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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
RETEK INC.
(Exact name of registrant as specified in its charter)
DELAWARE 51-0392671
(State of Incorporation or organization) (I.R.S. Employer Identification No.)
MIDWEST PLAZA, 801 NICOLLET MALL, 11TH FLOOR, 55402
MINNEAPOLIS, MN
(Address of principal executive offices) (Zip Code)
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If this Form relates to the registration of a class If this Form relates to the registration of a class
of securities pursuant to Section 12(b) of the of securities pursuant to Section 12(g) of the
Exchange Act and is effective pursuant to Exchange Act and is effective pursuant to
General Instruction A.(c), please check the General Instruction A.(d), please check the
following box. [ ] following box. [X]
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Securities Act registration statement file number to which this form relates:
333-86841
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Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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NONE NONE
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK, PAR VALUE $0.01 PER SHARE
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
This registration statement relates to the registration with the
Securities and Exchange Commission of shares of Common Stock, par value $0.01
per share (the "Common Stock"), of Retek Inc., a Delaware corporation (the
"Registrant"). The description of the Common Stock to be registered hereunder
set forth under the caption "Description of Capital Stock" beginning on page 76
of the Registrant's Registration Statement on Form S-1 (File No. 333-86841) (the
"Registration Statement"), filed with the Securities and Exchange Commission, as
amended, is incorporated herein by reference.
ITEM 2. EXHIBITS.
The following documents are included as Exhibits to the Registration
Statement:
(a) Form of Amended and Restated Certificate of Incorporation of the
Registrant; and
(b) Form of Amended and Restated Bylaws of the Registrant.
The following document is included as an Exhibit to the Registration
Statement and incorporated herein by reference:
(a) Specimen certificate representing the Common Stock.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
RETEK INC.
Date: November 15, 1999 By: /s/ John Buchanan
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Name: John Buchanan
Title: Chairman, Chief Executive
Officer and Director
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EXHIBIT INDEX
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EXHIBIT
NO. DESCRIPTION
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3.4 Form of Amended and Restated Certificate of Incorporation of the Registrant as in
effect immediately prior to the closing of this offering.
3.5 Form of Amended and Restated Bylaws of the Registrant as in effect immediately
prior to the closing of this offering.
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EXHIBIT 3.4
FORM OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
RETEK INC.
RETEK INC., a Delaware corporation, hereby certifies as follows:
1. The name of the corporation is Retek Inc. (the "Corporation"). The
date of filing of its original Certificate of Incorporation with the Secretary
of State of the State of Delaware was August 30, 1999. The original name of the
Corporation was Retek Inc.
2. This Amended and Restated Certificate of Incorporation amends and
restates the provisions of the Certificate of Incorporation of the Corporation
and was duly adopted in accordance with the provisions of Sections 228, 242 and
245 of the General Corporation Law of the State of Delaware.
3. The text of the Certificate of Incorporation is hereby amended and
restated in its entirety to read as follows:
ARTICLE I
NAME
SECTION 1.01. Name. The name of the corporation is Retek Inc. (the
"Corporation").
ARTICLE II
REGISTERED AGENT
SECTION 2.01. Agent. The address of the Corporation's registered office
in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is The Corporation Trust Company.
ARTICLE III
PURPOSE
SECTION 3.01. Purpose. The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended.
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ARTICLE IV
CAPITAL STOCK
SECTION 4.01. Capital Stock. The total number of shares of all classes
of capital stock that the Corporation shall have the authority to issue is
155,000,000 shares, of which (i) 150,000,000 shares shall be common stock, par
value $0.01 per share ("Common Stock"), and (ii) 5,000,000 shares shall be
preferred stock, par value $0.01 per share ("Preferred Stock").
Upon the effective date of the filing of this Amended and Restated
Certificate of Incorporation, each share of the Corporation's outstanding
capital stock shall be converted and reconstituted into 40,000 shares of Common
Stock (the "Stock Split"). No further adjustment of any preference or price set
forth in this Article IV shall be made as a result of this Stock Split.
SECTION 4.02. Common Stock. Each holder of Common Stock shall have one
vote on each matter submitted to a vote at a meeting of stockholders, including
the election of directors, for each share of Common Stock held of record by such
holder as of the record date for such meeting. Except as otherwise required by
law or provided in any resolution adopted by the Corporation's Board of
Directors (the "Board of Directors") with respect to any series of Preferred
Stock, the holders of shares of Common Stock will possess all voting power, and
holders of shares of Preferred Stock shall not be entitled to receive notice of
any meeting of stockholders at which they are not entitled to vote. No provision
herein should be interpreted as providing for cumulative voting in the election
of directors.
SECTION 4.03. Dividends and Distributions. Subject to any preferential
rights of any outstanding series of Preferred Stock created by the Board of
Directors from time to time, when, as and if dividends or distributions are
declared on outstanding shares of Common Stock, whether payable in cash, in
property or in securities of the Corporation, each holder of outstanding shares
of Common Stock shall be entitled to share ratably in such dividends and
distributions in proportion to the number of shares of Common Stock held by such
holder.
SECTION 4.04. Dissolution. Subject to any preferential rights of any
outstanding series of Preferred Stock created by the Board of Directors from
time to time, upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, each holder of outstanding shares
of Common Stock shall be entitled to share ratably in the assets of the
Corporation to be distributed among the holders of shares of Common Stock in
proportion to the number of shares of Common Stock held by such holder.
SECTION 4.05. Preemptive Rights. The holders of shares of Common Stock
shall have no preemptive or preferential rights of subscription to any shares of
any class of capital stock of the Corporation or any securities convertible into
or exchangeable for shares of any class of capital stock of the Corporation.
SECTION 4.06. Preferred Stock. Subject to the terms of any contract to
which the Corporation is bound, the Preferred Stock may be issued, if so
determined by the Board of Directors, either as a class without series or from
time to time in one or more series and with such designation for such class or
such series adopted by the Board of Directors. The Board
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of Directors in any such resolution or resolutions is expressly authorized to
state and express for such class or each such series:
(a) Voting rights, if any, including, without limitation, the authority
to confer multiple votes per share, voting rights as to specified matters or
issues or, subject to the provisions of this Amended and Restated Certificate of
Incorporation, voting rights to be exercised either together with the holders of
Common Stock as a single class, or independently as a separate class;
(b) The rate per annum and the times at and conditions upon which the
holders of shares of such class or series shall be entitled to receive
dividends, the conditions and dates upon which such dividends shall be payable
and whether such dividends shall be cumulative or noncumulative, and, if
cumulative, the terms upon which such dividends shall be cumulative;
(c) Redemption, repurchase, retirement and sinking fund rights,
preferences and limitations, if any, the amount payable on shares of such class
or series in the event of such redemption, repurchase or retirement, the terms
and conditions of any sinking fund, the manner of creating such fund or funds
and whether any of the foregoing shall be cumulative or noncumulative;
(d) The rights to which the holders of the shares of such class or
series shall be entitled upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
(e) The terms, if any, upon which the shares of such class or series
shall be convertible into or exchangeable for shares of stock of any other class
or classes or of any other series of the same or any other class or classes,
including the price or prices or the rate or rates of conversion or exchange and
the terms of adjustment, if any;
(f) Any other designations, preferences and relative, participating,
optional or other special rights and qualifications, limitations or restrictions
thereof insofar as they are not inconsistent with the provisions of this Amended
and Restated Certificate of Incorporation (as it may be amended from time to
time) and to the full extent now or hereafter permitted by the laws of the State
of Delaware; and
(g) All shares of Preferred Stock, if issued as a class without series,
or all shares of the Preferred Stock of any one series, if issued in series,
shall be identical to each other in all respects and shall entitle the holders
thereof to the same rights and privileges, except that shares of any one series
issued at different times may differ as to the dates from which dividends
thereon, if cumulative, shall be cumulative.
ARTICLE V
BOARD OF DIRECTORS
SECTION 5.01. Business. The business and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors, which may
exercise all the powers of the Corporation and do all such lawful acts and
things that are not conferred upon or
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reserved to the stockholders or others by law, by this Amended and Restated
Certificate of Incorporation, by the Bylaws of the Corporation or by any
contract to which the Corporation is bound.
SECTION 5.02. Election. Election of directors need not be by written
ballot unless the Bylaws of the Corporation so provide.
