EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
INTERPLAY ENTERTAINMENT CORP.
Section 1. Law, Certificate of Incorporation and By-Laws
1.1 These by-laws are subject to the certificate of incorporation
of the corporation. In these by-laws, references to law, the certificate of
incorporation and by-laws mean the law, the provisions of the certificate of
incorporation and the by-laws as from time to time in effect.
Section 2. Stockholders
2.1 ANNUAL MEETING. The annual meeting of stockholders shall be
held at 10:00 a.m. on the first Wednesday in June in each year, unless that day
be a legal holiday at the place where the meeting is to be held, in which case
the meeting shall be held at the same hour on the next succeeding day not a
legal holiday, or at such other date and time as shall be designated from time
to time by the board of directors and stated in the notice of the meeting. At
such annual meeting the stockholders shall elect a board of directors, and shall
transact such other business as has been set forth in the notice of the meeting
or as may be required by law or these by-laws.
2.2 SPECIAL MEETINGS. A special meeting of the stockholders may be
called at any time by the chairman of the board, if any, the president or the
board of directors. A special meeting of the stockholders shall be called by the
secretary, or in the case of the death, absence, incapacity or refusal of the
secretary, by an assistant secretary or some other officer, upon application of
a majority of the directors. Any such application shall state the purpose or
purposes of the proposed meeting. Any such call shall state the place, date,
hour, and purposes of the meeting, and the business transacted at any special
meeting shall be limited to the purposes set forth in such call.
2.3 PLACE OF MEETING. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at such place
within or without the State of Delaware as may be determined from time to time
by the chairman of the board, if any, the president or the board of directors.
Any adjourned session of any meeting of the stockholders shall be held at the
place designated in the vote of adjournment.
2.4 NOTICE OF MEETINGS. Except as otherwise provided by law, a
written notice of each meeting of stockholders stating the place, day and hour
thereof and, in the case of an annual meeting, any business to be transacted at
such annual meeting other than the election of directors, and, in the case of a
special meeting, the purposes for which such special meeting is called, shall be
given not less than ten nor more than sixty days before the meeting, to each
stockholder entitled to vote thereat, and to each stockholder who, by law, by
the certificate of incorporation or by these by-laws, is entitled to notice, by
leaving such notice with him or at his residence
or usual place of business, or by depositing it in the United States mail,
postage prepaid, and addressed to such stockholder at his address as it appears
in the records of the corporation, provided that the corporation may give such
notice by relying on internet availability of proxy materials pursuant to Rule
14a-16 as promulgated under the Securities Exchange Act of 1934, as amended.
Such notice, where applicable shall be given by the secretary, or by an officer
or person designated by the board of directors, or in the case of a special
meeting by the officer calling the meeting. As to any adjourned session of any
meeting of stockholders, notice of the adjourned meeting need not be given if
the time and place thereof are announced at the meeting at which the adjournment
was taken except that if the adjournment is for more than thirty days or if
after the adjournment a new record date is set for the adjourned session, notice
of any such adjourned session of the meeting shall be given in the manner
heretofore described. No notice of any meeting of stockholders or any adjourned
session thereof need be given to a stockholder if a written waiver of notice,
executed before or after the meeting or such adjourned session by such
stockholder, is filed with the records of the meeting or if the stockholder
attends such meeting without 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
meeting of the stockholders or any adjourned session thereof need be specified
in any written waiver of notice.
2.5 QUORUM OF STOCKHOLDERS. At any meeting of the stockholders a
quorum as to any matter shall consist of a majority of the votes entitled to be
cast on the matter, except where a larger quorum is required by law, by the
certificate of incorporation or by these by-laws. Any meeting may be adjourned
from time to time by a majority of the votes properly cast upon the question,
whether or not a quorum is present. If a quorum is present at an original
meeting, a quorum need not be present at an adjourned session of that meeting.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of any corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
2.6 ACTION BY VOTE. When a quorum is present at any meeting, a
plurality of the votes properly cast for election to any office shall elect to
such office and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the certificate of incorporation or by these
by-laws. No ballot shall be required for any election unless requested by a
stockholder present or represented at the meeting and entitled to vote in the
election.
