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EXHIBIT 3
AMENDED AND RESTATED
BYLAWS
OF
THQ INC.
Amended and Restated as of June 20, 2000
ARTICLE I
Stockholders Meetings
Section 1.1. Annual Meetings. (a) An annual meeting of
stockholders shall be held for the election of directors at such date, time and
place as may be fixed by resolution of the Board of Directors from time to time.
Subject to paragraph (b) of this Section 1.1, any other proper business may be
transacted at an annual meeting.
(b) Only such business shall be conducted at an annual meeting
of stockholders as shall have been properly brought before the meeting. For
business to be properly brought before the meeting, it must be: (i) authorized
by the Board of Directors and specified in the notice, or a supplemental notice,
of the meeting, (ii) otherwise brought before the meeting by or at the direction
of the Board of Directors or the chairman of the meeting, or (iii) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given written notice thereof to the Secretary, delivered or mailed to and
received at the principal executive offices of the Corporation (x) not less than
75 days nor more than 100 days prior to the meeting, or (y) if less than 85
days' notice of the meeting or prior public disclosure of the date of the
meeting is given or made to stockholders, not later than the close of business
on the tenth day following the day on which the notice of the meeting was mailed
or, if earlier, the day on which such public disclosure was made. A
stockholder's notice to the Secretary shall set forth as to each item of
business the stockholder proposes to bring before the meeting (1) a brief
description of such item and the reasons for conducting such business at the
meeting, (2) the name and address, as they appear on the Corporation's records,
of the stockholder proposing such business, (3) the class and number of shares
of stock of the Corporation which are beneficially owned by the stockholder (for
purposes of the regulations under Sections 13 and 14 of the Securities Exchange
Act of 1934, as amended), and (4) any material interest of the stockholder in
such business. No business shall be conducted at any annual meeting except in
accordance with the procedures set forth in this paragraph (b). The chairman of
the meeting at which any business is proposed by a stockholder shall, if the
facts warrant, determine and declare to the meeting that such business was not
properly brought before the meeting in accordance with the provisions of this
paragraph (b), and, in such event, the business not properly before the meeting
shall not be transacted.
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Section 1.2. Special Meetings. Subject to (i) the rights of the
holders of any Preferred Stock (as defined in the Certificate of Incorporation)
to elect additional directors under specific circumstances, (ii) the Certificate
of Incorporation, or (iii) applicable law, special meetings of the stockholders
may be called for any purpose or purposes by the Chairman of the Board or the
President, and shall be called by the Chairman of the Board, the President or
Secretary at the request in writing of a majority of the Board of Directors. The
business transacted at a special meeting of stockholders shall be limited to the
purpose or purposes for which such meeting is called, except as otherwise
determined by the Board of Directors or the chairman of the meeting. A special
meeting of stockholders may be held at such time and at such place, within or
without the State of Delaware, as may be determined by resolution of the Board
of Directors. If no designation of the place is made for the meeting, the place
of the meeting shall be the principal business office of the Corporation in the
State of California.
Section 1.3. Notice of Meetings. (a) A written notice of each
annual or special meeting of stockholders shall be given stating the place, date
and time of the meeting, and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Notice of a special meeting shall also
indicate that it is being issued by, or at the direction of, the person or
persons calling the meeting. If, at any meeting, action is proposed to be taken
that would, if taken, entitle stockholders to receive payment for their shares
pursuant to the DGCL, the notice of such meeting shall include a statement of
that purpose and to that effect. Unless otherwise provided by law, the
Certificate of Incorporation or these Bylaws, notice of an annual or special
meeting shall be given not less than ten nor more than 50 days before the date
of the meeting to each stockholder of record entitled to vote at such meeting.
If mailed, such notice shall be deemed to be given when deposited in the mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation.
(b) Notice of any meeting need not be given to any person who
may become a stockholder of record after the mailing of such notice and prior to
the meeting, or to any stockholder who attends such meeting, in person or by
proxy, or to any stockholder who, in person or by proxy, submits a signed waiver
of notice either before or after such meeting. Notice of any adjourned meeting
of stockholders need not be given, unless otherwise required by stature.