SECTION 5.03. General. The following provisions are inserted for the
management of the business and for the conduct of the affairs of the
Corporation, and for further definition, limitation and regulation of the powers
of its directors and stockholders:
(a) The Bylaws of the Corporation may be altered, amended or repealed
and new Bylaws may be adopted by the affirmative vote of directors constituting
not less than a majority of the total number of directors which the Corporation
would have if there were no vacancies on the Board of Directors.
(b) Prior to the first date on which HNC Software Inc., a Delaware
corporation ("HNC"), and/or its affiliates collectively cease to beneficially
own an aggregate of at least a majority of the then outstanding shares of Common
Stock (the "Trigger Date"), the Board of Directors shall consist of seven (7)
directors. After the Trigger Date, and subject to the rights, if any, of holders
of Preferred Stock the Board of Directors shall consist of not less than three
(3) and not more than ten (10) directors, the exact number of directors to be
determined as set forth in, or in the manner provided in, the Bylaws of the
Corporation. The directors, other than those (if any) who may be elected by the
holders of Preferred Stock voting as a separate class, shall be divided, with
respect to the time they severally hold office, into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as
possible, of one-third of the total number of directors constituting the entire
Board of Directors. The term of the initial Class I directors shall terminate on
the date of the 2000 annual meeting of stockholders; the term of the initial
Class II directors shall terminate on the date of the 2001 annual meeting of
stockholders; and the term of the initial Class III directors shall terminate on
the date of the 2002 annual meeting of stockholders. At each annual meeting of
stockholders, beginning with the 2000 annual meeting of stockholders, successors
to the class of directors whose terms expire at that annual meeting of
stockholders shall be elected for a three year term. The initial Class III
directors shall be Ward Carey, Charles H. Gaylord, Jr. and Alex W. Hart. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the annual meeting of stockholders for the year in which his or her
term expires and until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Subject to the rights, if any, of the holders of Preferred
Stock or the terms of any contract to which the Corporation is bound, any
vacancy on the Board of Directors that results from an increase in the number of
directors and any other vacancy occurring on the Board of Directors, howsoever
resulting, may be filled only by a majority of the remaining members of the
Board of Directors, though less than a quorum, or by the sole remaining
director, and except as otherwise provided by law or the terms of any contract
to which the Corporation is bound, any such vacancy may not be filled by the
stockholders of the Corporation; provided, however, that notwithstanding the
foregoing, for so
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long as HNC has the right to nominate persons for election to the Board of
Directors of the Corporation pursuant to the Corporate Rights Agreement
referenced in Section 13.01 hereof, as such agreement may be amended from time
to time (such nominated persons being hereinafter called "HNC Designees"), if a
vacancy on the Corporation's Board of Directors is caused by the death,
disability, retirement, resignation or removal for cause or otherwise of an HNC
Designee, then HNC shall have the sole right to nominate an individual to fill
such vacancy on the Corporation's Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director's successor shall have
been fully elected and qualified.
(c) Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the Corporation shall have
the right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of this Amended and Restated Certificate of Incorporation (as it may be
amended from time to time) or the resolution or resolutions adopted by the Board
of Directors pursuant to Section 4.06 hereof, and such directors so elected
shall not be divided into classes pursuant to Section 5.03(b) unless expressly
provided by such terms.
(d) Advance notice of stockholder nominations for the election of
directors and of the proposal of business by stockholders shall be given in the
manner provided in the Bylaws of the Corporation, as amended and in effect from
time to time.
(e) Prior to the Trigger Date, any or all of the Directors may be
removed with or without cause at any time by either (i) the vote of the holders
of a majority of the outstanding shares of Common Stock then entitled to vote at
an election of Directors, or (ii) by written consent of the holders of the
Common Stock pursuant to Section 6.01 hereof. After the Trigger Date, any or all
of the Directors may be removed only with cause at any time by vote of the
holders of a majority of the Common Stock then entitled to vote at an election
of Directors.
(f) Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, after the Trigger Date, the
affirmative vote of the holders of at least 80% of the voting power of all
Voting Stock then outstanding, voting together as a single class, shall be
required to amend, repeal or adopt any provision inconsistent with this Article
V.
ARTICLE VI
STOCKHOLDER ACTION
SECTION 6.01. Action By Written Consent. Prior to the Trigger Date, any
corporate action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice, if
a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of the outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation (either by hand or by certified or
registered mail, return
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receipt requested) at its registered office in the State of Delaware or its
principal place of business, or to an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded; provided, however, that effective as of and after the Trigger Date,
unless otherwise required by applicable law, any corporate action required or
permitted to be taken at any annual or special meeting of stockholders may be
taken only at a duly called annual or special meeting of stockholders and may
not be taken by written consent in lieu of such a meeting.
SECTION 6.02. Special Meetings. Effective as of and after the Trigger
Date, unless otherwise prescribed by law and subject to any preferential rights
of any outstanding series of Preferred Stock created by the Board of Directors
from time to time, special meetings of the stockholders of the Corporation for
any purpose or purposes may be called at any time by the Chairman of the Board
of Directors, the President or, at the request in writing of a majority of the
members of the Board of Directors, any officer of the Corporation, and effective
as of and after the Trigger Date, any power of the stockholders of the
Corporation to call a special meeting is specifically denied, provided, however,
that prior to the Trigger Date, the Corporation shall call a special meeting of
the stockholders of the Corporation promptly upon the request of HNC or any of
its affiliates (other than the Corporation or any subsidiary of the
Corporation), in each case if such entity is a stockholder of the Corporation.
SECTION 6.03. Amendment. Notwithstanding anything contained in this
Amended and Restated Certificate of Incorporation to the contrary, after the
Trigger Date, the affirmative vote of the holders of at least 80% of the voting
power of all Voting Stock then outstanding, voting together as a single class,
shall be required to amend, repeal or adopt any provision inconsistent with this
Article VI.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Indemnification. (a) The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
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(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 7.01(a) and (b)
hereof, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under Section 7.01(a) and (b) hereof (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the present or former
director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Section 7.01(a) and (b)
hereof. Such determination shall be made with respect to a person who is a
director or officer at the time of such determination, (i) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) by a committee of such directors designated
by majority vote of such directors, even though less than quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iv) by the stockholders of the
Corporation.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation pursuant to this Article VII. Such expenses (including
attorneys' fees) incurred by former directors and officers or other employees
and agents may be so paid upon such terms and conditions, if any, as the
Corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, other Sections of this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
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(g) For purposes of this Article VII, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article VII with respect to
the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(h) For purposes of this Article VII, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
VII.
(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 7.02. Insurance for Indemnification. The Corporation shall have
the power to purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation has the power to indemnify such person
against such liability under this Article VII or the provisions of Section 145
of the General Corporation Law of the State of Delaware.
ARTICLE VIII
BYLAWS
SECTION 8.01. Amendment of Bylaws. The Bylaws of the Corporation may be
altered, amended or repealed and new Bylaws may be adopted (i) at any annual or
special meeting of stockholders or, to the extent permitted hereby, the written
consent of the stockholders, by the affirmative vote of the holders of a
majority of the voting power of the outstanding Common Stock entitled to vote on
that matter, provided, however, that any proposed alteration, amendment or
repeal of, or the adoption of any Bylaw inconsistent with, Sections 2.02, 2.04,
2.11, 3.02, 3.04 or 3.05 of the Bylaws, by the stockholders shall require the
affirmative vote of the holders of at least 80% of the voting power of all
Common Stock then
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outstanding, voting together as a single class, or (ii) by the affirmative vote
of directors constituting not less than a majority of the total number of
directors which the Corporation would have if there were no vacancies.
Notwithstanding anything contained in this Amended and Restated
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 80% of the outstanding shares of Common Stock shall be
required to amend, repeal or adopt any provision inconsistent with this Article
VIII.
ARTICLE IX
LIMITATION ON LIABILITY OF DIRECTORS
SECTION 9.01. Limitation on Liability. A director of the Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
ARTICLE X
CORPORATE OPPORTUNITIES
SECTION 10.01. Purpose. In anticipation that the Corporation will cease
to be a wholly-owned subsidiary of HNC, but that HNC will remain a substantial
stockholder of the Corporation, and in anticipation that the Corporation and HNC
may engage in the same or similar activities or lines of business and have an
interest in the same areas of corporate opportunities, and in recognition of the
benefits to be derived by the Corporation through its continued contractual,
corporate and business relations with HNC (including possible service of
officers and directors of HNC as officers and/or directors of the Corporation),
the provisions of this Article are set forth to regulate and define the conduct
of certain affairs of the Corporation as they may involve HNC and its officers
and directors, and the powers, rights, duties and liabilities of the Corporation
and its officers, directors and stockholders in connection therewith.
