
representation whether the shareholder or the beneficial owner, if any, intends
or is part of a group that intends (bb) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the Corporation’s outstanding
capital stock required to approve or adopt the proposal or elect the nominee or
(cc) otherwise to solicit proxies from shareholders in support of such proposal
or nomination.
The Corporation may require any proposed nominee to furnish
such other information as it may reasonably require to determine (x) the
eligibility of such proposed nominee to serve as a director of the Corporation,
and (y) whether such nominee qualifies as an “independent director” or “audit
committee financial expert” under applicable law, securities exchange rule or
regulation, or any publicly-disclosed corporate governance guideline or
committee charter of the Corporation.
(iii) Notwithstanding anything in the second sentence of
paragraph (a)(ii) of this Section 5.14 to the contrary, in the event that
the number of directors to be elected to the Board of Directors of the
Corporation at an annual meeting 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 one hundred
(100) days prior to the first anniversary of the preceding year’s annual
meeting, a shareholder’s notice required by this Section 5.14 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 of the
Corporation 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.
(b) Special Meetings of Shareholders. Only such business
shall be conducted at a special meeting of shareholders 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 shareholders at which directors are to be elected pursuant to
the Corporation’s notice of meeting (1) by or at the direction of the Board of
Directors or any duly authorized committee thereof or (2) provided that the
Board of Directors or any duly authorized committee thereof has determined that
directors shall be elected at such meeting, by any shareholder of the
Corporation who is a shareholder of record at the time the notice provided for
in this Section 5.14 is delivered to the Secretary of the Corporation,
who is entitled to vote at the meeting and upon such election, and who complies
with the notice procedures set forth in this Section 5.14. In the event
the Corporation calls a special meeting of shareholders for the purpose of
electing one or more directors to the Board of Directors, any such shareholder
entitled to vote in such election of directors 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 shareholder’s notice in the same form as
required by paragraph (a)(ii) of this Section 5.14 shall be delivered to
the Secretary at the principal executive offices of the Corporation not earlier
than the close of business on the one hundred twentieth (120th) day prior to
such special meeting and not later than the close
of business on the later of the ninetieth (90th) 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. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a shareholder’s notice as described above.
|
(c) |
General. |
(i) Only such persons who are nominated in accordance
with the procedures set forth in this Section 5.14 shall be eligible to
be elected at an annual or special meeting of shareholders of the Corporation to
serve as directors and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 5.14. Except as otherwise
provided by law, the chairman of the meeting shall have the power and duty
(A) 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 Section 5.14 and (B) if any proposed
nomination or business was not made or proposed in compliance with this
Section 5.14, to declare that such nomination shall be disregarded or
that such proposed business shall not be transacted. Notwithstanding the
foregoing provisions of this Section 5.14, unless otherwise required by
law, if the shareholder (or a qualified representative of the shareholder) does
not appear at the annual or special meeting of shareholders of the Corporation
to present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be considered, notwithstanding
that proxies in respect of such vote may have been received by the Corporation.
For purposes of this Section 5.14, to be considered a qualified
representative of the shareholder, a person must be authorized by a writing
executed by such shareholder or an electronic transmission delivered by such
shareholder to act for such shareholder as proxy at the meeting of shareholders
and such person must produce such writing or electronic transmission, or a
reliable reproduction of the writing or electronic transmission, at the meeting
of shareholders.
(ii) For purposes of this Section 5.14, “public
announcement” shall include 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.
(iii) Nothing in this Section 5.14 shall be
deemed to affect any rights (a) of shareholders to request inclusion of
proposals or nominations in the Corporation’s proxy statement pursuant to Rule
14a-8 (or any successor thereto) promulgated under the Exchange Act (and any
proposal included in the Corporation’s proxy statement pursuant to such Rule
shall not be subject to any of the advance notice requirements in this
Section 5.14) or (b) of the holders of any series of Preferred Stock to nominate
and elect directors pursuant to and to the extent provided in any applicable
provisions of the certificate of incorporation.
ARTICLE VI
MEETINGS OF DIRECTORS
| 6.1 |
Place of Meetings |
Meetings (whether regular, special or adjourned) of the Board
of Directors shall be held at the principal office of the Corporation for the
transaction of business, as specified in accordance with Section 1.1 of
these Bylaws, or at any other place within or without the State which has been
designated from time to time by resolution of the Board or which is designated
in the notice of the meeting. Any meeting (whether regular, special or
adjourned) may be held by conference telephone, electronic video screen
communication or electronic communication by and to the Corporation.
