AMENDED AND RESTATED
BY-LAWS
OF
ACTIVISION HOLDINGS, INC.
ARTICLE I
OFFICES
1.1. Registered Office: The registered office of Activision Holdings,
Inc. (the "Corporation") within the State of Delaware shall be established
and maintained at the location of the registered agent of the Corporation.
1.2. Other Offices: The Corporation may have other offices, either
within or without the State of Delaware, at such place or places as. the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II.
STOCKHOLDERS
2.1. Place of Stockholders' Meetings. All meetings of the stockholders
of the Corporation shall be held at such place or places, within or without
the State of Delaware as may be fixed by the Board of Directors from time to
time or as shall be specified in the respective notices thereof.
2.2. Date and Hour of Annual Meetings of Stockholders. An annual meeting
of stockholders shall be held on such date as may be determined by the Board
of Directors.
2.3. Purposes of Annual Meetings. At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may
be transacted.
2.4. Special Meetings of Stockholders. Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called
by the President, the Board of Directors, the Chairman of the Board, or at
the request in writing by one or more stockholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at
that meeting.
2.5. Notice of Meetings of Stockholders. Except as otherwise expressly
required or permitted by law, not less than ten days nor more than sixty days
before the date of every stockholders' meeting the Secretary shall give to
each stockholder of record entitled to vote at such meeting written notice,
served personally, by mail or by telegram, stating the place, date and hour
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Such notice, if mailed, shall be deemed to
be given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address for notices to such stockholder as it
appears on the records of the Corporation.
2.6. Quorum of Stockholders. (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders,
the presence in person or by proxy of stockholders entitled to cast a
majority of the votes thereat shall constitute a quorum.
(b) At any meeting of the stockholders at which a quorum shall be
present, a majority of those present in person or by proxy may adjourn the
meeting from time to time without notice other than announcement at the
meeting. In the absence of a quorum, the officer presiding thereat shall have
power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting, other than announcement at the
meeting, shall not be required to be given, except as provided in paragraph
(d) below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall be present,
any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an adjournment is for more than thirty 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 of record
entitled to vote at the meeting.
2.7. Chairman and Secretary of Meeting. The Chairman of the Board of
Directors, or, in his absence, the President or a Vice President, shall
preside at meetings of the stockholders. The Secretary or, in his absence, an
Assistant Secretary, shall act as secretary of the meeting shall act, or if
neither is present, then the presiding officer may appoint a person to act as
secretary of the meeting.
2.8. Voting by Stockholders. Except as may be otherwise provided by the
Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
stock standing in his name on the books of the Corporation on the record date
for the meeting. All elections and questions shall be decided by the vote of
a majority in interest of the stockholders present in person or represented
by proxy and entitled to vote at the meeting.
2.9. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-
fact, but need not be dated, sealed, witnessed or acknowledged.
2.10. Inspectors. The election of directors and any other vote by
ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors may be appointed by the presiding officer before
or at the meeting; or if one or both inspectors so appointed shall refuse to
serve or shall not be present, such appointment shall be made by the officer
presiding at the meeting.
2.11. List of Stockholders. (a) The Corporation shall keep at its
principal executive office, or at the office of its transfer agent or
registrar, if either be appointed and as determined by resolution of the
board of directors, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of shares held by each
stockholder.
(b) A stockholder or stockholders of the Corporation holding at
least five percent (5%) in the aggregate of the outstanding voting shares of
the Corporation or who holds at least one percent (1%) of such voting shares
and has filed a Schedule 14B with the Securities and Exchange Commission
relating to the election of directors, may (i) inspect and copy the records
of stockholders' names and addresses and shareholdings during usual business
hours on five (5) days' prior written demand on the Corporation, (ii) obtain
from the transfer agent of the Corporation, on written demand and on the
tender of such transfer agent's usual charges for such list, a list of the
names and addresses of the stockholders who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which that list has been compiled or as of a date specified by the
stockholder after the date of demand. Such list shall be made available to
any such stockholder by the transfer agent on or before the later of five (5)
days after the demand is received or five (5) days after the date specified
in the demand as the date as of which the list is to be compiled.