Section 1.4. Adjournments. Any annual or special meeting of
stockholders may be adjourned from time to time to reconvene at the same or some
other place, and notice need not be given of any such adjourned meeting if the
date, time and place thereof 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 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 adjourned meeting in
accordance with Section 1.3.
Section 1.5. Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence in person or by proxy
of the holders of stock having a majority of the votes which could be cast by
the holders of all outstanding stock entitled to vote at the meeting shall
constitute a quorum at each meeting of stockholders, except that when specified
business is to be voted on by a class or series voting as a class, the holders
of a majority
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of the voting power of the shares of such class or series shall constitute a
quorum for the transaction of such business. In the absence of a quorum, the
stockholders so present may, by the affirmative vote of the holders of stock
having a majority of the votes which could be cast by all such holders, adjourn
the meeting from time to time in the manner provided in Section 1.4 of these
Bylaws until a quorum is present. If a quorum is present when a meeting is
convened, the subsequent withdrawal of stockholders, even though less than a
quorum remains, shall not affect the ability of the remaining stockholders
lawfully to transact business. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at
their meeting as originally called if a quorum had been present.
Section 1.6. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or if there is none or in
his or her absence, by the President, or in his or her absence, by a chairman
designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting.
Section 1.7. Voting. (a) Except as otherwise provided by the
Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
such stockholder which has voting power on the matter in question.
(b) Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors of election unless so required by
Section 1.9 of these Bylaws or so determined by the holders of stock having a
majority of the votes which could be cast by the holders of all outstanding
stock entitled to vote which are present in person or by proxy at such meeting.
Unless otherwise provided in the Certificate of Incorporation, directors shall
be elected by a plurality of the votes cast in the election of directors. Each
other question shall, unless otherwise provided by law, the Certificate of
Incorporation or these Bylaws, be decided by the vote of the holders of stock
having a majority of the votes which could be cast by the holders of all stock
entitled to vote on such question which are present in person or by proxy at the
meeting.
(c) Stock of the Corporation standing in the name of another
corporation and entitled to vote may be voted by such officer, agent or proxy as
the Bylaws or other internal regulations of such other corporation may prescribe
or, in the absence of such provision, as the Board of Directors or comparable
body of such other corporation may determine.
(d) Stock of the Corporation standing in the name of a deceased
person, a minor, an incompetent or a debtor in a case under Title 11, United
States Code, and entitled to vote may be voted by an administrator, executor,
guardian, conservator, debtor-in-possession or trustee, as the case may be,
either in person or by proxy, without transfer of such shares into the name of
the official or other person so voting.
(e) A stockholder whose voting stock of the Corporation is
pledged shall be entitled to vote such stock unless on the transfer records of
the Corporation the pledgor has expressly empowered the pledgee to vote such
shares, in which case only the pledgee, or such pledgee's proxy, may represent
such shares and vote thereon.
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(f) If voting stock is held of record in the names of two or
more persons, whether fiduciaries, members of a partnership, joint tenants,
tenants in common, tenants by the entirety or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same shares, unless
the Secretary is given written notice to the contrary and is furnished with a
copy of the instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect: (i) if only one votes, such act binds all; (ii) if more than
one vote, the act of the majority so voting binds all; and (iii) if more than
one votes, but the vote is evenly split on any particular matter each faction
may vote such stock proportionally, or any person voting the shares, or a
beneficiary, if any, may apply to the Court of Chancery of the State of Delaware
or such other court as may have jurisdiction to appoint an additional person to
act with the persons so voting the stock, which shall then be voted as
determined by a majority of such persons and the person appointed by the Court.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even split for the purpose of this subsection shall be
a majority or even split in interest.
(g) Stock of the Corporation belonging to the Corporation, or to
another corporation a majority of the shares entitled to vote in the election of
directors of which are held by the Corporation, shall not be voted at any
meeting of stockholders and shall not be counted in the total number of
outstanding shares for the purpose of determining whether a quorum is present.