Participation in a meeting through the use of conference telephone or electronic
video screen communication pursuant to this Section 6.1 constitutes
presence in person at that meeting so long as all members participating in the
meeting are able to hear one another. Participation in a meeting through
electronic transmission by and to the Corporation (other than conference
telephone and electronic video screen communication), pursuant to this
Section 6.1 constitutes presence in person at that meeting if both of the
following apply:
(a) each member participating in the meeting can
communicate with all of the other members concurrently; and
(b) each member is provided the means of participating
in all matters before the Board of Directors, including, without limitation, the
capacity to propose, or to interpose an objection to, a specific action to be
taken by the Corporation.
| 6.2 |
Regular Annual Meeting; Regular Meetings |
After the adjournment of each annual meeting of the
shareholders, the Board of Directors shall hold a regular meeting (which regular
directors’ meeting shall be designated the “Regular Annual Meeting“) and
no notice need be given for the Regular Annual Meeting unless the Regular Annual
Meeting is not held at the principal place of business provided at
Section 1.1 of these Bylaws. Regular meetings of the Board of Directors
may be held without notice if the time and place of such meetings are fixed by
the Board of Directors.
| 6.3 |
Special Meetings |
Special meetings of the Board of Directors may be called at
any time by the Chairman of the Board, if any, or a Lead Director, if any, the
President or the Chief Executive Officer, any Vice President, the Secretary, or
by any two or more directors.
| 6.4 |
Notice of Special Meetings |
Special meetings of the Board of Directors shall be held upon
no less than four (4) days’ notice by mail or forty-eight (48) hours’ notice
delivered personally or by
telephone to each director. Commencing on January 1, 2011,
special meetings of the Board of Directors shall be held upon no less than four
(4) days’ notice by mail or forty-eight (48) hours’ notice delivered personally
or by telephone, including voice messaging system or by electronic transmission
by the Corporation.
| 6.5 |
Quorum |
A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn as
provided by Section 6.6 of these Bylaws. Every act or decision done or
made by a majority of the directors present at a meeting duly held at which a
quorum is present is the act of the Board of Directors, subject to the
provisions of Section 310 of the Code (as to the approval of contracts or
transactions in which a director has a direct or indirect material financial
interest), Section 311 of the Code (as to the appointment of committees),
Section 317(a) of the Code (as to the indemnification of directors), the
Articles of Incorporation or other applicable law. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, if any action taken is approved by at least a majority
of the required quorum for such meeting.
| 6.6 |
Adjournment |
A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting to another time and place. If the meeting is
adjourned for over twenty-four (24) hours, notice of any adjournment to another
time and place shall be given prior to the time of the adjourned meeting to the
directors who were not present at the time of adjournment.
| 6.7 |
Waiver and Notice of Consent |
Notice of a meeting need not be given to a director who
provides a waiver of notice or a consent to holding the meeting, or who attends
the meeting without protesting, prior thereto or at its commencement, the lack
of notice to such director. All such waivers, consents and approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
| 6.8 |
Action without a Meeting |
Any action required or permitted by law to be taken by the
Board of Directors may be taken without a meeting, if all members of the Board
of Directors shall individually or collectively consent in writing to such
action. Such written consent or consents shall be filed with the minutes of the
proceedings of the Board of Directors. Such action by written consent shall have
the same force and effect as the unanimous vote of such directors.
| 6.9 |
Committees |
The provisions of this Article VI also apply to
committees of the Board of Directors and action by such committees, mutatis
mutandis.
ARTICLE VII
GENERAL MATTERS
| 7.1 |
Record Date for Purposes Other than Notice and |
For purposes of determining the shareholders 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 other lawful action (other
than with respect to notice or voting at a shareholders’ meeting or action by
shareholders by written consent without a meeting), the Board of Directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
prior to any such action. Only shareholders of record at the close of business
on the record date are entitled to receive the dividend, distribution or
allotment or rights, or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation after
the record date, except as otherwise provided for in the Articles of
Incorporation or the Code.
| 7.2 |
Instruments in Writing |
All checks, drafts, other orders for payments of money, notes
or other evidences of indebtedness of the Corporation, and all written contracts
of the Corporation, shall be signed by such officer or officers, agent or
agents, as the Board of Directors may from time to time designate. No officer,
agent, or employee of the Corporation shall have the power to bind the
Corporation by contract or otherwise unless authorized to do so by these Bylaws
or by the Board of Directors.
| 7.3 |
Shares Held by the Corporation |
Shares in other corporations standing in the name of the
Corporation may be voted or represented and all rights incident thereto may be
exercised on behalf of the Corporation by any officer of the Corporation
authorized so to do by resolution of the Board of Directors. The authority
herein granted may be exercised either by such person directly or by any other
person authorized to do so by proxy or by power of attorney duly executed by
such person having the authority.