The record of stockholders shall also be open to inspection on
the written demand of any stockholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose
reasonably related to the holder's interests as a stockholder or as the
holder of a voting trust certificate. In addition, during ordinary business
hours, for a period of at least ten days prior to the meeting, such list
shall be open to examination by any stockholder for any purpose germane to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held.
Any inspection and copying under this Section 2.11 may be made
in person or by an agent or attorney of the stockholder or holder of a voting
trust certificate making the demand.
(c) The list shall also be produced and kept at the time and place
of the meeting during the whole time of the meeting, and it may be inspected
by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
2.12. Procedure at Stockholders' Meetings. Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure
at every meeting of stockholders shall be determined by the presiding
officer. Not less than 15 minutes following the presentation of any
resolution to any meeting of stockholders, the presiding officer may announce
that further discussion on such resolution shall be limited to not more than
three persons who favor and not more than three persons who oppose such
resolution, each of whom shall be designated by the presiding officer and
shall thereupon be entitled to speak thereon for not more than five minutes.
After such persons, or such a lesser number thereof as shall advise the
presiding officer of their desire so to speak, shall have spoken on such
resolution, the presiding officer may direct a vote on such resolution
without further discussion thereon at the meeting.
2.13. Action Bv Consent Without Meeting. Unless otherwise provided
by the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken
at any annual or special meeting, 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 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. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
3.1. Powers of Directors. The property, business and affairs of the
Corporation shall be managed by its Board of Directors which may exercise all
the powers of the Corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2. Number. Method of Election, Terms of Office of Directors. The
number of directors which shall constitute the entire Board of Directors
shall such number as the Board of Directors may determine from time to time.
Until changed by action of the Board of Directors, the number of directors
constituting the entire Board of Directors shall be seven (7). Each director
shall hold office until the next annual meeting of stockholders and until his
successor is elected and qualified, provided, however, that a director may
resign at any time. Directors need not be stockholders.
3.3. Vacancies on Board of Directors; Removal.
(a) Any director may resign his office at any time by delivering
his resignation in writing to the President or the Secretary. It will take
effect at the time specified therein or, if no time is specified, it will be
effective at the time of its receipt by the Corporation. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
(b) Any vacancy, or newly created directorship resulting from any
increase in the authorized number of directors, may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and any director so chosen shall hold office until the
next annual election of directors by the stockholders and until his successor
is duly elected and qualified or until his earlier resignation or removal.
(c) Removal. Any director may be removed with or without cause at
any time by the affirmative vote of stockholders holding of record in the
aggregate at least a majority of the outstanding shares of stock of the
Corporation, given at a special meeting of the stockholders called for that
purpose.
3.4 Meetings of the Board of Directors. (a) The Board of Directors may
hold their meetings, both regular and special, either within or without the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required.
If the date designated for any regular meeting be a legal holiday, then the
meeting shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of
Directors shall be held immediately following the annual meeting of the
stockholders for the election of officers and the transaction of such other
business as may come before it. If such meeting is held at the place of the
stockholders' meeting, no notice thereof shall be required.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board of Directors or at
the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same
not later than the day before the meeting. Unless required by law, such
notice need not include a statement of the business to be transacted at, or
the purpose of, any such meeting. Any and all business may be transacted at
any meeting of the Board of Directors. No notice of any adjourned meeting
need be given. No notice to or waiver by any director shall be required with
respect to any meeting at which the director is present.
3.5. Quorum and Action. Unless provided otherwise by law or the
Certificate of Incorporation, a majority of the entire board shall constitute
a quorum for the transaction of business; but it there shall be less than a
quorum at any meeting of the Board, a majority of those present may adjourn
the meeting from time to time. The vote of a majority of the directors
present at any meeting at which a quorum is present shall be necessary to
constitute the act of the Board of Directors.