SECTION 10.02. No Duty to Refrain. HNC shall have no duty to refrain
from engaging in the same or similar activities or lines of business as the
Corporation, and neither HNC nor any officer or director thereof (except as
provided in Section 10.03 below) shall be liable for breach of any fiduciary
duty by reason of any such activities of HNC. In the event that HNC acquires
knowledge of a potential transaction or matter which may be a corporate
opportunity for both HNC and the Corporation, HNC shall have no duty to
communicate or offer such corporate opportunity to the Corporation and shall not
be liable for breach of any fiduciary duty as a stockholder of the Corporation
by reason of the fact that HNC pursues or acquires such corporate opportunity
for itself, directs such corporate opportunity to another person, or does not
communicate information regarding such corporate opportunity to the Corporation.
SECTION 10.03. Corporate Opportunities. In the event that a director or
officer of the Corporation who is also a director or officer of HNC acquires
knowledge of a
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potential transaction or matter which may be a corporate opportunity for both
the Corporation and HNC, such director or officer of the Corporation shall have
fully satisfied and fulfilled the fiduciary duty of such director or officer to
the Corporation and its stockholders with respect to such corporate opportunity,
if such director or officer acts in a manner consistent with the following
policy: (i) A corporate opportunity offered to any person who is an officer of
the Corporation, and who is also a director but not an officer of HNC, shall
belong to the Corporation; (ii) a corporate opportunity offered to any person
who is a director but not an officer of the Corporation, and who is also a
director or officer of HNC shall belong to the Corporation if such opportunity
is expressly offered to such person in writing solely in his or her capacity as
a director of the Corporation, and otherwise shall belong to HNC; and (iii) a
corporate opportunity offered to any person who is an officer of both the
Corporation and HNC shall belong to the Corporation if such opportunity is
expressly offered to such person in writing solely in his or her capacity as an
officer of the Corporation, and otherwise shall belong to HNC.
SECTION 10.04. Successors. Any person purchasing or otherwise acquiring
any interest in shares of the capital stock of the Corporation shall be deemed
to have notice of and to have consented to the provisions of this Article.
SECTION 10.05. Definitions. For purposes of this Article only:
(a) A director of the Corporation who is Chairman of the Board of
Directors of the Corporation or of a committee thereof shall not be deemed to be
an officer of the Corporation by reason of holding such position (without regard
to whether such position is deemed an office of the Corporation under the Bylaws
of the Corporation), unless such person is a full-time employee of the
Corporation; and
(b) (1) The term "Corporation" shall mean the Corporation and all
corporations, partnerships, joint ventures, associations and other entities in
which the Corporation beneficially owns (directly or indirectly) 50% or more of
the outstanding voting stock, voting power, partnership interests or similar
voting interests, and (2) the term "HNC," for the purpose of this Article only,
shall mean HNC and all corporations, partnerships, joint ventures, associations
and other entities (other than the Corporation, defined in accordance with
clause (1) of this paragraph Section 10.05(b)) in which HNC beneficially owns
(directly or indirectly) 50% or more of the outstanding voting stock, voting
power, partnership interests or similar voting interests.
SECTION 10.06. Expiration. Notwithstanding anything in this Amended and
Restated Certificate of Incorporation to the contrary, (i) the foregoing
provisions of this Article shall expire on the date that HNC ceases to own
beneficially Common Stock representing at least 25% of the total voting power of
all classes of outstanding Common Stock of the Corporation and no person who is
a director or officer of the Corporation is also a director or officer of HNC;
and (ii) in addition to any vote of the stockholders required by this Amended
and Restated Certificate of Incorporation, until the time that HNC ceases to own
beneficially Common Stock representing at least 25% of the total voting power of
all classes of outstanding Common Stock of the Corporation, the affirmative vote
of the holders of more than 80% of the total voting power of all classes of
outstanding Common Stock of the Corporation shall be required to alter, amend or
repeal in a manner adverse to the interests of HNC, or adopt any provision
adverse to
<PAGE> 11
11
the interests of HNC and inconsistent with, any provision of this
Article. Neither the alteration, amendment or repeal of this Article nor the
adoption of any provision of this Amended and Restated Certificate of
Incorporation inconsistent with this Article shall eliminate or reduce the
effect of this Article in respect of any matter occurring, or any cause of
action, suit or claim that, but for this Article, would accrue or arise, prior
to such alteration, amendment, repeal or adoption.
ARTICLE XI
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
SECTION 11.01. Amendment. Subject to any contract to which the
Corporation is bound, the Corporation reserves the right to amend, alter,
restate, change or repeal an provision contained in this Amended and Restated
Certificate of Incorporation, in the manner now or hereafter prescribed by the
laws of the State of Delaware, and all rights of the stockholders herein are
granted subject to this reservation.
ARTICLE XII
BUSINESS COMBINATIONS
SECTION 12.01. Applicability of Section 203. The Corporation shall not
be and hereby elects not to be governed by Section 203 of the General
Corporation Law of the State of Delaware, as in effect on the date this
provision becomes effective or as it may hereafter be amended ("Section 203"),
until such time as HNC (or any corporation or other entity into which HNC has
merged or consolidated in a statutory merger or consolidation) owns (as defined
by Section 203) less than fifteen percent (15%) of the Corporation's outstanding
voting stock (as defined in Section 203).
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Contracts References. Whenever in this Amended and
Restated Certificate of Incorporation the phrase "any contract to which the
Corporation is bound" or a similar phrase is used, the reference therein to a
contract to which the Corporation is bound shall specifically include, without
limitation, that certain Separation Agreement entered into among the
Corporation, HNC and Retek Information Systems, Inc., as such may be amended
from time to time, and that certain Corporate Rights Agreement among the
Corporation, HNC and Retek Information Systems, Inc., as such may be amended
from time to time, and the contents of such contracts shall be deemed to have
been incorporated herein by reference.
<PAGE> 12
12
This Amended and Restated Certificate of Incorporation shall become
effective at 8:00 a.m. (Wilmington, Delaware time), November 23, 1999.
IN WITNESS WHEREOF, RETEK INC. has caused this certificate to be signed
by John Buchanan, its Chairman and Chief Executive Officer, and attested by
Gregory A. Effertz, its Secretary, on this twenty second day of November, 1999.
RETEK INC.
By:
----------------------------------
Name: John Buchanan
Title: Chairman and Chief
Executive Officer
ATTEST:
- ---------------------------------
Name: Gregory A. Effertz
Title: Secretary
<PAGE> 1
EXHIBIT 3.5
=========================
FORM OF BYLAWS
OF
RETEK INC.