Nothing in this Section 1.7 shall limit the right of the Corporation to vote
shares of stock of the Corporation held by it in a fiduciary capacity.
Section 1.8. Proxies. (a) Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder by proxy filed with the Secretary before or at the time of the
meeting. No such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period. A duly executed proxy shall
be irrevocable if it states that it is irrevocable and if, and only as long as,
it is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy which is not irrevocable by attending
the meeting and voting in person or by filing with the Secretary an instrument
in writing revoking the proxy or another duly executed proxy bearing a later
date.
(b) A stockholder may authorize another person or persons to act
for such stockholder as proxy (i) by executing a writing authorizing such person
or persons to act as such, which execution may be accomplished by such
stockholder or such stockholder's authorized officer, director, partner,
employee or agent (or, if the stock is held in a trust or estate, by a trustee,
executor or administrator thereof) signing such writing or causing his or her
signature to be affixed to such writing by any reasonable means, including, but
not limited to, facsimile signature, or (ii) by transmitting or authorizing the
transmission of a telegram, cablegram or other means of electronic transmission
(a "Transmission") to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
Transmission; provided that any such Transmission must either set forth or be
submitted with information from which it can be determined that such
Transmission was authorized by such stockholder.
(c) Any inspector or inspectors appointed pursuant to Section
1.9 of these Bylaws shall examine Transmissions to determine if they are valid.
If no inspector or inspectors
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are so appointed, the Secretary or such other person or persons as shall be
appointed from time to time by the Board of Directors shall examine
Transmissions to determine if they are valid. If it is determined a Transmission
is valid, the person or persons making that determination shall specify the
information upon which such person or persons relied. Any copy, facsimile
telecommunication or other reliable reproduction of such a writing or
Transmission may be substituted or used in lieu of the original writing or
Transmission for any and all purposes for which the original writing or
Transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or Transmission.
Section 1.9. Voting Procedures and Inspectors of Elections. (a)
So long as the Corporation has a class of voting stock that is (i) listed on a
national securities exchange, (ii) authorized for quotation on an interdealer
quotation system of a registered national securities association or (iii) held
of record by more than 2,000 stockholders, the Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more inspectors
(individually an "Inspector," and collectively the "Inspectors") to act at such
meeting and make a written report thereof. The Board of Directors may designate
one or more persons as alternate Inspectors to replace any Inspector who shall
fail to act. If no Inspector or alternate is able to act at such meeting, the
chairman of the meeting shall appoint one or more other persons to act as
Inspectors. 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.
(b) The Inspectors shall (i) ascertain the number of shares of
stock of the Corporation outstanding and the voting power of each, (ii)
determine the number of shares of stock of the Corporation present in person or
by proxy at such meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
Inspectors and (v) certify their determination of the number of such shares
present in person or by proxy at such meeting and their count of all votes and
ballots. The Inspectors may appoint or retain other persons or entities to
assist them in the performance of their duties.
(c) The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be announced at such meeting. No ballots, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the Inspectors after the
closing of the polls unless the Court of Chancery of the State of Delaware upon
application by any stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and
ballots, the Inspectors shall be limited to an examination of the proxies, any
envelopes submitted with such proxies, any information referred to in paragraphs
(b) and (c) of Section 1.8 of these Bylaws, ballots and the regular books and
records of the Corporation, except that the Inspectors may consider other
reliable information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
which represent more votes than the holder of a proxy is authorized by a
stockholder of record to cast or more votes than such stockholder holds of
record. If the Inspectors consider other reliable information for the limited
purpose permitted herein, the Inspectors, at the time they make their
certification
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pursuant to paragraph (b) of this Section 1.9, shall specify the precise
information considered by them, including the person or persons from whom such
information was obtained, when and the means by which such information was
obtained and the basis for the Inspectors' belief that such information is
accurate and reliable.