2.7 ACTION WITHOUT MEETINGS. Unless otherwise provided in the
certificate of incorporation, any action required or permitted to be taken by
stockholders for or in connection with any corporate action may be taken without
a meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the
corporation by delivery to its registered office in Delaware by hand or
certified or registered mail, return receipt requested, to its principal place
of business or to an officer or agent of the corporation having custody of the
book
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in which proceedings of meetings of stockholders are recorded. Each such written
consent shall bear the date of signature of each stockholder who signs the
consent. No written consent shall be effective to take the corporate action
referred to therein unless written consents signed by a number of stockholders
sufficient to take such action are delivered to the corporation in the manner
specified in this paragraph within sixty days of the earliest dated consent so
delivered. If action is taken by consent of stockholders and in accordance with
the foregoing, there shall be filed with the records of the meetings of
stockholders the writing or writings comprising such consent. If action is taken
by less than unanimous consent of stockholders, prompt notice of the taking of
such action without a meeting shall be given to those who have not consented in
writing and a certificate signed and attested to by the secretary that such
notice was given shall be filed with the records of the meetings of
stockholders. In the event that the action which is consented to is such as
would have required the filing of a certificate under any provision of the
General Corporation Law of the State of Delaware, if such action had been voted
upon by the stockholders at a meeting thereof, the certificate filed under such
provision shall state, in lieu of any statement required by such provision
concerning a vote of stockholders, that written consent has been given under
Section 228 of said General Corporation Law and that written notice has been
given as provided in such Section 228.
2.8 PROXY REPRESENTATION. Every stockholder may authorize another
person or persons to act for him by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, objecting
to or voting or participating at a meeting, or expressing consent or dissent
without a meeting. Every proxy must be signed by the stockholder or by his
attorney-in-fact. No proxy shall be voted or acted upon after three years from
its date unless such 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 proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the corporation generally. The authorization of a proxy may but need
not be limited to specified action, provided, however, that if a proxy limits
its authorization to a meeting or meetings of stockholders, unless otherwise
specifically provided such proxy shall entitle the holder thereof to vote at any
adjourned session but shall not be valid after the final adjournment thereof.
2.9 INSPECTORS. The directors or the person presiding at the
meeting may, but need not, appoint one or more inspectors of election and any
substitute inspectors to act at the meeting or any adjournment thereof. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors, if
any, shall determine the number of shares of stock outstanding and the voting
power of each, the shares of stock represented at the meeting, the existence of
a quorum, the validity and effect of proxies, and shall receive votes, ballots
or consents, hear and determine all challenges and questions arising in
connection with the right to vote, count and tabulate all votes, ballots or
consents, determine the result, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. Notwithstanding the
foregoing, in the event that a stockholder seeks to nominate one or more
directors pursuant to Section 3.3 of these by-laws, the directors shall appoint
two inspectors, who shall not be affiliated with the Corporation, to determine
whether a stockholder has complied with Section 3.3 of these by-laws. If the
inspector shall determine that a stockholder has not complied with Section 3.3
of these by-laws, the inspectors shall direct the person presiding over
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the meeting to declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the by-laws; and the person
presiding over the meeting shall so declare to the meeting and the defective
nomination shall be disregarded. On request of the person presiding at the
meeting, the inspectors shall make a report in writing of any challenge,
question or matter determined by them and execute a certificate of any fact
found by them.
2.10 LIST OF STOCKHOLDERS. The secretary shall prepare and make, at
least ten days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting, arranged in alphabetical order
and showing the address of each stockholder and the number of shares registered
in his name. The stock ledger shall be the only evidence as to who are
stockholders entitled to examine such list or to vote in person or by proxy at
such meeting.
Section 3. Board of Directors
3.1 NUMBER. The number of directors which shall constitute the
whole board shall not be less than three (3) nor more than nine (9) in number.
The exact number of directors shall be fixed from time to time by a resolution
adopted by a unanimous vote of directors then serving. The number of directors
may be decreased to any number permitted by the foregoing at any time by the
directors by vote of a majority of the directors then in office, but only to
eliminate vacancies existing by reason of the death, resignation or removal of
one or more directors. Directors need not be stockholders.
3.2 TENURE. At each annual meeting of the stockholders, directors
shall be elected to hold office for a term expiring at the next annual meeting
of stockholders. The Secretary shall have the power to certify at any time as to
the number of directors authorized. Except as otherwise provided by law, by the
certificate of incorporation or by these by-laws, each director shall hold
office until the successors of such directors are elected and qualified, or
until he sooner dies, resigns, is removed or becomes disqualified.
