(EXHIBIT 3.3)
BY-LAWS
OF
APPLE COMPUTER, INC.
(a California corporation)
(as amended through April 20, 1994)
Article I
OFFICES
Section 1.1: Principal Office. The principal executive office for
the transaction of the business of this corporation shall be 1 Infinite
Loop, Cupertino, California 95014. The Board of Directors is hereby
granted full power and authority to change the location of the principal
executive office from one location to another.
Section 1.2: Other Offices. One or more branch or other subordinate
offices may at any time be fixed and located by the Board of Directors at
such place or places within or without the State of California as it deems
appropriate.
Article II
DIRECTORS
Section 2.1: Exercise of Corporate Powers. Except as otherwise
provided by these By-Laws, by the Articles of Incorporation of this
corporation or by the laws of the State of California now or hereafter in
force, the business and affairs of this corporation shall be managed and
all corporate powers shall be exercised by or under the direction of the
Board of Directors.
Section 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 by-law amending this section, 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 an amendment to this by-law duly adopted by the vote or
written consent of holders of a majority of the
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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 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.
Section 2.3: Need Not Be Shareholders. The directors of this
corporation need not be shareholders of this corporation.
Section 2.4: Compensation. Directors and members of committees may
receive such compensation, if any, for their services as may be fixed or
determined by resolution of the Board of Directors. Nothing herein
contained shall be construed to preclude any director from serving this
corporation in any other capacity and receiving compensation therefor.
Section 2.5: Election and Term of Office. The directors shall be
divided into two classes, designated Class I and Class II. Each class
shall consist of one-half of the directors or as close an approximation as
possible. The initial term of office of the directors of Class I shall
expire at the annual meeting to be held during fiscal year 1991 and the
initial term of office of the directors of Class II shall expire at the
annual meeting to be held during fiscal year 1992. At each annual meeting,
commencing with the annual meeting to be held during fiscal year 1991, each
of the successors to the directors of the class whose term shall have
expired at such annual meeting shall be elected for a term running until
the second annual meeting next succeeding his or her election and until his
or her successor shall have been duly elected and qualified.
Section 2.6: Vacancies. A vacancy or vacancies on the Board of
Directors shall exist in case of the death, resignation or removal of any
director, or if the authorized number of directors is increased, or if the
shareholders fail, at any annual meeting of shareholders at which any
director is elected, to elect the full authorized number of directors to be
voted for at that meeting. The Board of Directors may declare vacant the
office of a director if he or she is declared of unsound mind by an order
of court or convicted of a felony or if, within 60 days after notice of his
or her election, he or she does not accept the office. Any vacancy, except
for a vacancy created by removal of a director as provided in Section 2.7
hereof, may be filled by a person selected by a majority of the remaining
directors then in office, whether or not less than a quorum, or by a sole
remaining director. Vacancies occurring in the Board of Directors by
reason of
removal of directors shall be filled only by approval of shareholders. The
shareholders may elect a director at any time to fill any vacancy not
filled by the directors. Any such election by written consent requires the
consent of a majority of the outstanding shares entitled to vote. If,
after the filling of any vacancy by the directors, the directors then in
office who have been elected by the shareholders shall constitute less than
a majority of the directors then in office, any holder or holders of an
aggregate of 5% or more of the total number of shares at the time
outstanding having the right to vote for such directors may call a special
meeting of shareholders to be held to elect the entire
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Board of Directors. The term of office of any director shall terminate
upon such election of a successor. Any director may resign effective upon
giving written notice to the Chairman of the Board, if any, the Chief
Executive Officer, the President, the Secretary or the Board of Directors
of this corporation, unless the notice specifies a later time for the
effectiveness of such resignation. If the resignation is effective at a
future time, a successor may be elected 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.
Section 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 of this corporation, 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.
Section 2.8: Powers and Duties. Without limiting the generality or
extent of the general corporate powers to be exercised by the Board of
Directors pursuant to Section 2.1 of these By-Laws, it is hereby provided
that the Board of Directors shall have full power with respect to the
following matters:
(a) To purchase, lease, and acquire any and all kinds of
property, real, personal or mixed, and at its discretion to pay therefor in
money, in property and/or in stocks, bonds, debentures or other securities
of this corporation.
