Exhibit 3
BY-LAWS
of
ACCLAIM ENTERTAINMENT, INC.
(Amended and Restated as of June 5, 2000)
ARTICLE I
Stockholders
Section 1. Annual Meeting. The annual meeting of the stockholders of
the Corporation shall be held annually at such place within or without the
State of Delaware, at such time and on such date as may from time to time
be designated by the Board of Directors, for the election of directors and
for the transaction of any other proper business.
Section 2. Special Meetings. Special meetings of the stockholders of
the Corporation may be called at any time and from time to time by the
President or by a majority of the directors then in office, and shall be
called by the Secretary upon the written request of stockholders holding of
record at least a majority in number of the issued and outstanding shares
of the Corporation entitled to vote at such meeting. Special meetings shall
be held at such place within or without the State of Delaware, at such time
and on such date as shall be specified in the call thereof.
Section 3. Notice of Meetings. Written notice of each meeting of the
stockholders, stating the place, date and hour thereof and, in the case of
a special meeting, the purpose or purposes for which it is called, shall be
given, not less than ten nor more than sixty days before the date of such
meeting (or at such other time as may be required by statute), to each
stockholder entitled to vote at such meeting. If mailed, such notice is
given when deposited in the United States mail, postage prepaid, directed
to each stockholder at his or her address as it appears on the records of
the Corporation.
Section 4. Waiver of Notice. Whenever notice is required to be given
of any annual or special meeting of the stockholders, a written waiver
thereof, signed by the person entitled to notice, whether before or after
the time stated in such notice, shall be deemed equivalent to notice.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the stockholders need be specified in any written
waiver of notice. Attendance of a person at a meeting of the stockholders
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
Section 5. Adjournment. When any meeting of the stock- holders is
adjourned to another time or place, notice need not be given of the
adjourned meeting if the time and place to which the meeting is adjourned
are announced at the meeting at which the adjournment is taken. At the
adjourned meeting any business may be transacted which might have been
transacted at the original meeting. If the adjournment is for more than 30
days, or if after such adjournment the Board of Directors shall fix a new
record date for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at such
meeting.
Section 6. Quorum. At any meeting of the stockholders the presence,
in person or by proxy, of the holders of a majority of the issued and
outstanding shares of the Corporation entitled to vote at such meeting
shall be necessary in order to constitute a quorum for the transaction of
any business. If there shall not be a quorum at any meeting of the
stockholders, the holders of a majority of the shares entitled to vote
present at such meeting, in person or by proxy, may adjourn such meeting
from time to time, without further notice to the stockholders other than an
announcement at such meeting, until holders of the amount of shares
required to constitute a quorum shall be present in person or by proxy.
Section 7. Voting. Each stockholder shall be entitled to one vote for
each share of capital stock held by such stock- holder. Voting need not be
by ballot, except that all election of directors shall be by written ballot
unless otherwise provided in the Certificate of Incorporation. Whenever any
corporate action is to be taken by vote of the stockholders, it shall,
except as otherwise required by law or by the Certificate of Incorporation,
be authorized by a majority of the votes cast at a meeting of stockholders
of the holders of shares entitled to vote thereon, except that all
elections shall be decided by a plurality of the votes cast.
Section 8. Action Without a Meeting. Any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken
without a meeting thereof, 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 out- standing 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 such corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
Section 9. Record Date
A. The Board of Directors may fix, in advance, a record date, which
shall not be more than sixty nor less than ten days before the date of any
meeting of stockholders, nor more than sixty days prior to any other
action, as the record date for the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or
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.
B. In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which date shall not be more than
ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors (or such later date as the
stockholder may request). Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall,
by written notice to the Secretary of the Corporation, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but
in all events within ten (10) days after the date on which such a request
is received, adopt a resolution fixing the record date. If no record date
has been fixed by the Board of Directors within ten (10) days after the
date on which such request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or any officer or agent of the Corporation
having custody of the book in which proceedings of stockholders' meetings
are recorded, to the attention of the Secretary of the Corporation.
Delivery shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
Section 10. Proxies. Each stockholder entitled to vote at a meeting
of stockholders or to express consent or dissent to corporate action in
writing without a meeting may authorize another person or persons to act
for him or her by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer
period.