=========================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I - OFFICES..............................................................................................1
SECTION 1.01. Registered Office...................................................................1
SECTION 1.02. Other Offices.......................................................................1
ARTICLE II - STOCKHOLDERS........................................................................................1
SECTION 2.01. Annual Meetings.....................................................................1
SECTION 2.02. Special Meetings....................................................................1
SECTION 2.03. Notice of Meetings..................................................................2
SECTION 2.04. Notice of Stockholder Business and Nominations......................................2
SECTION 2.05. Waiver of Notice....................................................................4
SECTION 2.06. Adjournments........................................................................5
SECTION 2.07. Quorum..............................................................................5
SECTION 2.08. Organization and Conduct of Business................................................5
SECTION 2.09. Proxies and Voting..................................................................5
SECTION 2.10. Inspectors of Election..............................................................6
SECTION 2.11. No Stockholder Action by Written Consent............................................6
ARTICLE III - BOARD OF DIRECTORS.................................................................................6
SECTION 3.01. General Powers......................................................................6
SECTION 3.02. Number and Term of Office...........................................................6
SECTION 3.03. Resignation.........................................................................7
SECTION 3.04. Removal.............................................................................7
SECTION 3.05. Vacancies...........................................................................7
SECTION 3.06. Meetings............................................................................8
SECTION 3.07. Directors' Consent in Lieu of Meeting...............................................9
SECTION 3.08. Action by Means of Telephone or Similar Communications Equipment....................9
SECTION 3.09. Compensation........................................................................9
SECTION 3.10. Reliance upon Books, Reports and Records............................................9
ARTICLE IV - COMMITTEES OF THE BOARD OF DIRECTORS................................................................9
SECTION 4.01. Committees of the Board of Directors................................................9
SECTION 4.02. Audit Committee....................................................................10
SECTION 4.03. Compensation Committee.............................................................10
SECTION 4.04. Rules and Procedures...............................................................10
SECTION 4.05. Application of Article.............................................................10
ARTICLE V - OFFICERS............................................................................................11
SECTION 5.01. Officers...........................................................................11
SECTION 5.02. Chairman of the Board of Directors.................................................11
SECTION 5.03. Chief Executive Officer............................................................11
SECTION 5.04. President..........................................................................11
SECTION 5.05. Senior Vice Presidents and Vice Presidents.........................................12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
SECTION 5.06. Treasurer and Assistant Treasurer..................................................12
SECTION 5.07. Secretary and Assistant Secretary..................................................12
SECTION 5.08. Assistant Vice Presidents and Other Officers.......................................13
SECTION 5.09. General Counsel....................................................................13
SECTION 5.10. Salaries...........................................................................13
SECTION 5.11. Vacancies..........................................................................13
SECTION 5.12. Removal or Discharge...............................................................13
SECTION 5.13. Resignations.......................................................................13
ARTICLE VI - CHECKS, DRAFTS, NOTES, AND PROXIES.................................................................13
SECTION 6.01. Checks, Drafts and Notes...........................................................13
SECTION 6.02. Execution of Proxies...............................................................14
ARTICLE VII - SHARES AND TRANSFERS OF SHARES....................................................................14
SECTION 7.01. Certificates Evidencing Shares.....................................................14
SECTION 7.02. Stock Ledger.......................................................................14
SECTION 7.03. Transfers of Shares................................................................14
SECTION 7.04. Addresses of Stockholders..........................................................14
SECTION 7.05. Lost, Destroyed and Mutilated Certificates.........................................15
SECTION 7.06. Regulations........................................................................15
SECTION 7.07. Fixing Date for Determination of Stockholders of Record............................15
SECTION 7.08. Record of Holder of Shares.........................................................15
ARTICLE VIII - SEAL.............................................................................................15
SECTION 8.01. Seal...............................................................................15
ARTICLE IX - FISCAL YEAR........................................................................................16
SECTION 9.01. Fiscal Year........................................................................16
ARTICLE X - INDEMNIFICATION AND INSURANCE.......................................................................16
SECTION 10.01. Indemnification....................................................................16
SECTION 10.02. Insurance for Indemnification......................................................18
ARTICLE XI - MISCELLANEOUS......................................................................................18
SECTION 11.01. Notices and Waivers Thereof........................................................18
SECTION 11.02. Audits.............................................................................18
ARTICLE XII - AMENDMENTS........................................................................................19
SECTION 12.01. Amendments.........................................................................19
</TABLE>
ii
<PAGE> 4
FORM OF BYLAWS
OF
RETEK INC.
ARTICLE I
OFFICES
SECTION 1.01. Registered Office. The registered office of Retek Inc.
(the "Corporation") in the State of Delaware shall be at the principal office of
The Corporation Trust Company in the City of Wilmington, County of New Castle,
and the registered agent in charge thereof shall be The Corporation Trust
Company.
SECTION 1.02. Other Offices. The Corporation may also have an office or
offices at any other place or places within or without the State of Delaware as
the Board of Directors of the Corporation (the "Board of Directors") may from
time to time determine or the business of the Corporation may from time to time
require.
ARTICLE II
STOCKHOLDERS
SECTION 2.01. Annual Meetings. The annual meeting of stockholders of
the Corporation for the election of directors of the Corporation ("Directors"),
and for the transaction of such other business as may properly come before such
meeting, shall be held at such place, date and time as shall be fixed by the
Board of Directors and designated in the notice or waiver of notice of such
annual meeting; provided, however, that no annual meeting of stockholders need
be held if all actions, including the election of Directors, required by the
General Corporation Law of the State of Delaware (the "General Corporation Law")
to be taken at such annual meeting are taken by written consent in lieu of
meeting pursuant to Section 2.09 hereof.
SECTION 2.02. Special Meetings. Unless otherwise prescribed by law or
by the Corporation's Amended and Restated Certificate of Incorporation, as
amended from time to time (the "Charter"), and subject to any preferential
rights of any outstanding series of Preferred Stock (as defined in the Charter),
special meetings of stockholders of the Corporation for any purpose or purposes
may be called only by the Chairman of the Board of Directors, the President, or,
at the request in writing of a majority of the Board of Directors, any officer.
Such request shall state the purpose or purposes of the proposed meeting. In
addition, prior to the first date on which HNC Software Inc., a Delaware
corporation ("HNC"), and/or its affiliates collectively cease to beneficially
own an aggregate of at least a majority of the then outstanding shares of common
stock, par value $0.01 per share ("Common Stock"), of the Corporation (the
"Trigger Date"), the Corporation shall call a special meeting of stockholders of
the Corporation promptly upon the request of HNC or any of its affiliates (other
than the Corporation or any subsidiary of the Corporation), in each case if such
entity is a stockholder of the Corporation.
<PAGE> 5
2
SECTION 2.03. Notice of Meetings. (a) Except as otherwise provided by
law, written notice of each annual or special meeting of stockholders stating
the place, date and time of such meeting and, in the case of a special meeting,
the purpose or purposes for which such meeting is to be held, shall be given
personally or by first-class mail (airmail in the case of international
communications) to each stockholder of record (a "Stockholder") entitled to vote
thereat, not less than 10 nor more than 60 calendar days before the date of such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to the Stockholder at such
Stockholder's address as it appears on the records of the Corporation. If, prior
to the time of mailing, the Secretary of the Corporation (the "Secretary") shall
have received from any Stockholder a written request that notices intended for
such Stockholder are to be mailed to some address other than the address that
appears on the records of the Corporation, notices intended for such Stockholder
shall be mailed to the address designated in such request. Any previously
scheduled meeting of the stockholders not called at the request of HNC may be
postponed, and any special meeting of the stockholders not called at the request
of HNC may be canceled, by resolution of the Board of Directors upon public
notice given prior to the date previously scheduled for such meeting of
stockholders. Any previously scheduled meeting of the stockholders called at the
request of HNC may be postponed or canceled, upon the written consent of HNC, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 2.04. Notice of Stockholder Business and Nominations.
(a) Annual Meetings of Stockholders.
(i) Nominations of persons for election to the Board of Directors
and the proposal of business to be considered by the stockholders may be
made at an annual meeting of stockholders (A) pursuant to the Corporation's
notice of meeting delivered pursuant to Section 2.03 of this Article II, (B)
by or at the direction of the Board of Directors, (C) by any stockholder of
the Corporation who was a stockholder of record at the time of the giving of
the notice provided for in this Section 2.04, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this
Section 2.04, or (D) prior to the Trigger Date, by HNC or any of its
affiliates that is a stockholder of the Corporation without the need to
comply with the procedures set forth in this Section 2.04.
(ii) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(i) of this Section 2.04, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation and such other
business must be a proper subject for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than sixty (60) days nor more
than ninety (90) days 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 advanced by more than thirty (30) days or delayed by more
than sixty (60) days from such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the ninetieth (90th) day
prior to such annual meeting and not later than the close of business on the
later of the sixtieth (60th) day prior to such annual meeting or the
<PAGE> 6
3
tenth day following the day on which public announcement of the date of such
meeting is first made by the Corporation. For purposes of determining
whether a stockholder's notice shall have been delivered in a timely manner
for the annual meeting of stockholders in 2000, the first anniversary of the
previous year's meeting shall be deemed to be [ ], 1999. In no event shall
the public announcement of an adjournment of an annual meeting commence a
new time period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth (A) with respect to each person
whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14a-11 thereunder (including such person's written
consent to being named in the proxy statement as a nominee and to serving as
a director if elected); (B) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal
is made; and (C) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made, (1) the
name and address of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner and (2) the class and number of shares
of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(iii) Notwithstanding anything in the second sentence of paragraph
(a)(ii) of this Section 2.04 to the contrary, in the event that the number
of directors to be elected to the Board of Directors 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 made by
the Corporation at least seventy (70) days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by
paragraph (a)(ii) of this Section 2.04 shall also be considered timely, but
only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on
the tenth day following the day on which such public announcement is first
made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Section
4 of this Article II. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (i) by or at
the direction of the Board of Directors, (ii) by any stockholder of the
Corporation who was a stockholder of record at the time of the giving of the
notice provided for in this Section 2.04, who is entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 2.04, or
(iii) prior to the Trigger Date, by HNC, or any of its affiliates that is a
stockholder of the Corporation. In the event that the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, (A) prior to the Trigger Date, HNC may
nominate any person or persons for election to the
<PAGE> 7
4
Board of Directors at, or at any time prior to, such special meeting of
stockholders, or (B) any stockholder may nominate such person or persons (as the
case may be), for election to the Board of Directors at such special
stockholders' meeting, if the stockholder's notice required by paragraph (a)(ii)
of this Section 2.04 shall be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation not earlier than the
ninetieth day prior to such special meeting and not later than the close of
business on the later of the sixtieth day prior to such special meeting or the
tenth day following the day on which public announcement by the Corporation 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.