3.3 NOMINATION. Nominations of persons for election to the board
of directors may only be made by or at the direction of the board of directors
or by any stockholder beneficially owning (as defined by Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of record at least one percent (1%)
of the issued and outstanding capital stock of the corporation. Nominations of
persons to be elected to the Board of Directors at any special meeting of
stockholders shall be made pursuant to timely notice in writing to the
Secretary. To be timely, a stockholder's notice (which shall only be required
with respect to a special meeting of stockholders) shall be delivered to or
mailed and received at the principal executive offices of the corporation not
less than 45 days nor more than 90 days prior to the meeting; provided, however,
that in the event that less than 55 days' notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 10th day following the date on which such notice of the date of
the meeting was mailed or such public disclosure was made. Such stockholder's
notice (which shall only be required with respect to a special meeting of
stockholders) shall set forth (A) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, (i) the name,
age, business address and residence address of such
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person, (ii) the principal occupation or employment of such person, (iii) the
class and number of shares of the capital stock of the corporation which are
beneficially owned by such person and (iv) any other information relating to
such person that would be required to be disclosed in solicitations of proxies
for election of directors, or would be otherwise required, in each case pursuant
to Regulation 14A promulgated under the Securities Exchange Act of 1934, as
amended (including without limitation such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); and (B) as to the stockholder giving the notice (i) the name and
address of such stockholder and (ii) the class and number of shares of the
capital stock of the corporation which are beneficially owned (as defined by
Rule 13d-3 of the Securities Exchange Act of 1934, as amended) by such
stockholder. If requested in writing by the Secretary at least 15 days in
advance of the annual meeting, a stockholder whose shares are not registered in
the name of such stockholder on the corporation's books shall provide the
Secretary, within ten days of such request, with documentary support for such
claim of beneficial ownership. 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.
3.4 POWERS. The business and affairs of the corporation shall be
managed by or under the direction of the board of directors who shall have and
may exercise all the powers of the corporation and do all such lawful acts and
things as are not by law, the certificate of incorporation or these by-laws
directed or required to be exercised or done by the stockholders.
3.5 VACANCIES. Vacancies and any newly created directorships
resulting from any increase in the number of directors may be filled by vote of
the stockholders at a meeting called for the purpose, or by a majority of the
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, effective at a
future date, a majority of the directors then in office, including those who
have resigned, shall have power to fill such vacancy or vacancies, the vote or
action by writing thereon to take effect when such resignation or resignations
shall become effective. The directors shall have and may exercise all their
powers notwithstanding the existence of one or more vacancies in their number,
subject to any requirements of law or of the certificate of incorporation or of
these by-laws as to the number of directors required for a quorum or for any
vote or other actions.
3.6 Committees. The board of directors may, by vote of a majority
of the whole board, (a) designate, change the membership of or terminate the
existence of any committee or committees, each committee to consist of one or
more of the directors; (b) designate one or more directors as alternate members
of any such committee who may replace any absent or disqualified member at any
meeting of the committee; and (c) determine the extent to which each such
committee shall have and may exercise the powers of the board of directors in
the management of the business and affairs of the corporation, including the
power to authorize the seal of the corporation to be affixed to all papers which
require it and the power and authority to declare dividends or to authorize the
issuance of stock; excepting, however, such powers which by law, by the
certificate of incorporation or by these by-laws they are prohibited from so
delegating. In the absence or disqualification of any member of such committee
and his alternate, if any, the member or members thereof present at
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any meeting and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another member of the board of directors to act
at the meeting in the place of any such absent or disqualified member. Except as
the board of directors may otherwise determine, any committee may make rules for
the conduct of its business, but unless otherwise provided by the board or such
rules, its business shall be conducted as nearly as may be in the same manner as
is provided by these by-laws for the conduct of business by the board of
directors. Each committee shall keep regular minutes of its meetings and report
the same to the board of directors upon request.
3.7 REGULAR MEETINGS. Regular meetings of the board of directors
may be held without call or notice at such places within or without the State of
Delaware and at such times as the board may from time to time determine,
provided that notice of the first regular meeting following any such
determination shall be given to absent directors. A regular meeting of the
directors may be held without call or notice immediately after and at the same
place as the annual meeting of the stockholders.
3.8 SPECIAL MEETINGS. Special meetings of the board of directors
may be held at any time and at any place within or without the State of Delaware
designated in the notice of the meeting, when called by the chairman of the
board, if any, the president, or by one-third or more in number of the
directors, reasonable notice thereof being given to each director by the
secretary or by the chairman of the board, if any, the president or any one of
the directors calling the meeting.