Section 11. Advance Notice for New Business. No business may be
transacted at an annual meeting of shareholders, other than business that
is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any
duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (c) otherwise properly brought before
the annual meeting by any shareholder of the Corporation (i) who is a
shareholder of record on the date of the giving of the notice provided for
in this Section 11 and on the record date for the determination of
shareholders entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 11.
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a shareholder, such
shareholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation not less than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of shareholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
notice by the shareholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed or such
public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth as to each matter such shareholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such shareholder, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by such shareholder, (iv) a description of all arrangements or
understandings between such shareholder and any other person or persons
(including their names) in connection with the proposal of such business by
such shareholder and any material interest of such shareholder in such
business and (v) a representation that such shareholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting. In addition, notwithstanding anything in this Section 11 to
the contrary, a shareholder intending to nominate one or more persons for
election as a Director at an annual or special meeting must comply with
Section 12, Article I of these By-Laws for such nomination or nominations
to be properly brought before such meeting.
No business shall be conducted at the annual meeting of
shareholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 11, provided,
however, that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 11
shall be deemed to preclude discussion by any shareholder of any such
business. If the Chairman of an annual meeting determines that business was
not properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
Section 12. Advance Notice for Nominations of Directors. Only persons
who are nominated in accordance with the following procedures shall be
eligible for election as Directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the
right of holders of preferred stock of the Corporation to nominate and
elect a specified number of directors in certain circumstances. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of shareholders, or at any special meeting of shareholders called
for the purpose of electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by any
shareholder of the Corporation (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Section 12 and on the
record date for the determination of shareholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 12.
In addition to any other applicable requirements, for a
nomination to be made by a shareholder, such shareholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting, not less ninety (90)
days prior to the anniversary date of the immediately preceding annual
meeting of shareholders; provided, however, that in the event that the
annual meeting is called or a date that is not within thirty (30) days
before or after such anniversary date, notice by the shareholder in order
to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of shareholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth (a) as to each person whom the shareholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by the person and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the shareholder giving the notice (i)
the name and record address of such shareholder, (ii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such shareholder, (iii) a description of all
arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nominations) are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (v)
any other information relating to such shareholder that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 12. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
ARTICLE II
Directors
Section 1. Number; Qualifications. The Board of Directors shall
consist of one or more members. The number of directors shall be fixed by
the Board of Directors, but shall not be less than three or more than
eight. Directors need not be stock- holders of the Corporation.
Section 2. Term of Office. Each director shall hold office until his
or her successor is elected and qualified or until his or her earlier
death, resignation or removal.
Section 3. Meetings. A meeting of the Board of Directors shall be
held for the election of officers and for the trans- action of such other
business as may come before such meeting as soon as practicable after the
annual meeting of the stockholders. Other regular meetings of the Board of
Directors may be held at such times as the Board of Directors of the
Corporation may from time to time determine. Special meetings of the Board
of Directors may be called at any time by the President of the Corporation
or by a majority of the directors then in office. Meetings of the Board of
Directors may be held within or without the State of Delaware.
Section 4. Notice of Meetings; Waiver of Notice; Adjournment. No
notice need be given of the first meeting of the Board of Directors after
the annual meeting of stockholders or of any other regular meeting of the
Board of Directors. Notice of a special meeting of the Board of Directors,
specifying the place, date and hour thereof, shall be delivered personally,
mailed or telegraphed to each director at his or her address as such
address appears on the books of the Corporation at least two business days
(Saturdays, Sundays and legal holidays not being considered business days
for the purpose of these By-Laws) before the date of such meeting. Whenever
notice is required to be given under any provision of the Certificate of
Incorporation or these By-Laws, a written waiver thereof, signed by the
person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a director at a special
meeting shall constitute a waiver of notice of such meeting, except when
the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not law- fully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders, the directors or any committee of directors need be specified
in any written waiver of notice unless so required by the Certificate of
Incorporation or these By- Laws. A majority of the directors present
whether or not a quorum is present, may adjourn any meeting to another time
and place. Notice need not be given of the adjourned meeting if the time
and place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any business
may be transacted that might have been transacted at the original meeting.