(c) General.
(i) Only persons who are nominated in accordance with the procedures
set forth in this Section 2.04 shall be eligible to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set
forth in this Section 2.04. Except as otherwise provided by law, the Charter
or these Bylaws, the chairman of the meeting shall have the power and duty
to determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with this Section 2.04 and, if any
proposed nomination or business is not in compliance with this Section 2.04,
to declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of this Section 2.04, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this Section 2.04,
for so long as the Corporation is subject to the reporting requirements of
the Exchange Act, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder
applicable to such stockholder with respect to the matters set forth in this
Section 2.04. Nothing in this Section 2.04 shall be deemed to affect any
rights (A) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act
or (B) of the holders of any series or Preferred Stock to elect directors.
SECTION 2.05. Waiver of Notice. Notice of any annual or special meeting
of Stockholders need not be given to any Stockholder who files a written waiver
of notice with the Secretary, signed by the person entitled to notice, whether
before or after such meeting. Neither the business to be transacted at, nor the
purpose of, any meeting of Stockholders need be specified in any written waiver
of notice thereof. Attendance of a Stockholder at a meeting, in person or by
proxy, shall constitute a waiver of notice of such meeting, except when such
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the grounds that
the notice of such meeting was inadequate or improperly given.
<PAGE> 8
5
SECTION 2.06. Adjournments. Whenever a meeting of Stockholders, annual
or special, is adjourned to another date, time or place, notice need not be
given of the adjourned meeting if the date, time and place thereof are announced
at the meeting at which the adjournment is taken. If the adjournment is for more
than 30 days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
Stockholder entitled to vote thereat. At the adjourned meeting, any business may
be transacted which might have been transacted at the original meeting.
SECTION 2.07. Quorum. Except as otherwise provided by law or in the
Charter, the holders of a majority of the voting power of all outstanding shares
of the Corporation entitled to vote generally in the election of directors (the
"Voting Stock"), present in person or by proxy, shall constitute a quorum for
the transaction of business at all meetings of Stockholders, whether annual or
special, except that, if required by law or pursuant to the provisions of the
Charter, when specified business is to be voted on by a class or series of stock
voting as a class, the holders of a majority of the shares of such class or
series shall constitute a quorum of such class or series for the transaction of
such business. If, however, such quorum shall not be present in person or by
proxy at any meeting of Stockholders, the person serving as chairman of the
meeting or the holders of a majority in interest of the stockholders present in
person or by proxy and who are entitled to vote on every matter that is to be
voted on without regard to class at such meeting may adjourn the meeting from
time to time in accordance with Section 2.07 hereof until a quorum shall be
present in person or by proxy.
SECTION 2.08. Organization and Conduct of Business. The Chairman of the
Board of Directors shall act as chairman of meetings of the stockholders. The
Board of Directors may designate any other officer or director of the
Corporation to act as chairman of any meeting in the absence of the Chairman of
the Board of Directors, and the Board of Directors may further provide for
determining who shall act as chairman of any stockholder's meeting in the
absence of the Chairman of the Board of Directors and such designee. The person
serving as chairman of any meeting of stockholders shall determine the order of
business and the procedure at the meeting, including such regulation of the
manner of voting and the conduct of discussion as seem to him or her in order.
The Secretary of the Corporation shall act as secretary of all meetings
of the stockholders, but in the absence of the Secretary the presiding officer
may appoint any other person to act as secretary of any meeting.
SECTION 2.09. Proxies and Voting. At any meeting of Stockholders, every
Stockholder entitled to vote may vote in person or by proxy authorized by an
instrument executed in writing (or in such manner prescribed by the General
Corporation Law of the State of Delaware) by the Stockholder, or by such
person's duly authorized attorney in fact. Election of Directors at all meetings
of the Stockholders at which Directors are to be elected need not be by written
ballot, and, subject to the rights of the holders of any series of Preferred
Stock to elect Directors, a plurality of the votes cast thereat shall elect
directors. Except as otherwise provided by law, the Charter and these Bylaws and
subject to the rights of the holders of any series of Preferred Stock, in all
matters other than the election of Directors, the affirmative vote of a majority
of the voting power of the outstanding shares present in person or represented
by proxy at the meeting and entitled to vote on the matter shall be the act of
the Stockholders.
<PAGE> 9
6
SECTION 2.10. Inspectors of Election. The Board of Directors may, and
to the extent required by law, shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting, decide upon the
qualification of voters, count the votes, decide the results and make a written
report thereof in accordance with the General Corporation Law of the State of
Delaware. The Board of Directors may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector(s)
shall have the duties prescribed by law.
SECTION 2.11. Action by Written Consent. Prior to the Trigger Date, any
corporate action required or permitted to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice, if
a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted and
shall be delivered to the Corporation (either by hand or by certified or
registered mail, return receipt requested) at its registered office in the State
of Delaware or its principal place of business, or to an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded; provided, however, that effective as of and after the
Trigger Date, unless otherwise required by applicable law, any corporate action
required or permitted to be taken at any annual or special meeting of
stockholders may be taken only at a duly called annual or special meeting of
stockholders and may not be taken by written consent in lieu of such a meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. General Powers. The business and affairs of the
Corporation shall be managed or under the direction of the Board of Directors,
which may exercise all such powers of the Corporation and do all such lawful
acts and things that are not conferred upon or reserved to the stockholders or
others by law, the Charter, these Bylaws or by any contract to which the
Corporation is bound.
SECTION 3.02. Number and Term of Office. Prior to the Trigger Date, the
Board of Directors shall consist of seven (7) directors. After the Trigger Date,
and subject to the rights, if any, of holders of Preferred Stock, the number of
Directors of the Corporation shall be fixed from time to time exclusively by
resolution of the Board of Directors adopted by the affirmative vote of
directors constituting not less than a majority of the Whole Board (as defined
below), but shall consist of not less than three (3) nor more than ten (10)
directors. The directors, other than those (if any) who may be elected by the
holders of Preferred Stock voting as a separate class, shall be divided, with
respect to the time they severally hold office, into three classes, designated
Class I, Class II and Class III. Each class shall consist, as nearly as
possible, of one-third of the total number of directors constituting the entire
Board of Directors. The term of the initial Class I directors shall terminate on
the date of the 2000 annual meeting of
<PAGE> 10
7
stockholders; the term of the initial Class II directors shall terminate on the
date of the 2001 annual meeting of stockholders; and the term of the initial
Class III directors shall terminate on the date of the 2002 annual meeting of
stockholders. At each annual meeting of stockholders, beginning with the 2000
annual meeting of stockholders, successors to the class of directors whose terms
expire at that annual meeting of stockholders shall be elected for a three year
term. The initial Class III directors shall be Ward Carey, Charles H. Gaylord,
Jr. and Alex W. Hart. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain the number of
directors in each class as nearly equal as possible, but in no case will a
decrease in the number of directors shorten the term of any incumbent director.
A director shall hold office until the annual meeting of stockholders for the
year in which his or her term expires and until his or her successor shall be
elected and shall qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office.
For purposes of these Bylaws, the term "Whole Board" shall mean the
total number of Directors that the Corporation would have if there were no
vacancies on the Corporation's Board of Directors.
SECTION 3.03. Resignation. Any Director may resign at any time by
giving written notice to the Board, the Chairman of the Board of the Corporation
(the "Chairman") or the Secretary. Such resignation shall take effect at the
time specified in such notice or, if the time be not specified, upon receipt
thereof by the Board, the Chairman or the Secretary, as the case may be. Unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
SECTION 3.04. Removal. Prior to the Trigger Date, any or all of the
Directors may be removed with or without cause at any time by either (i) the
vote of the holders of a majority of the outstanding shares of Voting Stock, or
(ii) by written consent of the holders of the Voting Stock pursuant to Section
2.11 hereof. After the Trigger Date, any or all of the Directors may be removed
only with cause at any time by vote of the holders of a majority of the Voting
Stock.