(b) To enter into any and all contracts and agreements which in
its judgment may be beneficial to the interests and purposes of this
corporation.
(c) To fix and determine and to vary from time to time the
amount or amounts to be set aside or retained as reserve funds or as
working capital of this corporation or for maintenance, repairs,
replacements or enlargements of its properties.
(d) To declare and pay dividends in cash, shares and/or property
out of any funds of this corporation at the time legally available for the
declaration and payment of dividends on its shares.
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(e) To adopt such rules and regulations for the conduct of its
meetings and the management of the affairs of this corporation as it may
deem proper.
(f) To prescribe the manner in which and the person or persons
by whom any or all of the checks, drafts, notes, bills of exchange,
contracts and other corporate instruments shall be executed.
(g) To accept resignations of directors; to declare vacant the
office of a director as provided in Section 2.6 hereof; and, in case of
vacancy in the office of directors, to fill the same to the extent provided
in Section 2.6 hereof.
(h) To create offices in addition to those for which provision
is made by law or these By-Laws; to elect and remove at pleasure all
officers of this corporation, fix their terms of office, prescribe their
powers and duties, limit their authority and fix their salaries in any way
it may deem advisable which is not contrary to law or these By-Laws; and,
if it sees fit, to require from the officers or any of them security for
faithful service.
(i) To designate some person to perform the duties and exercise
the powers of any officer of this corporation during the temporary absence
or disability of such officer.
(j) To appoint or employ and to remove at pleasure such agents
and employees as it may see fit, to prescribe their titles, powers and
duties, limit their authority, and fix their salaries in any way it may
deem advisable which is not contrary to law or these By-Laws; and, if it
sees fit, to require from them or any of them security for faithful
performance.
(k) To fix a time in the future, which shall not be more than 60
days nor less than 10 days prior to the date of the meeting nor more than
sixty (60) days prior to any other action for which it is fixed, as a
record date for the determination of the shareholders entitled to notice of
and to vote at any meeting, or entitled to receive any 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; and in such case
only shareholders of record on the date so fixed shall be entitled to
notice of and to vote at the meeting or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case
may be, notwithstanding any transfer of any shares on the books of this
corporation after any record date fixed as aforesaid. The Board of
Directors may close the books of this corporation against transfers of
shares during the whole or any part of such period.
(l) To fix and locate from time to time the principal office for
the transaction of the business of this corporation and one or more branch
or other subordinate office or offices of this corporation within or
without the State of California; to designate any place within or without
the State of California for the holding of any meeting or meetings of the
shareholders or the Board of
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Directors, as provided in Sections 10.1 and 11.1 hereof; to adopt, make and
use a corporate seal, and to prescribe the forms of certificates for shares
and to alter the form of such seal and of such certificates from time to
time as in its judgment it may deem best, provided such seal and such
certificates shall at all times comply with the provisions of law now or
hereafter in effect.
(m) To authorize the issuance of shares of stock of this
corporation in accordance with the laws of the State of California and the
Articles of Incorporation of this corporation.
(n) Subject to the limitation provided in Section 14.2 hereof,
to adopt, amend or repeal from time to time and at any time these By-Laws
and any and all amendments thereof.
(o) To borrow money and incur indebtedness on behalf of this
corporation, including the power and authority to borrow money from any of
the shareholders, directors or officers of this corporation, and to cause
to be executed and delivered therefor in the corporate name promissory
notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations, or other evidences of debt and securities therefor, and the
note or other obligation given for any indebtedness of this corporation,
signed officially by any officer or officers thereunto duly authorized by
the Board of Directors shall be binding on this corporation.
(p) To designate and appoint committees of the Board of
Directors as it may see fit, to prescribe their names, powers and duties
and limit their authority in any way it may deem advisable which is not
contrary to law or these By-Laws.
(q) Generally to do and perform every act and thing whatsoever
that may pertain to the office of a director or to a board of directors.
Article III
OFFICERS
Section 3.1: Election and Qualifications. The officers of this
corporation shall consist of a Chief Executive Officer, a President, one or
more Vice Presidents, a Secretary, a Chief Financial Officer and such other
officers, including, but not limited to, a Chairman of the Board of
Directors, a Treasurer, and Assistant Secretaries and Assistant Treasurers
as the Board of Directors shall deem expedient, who shall be chosen in such
manner and hold their offices for such terms as the Board of Directors may
prescribe. Any two or more of such offices may be held by the same person.