Section 1.10. Fixing Date of Determination of Stockholders of
Record. (a) In order that the Corporation may determine the stockholders
entitled (i) to notice of or to vote at any meeting of stockholders or any
adjournment thereof, (ii) to express consent to corporate action in writing
without a meeting, (iii) to receive payment of any dividend or other
distribution or allotment of any rights, (iv) to exercise any rights in respect
of any change, conversion or exchange of stock or (v) to take, receive or
participate in any other action, or for the purpose of any other lawful purpose,
the Board of Directors may fix in advance a record date, which (1) in the case
of a determination of stockholders entitled to notice of or to vote at any
meeting of stockholders or adjournment thereof, shall, unless otherwise required
by law, be not more than 60 nor less than 10 days before the date of such
meeting; (2) in the case of a determination of stockholders entitled to express
consent to corporate action in writing without a meeting, shall be not more than
10 days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors; and (3) in the case of any other action,
shall be not more than 60 days prior to such action.
(b) Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. The Board
of Directors shall promptly, but in all events within 10 days after the date on
which such request is received, adopt a resolution fixing the record date. If no
record date is fixed within 10 days of the date on which such request is
received, (i) the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held; (ii) the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no prior action of
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 in accordance with applicable law, or, if
prior action by the Board of Directors is required by law, shall be at the close
of business on the day on which the Board of Directors adopts the resolution
taking such prior action; and (iii) the record date for determining stockholders
for any other purpose shall be at the close of business on the date on which the
Board of Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting, but the Board of Directors may fix a new record date for the adjourned
meeting.
(d) In the event of the delivery to the Corporation of a written
consent or consents purporting to authorize or take corporate action and/or
related revocations (each such written consent or related revocation is referred
to in this section as a "Consent"), the Secretary shall provide for safekeeping
of such Consent and shall immediately appoint duly qualified and independent
inspectors to (i) conduct promptly such reasonable ministerial review as such
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inspectors deem necessary or appropriate for the purpose of ascertaining the
sufficiency and validity of such Consent and all matters incident thereto,
including, without limitation, whether holders of shares having the requisite
voting power to authorize or take the action specified in the Consent have given
consent and (ii) deliver to the Secretary a written report regarding the
foregoing. If after such investigation and report the Secretary shall determine
that the Consent is valid, that fact shall be certified on the records of the
Corporation kept for the purpose of recording the proceedings of meetings of
stockholders, and the Consent shall be filed in such records, at which time the
Consent shall become effective as stockholder action.
Section 1.11. List of Stockholders Entitled to Vote. The
Secretary shall prepare, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior 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 meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time
and place of the meeting during the whole time thereof and may be inspected by
any stockholder who is present. The stock ledger shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
Section 1.12. Action By Consent of Stockholders. (a) Unless the
power of stockholders to act by consent without a meeting is restricted or
eliminated by the Certificate of Incorporation, any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, is signed by the holders of all of
outstanding stock entitled to vote thereon.
(b) Every written consent shall bear the date of signature of
each stockholder (or his, her or its proxy) signing such consent. Prompt notice
of the taking of corporate action without a meeting of stockholders by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing. All such written consents shall be delivered to the
Corporation at its registered office in the State of Delaware, at its principal
place of business or to the Secretary. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. No written consent shall be effective to authorize or take
the corporate action referred to therein unless, within 60 days of the earliest
dated written consent delivered to the Corporation in the manner required by
this Section 1.12, written consents signed by a sufficient number of persons to
authorize or take such action are delivered to the Corporation at its registered
office in the State of Delaware, at its principal place of business or to the
Secretary. All such written consents shall be filed with the minutes of
proceedings of the stockholders, and actions authorized or taken under such
written consents shall have the same force and effect as those authorized or
taken pursuant to a vote of the stockholders at an annual or special meeting.
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ARTICLE II
Board of Directors
Section 2.1. Number. Subject to the rights of holders of any
series of Preferred Stock to elect directors under specified circumstances, the
Board of Directors shall consist of one or more directors, the number thereof to
be determined from time to time by resolution of the Board of Directors.