SECTION 3.05. Vacancies. Subject to the rights, if any, of holders of
Preferred Stock or the terms of any contract to which the Corporation is bound,
any vacancy on the Board of Directors that results from an increase in the
number of directors and any other vacancy occurring on the Board of Directors,
howsoever resulting, may be filled by the affirmative vote of a majority of the
remaining members of the Board of Directors, though less than a quorum, or by
the sole remaining director, and except as otherwise provided by law or the
terms of any contract to which the Corporation is bound, any such vacancy may
not be filled by the stockholders of the Corporation; provided, however, that
notwithstanding the foregoing, for so long as HNC has the right to nominate
persons for election to the Board of Directors of the Corporation pursuant to
the Corporate Rights Agreement referenced in Section 13.01 hereof, as such
agreement may be amended from time to time (such nominated persons being
hereinafter called "HNC Designees"), if a vacancy on the Corporation's Board of
Directors is caused by the death, disability, retirement, resignation or removal
for cause or otherwise of an HNC Designee, then HNC shall have the sole right to
nominate an individual to fill such vacancy on the Corporation's Board of
Directors. Any Director elected in accordance with the preceding sentence shall
hold office for the remainder of the full term of the class of directors in
which the
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8
new directorship was created or the vacancy occurred and until such
director's successor shall have been duly elected and qualified.
SECTION 3.06. Meetings. (a) Regular Meetings. Regular meetings of the
Board of Directors may be held at such place, either inside or outside of the
State of Delaware, and at such time, as may from time to time be designated by
the Chairman of the Board of Directors or resolution of the Board of Directors
or as may be specified in the call of any meeting. An annual meeting of the
Board of Directors shall be held on the same day as, and as soon as practicable
following, the annual meeting of stockholders or at such other time or place as
shall be determined by the Board of Directors at its regular meeting next
preceding said annual meeting of stockholders.
(b) Special Meetings. Special meetings of the Board of Directors may be
held at any time on the call of the Chairman of the Board of Directors, the
Chief Executive Officer or a majority of the Board of Directors then in office.
The person or persons authorized to call special meetings of the Board of
Directors may fix the time and place of the meetings. Meetings may be held at
any time or place without notice if all the directors are present or if those
not present waive notice of the meeting in writing.
(c) Notice of Meetings. The Secretary shall give written notice to each
Director of each meeting of the Board of Directors, which notice shall state the
place, date, time and purpose of such meeting. Notice of each such meeting shall
be given to each Director, if by mail, addressed to him at his residence or
usual place of business, at least two days before the day on which such meeting
is to be held, or shall be sent to him at such place by telecopy, telegraph,
cable, or other form of recorded communication, or be delivered personally or by
telephone not later than the day before the day on which such meeting is to be
held. A written waiver of notice, signed by the Director entitled to notice,
whether before or after the time of the meeting referred to in such waiver,
shall be deemed equivalent to notice. Neither the business to be transacted at,
nor the purpose of any meeting of the Board of Directors need be specified in
any written waiver of notice thereof. Attendance of a Director at a meeting of
the Board of Directors shall constitute a waiver of notice of such meeting,
except as provided by law.
(d) Place of Meetings. The Board of Directors may hold its meetings at
such place or places within or without the State of Delaware as the Board of
Directors or the Chairman of the Board of Directors may from time to time
determine, or as shall be designated in the respective notices or waivers of
notice of such meetings.
(e) Quorum and Manner of Acting. Subject to Section 2.04, a whole
number of Directors equal to at least a majority of the Whole Board shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board of Directors there shall be less than a quorum present, a majority of
the directors present may adjourn the meeting from time to time without further
notice. Subject to the terms of any contract to which the Corporation is bound,
the act of a majority of the Directors present at a meeting at which a quorum of
the Board of Directors is present shall be the act of the Board of Directors.
The Directors present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough Directors
to leave less than a quorum.
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9
SECTION 3.07. Directors' Consent in Lieu of Meeting. Any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by all the members of the Board of Directors or such committee
and such consent is filed with the minutes of the proceedings of the Board of
Directors or such committee.
SECTION 3.08. Action by Means of Telephone or Similar Communications
Equipment. Any one or more members of the Board of Directors, or of any
committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
SECTION 3.09. Compensation. Unless otherwise restricted by the Charter,
the Board of Directors may determine the compensation of Directors. In addition,
as determined by the Board of Directors, Directors may be reimbursed by the
Corporation for their expenses, if any, in the performance of their duties as
Directors. No such compensation or reimbursement shall preclude any Director
from serving the Corporation in any other capacity and receiving compensation
therefor.
SECTION 3.10. Reliance upon Books, Reports and Records. Each Director,
each member of any committee designated by the Board of Directors and each
officer, in the performance of his or her duties, shall be fully protected in
relying in good faith upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or by
committees of the Board of Directors, or by any other person, as to matters such
Director, member or officer, as the case may be, reasonably believes are within
such person's professional or expert competence and who has been selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Corporation.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 4.01. Committees of the Board of Directors. There are hereby
established as committees of the Board of Directors an Audit Committee and a
Compensation Committee, each of which shall have the powers and functions set
forth in Sections 2 and 3 hereof, respectively, and such additional powers as
may be delegated to it by the Board of Directors. The Board of Directors may
from time to time establish additional standing committees or special committees
of the Board of Directors, each of which shall have such powers and functions as
may be delegated to it by the Board of Directors. The Board of Directors may
abolish any committee established by or pursuant to this Section 1 as it may
deem advisable. Each such committee shall consist of two or more directors, the
exact number being determined from time to time by the Board of Directors.
Designations of the chairman and members of each such committee, and, if
desired, a vice chairman and alternates for members, shall be made by the Board
of Directors. In the absence or disqualification of any member of any committee
and any alternate member in his or her place, the member or members of the
<PAGE> 13
10
committee present at the meeting and not disqualified from voting whether or not
he or she or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member. Each committee shall have a secretary who shall
be designated by its chairman. A vice chairman of a committee shall act as the
chairman of the committee in the absence or disability of the chairman. Nothing
herein shall be deemed to prevent the Board of Directors from appointing one or
more committees consisting in whole or in part of persons who are not directors
of the Corporation; provided, however, that no such committee shall have or may
exercise any authority of the Board of Directors.
SECTION 4.02. Audit Committee. The Audit Committee shall select and
engage, on behalf of the Corporation, independent public accountants to (a)
audit the books of account and other corporate records of the Corporation and
(b) perform such other duties as the Audit Committee may from time to time
prescribe. The Audit Committee shall transmit financial statements certified by
such independent public accountants to the Board of Directors after the close of
each fiscal year. The selection of independent public accountants for each
fiscal year shall be made in advance of the annual meeting of stockholders in
such fiscal year and shall be submitted for ratification or rejection at such
meeting. The Audit Committee shall confer with such accountants and review and
approve the scope of the audit of the books of account and other corporate
records of the Company. The Audit Committee shall have the power to confer with
and direct the officers of the Corporation to the extent necessary to review the
internal controls, accounting practices, financial structure and financial
reporting of the Corporation. From time to time the Audit Committee shall report
to and advise the Board of Directors concerning the results of its consultation
and review and such other matters relating to the internal controls, accounting
practices, financial structure and financial reporting of the Corporation as the
Audit Committee believes merit review by the Board of Directors. The Audit
Committee also shall perform such other functions and exercise such other powers
as may be delegated to it from time to time by the Board of Directors.
SECTION 4.03. Compensation Committee. The Compensation Committee shall
fix from time to time the salaries of members of the Board of Directors who are
officers or employees of the Corporation and of all Senior Vice Presidents and
Vice Presidents of the Corporation. It also shall perform such functions as may
be delegated to it under the provisions of any bonus, supplemental compensation,
special compensation or stock option plan of the Corporation.
SECTION 4.04. Rules and Procedures. Each committee may fix its own
rules and procedures and shall meet at such times and places as may be provided
by such rules, by resolution of the committee or by call of the chairman or vice
chairman of such committee. Notice of meeting of each committee, other than of
regular meetings provided for by its rules or resolutions, shall be given to
committee members. The presence of a majority of its members, but not less than
two, shall constitute a quorum of any committee, and all questions shall be
decided by a majority vote of the members present at the meeting. All action
taken at each committee meeting shall be recorded in minutes of the meeting.