3.6. Presiding Officer and Secretary of Meeting. The Chairman of the
Board of Directors, or, in his absence, the President or any Vice President,
or, in their absence a member of the Board of Directors selected by the
members present, shall preside at meetings of the Board. The Secretary shall
act as secretary of the meeting, but in his absence the presiding officer may
appoint a secretary of the meeting.
3.7. Action by Consent Without 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 if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes or proceedings of the
Board of Directors or committee.
3.8. Action by Telephonic Conference. Members of the Board of Directors,
or any committee designated by such board, may participate in a meeting of
such board or 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 such a meeting shall
constitute presence in person at such meeting.
32.9. Committees. (a) The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of any
member or such committee or committees, the member or members thereof present
at any such meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
(b) Any such committee, to the extent provided in the resolution
or resolutions of the Board of Directors, or in these by-laws, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power of authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the by-laws of the Corporation; and
unless the resolution, these by-laws, or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
3.10. Compensation of Directors. Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a lied fee for
attendance at meetings, or both, with expenses, if any, as the Board of
Directors may from time to time determine. Nothing herein contained shall be
construed to preclude any director from ser-,,ing in any other capacity and
receiving compensation therefor.
ARTICLE IV
OFFICERS
4.1. Officers, Title, Elections, Terms. (a) The elected officers of the
Corporation shall be a Chairman of the Board of Directors, a President, a
Treasurer and a Secretary, and the Board of Directors may also elect or
appoint at any time one or more Vice Presidents and such other officers as it
may determine. Two or more offices may be held by the same person.
(b) Unless otherwise specified by the Board of Directors, each
officer shall be elected or appointed to hold office until the annual meeting
of the Board of Directors next following his election or appointment and
until his successor, if any, has been elected or appointed and qualified, or
until his earlier resignation or renewal.
(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein or, if no time be specified, at the time of its receipt by
the Corporation. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
(e) Any officer elected or appointed by the Board of Directors may
be removed by the Board of Directors with or without cause.
(f) The salaries of all officers of the Corporation shall be fixed
by the Board of Directors.
4.2. Removal of Elected Officers. Any elected officer may be removed at
any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the directors
then in office.
4.3. Duties. The officers, agent and employees of the Corporation shall
each have such powers and perform such duties in the management of the
affairs, property and business of the Corporation, subject to the control of
and limitation by the Board of Directors, as generally pertain to their
respective offices, as well as such powers and duties as may be authorized
from time to time by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1. Stock Certificates. (a) Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the name of, the
Corporation by the Chairman or the President or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent other
than the Corporation or it: employee, or by a registrar other than the
Corporation or its employee, the signatures of the officers of the
Corporation may be facsimiles, and, if permitted by law, any other signature
may be a facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by
the Board of Directors. They shall be numbered and registered in the order in
which they are issued.
(e) All certificates surrendered to the Corporation shall be
cancelled with the date of cancellation, and shall be retained by the
Secretary, together with the powers of attorney to transfer and the
assignments of the shares represented by such certificates, for such period
of time as shall be prescribed from time to time by resolution of the Board
of Directors.
5.2. Record Ownership. A record of the name and address of the holder of
each certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the Corporation's books. The Corporation shall
be entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
required by law.
5.3. Transfer of Record Ownership. Transfers of stock shall be made on
the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon
the surrender of the certificate therefor and a written assignment of the
shares evidenced thereby. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the
entry of the transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and transferee request the
Corporation to do so.