3.9 NOTICE. It shall be reasonable and sufficient notice to a
director to send notice by mail at least forty-eight hours or by facsimile at
least twenty-four hours before the meeting addressed to him at his usual or last
known business or residence facsimile number or to give notice to him in person
or by telephone at least twenty-four hours before the meeting. Notice of a
meeting need not be given to any director if a written waiver of notice,
executed by him before or after the meeting, is filed with the records of the
meeting, or to any director who attends the meeting without protesting prior
thereto or at its commencement the lack of notice to him. Neither notice of a
meeting nor a wavier of a notice need specify the purposes of the meeting.
3.10 QUORUM. Except as may be otherwise provided by law, by the
certificate of incorporation or these by-laws, at any meeting of the directors a
majority of the directors then in office shall constitute a quorum; a quorum
shall not in any case be less than one-third of the total number of directors
constituting the whole board. Any meeting may be adjourned from time to time by
a majority of the votes cast upon the question, whether or not a quorum is
present, and the meeting may be held as adjourned without further notice.
3.11 ACTION BY VOTE. Except as may be otherwise provided by law, by
the certificate of incorporation or by these by-laws, when a quorum is present
at any meeting the vote of a majority of the directors present shall be the act
of the board of directors.
3.12 ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at any meeting of the board of directors or a committee thereof may be
taken without a meeting if all the members of the board or of such committee, as
the case may be, consent thereto in writing, and such writing or writings are
filed with the records of the meetings of the board or of such
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committee. Such consent shall be treated for all purposes as the act of the
board or of such committee, as the case may be.
3.13 PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE. Members of
the board of directors, or any committee designated by such board, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other or by any other means permitted
by law. Such participation shall constitute presence in person at such meeting.
3.14 COMPENSATION. In the discretion of the board of directors,
each director may be paid such fees for his services as director and be
reimbursed from his reasonable expenses incurred in the performance of his
duties as director as the board of directors from time to time may determine.
Nothing contained in this section shall be construed to preclude any director
from serving the corporation in any other capacity and receiving reasonable
compensation therefor.
3.15 INTERESTED DIRECTORS AND OFFICERS.
(a) No contract or transaction between the corporation
and one or more of its directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of the corporation's directors or officers are directors or officers, or
have a financial interest, shall be void or voidable, solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the board or committee thereof which authorizes the contract or
transaction, or solely because his or their votes are counted for such purpose,
if:
(1) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
board of directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of majority of
the disinterested directors, even though the disinterested directors be less
than a quorum; or
(2) The material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholder entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to
the corporation as of the time it is authorized, approved or ratified by the
board of directors, a committee thereof, or the stockholders.
(b) Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorized the contract or transaction.
Section 4. Officers and Agents.
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4.1 ENUMERATION; QUALIFICATION. The officers of the corporation
shall be a president, a treasurer, a secretary and such other officers, if any,
as the board of directors from time to time may in its discretion elect or
appoint including without limitation a chairman of the board, one or more vice
presidents and a controller. The corporation may also have such agents, if any,
as the board of directors from time to time may in its discretion choose. Any
officer may be but none need be a director or stockholder. Any two or more
offices may be held by the same person. Any officer may be required by the board
of directors to secure the faithful performance of his duties to the corporation
by giving bond in such amount and with sureties or otherwise as the board of
directors may determine.
4.2 POWERS. Subject to law, to the certificate of incorporation
and to the other provisions of these by-laws, each officer shall have, in
addition to the duties and powers herein set forth, such duties and powers as
are commonly incident to his office and such additional duties and powers as the
board of directors may from time to time designate.
4.3 ELECTION. The officers may be elected by the board of
directors at their first meeting following the annual meeting of the
stockholders or at any other time. At any time or from time to time the
directors may delegate to any officer their power to elect or appoint any other
officer or any agents.
4.4 TENURE. Each officer shall hold office until the first meeting
of the board of directors following the next annual meeting of the stockholders
and until his respective successor is chosen and qualified unless a shorter
period shall have been specified by the terms of his election or appointment, or
in each case until he sooner dies, resigns, is removed or becomes disqualified.
Each agent shall retain his authority at the pleasure of the directors, or the
officer by whom he was appointed or by the officer who then holds agent
appointive power.