Any Vice President, Assistant Treasurer or Assistant Secretary,
respectively, may exercise any of the powers of the Chief Executive
Officer, the President, the Chief Financial Officer, or the Secretary,
respectively, as directed by the Board of Directors, and shall perform such
other duties as are imposed upon him or her by the By-Laws or the Board of
Directors.
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Section 3.2: 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 said Board from time to time at its pleasure, subject
to the rights, if any, of an officer under any contract of employment. Any
officer may resign at any time upon written notice to this corporation,
without prejudice to the rights, if any, of this corporation under any
contract to which the officer is a party. If any vacancy occurs in any
office of this corporation, the Board of Directors may elect a successor to
fill such vacancy.
Article IV
CHAIRMAN OF THE BOARD
Section 4.1: Powers and Duties. The Chairman of the Board of
Directors, if there be one, 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.
Article V
CHIEF EXECUTIVE OFFICER
Section 5.1: Powers and Duties. The powers and duties of the Chief
Executive Officer are:
(a) To act as the general manager and chief executive officer of
this corporation and, subject to the control of the Board of Directors, to
have general supervision, direction and control of the business and affairs
of this corporation.
(b) To preside at all meetings of the shareholders and, in the
absence of the Chairman of the Board or if there be no Chairman, 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 By-Laws, at such places as he or she shall
deem proper.
(d) To affix the signature of this 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 this corporation; to sign certificates for
shares of stock of this corporation; and, subject to the direction of the
Board of Directors, to have general charge of the property of this
corporation and to supervise and control all officers, agents and employees
of this corporation.
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Article VA
PRESIDENT
Section 5A.1: Powers and Duties. The powers and duties of the
President are:
(a) To act as the general manager of this corporation and,
subject to the control of the Board of Directors, to have general
supervision, direction and control of the business and affairs of this
corporation.
(b) To preside at all meetings of the shareholders and, in the
absence of the Chairman of the Board and the Chief Executive Officer or if
there be no Chairman or Chief Executive Officer, at all meetings of the
Board of Directors.
(c) To affix the signature of this 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 this corporation; to sign certificates for shares of stock of
this corporation; and, subject to the direction of the Board of Directors,
to have general charge of the property of this corporation and to supervise
and control all officers, agents and employees of this corporation.
Section 5A.2: President Pro Tem. If neither the Chairman of the
Board, 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.
Article VI
VICE PRESIDENT
Section. 6.1: Powers and Duties. 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.
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Article VII
SECRETARY
Section 7.1: Powers and Duties. The powers and duties of the
Secretary are:
(a) To keep a book of minutes at the principal executive office
of this 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 this 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 this corporation, or at the office of the transfer agent or
agents, a record of the shareholders of this corporation, giving the names
and addresses of all shareholders and the number and class of shares held
by each, the number and date of certificates issued for shares and the
number and date of cancellation of every certificate surrendered for
cancellation.
(d) To keep a supply of certificates for shares of this
corporation, to fill in all certificates issued, and to make a proper
record of each such issuance; provided that so long as this corporation
shall have one or more duly appointed and acting transfer agents of the
shares, or any class or series of shares, of this 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 this corporation any and
all shares of this corporation; provided that so long as this corporation
shall have one or more duly appointed and acting transfer agents of the
shares, or any class or series of shares, of this 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 certificate shall be
subject to the reasonable regulations of the transfer agent to which the
certificate is presented for transfer and, also, if this corporation then
has one or more duly appointed and acting registrars, subject to the
reasonable regulations of the registrar to which a new certificate is
presented for registration; and provided, further, that no certificate for
shares of stock shall be issued or delivered or, if issued or delivered,
shall have any validity whatsoever until and unless it has been signed or
authenticated in the manner provided in Section 12.3 hereof.
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(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 this 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.
Article VIII
CHIEF FINANCIAL OFFICER
Section 8.1: Powers and Duties. 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 this 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 this corporation and, at his
or her discretion, to cause any or all thereof to be deposited for the
account of this 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
this corporation.