Section 2.2. Election; Resignation; Vacancies. (a) At each
annual meeting of stockholders the stockholders shall elect directors each of
whom shall hold office until the next annual meeting of stockholders and the
election and qualification of his or her successor, or until his or her earlier
death, resignation or removal.
(b) Only persons who are nominated in accordance with the
procedures set forth in this paragraph (b) shall be eligible for election as
directors of the Corporation. Nominations of persons for election to the Board
of Directors may be made at a meeting of stockholders by the Board of Directors
or by any stockholder of the Corporation entitled to vote in the election of
directors at the meeting who complies with the notice procedures set forth in
this paragraph (b). Any nomination by a stockholder must be made by written
notice to the Secretary delivered or mailed to and received at the principal
executive offices of the Corporation (i) not less than 75 days nor more than 100
days prior to the meeting, or (ii) if less than 85 days' notice of the meeting
or prior public disclosure of the date of the meeting is given or made to
stockholders, not later than the close of business on the tenth day following
the day on which the notice of the meeting was mailed or, if earlier, the day on
which such public disclosure was made. A stockholder's notice to the Secretary
shall set forth (x) as to each person whom the stockholder proposes to nominate
for election or re-election as a director: (1) the name, age, business address
and residence address of such person, (2) the principal occupation or employment
of such person, (3) the class and number of shares of stock of the Corporation
which are beneficially owned by such person (for the purposes of the regulations
under Sections 13 and 14 of the Securities Exchange Act of 1934, as amended),
and (4) any other information relating to such person that would be required to
be disclosed in solicitations of proxies for the election of such person as a
director of the Corporation pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended, and such person's written consent to being
named in any proxy statement as a nominee and to serving as a director if
elected; and (y) as to the stockholder giving notice (5) the name and address,
as they appear on the Corporation's records, of such stockholder and (6) the
class and number of shares of stock of the Corporation which are beneficially
owned by such stockholder (determined as provided in clause (x)(3) above). At
the request of the Board of Directors any person nominated by the Board of
Directors for election as a director shall furnish to the Secretary that
information required to be set forth in a stockholder's notice of nomination
which pertains to the nominee. The chairman of the meeting at which a
stockholder nomination is presented shall, if the facts warrant, determine and
declare to the meeting that such nomination was not made in accordance with the
procedures prescribed by this paragraph (b), and, in such event, the defective
nomination shall be disregarded.
(c) Any director may resign at any time by giving written notice
to the Chairman of the Board, if any, the President or the Secretary. Unless
otherwise stated in a notice
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of resignation, it shall take effect when received by the officer to whom it is
directed, without any need for its acceptance.
(d) Any newly created directorship or any vacancy occurring in
the Board of Directors for any reason may be filled by a majority of the
remaining directors, although less than a quorum, or by a plurality of the votes
cast in the election of directors at a meeting of stockholders. Each director
elected to replace a former director shall hold office until the expiration of
the term of office of the director whom he or she has replaced and the election
and qualification of his or her successor, or until his or her earlier death,
resignation or removal. A director elected to fill a newly created directorship
shall serve until the next annual meeting of stockholders and the election and
qualification of his or her successor, or until his or her earlier death,
resignation or removal.
Section 2.3. Regular Meetings. A regular annual meeting of the
Board of Directors shall be held, without call or notice, immediately after and
at the same place as the annual meeting of stockholders, for the purpose of
organizing the Board of Directors, electing officers and transacting any other
business that may properly come before such meeting. If the stockholders shall
elect the directors by written consent of stockholders as permitted by Section
1.12 of these Bylaws, a special meeting of the Board of Directors shall be
called as soon as practicable after such election for the purposes described in
the preceding sentence. Additional regular meetings of the Board of Directors
may be held without call or notice at such times as shall be fixed by resolution
of the Board of Directors.