Section 5. Quorum; Voting. A majority of the total number of
directors shall constitute a quorum for the transaction of business. The
vote of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 6. Participation by Telephone. Members of the Board of
Directors or any committee thereof may participate in a meeting of the
Board of Directors or such committee by means of a 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 7. Action Without a 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 such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceeding of the Board of Directors or of such committee.
Section 8. Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees,
each committee to consist of one or more of the directors. Any such
committee, to the extent provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed by
the officers on all papers which may require it, but no such committee
shall have the power or authority in reference to (a) amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board of Directors, fix the designations and
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of the assets of the Corporation
or the conversion into, or the exchange of such shares for, shares of any
other class or classes or any other series of the same or any other class
or classes of stock of the Corporation, or fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of any
series); (b) adopting an agreement of merger or consolidation; (c)
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; (d)
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; or (e) amending these By-Laws and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. The
Board of Directors may designate one or more directors as alternate members
of any such committee, who may replace any absent or disqualified member at
any meeting of such committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting a quorum, may
unanimous- ly appoint another director to act at the meeting in the place
of such absent or disqualified member.
Section 9. Removal; Resignation. Any director or the entire Board of
Directors may be removed with or without cause, by the holders of a
majority of the shares then entitled to vote at an election of directors.
Any director may resign at any time, upon written notice to the
Corporation.
Section 10. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of directors then in office, although less than a
quorum, or by a sole remaining director. When one or more directors shall
resign from the Board of Directors, effective at a future date, a majority
of the directors then in office, including those who have so resigned,
shall have power to fill such vacancy or vacancies, the vote thereon to
take effect when such resignation or resignations shall become effective,
and each director so chosen shall hold office as provided above in the
filling of other vacancies. A director elected to fill a vacancy shall hold
office for the unexpired term of his or her predecessor and until his
successor is elected and qualified.
Section 11. Compensation. The Board of Directors may fix the
compensation of directors.
ARTICLE III
Officers
Section 1. Election; Qualifications. At the first meeting of the
Board of Directors and as soon as practicable after each annual meeting of
stockholders, the Board of Directors shall elect or appoint a Chairman of
the Board, a President, one or more Vice- Presidents, a Secretary and a
Treasurer, and may elect or appoint at such time or from time to time such
additional officers as it deems advisable. No officer need be a director of
the Corporation. The office of Chairman of the Board may be shared by two
or more persons. Any number of offices may be held by the same person,
except that there shall always be two persons who hold offices which
entitle them to sign instruments and stock certificates.
Section 2. Term of Office; Vacancies. Each officer shall hold office
until the election and qualification of his or her successor or until his
or her earlier death, resignation or removal. Any vacancy occurring in any
office, whether because of death, resignation or removal, with or without
cause, or other- wise, shall be filled by the Board of Directors.
Section 3. Removal; Resignation. Any officer may be re-moved from
office at any time with or without cause by the Board of Directors. Any
officer may resign his or her office at any time upon written notice to the
Corporation.
Section 4. Powers and Duties of the Chairman of the Board. The
Chairman of the Board shall be the chief executive officer of the
Corporation and shall have the general charge and supervision of its
business affairs. The Chairman of the Board shall from time to time make
such reports concerning the Corporation as the Board of Directors of the
Corporation may require. The Chairman of the Board shall preside at all
meetings of the stockholders and the Board of Directors. The Chairman of
the Board shall have such other powers and perform such other duties as may
from time to time be assigned to him or her by the Board of Directors.
Section 5. Powers and Duties of the President. The President shall be
the chief operating and administrative officer of the Corporation and shall
have general charge of its operations and administration. The President
shall be given such other titles and designations and shall have such other
powers and perform such other duties as may from time to time be assigned
to him or her by the Board of Directors.
Section 6. Powers and Duties of the Vice-Presidents. Each of the
Vice- Presidents shall be given such titles and designations and shall have
such powers and perform such duties as may from time to time be assigned to
him or her by the Board of Directors.
Section 7. Powers and Duties of the Secretary. The Secretary shall
record and keep the minutes of all meetings of the stockholders and of the
Board of Directors in a book to be kept for that purpose. The Secretary
shall attend to the giving and serving of all notices by the Corporation.