| 7.4 |
Certificated and Uncertificated Shares |
(a) Certificates for the shares of stock of the
Corporation shall be issued only to the extent as may be required by applicable
law or as otherwise authorized by the Secretary or any Assistant Secretary, and
if so issued shall be in such form as is consistent with the Articles of
Incorporation of the Corporation and applicable law. Any such certificates shall
be signed by, or in the name of the Corporation by, the Chief Executive Officer
or the President and by the Secretary or any Assistant Secretary, certifying the
number of shares and the class or series of shares owned by the shareholder. Any
or all of the signatures 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 has ceased to be such officer transfer agent
or registrar before
such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were an officer, transfer
agent or registrar at the date of issue.
(b) On or after November 17, 2010, unless otherwise
required by applicable law or authorized by the Secretary or any Assistant
Secretary, shares of the Corporation shall be issued, recorded and transferred
exclusively in uncertificated book-entry form in accordance with a direct
registration program operated by a clearing agency registered under Section 17A
of the Exchange Act. Shares of the Corporation represented by certificates that
were issued prior to November 17, 2010 shall continue to be certificated
securities of the Corporation until the certificates therefor have been
surrendered to the Corporation.
| 7.5 |
Lost Certificates |
Except as provided in this Section 7.5, no new shares
shall be issued to replace a previously issued certificate unless the
certificate is surrendered to the Corporation or its transfer agent or registrar
and cancelled at the same time. When the owner of any certificate for shares of
the Corporation claims that the certificate has been lost, stolen or destroyed,
uncertificated shares, in accordance with Section 7.4(b) above, shall be issued
in place of the original certificate if the owner (a) so requests before the
Corporation has notice that the original certificate has been acquired by a bona
fide purchaser, (b) files with the Corporation an indemnity bond in such form
and in such amount sufficient to protect the Corporation against any claim that
may be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction of the certificate or the issuance of the
replacement shares, and (c) satisfies any other reasonable requirements imposed
by the Corporation. The Board of Directors may adopt such other provisions and
restrictions with reference to lost certificates, not inconsistent with
applicable law, as it shall in its discretion deem appropriate.
| 7.6 |
Certification and Inspection of Bylaws |
The Corporation shall keep at its principal executive or
business office the original or a copy of these Bylaws as amended or otherwise
altered to date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
| 7.7 |
Interpretation |
Reference in these Bylaws to any provision of the Code shall
be deemed to include all amendments thereof.
| 7.8 |
Construction |
Unless the context requires otherwise, the general
provisions, rules of construction and definitions in the Code shall govern the
construction of these Bylaws. Without limiting the generality of the provision,
the singular number includes the plural, the plural number includes the
singular, and the term “person” includes both a corporation and a natural
person.
ARTICLE VIII
CONSTRUCTION OF BYLAWS WITH REFERENCE TO PROVISIONS OF
LAW
| 8.1 |
Bylaw Provisions Additional and Supplemental to |
All restrictions, limitations, requirements and other
provisions of these Bylaws shall be construed, insofar as possible, as
supplemental and additional to all provisions of law applicable to the subject
matter thereof and shall be fully complied with in addition to the said
provisions of law unless such compliance shall be illegal.
| 8.2 |
Bylaw Provisions Contrary to or Inconsistent with |
Any article, section, subsection, subdivision, sentence,
clause or phrase of these Bylaws which, upon being construed in the manner
provided in Section 8.1 of these Bylaws, shall be contrary to or
inconsistent with any applicable provision of law, shall not apply so long as
said provisions of law shall remain in effect, but such result shall not affect
the validity or applicability of any other portions of these Bylaws, it being
hereby declared that these Bylaws, and each article, section, subsection,
subdivision, sentence, clause, or phrase thereof, would have been adopted
irrespective of the fact that any one or more articles, sections, subsections,
subdivisions, sentences, clauses or phrases is or are illegal.