Section 2.4. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if any, the President, the
Secretary, or by any member of the Board of Directors. Notice of a special
meeting of the Board of Directors shall be given by the person or persons
calling the meeting at least twenty-four hours before the special meeting. The
purpose or purposes of a special meeting need not be stated in the call or
notice.
Section 2.5. Organization. Meetings of the Board of Directors
shall be presided over by the Chairman of the Board, if any, or if there is none
or in his or her absence, by the President, or in his or her absence by a
chairman chosen at the meeting. The Secretary shall act as secretary of the
meeting, but in his or her absence the chairman of the meeting may appoint any
person to act as secretary of the meeting. A majority of the directors present
at a meeting, whether or not they constitute a quorum, may adjourn such meeting
to any other date, time or place without notice other than announcement at the
meeting.
Section 2.6. Quorum; Vote Required for Action. At all meetings
of the Board of Directors a majority of the whole Board of Directors shall
constitute a quorum for the transaction of business. Unless the Certificate of
Incorporation or these Bylaws otherwise provide, the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors.
Section 2.7. Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
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disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members present at
any meeting and not disqualified from voting, whether or not a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and provided in the resolution of the Board of
Directors designating such committee, or an amendment to such resolution, 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.
Section 2.8. Telephonic Meetings. Directors, or any committee of
directors designated by the Board of Directors, 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 pursuant to this
Section 2.8 shall constitute presence in person at such meeting.
Section 2.9. Informal Action by Directors. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, 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 (which may be in counterparts), and the written consent or consents are
filed with the minutes of proceedings of the Board of Directors or such
committee.
Section 2.10. Committee Rules. Unless the Board of Directors
otherwise provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In the absence of
such rules each committee shall conduct its business in the same manner as the
Board of Directors conducts its business pursuant to this Article II of these
Bylaws.
Section 2.11 Reliance upon Records. Every director, and every
member of any committee of the Board of Directors, shall, in the performance of
his or her duties, be fully protected in relying in good faith upon the records
of the Corporation and upon such information, opinions, reports or statements
presented to the Corporation by any of its officers or employees, or committees
of the Board of Directors, or by any other person as to matters the director or
member reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation, including, but not limited to, such records, information, opinions,
reports or statements as to the value and amount of the assets, liabilities
and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might
properly be declared and paid, or with which the Corporation's capital stock
might properly be purchased or redeemed.
Section 2.12 Interested Directors. A director who is directly or
indirectly a party to a contract or transaction with the Corporation, or is a
director or officer of or has a financial interest in any other corporation,
partnership, association or other organization which is a party to a contract or
transaction with the Corporation, may be counted in determining whether a quorum
is present at any meeting of the Board of Directors or a committee thereof at
which
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such contract or transaction is considered or authorized, and such director may
participate in such meeting and vote on such authorization to the extent
permitted by applicable law, including Section 144 of the General Corporation
Law of the State of Delaware.
Section 2.13 Compensation. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority to
fix the compensation of directors. The directors shall be paid their reasonable
expenses, if any, of attendance at each meeting of the Board of Directors or a
committee thereof and may be paid a fixed sum for attendance at each such
meeting and an annual retainer or salary for services as a director or committee
member. No such payment shall preclude any director from serving the Corporation
in any other capacity and receiving compensation therefor.
Section 2.14 Presumption of Assent. Unless otherwise provided by
the laws of the State of Delaware, a director who is present at a meeting of the
Board of Directors or a committee thereof at which action is taken on any matter
shall be presumed to have assented to the action taken unless his or her dissent
shall be entered in the minutes of such meeting or unless he or she shall file
his or her written dissent to such action with the person acting as secretary of
such meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary immediately after the adjournment of such
meeting. Such right to dissent shall not apply to a director who voted in favor
of such action.