The Secretary shall be the custodian of, and shall make or cause to be made
the proper entries in, the minute book of the Corporation and such other
books and records as the Board of Directors may direct. The Secretary shall
be the custodian of the corporate seal of the Corporation and shall affix
or cause to be affixed such seal to such contracts and other instruments as
the Board of Directors may direct. The Secretary shall have such other
powers and shall perform such other duties as may from time to time be
assigned to him or her by the Board of Directors.
Section 8. Powers and Duties of the Treasurer. The Treasurer shall be
the custodian of all funds and securities of the Corporation. Whenever
required by the Board of Directors, the Treasurer shall render a statement
of the Corporation's cash and other accounts, and shall cause to be entered
regularly in the proper books and records of the Corporation to be kept for
such purpose full and accurate accounts of the Corporation's receipts and
disbursements. The Treasurer shall at all reason- able times exhibit the
Corporation's books and accounts to any director of the Corporation upon
application at the principal office of the Corporation during business
hours. The Treasurer shall have such other powers and shall perform such
other duties as may from time to time be assigned to him or her by the
Board of Directors.
Section 9. Delegation. In the event of the absence of any officer of
the Corporation or for any other reason that the Board of Directors may
deem sufficient, the Board of Directors may at any time or from time to
time delegate all or any part of the powers or duties of any officer to any
other officer or officers or to any director or directors.
ARTICLE IV
Stock
The shares of the Corporation shall be represented by certificates
signed by the Chairman of the Board, the President or any Vice-President
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary. Any of or all the signatures on the certificate may be a
facsimile.
ARTICLE V
Execution of Documents
All contracts, agreements, instruments, bills payable, notes, checks,
drafts, warrants or other obligations of the Corporation shall be made in
the name of the Corporation and shall be signed by such officer or officers
as the Board of Directors may from time to time designate.
ARTICLE VI
Seal
The seal of the Corporation shall contain the name of the
Corporation, the words "Corporate Seal", the year of its organization and
the word "Delaware".
ARTICLE VII
Indemnification
Section 1. Indemnification. The Corporation hereby agrees to hold
harmless and indemnify any of its officers, directors, employees or agents
from and against, and to reimburse such persons for, any and all judgments,
fines, liabilities, amounts paid in settlement and expenses, including
attorneys' fees, incurred directly or indirectly as a result of or in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
whether or not such action, suit or proceeding is by or in the right of the
Corporation to procure a judgment in its favor, including an action, suit
or proceeding by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust,
employee benefit plan or other enterprise for which such person served in
any capacity at the request of the Corporation, to which such person is,
was or at any time becomes a party, or is threatened to be made a party, or
as a result of or in connection with any appeal therein, by reason of the
fact that such person is, was or at any time be- comes a director, officer,
employee or agent of the Corporation or is or was serving or at any time
serves such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise in any capacity, whether arising out of
any breach of such person's fiduciary duty as a director, officer, employee
or agent of such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise under any state or federal law or
otherwise; provided, however, that (I) indemnification shall be paid
pursuant to this Article VII if and only if such person 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;
and (ii) no indemnification shall be payable pursuant to this Article VII
if a court having jurisdiction in the matter shall determine that such
indemnification is not lawful. 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 reason- ably 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. 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 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.
Section 2. Continuation of Indemnity. All agreements and obligations
of the Corporation contained herein shall continue during the period such
person shall serve as a director, officer, employee or agent of the
Corporation and shall continue there- after so long as such person shall be
subject to any possible claim or threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person was a director or
officer of the Corporation or served at the request of the Corporation in
any capacity for any other corporation, partner- ship, joint venture,
trust, employee benefit plan or other enterprise.
Section 3. Advancement and Repayment of Expenses. Expenses incurred
by an officer, director, employee or agent in defending any threatened or
pending action, suit or proceeding, whether civil, criminal, administrative
or investigative, shall be paid by the Corporation in advance of the final
disposition thereof, other than those expenses for which such director or
officer is not entitled to indemnification pursuant to the proviso to, or
the last sentence of, Section 1 of this Article VII. The Corporation shall
make such payments upon receipt of (I) a written re- quest made by such
person for payment of such expenses, (ii) an undertaking by or on behalf of
such person to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the Corporation as authorized
herein and (iii) evidence satisfactory to the Corporation as to the amount
of such expenses.