(d) To disburse, or cause to be disbursed, all funds of this
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
this 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.
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Article VIIIA
APPOINTED VICE PRESIDENTS, ETC.
Section 8A.l: Appointed Vice Presidents, Etc.; Appointment, Duties,
etc. 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 may determine.
The Board shall be advised of any such appointment at a meeting of the
Board, 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 8A.l of these By-laws.
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 of the corporation 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 as an elected corporate
officer, (i) shall not be considered an officer elected by the Board of
Directors pursuant to Article III of these By-Laws and shall not have the
executive powers or authority of corporate officers elected pursuant to
such 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 "Act") or an "executive officer" of the
corporation for the purposes of Rule 3b-7 promulgated under the Act, and
similarly shall not be considered an "officer" of the corporation for the
purposes of Section 16 of the 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 Act or (b) a "corporate officer" for the purposes of
Section 312 of the California Corporation Code (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 of the
Corporation or by resolution of the Board of Directors.
An elected officer of the corporation may also serve in an appointed
capacity hereunder.
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Article IX
EXECUTIVE COMMITTEE
Section 9.1: Appointment and Procedure. The Board of Directors may,
by resolution adopted by a majority of the authorized number of directors,
appoint from among its members an Executive Committee of two or more
members. The Executive Committee may make its own rules of procedure
subject to Section 11.9 hereof, and shall meet as provided by such rules or
by a resolution adopted by the Board of Directors (which resolution shall
take precedence). A majority of the members of the Executive Committee
shall constitute a quorum, and in every case the affirmative vote of a
majority of all members of the Committee shall be necessary to the adoption
of any resolution by such Committee.
Section 9.2: Powers. During the intervals between the meetings of
the Board of Directors, the Executive Committee, in all cases in which
specific directions shall not have been given by the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of this corporation
in such manner as the Committee may deem best for the interests of this
corporation, except with respect to:
(a) any action for which California law also requires
shareholder approval,
(b) the filling of vacancies on the Board of Directors or in the
committee,
(c) the fixing of compensation of the directors for serving on
the Board of Directors or on any committee,
(d) the amendment or repeal of By-Laws or the adoption of new By-
Laws,
(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 this corporation,
except at a rate or in a periodic amount or within a price range determined
by the Board of Directors,
(g) the appointment of other committees of the Board of
Directors or the members thereof.
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Article X
MEETINGS OF SHAREHOLDERS
Section 10.1: Place of Meetings. Meetings (whether regular, special
or adjourned) of the shareholders of this corporation shall be held at the
principal executive office for the transaction of business of this
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 of this
corporation.
Section 10.2: Annual Meetings. The annual meeting of the
shareholders shall be held at the hour of 10:00 a.m. on the last Wednesday
in January in each year , if not a legal holiday, and if a legal holiday,
then on the next succeeding business day not a legal holiday or at such
other time in a particular year as 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. Such annual meetings shall be held
at the place provided pursuant to Section 10.1 hereof. Said annual
meetings shall be held for the purpose of the election of directors, for
the making of reports of the affairs of this corporation and for the
transaction of such other business as may come before the meeting.
Section 10.3: 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 at the meeting. 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
entitled to call a special meeting of shareholders, it shall be the duty of
such officer forthwith 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, which shall be not less than 35 days nor more than 60
days after the receipt of such request.
Section 10.4: Notice of Meetings. Notice of any meeting of shareholders
shall be given in writing not less than 10 nor more than 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 (i) in the case of a special
meeting, the general nature of the business to be transacted, and no other
business may be transacted, or (ii) 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
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presented at the meeting for such action except that notice must be given
or waived in writing of any proposal relating to approval of contracts
between the corporation and any director of this corporation, amendment of
the Articles of Incorporation, reorganization of this corporation or
winding up of this corporation. 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. Written
notice shall be given by this corporation to any shareholder, either (i)
personally or (ii) by mail or other means of written communication, charges
prepaid, addressed to such shareholder at such shareholder's address
appearing on the books of this corporation or given by such shareholder to
this corporation for the purpose of notice. If a shareholder gives no
address or no such address appears on the books of this 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 this 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 of any notice
in accordance with the provisions of this Section 10.4, 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 this 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 this corporation for a
period of one year from the date of the giving of the notice to all other
shareholders.