5.4. Lost, Stolen or Destroyed Certificates. Certificates representing
shares of the stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed in such manner and
on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5. Transfer Agent; Registrar; Rules Respecting Certificates. The
Corporation may maintain one or more transfer offices or agencies where stock
of the Corporation shall be transferable. The Corporation may also maintain
one or more registry offices where such stock shall be registered. The Board
of Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6. Fixing Record Date for Determination of Stockholders of Record. The
Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of
the stockholders for the purpose of any other lawful action. Such record date
in any case shall be not more than sixty days nor less than ten days before
the date of a meeting of the stockholders, nor more than sixty days prior to
any other action requiring such determination of the stockholders. A
determination of stockholders of record entitled to notice or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date fur
the adjourned meeting.
5.7. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the
capital stock of the Corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
Corporation available for dividends, such sum or sums as the Board of
Directors from time to time in their discretion deem proper for working
capital or as a reserve fund to meet contingencies or for equalizing
dividends or for such other purposes as the Board of Directors shall deem
conducive to the interests of the Corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1. Voting. Unless the Board of Directors shall otherwise order, the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary or the Treasurer shall have full power and authority, on behalf of
the Corporation, to attend, act and vote at any meeting of the stockholders
of any corporation in which the Corporation may hold stock, and at such
meeting to exercise any or all rights and powers incident to the ownership of
such stock, and to execute on behalf of the corporation a proxy or proxies
empowering another or others to act as aforesaid. Ile Board of Directors from
time to time may confer like powers upon any other person or persons.
6.2. General Authorization to Transfer Securities Held by the
Corporation. (a) Any of the following officers, to wit: the Chairman of the
Board of Directors, the President, any Vice President and the Treasurer shall
be, and they hereby are, authorized and empowered to transfer, convert,
endorse, sell, assign, set over and deliver any and all shares of stock,
bonds, debentures, notes, subscription warrants, stock purchase warrants,
evidence of indebtedness, or other securities now or hereafter standing in
the name of or owned by the Corporation, and to make, execute and deliver,
under the seal of the Corporation, any and all written instruments of
assignment and transfer necessary or proper to effectuate the authority
hereby conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the Corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting
forth the names of persons who are then officers of the Corporation, then all
persons to whom such instrument and annexed certificate shall thereafter
come, shall be entitled, without further inquiry or investigation and
regardless of the date of such certificate, to assume and to act in reliance
upon the assumption that the shares of stock or other securities named in
such instrument were theretofore duly and properly transferred, endorsed,
sold, assigned, set over and delivered by the Corporation, and that with
respect to such securities the authority of these provisions of the by-laws
and of such officers is still in full force and effect.
ARTICLE VII
MISCELLANEOUS
7.1. Signatories. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
7.2. Seal. The seal of the Corporation shall be in such form and shall
have such content as the Board of Directors shall from time to time
determine.
7.3. Notice and Waiver of Notice. Whenever any notice of the time, place
or purpose of any meeting of the stockholders, directors or a committee is
required to be given under the law of the State of Delaware, the Certificate
of Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the
holding thereof, or actual attendance at the meeting in person or, in the
case of any stockholder, by his attorney-in-fact, shall be deemed equivalent
to the giving of such notice to such persons.
7.4. Amendment of By-Laws. (a) By Board of Directors. The by-laws of
the Corporation may be altered, amended or repealed or new by-laws may be
made or adopted by the Board of Directors at any regular or special meeting
of the Board; provided that paragraph (c) of Section 3.3 and this Section
7.4(a) of these By-Laws may be altered, amended or repealed only by action of
the stockholders acting pursuant to Section 7.4(b) hereof.
(b) By Stockholders. The by-laws of the Corporation may also be
altered, amended or repealed or new by-laws may be made or adopted by the
vote of a majority in interest of the stockholders represented and entitled
to vote upon the election of directors, at any meeting at which a quorum is
present.
7.5. Indemnity. The Corporation shall indemnify its directors and
officers to the fullest extent allowed by law.
7.6. Fiscal Year. Except as from time to time otherwise determined by
the Board of Directors, the fiscal year of the Corporation shall end on March
31.