SECTION 4.05. Application of Article. Whenever any provision of any
other document relating to any committee of the Corporation named therein shall
be in conflict with
<PAGE> 14
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any provision of this Article IV, the provisions of this Article IV shall
govern, except that if such other document shall have been approved by the
stockholders or by the Board of Directors, the provisions of such other document
shall govern.
ARTICLE V
OFFICERS
SECTION 5.01. Officers. The officers of the Company may include a
Chairman of the Board of Directors, who shall be chosen from among the
directors, a Chief Executive Officer, a President, a Chief Financial Officer,
one or more Senior Vice Presidents, one or more Vice Presidents, a Treasurer, a
General Counsel and a Secretary, each of whom shall be elected by the Board of
Directors to hold office until his or her successor shall have been chosen and
shall have qualified. The Board of Directors, the Chairman of the Board of
Directors, the Chief Executive Officer and the President may elect or appoint
one or more Controllers, one or more Assistant Vice Presidents, one or more
Assistant Treasurers, one or more Assistant General Counsels and one or more
Assistant Secretaries, and the Board of Directors may elect or appoint such
other officers as it may deem necessary, or desirable, each of whom shall have
such authority, shall perform such duties and shall hold office for such term as
may be prescribed by the Board of Directors from time to time. Any person may
hold at one time more than one office, excepting that the duties of the
President and Secretary shall not be performed by one person.
SECTION 5.02. Chairman of the Board of Directors. The Chairman of the
Board of Directors shall have ultimate authority for decisions relating to the
general management and control of the affairs and business of the Corporation,
subject to the control of the Board of Directors, and shall see that all orders
and resolutions of the Board of Directors are carried into effect. The Chairman
of the Board of Directors shall perform all other duties and exercise all other
powers commonly incident to the office of Chairman or which are or from time to
time may be delegated to him or her by the Board of Directors, or which are or
may at any time be authorized or required by law. He or she shall preside at all
meetings of the Board of Directors and shall make reports to the Board of
Directors and stockholders. The Chairman of the Board may also serve as Chief
Executive Officer, if so elected by the Board of Directors. The Board of
Directors may also elect a Vice-Chairman to act in the place of the Chairman
upon his or her absence or inability to act.
SECTION 5.03. Chief Executive Officer. Subject to the provisions of
these Bylaws and to the direction of the Board of Directors and the Chairman of
the Board of Directors, the Chief Executive Officer shall exercise supervision
over the business of the Corporation and over its several officers, subject to
the oversight of the Chairman of the Board of Directors, and shall exercise all
other powers commonly incident of the office of Chief Executive Officer or which
are or from time to time may be delegated to him or her by the Board of
Directors, or which are or may at any time be authorized or required by law.
SECTION 5.04. President. Subject to the provisions of these Bylaws and
to the direction of the Board of Directors, the Chairman of the Board of
Directors and of the Chief Executive Officer, the President shall have such
powers and shall perform such duties as from time to time may be delegated to
him or her by the Board of Directors, the Chairman of the
<PAGE> 15
12
Board of Directors or by the Chief Executive Officer, or which are or may at any
time be authorized or required by law.
SECTION 5.05. Senior Vice Presidents and Vice Presidents. Each of the
Senior Vice Presidents and each of the other Vice Presidents shall have such
powers and shall perform such duties as may be delegated to him or her by the
Board of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer, the President or such other officer or officers to whom he or she is
directly responsible.
SECTION 5.06. Treasurer and Assistant Treasurer. The Treasurer, subject
to the direction of the Board of Directors, shall have the care and custody of
all funds and securities of the Corporation. When necessary or proper he or she
shall endorse on behalf of the Corporation, for collection, checks, notes and
other obligations, and shall deposit all funds of the Corporation in such banks
or other depositaries as may be designated by the Board of Directors or by such
officers or employees as may be authorized by the Board of Directors so to
designate. He or she shall perform all acts incident to the office of Treasurer,
subject to the control of the Board of Directors and such other officer or
officers to whom he or she is directly responsible. He or she may be required to
give a bond for the faithful discharge of his or her duties, in such sum and
upon such conditions as the Board of Directors may require.
At the request and direction of the Treasurer or, in the case of his or
her absence or inability to act, any Assistant Treasurer may act in his or her
place. In the case of the death of the Treasurer, or in the case of his or her
absence or inability to act without having designated an Assistant Treasurer to
act temporarily in his or her place, the Assistant Treasurer so to perform the
duties of the Treasurer shall be designated by the Chairman of the Board of
Directors, the Chief Executive Officer, the President or a Senior Vice
President.
SECTION 5.07. Secretary and Assistant Secretary. The Secretary shall
keep full and accurate minutes of the meetings of the stockholders and of the
Board of Directors in the proper record book of the Corporation provided
therefor, and, when required, the minutes of meetings of the committees, and
shall be responsible for the custody of all such minutes. Subject to the
direction of the Board of Directors, the Secretary shall have custody of the
stock ledgers and documents of the Corporation. He or she shall have custody of
the corporate seal of the Corporation and shall affix and attest such seal to
any instrument whose execution under seal shall have been duly authorized. He or
she shall give due notice of meetings and, subject to the direction of the Board
of Directors, shall perform all other duties commonly incident to his or her
office or as properly required of him or her by the Chairman of the Board of
Directors and such other officer or officers to whom he or she is directly
responsible and shall enjoy all other powers commonly incident to his or her
office.
At the request and direction of the Secretary or, in the case of his or
her absence or inability to act, any Assistant Secretary may act in his or her
place. In the case of the death of the Secretary, or in the case of his or her
absence or inability to act without having designated an Assistant Secretary to
act temporarily in his or her place, the Assistant Secretary or other person so
to perform the duties of the Secretary shall be designated by the Chairman of
the Board of Directors, the President or an Executive Vice President.
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SECTION 5.08. Assistant Vice Presidents and Other Officers. Each
assistant vice president and other officers shall perform such duties commonly
incident to his or her office or as properly required of him or her by the
Chairman of the Board of Directors and such other officer or officers to whom he
or she is directly responsible.
SECTION 5.09. General Counsel. The General Counsel shall have general
supervision of all matters of a legal nature concerning the Corporation. He or
she shall perform all such duties commonly incident to his or her office or as
properly required of him or her by the Chairman of the Board of Directors and
such other officer or officers to whom he or she is directly responsible.
SECTION 5.10. Salaries. Salaries of officers, agents or employees shall
be fixed from time to time by the Board of Directors or by such committee or
committees, or person or persons, if any, to whom such power shall have been
delegated by the Board of Directors. An employment contract, whether with an
officer, agent or employee, if expressly approved or specifically authorized by
the Board of Directors, may fix a term of employment thereunder; and such
contract, if so approved or authorized, shall be valid and binding upon the
Corporation in accordance with the terms thereof, provided that this provision
shall not limit or restrict in any way the right of the Corporation at any time
to remove from office, discharge or terminate the employment of any such
officer, agent or employee prior to the expiration of the term of employment
under any such contract.
SECTION 5.11. Vacancies. A vacancy in any office filled by election of
the Board of Directors may be filled by the Board of Directors by the election
of a new officer who shall hold office, subject to the provisions of this
Article V, until the regular meeting of the directors following the next annual
meeting of the stockholders and until his or her successor is elected.
SECTION 5.12. Removal or Discharge. Any officer may be removed or
discharged by the Chairman of the Board of Directors at any time excepting an
officer who is also a director. Any officer who also is a director may be
discharged as an officer at any time by the Board of Directors.
SECTION 5.13. Resignations. Any officer of the Corporation, whether
elected or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board of Directors, the Chief Executive
Officer, the President, or the Secretary, and such resignation shall be deemed
effective as of the close of business on the date said notice is received by the
Chairman of the Board of Directors, the Chief Executive Officer, the President,
or the Secretary, or at such later time as is specified therein. No formal
action shall be required of the Board of Directors or the stockholders to make
any such resignation effective.
ARTICLE VI
CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 6.01. Checks, Drafts and Notes. All checks, drafts and other
orders for the payment of money, notes and other evidences of indebtedness
issued in the name of the
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Corporation shall be signed by such officer or officers, agent or agents of the
Corporation and in such manner as shall be determined, from time to time, by
resolution of the Board.