Section 10.5: 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 this corporation and any of its directors, amendment of
the Articles of Incorporation, reorganization of this corporation or
winding up the affairs of this corporation.
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Section 10.6: 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.
Section 10.7: 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
10.6 hereof, in the absence of a quorum, no other business may be
transacted at such meeting. When a meeting is adjourned for more than 45
days or if after adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at a meeting. Except as aforesaid,
it shall not be necessary to give any notice of the time and place of the
adjourned meeting or of the business to be transacted thereat other than by
announcement at the meeting at which such adjournment is taken. At any
adjourned meeting the shareholders may transact any business which might
have been transacted at the original meeting.
Section 10.8: Voting Rights. Only persons in whose names shares entitled
to vote stand on the stock records of this corporation 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 or, if some other day
be fixed for the determination of shareholders of record pursuant to
Section 2.8(j) hereof, then on such other day, shall be entitled to vote at
such meeting. The record date for determining shareholders entitled to
give consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors has been taken, shall be the day on
which the first written consent is given. 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.
Section 10.9: Action by Written Consents. 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. Unless the consents of all
shareholders entitled to vote have been solicited in writing, notice of any
shareholder approval of (i) contracts between this corporation and any of
its directors, (ii) indemnification of any person, (iii) reorganization of
this corporation or (iv) distributions to
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shareholders upon winding up of this corporation in certain circumstances
without a meeting by less than unanimous written consent shall be given at
least 10 days before the consummation of the action authorized by such
approval, and prompt notice shall be given of the taking of any other
corporate action approved by shareholders without a meeting by less than
unanimous written consent, to those shareholders entitled to vote who have
not consented in writing. All notices given hereunder shall conform to the
requirements of Section 10.4 hereto and applicable law. 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
this 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 this 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 of this corporation,
but may not do so thereafter. Such revocation is effective upon its
receipt by the Secretary of this corporation. 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.
Section 10.10: Elections 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.
Section 10.11: Proxies. 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 of this
corporation. No proxy shall be valid (l) after revocation thereof, unless
the proxy is specifically made irrevocable and otherwise conforms to this
Section 10.11 and applicable law, or (2) after the expiration of eleven
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 of this
corporation 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 this corporation. 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: (l) a pledgee, (2) 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 this corporation to the
maker of the proxy, (3) a creditor or creditors of this corporation or the
shareholder who extended or continued credit to this 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, (4) a person who has
contracted to perform services as an employee of this corporation, if a
proxy is required by the contract of
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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, (5) 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 this corporation or dies, the debt of this 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. 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.
Section 10.12: Inspectors of Election. 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;
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(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.
Article XI
MEETINGS OF DIRECTORS
Section 11.1: Place of Meetings. Meetings (whether regular, special or
adjourned) of the Board of Directors of this corporation shall be held at
the principal office of this corporation for the transaction of business,
as specified in accordance with Section 1.1 hereof, 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.
Section 11.2: Regular Meetings. Regular meetings of the Board of
Directors shall be held after the adjournment of each annual meeting of the
shareholders (which regular directors' meeting shall be designated the
"Regular Annual Meeting") and at such other times as may be designated from
time to time by resolution of the Board of Directors. Notice of the time
and place of all regular meetings shall be given in the same manner as for
special meetings, except that no such notice need be given if (l) the time
and place of such meetings are fixed by the Board of Directors or (2) the
Regular Annual Meeting is held at the principal place of business provided
at Section 1.1 hereof and on the date specified in Section 10.2 hereof.
Section 11.3: Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Chairman of the Board, if any,
or the President, or any Vice President, or the Secretary or by any two or
more directors.
Section 11.4: Notice of Special Meetings. Special meetings of the
Board of Directors shall be held upon no less than four days' notice by
mail or 48 hours' notice delivered personally or by telephone or telegraph
to each director. Notice need not be given to any director who signs a
waiver of notice or who attends the meeting without protesting, prior
thereto or at its commencement, the
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lack of notice to such director. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the
home or office of the director who the person giving the notice has reason
to believe will promptly communicate it to the director. A notice or
waiver of notice need not specify the purpose of any meeting of the Board.