ARTICLE III
Officers
Section 3.1. Executive Officers; Election; Qualification; Term
of Office. The Board of Directors shall elect a President and may, if it so
determines, a Chairman of the Board from among its members. The Board of
Directors shall also elect a Secretary. The Board of Directors may also elect a
Chief Financial Officer, a Treasurer and one or more Vice Presidents, Assistant
Secretaries, Assistant Chief Financial Officers, and Assistant Treasurers, and
such other officers as the Board of Directors may deem necessary or appropriate
from time to time. Any number of offices may be held by the same person. Each
officer shall hold office until the first meeting of the Board of Directors
after the annual meeting of stockholders next succeeding his or her election,
and until his or her successor is elected and qualified or until his or her
earlier death, resignation or removal.
Section 3.2. Resignation; Removal; Vacancies. Any officer may
resign at any time by giving written notice to the Chairman of the Board, if
any, the President or the Secretary. Unless otherwise stated in a notice of
resignation, it shall take effect when received by the officer to whom it is
directed, without any need for its acceptance. The Board of Directors may remove
any officer with or without cause at any time and a successor appointed by the
Board of Directors at any time, but such removal shall be without prejudice to
the contractual rights of such officer, if any, with the Corporation. A vacancy
occurring in any office of the Corporation may be filled for the unexpired
portion of the term thereof by the Board of Directors at any regular or special
meeting.
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Section 3.3. Powers and Duties of Executive Officers. The
officers of the Corporation shall have such powers and duties in the management
of the Corporation as may be prescribed by the Board of Directors and, to the
extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board of Directors. The Board of Directors may
require any officer, agent or employee to give security for the faithful
performance of his or her duties.
Section 3.4. Chief Executive Officer. Unless the Board of
Directors elects a Chairman of the Board who is designated as such, the
President shall be the Chief Executive Officer of the Corporation and shall in
general supervise and control all of the business affairs of the Corporation,
subject to the direction of the Board of Directors. The President may execute,
in the name and on behalf of the Corporation, any deeds, mortgages, bonds,
contracts or other instruments which the Board of Directors or a committee
thereof has authorized to be executed, except in cases where the execution shall
have been expressly delegated by the Board of Directors or a committee thereof
to some other officer or agent of the Corporation.
Section 3.5. Secretary. In addition to such other duties, if
any, as may be assigned to the Secretary by the Board of Directors, the Chairman
of the Board, if any, or the President, the Secretary shall (i) keep the minutes
of proceedings of the stockholders, the Board of Directors and any committee of
the Board of Directors in one or more books provided for that purpose; (ii) see
that all notices are duly given in accordance with the provisions of these
Bylaws or as required by law; (iii) be the custodian of the records and seal of
the Corporation; (iv) affix or cause to be affixed the seal of the Corporation
or a facsimile thereof, and attest the seal by his or her signature, to all
certificates for shares of stock of the Corporation and to all other documents
the execution of which under seal is authorized by the Board of Directors; and
(v) unless such duties have been delegated by the Board of Directors to a
transfer agent of the Corporation, keep or cause to be kept a register of the
name and address of each stockholder, as the same shall be furnished to the
Secretary by such stockholder, and have general charge of the stock transfer
records of the Corporation.
ARTICLE IV
Stock Certificates and Transfers
Section 4.1. Certificate. Every holder of stock shall be
entitled to have a certificate signed by or in the name of the Corporation by
the Chairman of the Board, if any, or the President or a Vice President, and by
the Secretary or an Assistant Secretary, of the Corporation, certifying the
number of shares owned by such stockholder in the Corporation. Any of or all the
signatures on the certificate may be facsimile. In case any officer, transfer
agent, or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such officer, transfer agent, or registrar continued
to be such at the date of issue.
Section 4.2. Lost, Stolen or Destroyed Certificates; Issuance of
New Certificates. The Corporation may issue a new certificate for stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the
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owner of the lost, stolen or destroyed certificate, or such stockholder's legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of such new
certificate.