SECTION 6.02. Execution of Proxies. The Chairman of the Board of
Directors, the Chief Executive Officer, or the President, or, in the absence or
disability of both of them, any Senior Vice President or Vice President, may
authorize, from time to time, the execution and issuance of proxies to vote
shares of stock or other securities of other corporations held of record by the
Corporation and the execution of consents to action taken or to be taken by any
such corporation. All such proxies and consents, unless otherwise authorized by
the Board, shall be signed in the name of the Corporation by the Chairman of the
Board of Directors, the Chief Executive Officer, the President or any Vice
President.
ARTICLE VII
SHARES AND TRANSFERS OF SHARES
SECTION 7.01. Certificates Evidencing Shares. Shares shall be evidenced
by certificates in such form or forms as shall be approved by the Board of
Directors. Certificates shall be issued in consecutive order and shall be
numbered in the order of their issue, and shall be signed by the Chairman, the
Chief Executive Officer, the President or any Vice President and by the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer.
Any and all signatures on the certificate may be a facsimile. In the event any
such officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to hold such office or to be employed by the
Corporation before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such officer had held such office on
the date of issue.
SECTION 7.02. Stock Ledger. A stock ledger in one or more counterparts
shall be kept by the Secretary, in which shall be recorded the name and address
of each person, firm or corporation owning the Shares evidenced by each
certificate evidencing Shares issued by the Corporation, the number of Shares
evidenced by each such certificate, the date of issuance thereof and, in the
case of cancellation, the date of cancellation. Except as otherwise expressly
required by law, the person in whose name Shares stand on the stock ledger of
the Corporation shall be deemed the owner and recordholder thereof for all
purposes.
SECTION 7.03. Transfers of Shares. Registration of transfers of Shares
shall be made only in the stock ledger of the Corporation upon request of the
registered holder of such shares, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, and upon the
surrender of the certificate or certificates evidencing such Shares properly
endorsed or accompanied by a stock power duly executed, together with such proof
of the authenticity of signatures as the Corporation or its agents may
reasonably require.
SECTION 7.04. Addresses of Stockholders. Each Stockholder shall
designate to the Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to such Stockholder, and, if any
Stockholder shall fail to so designate such an address, corporate notices may be
served upon such Stockholder by mail directed to the mailing address, if any, as
the same appears in the stock ledger of the Corporation or at the last known
mailing address of such Stockholder.
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SECTION 7.05. Lost, Destroyed and Mutilated Certificates. Each
recordholder of Shares shall promptly notify the Corporation of any loss,
destruction or mutilation of any certificate or certificates evidencing any
Share or Shares of which he is the recordholder. The Board of Directors may, in
its discretion, cause the Corporation to issue a new certificate in place of any
certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon the surrender of the mutilated certificate or, in the
case of loss, theft or destruction of the certificate, upon satisfactory proof
of such loss, theft or destruction, and the Board of Directors or any financial
officer of the Corporation may, in its discretion, require the recordholder of
the Shares evidenced by the lost, stolen or destroyed certificate or his legal
representative to give the Corporation a bond sufficient to indemnify the
Corporation against any claim made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
SECTION 7.06. Regulations. The Board of Directors may make such other
rules and regulations as it may deem expedient, not inconsistent with these
Bylaws, concerning the issue, transfer and registration of certificates
evidencing Shares.
SECTION 7.07. Fixing Date for Determination of Stockholders of Record.
In order that the Corporation may determine the Stockholders entitled to notice
of or to vote at any meeting of Stockholders or any adjournment thereof, or to
express consent to, or to dissent from, corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than 60 nor less than 10 days before the date of such meeting, nor
more than 60 days prior to any other such action. A determination of the
Stockholders entitled to notice of or to vote at a meeting of Stockholders shall
apply to any adjournment of such meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 7.08. Record of Holder of Shares. The Corporation shall be
entitled to treat the holder of record of any share or shares as the holder in
fact thereof, and accordingly shall not be bound to recognize any equitable or
other claims to or interest in such shares on the part of any other person,
whether or not it shall have express or other notice thereof, save as expressly
provided by the General Corporation Law of the State of Delaware. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends and to vote
as such owner.
ARTICLE VIII
SEAL
SECTION 8.01. Seal. The Board may approve and adopt a corporate seal,
which shall be in the form of a circle and shall bear the full name of the
Corporation, the year of its incorporation and the words "Corporate Seal
Delaware".
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ARTICLE IX
FISCAL YEAR
SECTION 9.01. Fiscal Year. The fiscal year of the Corporation shall end
on the thirty-first day of December of each year unless changed by resolution of
the Board.
ARTICLE X
INDEMNIFICATION AND INSURANCE
SECTION 10.01. Indemnification. (a) The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a present or former director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 10.01(a) and
(b) of these Bylaws, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
<PAGE> 20
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(d) Any indemnification under Section 10.01(a) and (b) of these Bylaws
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section
10.01(a) and (b) of these Bylaws. Such determination shall be made with respect
to a person who is a director or officer at the time of such determination, (i)
by a majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) by a committee of such
directors designated by majority vote of such directors, even though less than
quorum, or (iii) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (iv) by the stockholders
of the Corporation.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation pursuant to this Article X. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, other Sections of this Article X shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such
office.
(g) For purposes of this Article X, references to "the Corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents so that any person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article X with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(h) For purposes of this Article X, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
X.
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(i) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article X shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 10.02. Insurance for Indemnification. The Corporation shall
have the power to purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation has the power to indemnify such person
against such liability under this Article X or the provisions of Section 145 of
the General Corporation Law.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Notices and Waivers Thereof. Whenever any notice
whatever is required by these Bylaws, the Charter or any of the laws of the
State of Delaware to be given to any stockholder, director or officer, such
notice, except as otherwise provided by the laws of the State of Delaware, may
be given personally or by telephone or be given by facsimile transmission or
other form of electronic communication, addressed to such stockholder at such
person's address as it appears on the stock transfer books of the Corporation,
or to such director or officer at his or her Corporation location, if any, or at
such address as appears on the books of the Corporation, or the notice may be
given in writing by depositing the same in a post office, or in a regularly
maintained letter box, or by sending it via courier in a postpaid, sealed
wrapper addressed to such stockholder at such person's address as it appears on
the stock transfer books of the Corporation, or to such director or officer at
his or her Corporation location, if any, or such address as appears on the books
of the Corporation.
Any notice given by facsimile transmission or other form of electronic
communication shall be deemed to have been given when it shall have been
transmitted. Any notice given by mail or courier shall be deemed to have been
given when it shall have been mailed or delivered to the courier.
A waiver of any such notice in writing, including by facsimile
transmission, signed or dispatched by the person entitled to such notice or by
his or her duly authorized attorney, whether before or after the time stated
therein, shall be deemed equivalent to the notice required to be given, and the
presence at any meeting of any person entitled to notice thereof shall be deemed
a waiver of such notice as to such person.
SECTION 11.02. Audits. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be done
annually.
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SECTION 11.03. Contracts References. Whenever in these Bylaws the
phrase "any contract to which the Corporation is bound" or a similar phrase is
used, the reference therein to a contract to which the Corporation is bound
shall specifically include, without limitation, that certain Separation
Agreement entered into among the Corporation, HNC and Retek Information Systems,
Inc., as such may be amended from time to time, and that certain Corporate
Rights Agreement among the Corporation, HNC and Retek Information Systems, Inc.,
as such may be amended from time to time, and the contents of such contracts
shall be deemed to have been incorporated herein by reference.
ARTICLE XII
AMENDMENTS
SECTION 12.01. Amendments. These Bylaws may be altered, amended or
repealed, and new Bylaws may be adopted (a) at any annual or special meeting of
stockholders by the affirmative vote of the holders of a majority of the voting
power of the stock issued and outstanding and entitled to vote thereat,
provided, however, that after the Trigger Date, any proposed alteration,
amendment or repeal of, or the adoption of any Bylaw inconsistent with, Sections
2.02, 2.04, 2.11, 3.02, 3.04 and 3.05 of the Bylaws by the stockholders shall
require the affirmative vote of the holders of at least 80% of the voting power
of all Voting Stock then outstanding, voting together as a single class, and
provided, further, however, that, in the case of any such stockholder action at
a special meeting of stockholders, notice of the proposed alteration, amendment,
repeal or adoption of the new Bylaw or Bylaws must be contained in the notice of
such special meeting, (b) by the affirmative vote of a majority of the Whole
Board or (c) by written consent of the stockholders of the Corporation if
permitted by the Charter, these Bylaws or the General Corporation Law.