ARTICLE IX
ADOPTION, AMENDMENT OR REPEAL OF BYLAWS
| 9.1 |
By Shareholders |
These Bylaws may be adopted, amended or repealed by the vote
or written consent of holders of a majority of the outstanding shares entitled
to vote. Any bylaws specifying or changing a fixed number of directors or the
maximum or minimum number or changing from a fixed to a variable board or vice
versa may only be adopted by the shareholders; provided, however, that a bylaw
or amendment of the Articles of Incorporation reducing the number or the minimum
number of directors to a number less than five cannot be adopted if the votes
cast against its adoption at a meeting or the shares not consenting in the case
of action by written consent are equal to more than sixteen and two-thirds
percent (16-2/3%) of the outstanding shares entitled to vote.
| 9.2 |
By the Board of Directors |
Subject to the right of shareholders to adopt, amend or
repeal these Bylaws, other than a bylaw or amendment thereof specifying or
changing a fixed number of directors or the maximum or minimum number or
changing from a fixed to a variable board or vice versa, may be adopted, amended
or repealed by the Board of Directors. A bylaw adopted by the shareholders may
restrict or eliminate the power of the Board of Directors to adopt, amend or
repeal these Bylaws.
ARTICLE X
INDEMNIFICATION
| 10.1 |
Indemnification of Directors and Officers |
The Corporation shall, to the maximum extent and in the
manner permitted by the Code, indemnify each of its directors and officers
against expenses (as defined in Section 317(a) of the Code), judgments, fines,
settlements, and other amounts actually and reasonably incurred in connection
with any proceeding (as defined in Section 317(a) of the Code), arising by
reason of the fact that such person is or was an agent of the Corporation. For
purposes of this Article X, a “director” or “officer” of the Corporation
includes any person (a) who is or was a director or officer of the Corporation,
(b) who is or was serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or (c) who was a director or officer of a corporation which was a
predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation.
| 10.2 |
Indemnification of Others |
The Corporation shall have the power, to the extent and in
the manner permitted by the Code, to indemnify each of its employees and agents
(other than directors and officers) against expenses (as defined in
Section 317(a) of the Code), judgments, fines, settlements, and other amounts
actually and reasonably incurred in connection with any proceeding (as defined
in Section 317(a) of the Code), arising by reason of the fact that such person
is or was an agent of the Corporation. For purposes of this Article X, an
“employee” or “agent” of the Corporation (other than a director or officer)
includes any person (a) who is or was an employee or agent of the Corporation,
(b) who is or was serving at the request of the Corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or (c) who was an employee or agent of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
| 10.3 |
Payment of Expenses in Advance |
Expenses incurred in defending any proceeding for which
indemnification is required pursuant to Section 10.1 of these Bylaws or
for which indemnification is permitted pursuant to Section 10.2 of these
Bylaws following authorization thereof by the Board of Directors, may be
advanced by the Corporation prior to the final disposition of the proceeding
upon receipt of an undertaking by or on behalf of the indemnified party to repay
that amount if it shall be determined ultimately that the indemnified person is
not entitled to be indemnified as authorized by this Article X.
| 10.4 |
Indemnification not Exclusive |
The indemnification provided by this Article X for acts,
omissions or transactions while acting in the capacity of, or while serving as,
a director or officer of the Corporation but not involving a breach of duty to
the Corporation and its shareholders
shall not be deemed exclusive of any other rights to those
seeking indemnification may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors, or otherwise, to the extent the
additional rights to indemnification are authorized in the Articles of
Incorporation.
| 10.5 |
Insurance Indemnification |
The Corporation shall have the power to purchase and maintain
insurance on behalf of any agent of the Corporation against any liability
asserted against or incurred by the agent in that capacity or arising out of
that agent’s status as such whether or not the Corporation would have the power
to indemnify the agent against that liability under the provisions of this
Article X.
| 10.6 |
Conflicts |
No indemnification or advance shall be made under this
Article X, except where the court in which the proceeding is or was pending upon
application made by the Corporation or the agent or the attorney or other person
rendering services in connection with the defense, whether or not the
application by the agent, attorney or other person is opposed by the
Corporation:
(a) that it would be inconsistent with a provision of
the Articles of Incorporation, these Bylaws, a resolution of the shareholders or
an agreement in effect at the time of the accrual of the alleged cause of the
action asserted in the proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
(b) that it would be inconsistent with any condition
expressly imposed by a court in approving a settlement.
CERTIFICATE OF ADOPTION OF
AMENDED BYLAWS
OF
APPLE INC.
The undersigned hereby certifies that he is the duly elected,
qualified and acting Senior Vice President, General Counsel and Secretary of
Apple Inc., a California corporation (the “Corporation“), and that the
foregoing amended and restated bylaws were adopted as the Corporation’s bylaws
as of April 20, 2011 by the Corporation’s Board of Directors.
The undersigned has executed this Certificate as of April 20,
2011.
|
/s/ D. Bruce Sewell |
|
D. Bruce Sewell |
|
Senior Vice President, General Counsel and Secretary |
Stay Up-to-Date With How the Law Affects Your Life