Section 4.3. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for stock
of the Corporation duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer or, if the relevant stock
certificate is claimed to have been lost, stolen or destroyed, upon compliance
with the provisions of Section 4.2 of these Bylaws, and upon payment of
applicable taxes with respect to such transfer, and in compliance with any
restrictions on transfer applicable to such stock certificate or the shares
represented thereby of which the Corporation shall have notice and subject to
such rules and regulations as the Board of Directors may from time to time deem
advisable concerning the transfer and registration of stock certificates, the
Corporation shall issue a new certificate or certificates for such stock to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books. Transfers of stock shall be made only on the books of the
Corporation by the registered holder thereof or by such holder's attorney or
successor duly authorized as evidenced by documents filed with the Secretary or
transfer agent of the Corporation. Whenever any transfer of stock shall be made
for collateral security, and not absolutely, it shall be so expressed in the
entry of transfer if, when the certificate or certificates representing such
stock are presented to the Corporation for transfer, both the transferor and
transferee request the Corporation to do so.
Section 4.4 Stockholders of Record. The Corporation shall be
entitled to treat the holder of record of any stock of the Corporation as the
holder thereof and shall not be bound to recognize any equitable or other claim
to or interest in such stock on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise required by the
laws of the State of Delaware.
ARTICLE V
Notices
Section 5.1. Manner of Notice. Except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws, whenever notice is
required to be given to any stockholder, director or member of any committee of
the Board of Directors, such notice may be given by personal delivery or by
depositing it, in a sealed envelope, in the United States mails, first class,
postage prepaid, addressed, or by delivering it to a telegraph company, charges
prepaid, for transmission, or by transmitting it via telecopier, to such
stockholder, director or member, either at the address of such stockholder,
director or member as it appears on the records of the Corporation or, in the
case of such a director or member, at his or her business address; and such
notice shall be deemed to be given at the time when it is thus personally
delivered, deposited, delivered or transmitted, as the case may be. Such
requirement for notice shall also be deemed satisfied, except in the case of
stockholder meetings, if actual notice is received orally or by other writing by
the person entitled thereto as far in advance of the event with respect to which
notice is being given as the minimum notice period required by law or these
Bylaws.
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Section 5.2. Dispensation with Notice. (a) Whenever notice is
required to be given by law, the Certificate of Incorporation or these Bylaws to
any stockholder to whom (i) notice of two consecutive annual meetings of
stockholders, and all notices of meetings of stockholders or of the taking of
action by stockholders by written consent without a meeting to such stockholder
during the period between such two consecutive annual meetings, or (ii) all, and
at least two, payments (if sent by first class mail) of dividends or interest on
securities of the Corporation during a 12-month period, have been mailed
addressed to such stockholder at the address of such stockholder as shown on the
records of the Corporation and have been returned undeliverable, the giving of
such notice to such stockholder shall not be required. Any action or meeting
which shall be taken or held without notice to such stockholder shall have the
same force and effect as if such notice had been duly given. If any such
stockholder shall deliver to the Corporation a written notice setting forth the
then current address of such stockholder, the requirement that notice be given
to such stockholder shall be reinstated.
(b) Whenever notice is required to be given by law, the
Certificate of Incorporation or these Bylaws to any person with whom
communication is unlawful, the giving of such notice to such person shall not be
required, and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person. Any action or
meeting which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given.
Section 5.3. Waivers of Notice. Any written waiver of notice,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
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
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of any regular special meeting of the stockholders, directors, or
members of a committee or directors need be specified in any written waiver of
notice.
ARTICLE VI
General
Section 6.1. Fiscal year. The fiscal year of the Corporation
shall be determined by resolution of the Board of Directors, subject to
applicable law.
Section 6.2. Seal. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 6.3. Form of Records. Any records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or be in the form of, punch
cards, magnetic tape, photographs, microphotographs, or any other information
storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any
records so kept upon the request of any person entitled to inspect the same.
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Section 6.4. Amendment of Bylaws. These Bylaws may be altered or
repealed, and new Bylaws made, by the Board of Directors, but the stockholders
may make additional Bylaws and may alter and repeal any Bylaws whether adopted
by them or otherwise.
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