Section 4. Authorization. Any indemnification under this Article VII
(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 director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section
1 of this Article VII. Such determination shall be made (I) by the Board of
Directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii) by
the stockholders of the Corporation.
Section 5. Notification and Defense of Claim. Promptly after receipt
by a person seeking indemnification pursuant to this Article VII of notice
of the commencement of any action, suit or proceeding, such person will, if
a claim in respect thereof is to be made against the Corporation under this
Article VII, notify the Corporation of the commencement thereof; but the
omission so to notify the Corporation will not relieve it from any
liability which it may have to such person otherwise than under this
Article VII. With respect to any such action, suit or proceeding as to
which such person notifies the Corporation of the commencement thereof:
A. The Corporation will be entitled to participate therein at
its own expense; and,
B. Except as otherwise provided below, to the extent that it may
wish, the Corporation jointly with any other indemnifying party similarly
notified will be entitled to assume the defense thereof, with counsel
satisfactory to the person to be indemnified. After notice from the
Corporation to the person to be indemnified of its election so to assume
the defense thereof, the Corporation will not be liable to such person
under this Article VII for any legal or other expenses subsequently
incurred by such person in connection with the defense thereof other than
reasonable costs of investigation or as otherwise provided below. The
person to be indemnified shall have the right to employ his or her own
counsel in such action, suit or proceeding but the fees and expenses of
such counsel incurred after notice from the Corporation of its assumption
of the defense thereof shall be at the expense of such person unless (I)
the employment of counsel by such person has been authorized by the
Corporation in connection with the defense of such action, (ii) such person
shall have reasonably concluded that there may be a conflict of interest
between the Corporation and such person in the conduct of the defense of
such action, or (iii) the Corporation shall not in fact have employed
counsel to assume the defense of such action, in each of which cases the
fees and expenses of counsel for such person shall be borne by the
Corporation (it being understood, however, that the Corporation shall not
be liable for the expenses of more than one counsel for such person in
connection with any action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances). The Corporation shall not be entitled to assume the defense
of any action, suit or proceeding brought by or on behalf of the
Corporation or as to which such person shall have made the conclusion
provided for in (ii) above.
C. Anything in this Section 5 to the contrary not- withstanding,
the Corporation shall not be liable to indemnify any person seeking
indemnification under this Article VII for any amounts paid in settlement
of any action or claim effected with- out its written consent. The
Corporation shall not settle any action or claim in any manner which would
impose any penalty or limitation on the person to be indemnified without
such person's written consent. Neither the Corporation nor any such person
will unreasonably withhold their consent to any proposed settlement.
Section 6. Nonexclusivity. The indemnification and advancement of
expenses provided by or granted pursuant to 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 the General Corporation
Law of the State of Delaware, the Corporation's Certificate of
Incorporation, as amended, the Corporation's By-Laws, as now in effect or
as hereafter amended, any agreement, any vote of stockholders or directors, any
applicable law, or otherwise.
Section 7. Indemnification of Other Expenses. In the event any person
seeking indemnification hereunder is required to bring any action to
enforce rights or to collect monies due under this Article VII and is
successful in such action, the Corporation shall reimburse such person for
all costs and expenses, including attorney's fees, incurred by such person
in connection with such action.
Section 8. Length of Effectiveness. The indemnification and
advancement of expenses provided by or granted pursuant to this By-Law
shall 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.
ARTICLE VIII
Amendment of By-Laws
These By-Laws may be amended or repealed, and any new By-Law may be
adopted, by the stockholders entitled to vote or by the Board of Directors.
Form of Amendment to the By-Laws Approved by the Board of
Directors of Acclaim Entertainment, Inc.