If the address of a director is not shown on the records and is not readily
ascertainable, notice shall be addressed to him at the city or place in
which the meetings of the directors are regularly held. If the meeting is
adjourned for more than 24 hours, notice of any adjournment to another time
or place shall be given prior to the time of the adjourned meeting to all
directors not present at the time of adjournment.
Section 11.5: Quorum. A majority of all directors elected by the
shareholders and appointed to fill vacancies as provided in Section 2.6
hereof shall constitute a quorum of the Board of Directors for the
transaction of business. 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 provisions of law
relating to interested directors and indemnification of agents of this
corporation. A majority of the directors present, whether or not a quorum
is present, may adjourn any meeting to another time and place. 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.
Section 11.6: Conference Telephone. Members of the Board of
Directors may participate in a meeting through use of conference telephone
or similar communications equipment, so long as all directors participating
in such meeting can hear one another. Participation in a meeting pursuant
to this Section 11.6 constitutes presence in person at such meeting.
Section 11.7: Waiver of Notice and Consent. The transactions of any
meeting of the Board of Directors, however called and noticed or wherever
held, shall be as valid as though had at a meeting duly held after regular
call and notice, if a quorum is present, and if, either before or after the
meeting, each of the directors not present signs a written waiver of
notice, a consent to holding such meeting or an approval of the minutes
thereof. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 11.8: 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.
Section 11.9: Committees. The provisions of this Article XI apply
also to committees of the Board of Directors and action by such committees,
mutatis mutandis.
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Article XII
SUNDRY PROVISIONS
Section 12.1: Instruments in Writing. All checks, drafts, demands for
money and notes of this corporation, and all written contracts of this
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 this corporation shall have the power to bind this
corporation by contract or otherwise unless authorized to do so by these By-
Laws or by the Board of Directors.
Section 12.2: Shares Held by the Corporation. Shares in other
corporations standing in the name of this corporation may be voted or
represented and all rights incident thereto may be exercised on behalf of
the corporation by any officer of this corporation authorized so to do by
resolution of the Board of Directors.
Section 12.3: Certificates of Stock. There shall be issued to every
holder of shares in this corporation a certificate or certificates signed
in the name of this corporation by the Chairman of the Board of Directors,
if any, or the Chief Executive Officer or the President or a Vice President
and by the Chief Financial Officer or an Assistant Chief Financial Officer
or 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 shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by this corporation with the same effect as if such person
were an officer, transfer agent or registrar at the date of issue.
Section 12.4: Lost Certificates. Where the owner of any certificate for
shares of this corporation claims that the certificate has been lost,
stolen or destroyed, a new certificate shall be issued in place of the
original certificate if the owner (l) so requests before this corporation
has notice that the original certificate has been acquired by a bona fide
purchaser, (2) files with this corporation an indemnity bond in such form
and in such amount as shall be approved by the Chief Executive Officer, the
President or a Vice President of this corporation, and (3) satisfies any
other reasonable requirements imposed by this 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.
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Section 12.5: Certification and Inspection of By-Laws. This
corporation shall keep at its principal executive or business office the
original or a copy of these By-Laws as amended or otherwise altered to
date, which shall be open to inspection by the shareholders at all
reasonable times during office hours.
Section 12.6: Annual Reports. The making of annual reports to the
shareholders is dispensed with and the requirement that such annual reports
be made to shareholders is expressly waived, except as may be directed from
time to time by the Board of Directors or the President.
Section 12.7: Fiscal Quarters. Each fiscal quarter of the
Corporation shall be comprised of 13 weeks each of which shall end at
midnight on Friday of such week, and the fiscal months in any one calendar
quarter shall be comprised of at least four consecutive calendar weeks with
one week to be added, at management's discretion, to any one month during
such fiscal year.
Section 12.8: Officer Loans and Guaranties. If the corporation has
outstanding shares held of record by 100 or more persons on the date of
approval by the Board of Directors, the corporation may make loans of money
or property to, or guarantee the obligations of, any officer of the
corporation or its parent or subsidiaries, whether or not the officer is a
director, upon the approval of the Board of Directors alone. Such approval
by the Board of Directors must be determined by a vote of a majority of the
disinterested directors, if it is determined that such a loan or guaranty
may reasonably be expected to benefit the corporation. In no event may an
officer owning 2% or more of the outstanding common shares of the
corporation be extended a loan under this provision.