June 5, 2000
The By-Laws were amended to add the following Sections:
By-Law Governing Advance Notice for New Business
and Nominations of Directors Article I, Sections 11 and 12
Section 11. Advance Notice for New Business. No business may be
transacted at an annual meeting of shareholders, other than business that
is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors (or any
duly authorized committee thereof), (b) otherwise properly brought before
the annual meeting by or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (c) otherwise properly brought before
the annual meeting by any shareholder of the Corporation (i) who is a
shareholder of record on the date of the giving of the notice provided for
in this Section 11 and on the record date for the determination of
shareholders entitled to vote at such annual meeting and (ii) who complies
with the notice procedures set forth in this Section 11.
In addition to any other applicable requirements, for business
to be properly brought before an annual meeting by a shareholder, such
shareholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation not less than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of shareholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within thirty (30) days before or after such anniversary date,
notice by the shareholder in order to be timely must be so received not
later than the close of business on the tenth (10th) day following the day
on which such notice of the date of the annual meeting was mailed or such
public disclosure of the date of the annual meeting was made, whichever
first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth as to each matter such shareholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of such shareholder, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by such shareholder, (iv) a description of all arrangements or
understandings between such shareholder and any other person or persons
(including their names) in connection with the proposal of such business by
such shareholder and any material interest of such shareholder in such
business and (v) a representation that such shareholder intends to appear
in person or by proxy at the annual meeting to bring such business before
the meeting. In addition, notwithstanding anything in this Section 11 to
the contrary, a shareholder intending to nominate one or more persons for
election as a Director at an annual or special meeting must comply with
Section 12, Article I of these By-Laws for such nomination or nominations
to be properly brought before such meeting.
No business shall be conducted at the annual meeting of
shareholders except business brought before the annual meeting in
accordance with the procedures set forth in this Section 11, provided,
however, that, once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 11
shall be deemed to preclude discussion by any shareholder of any such
business. If the Chairman of an annual meeting determines that business was
not properly brought before the annual meeting in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business
shall not be transacted.
Section 12. Advance Notice for Nominations of Directors. Only
persons who are nominated in accordance with the following procedures shall
be eligible for election as Directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the
right of holders of preferred stock of the Corporation to nominate and
elect a specified number of directors in certain circumstances. Nominations
of persons for election to the Board of Directors may be made at any annual
meeting of shareholders, or at any special meeting of shareholders called
for the purpose of electing directors, (a) by or at the direction of the
Board of Directors (or any duly authorized committee thereof) or (b) by any
shareholder of the Corporation (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Section 12 and on the
record date for the determination of shareholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 12.
In addition to any other applicable requirements, for a
nomination to be made by a shareholder, such shareholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation.
To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of
the Corporation (a) in the case of an annual meeting, not less ninety (90)
days prior to the anniversary date of the immediately preceding annual
meeting of shareholders; provided, however, that in the event that the
annual meeting is called or a date that is not within thirty (30) days
before or after such anniversary date, notice by the shareholder in order
to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of shareholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To be in proper written form, a shareholder's notice to the
Secretary must set forth (a) as to each person whom the shareholder
proposes to nominate for election as a director (i) the name, age, business
address and residence address of the person, (ii) the principal occupation
or employment of the person, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned beneficially or of
record by the person and (iv) any other information relating to the person
that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the shareholder giving the notice (i)
the name and record address of such shareholder, (ii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such shareholder, (iii) a description of all
arrangements or understandings between such shareholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nominations) are to be made by such shareholder, (iv) a
representation that such shareholder intends to appear in person or by
proxy at the meeting to nominate the persons named in its notice and (v)
any other information relating to such shareholder that would be required
to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 12. If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.
By-Law Governing Fixing of a Record Date
Article I, Section 9
"Section 9. Record Date
A. The Board of Directors may fix, in advance, a record date, which
shall not be more than sixty nor less than ten days before the date of any
meeting of stockholders, nor more than sixty days prior to any other
action, as the record date for the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or
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.
B. In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which date shall not be more than
ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors (or such later date as the
stockholder may request). Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall,
by written notice to the Secretary of the Corporation, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but
in all events within ten (10) days after the date on which such a request
is received, adopt a resolution fixing the record date. If no record date
has been fixed by the Board of Directors within ten (10) days after the
date on which such request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or any officer or agent of the Corporation
having custody of the book in which proceedings of stockholders' meetings
are recorded, to the attention of the Secretary of the Corporation.
Delivery shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by
applicable law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action."