Article XIII
CONSTRUCTION OF BY-LAWS WITH
REFERENCE TO PROVISIONS OF LAW
Section 13.1:By-Law Provisions Additional and Supplemental to Provisions
of Law. All restrictions, limitations, requirements and other provisions
of these By-Laws 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.
Section 13.2: By-Law Provisions Contrary to or Inconsistent with
Provisions of Law. Any article, section, subsection, subdivision,
sentence, clause or phrase of these By-Laws which, upon being construed in
the manner provided in Section 13.1 hereof, 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
39
effect, but such result shall not affect the validity or applicability of
any other portions of these By-Laws, it being hereby declared that these By-
Laws, 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 XIV
ADOPTION, AMENDMENT OR REPEAL OF BY-LAWS
Section 14.1: By Shareholders. By-Laws may be adopted, amended or
repealed by the vote or written consent of holders of a majority of the
outstanding shares entitled to vote. By-Laws 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 By-Law 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 16-2/3% of the outstanding shares
entitled to vote.
Section 14.2: By the Board of Directors. Subject to the right of
shareholders to adopt, amend or repeal By-Laws, By-Laws, other than a By-
Law 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 By-Law adopted by the shareholders may restrict or eliminate
the power of the Board of Directors to adopt, amend or repeal By-Laws.
Article XV
RESTRICTIONS ON TRANSFER OF STOCK
Section 15.1: Subsequent Agreement or By-Law. If (a) any two or more
shareholders of this corporation shall enter into any agreement abridging,
limiting or restricting the rights of any one or more of them to sell,
assign, transfer, mortgage, pledge, hypothecate or transfer on the books of
this corporation any or all of the shares of this corporation held by them,
and if a copy of said agreement shall be filed with this corporation, or if
(b) shareholders entitled to vote shall adopt any By-Law provision
abridging, limiting or restricting the aforesaid rights of any
shareholders, then, and in either of such events, all certificates of
shares of stock subject to such abridgments, limitations or restrictions
shall have a reference thereto endorsed thereon by an officer of this
corporation and such certificates shall not thereafter be transferred on
the books of this corporation except in accordance with the terms and
provisions of such agreement or ByLaw, as the case may be; provided, that
no restriction shall be binding with respect to shares issued prior to
adoption of the restriction unless the holders of such shares voted in
favor of or consented in writing to the restriction.
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Article XVI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES, AND OTHER AGENTS
Section 16.1: 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 XVI, a "director" or "officer" of the corporation includes any
person (i) who is or was a director or officer of the corporation, (ii) who
is or was serving at the request of the corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a corporation which
was a predecessor corporation of the corporation or of another enterprise
at the request of such predecessor corporation.
Section 16.2: 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 XVI, an "employee" or "agent" of
the corporation (other than a director or officer) includes any person (i)
who is or was an employee or agent of the corporation, (ii) who is or was
serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
or (iii) who was an employee or agent of a corporation which was a
predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation.
Section 16.3: Payment of Expenses in Advance. Expenses incurred in
defending any civil or criminal action or proceeding for which
indemnification is required pursuant to Section 16.1 or for which
indemnification is permitted pursuant to Section 16.2 following
authorization thereof by the Board of Directors, shall be paid by the
corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of the
indemnified party to repay such amount if it shall ultimately be determined
that the indemnified party is not entitled to be indemnified as authorized
in this Article XVI.
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Section 16.4: Indemnity Not Exclusive. The indemnification provided
by this Article XVI shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any bylaw,
agreement, vote of shareholders 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 such additional
rights to indemnification are authorized in the Articles of Incorporation.
Section 16.5: Insurance Indemnification. The corporation shall have the
power to purchase and maintain insurance on behalf of any person who is or
was an Agent of the corporation against any liability asserted against or
incurred by such person in such capacity or arising out of such person's
status as such, whether or not the corporation would have the power to
indemnify him against such liability under the provisions of this Article
XVI.
Section 16.6: Conflicts. No indemnification or advance shall be made
under this Article XVI, except where such indemnification or advance is
mandated by law or the order, judgment or decree of any court of competent
jurisdiction, in any circumstance where it appears:
(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.
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