4.5 CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT AND VICE
PRESIDENT. The chairman of the board, if any, shall have such duties and powers
as shall be designated from time to time by the board of directors. Unless the
board of directors otherwise specifies, the chairman of the board, or if there
is none the chief executive officer, shall preside, or designate the person who
shall preside, at all meetings of the stockholders and of the board of
directors.
Unless the board of directors otherwise specifies, the president shall
be the chief executive officer and shall have direct charge of all business
operations of the corporation and, subject to the control of the directors,
shall have general charge and supervision of the business of the corporation.
Any vice president shall have such duties and powers as shall be set
forth in these by-laws or as shall be designated from time to time by the board
of directors or by the president.
4.6 TREASURER AND ASSISTANT TREASURERS. Unless the board of
directors otherwise specifies, the treasurer shall be the chief financial
officer of the corporation and shall be in charge of its funds and valuable
papers, and shall have such other duties and powers as may be designated from
time to time by the board of directors or by the president. If no
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controller is elected, the treasurer shall, unless the board of directors
otherwise specifies, also have the duties and powers of the controller.
Any assistant treasurers shall have such duties and powers as shall be
designated from time to time by the board of directors, the president or the
treasurer.
4.7 CONTROLLER AND ASSISTANT CONTROLLER. If a controller is
elected, he shall, unless the board of directors otherwise specifies, be the
chief accounting officer of the corporation and be in charge of its books of
account and accounting records, and of its accounting procedures. He shall have
such other duties and powers and may be designated from time to time by the
board of directors, the president or the treasurer.
Any assistant controller shall have such duties and powers as shall be
designated from time to time by the board of directors, the president, the
treasurer or the controller.
4.8 SECRETARY AND ASSISTANT SECRETARIES. The secretary shall
record all proceedings of the stockholders, of the board of directors and of
committees of the board of directors in a book or series of books to be kept
therefore and shall file therein all actions by written consent of stockholders
or directors. In the absence of the secretary from any meeting, an assistant
secretary, or if there be none or he is absent, a temporary secretary chosen at
the meeting, shall record the proceedings thereof. Unless a transfer agent has
been appointed the secretary shall keep or cause to be kept the stock and
transfer records of the corporation, which shall contain the names and record
addresses of all stockholders and the number of shares registered in the name of
each stockholder. He shall have such other duties and powers as may from time to
time be designated by the board of directors or the president. Any assistant
secretaries shall have such duties and powers as shall be designated from time
to time by the board of directors, the president or the secretary.
Section 5. Resignations and Removals.
5.1 Any director or officer may resign at any time by delivering
his resignation in writing to the chairman of the board, if any, the president,
or the secretary or to a meeting of the board of directors. Such resignation
shall be effective upon receipt unless specified to be effective at some other
time, and without in either case the necessity of its being accepted unless the
resignation shall so state. A director (including persons elected by directors
to fill vacancies in the board) may be removed from office with or without cause
by the vote of the holders of two-thirds of the shares issued and outstanding
and entitled to vote in the election of directors. The board of directors may at
any time remove any officer either with or without cause. The board of directors
may at any time terminate or modify the authority of any agent. No director of
officer resigning and (except where a right to receive compensation shall be
expressly provided in a duly authorized written agreement with the corporation)
no director or officer removed shall have any right to any compensation as such
director or officer for any period following his resignation or removal, or any
right to damages on account of such removal, whether his compensation be by the
month or by the year or otherwise; unless, in the case of a resignation, the
directors, or, in the case of removal, the body acting on the removal, shall in
their or its discretion provide for compensation.
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Section 6. Vacancies.
6.1 If the office of the president or the treasurer or the
secretary becomes vacant, the directors may elect a successor by vote of a
majority of the directors then in office. If the office of any other officer
becomes vacant, any person or body empowered to elect or appoint that officer
may choose a successor. Each such successor shall hold office for the unexpired
term, and in the case of the president, the treasurer and the secretary until
his successor is chosen and qualified or in each case he sooner dies, resigns,
is removed or becomes disqualified. Any vacancy of a directorship shall be
filled as specified in Section 3.5 of these by-laws.
Section 7. Capital Stock.
7.1 STOCK CERTIFICATES. Each stockholder shall be entitled to a
certificate stating the number and the class and the designation of the series,
if any, of the shares held by him, in such form as shall, in conformity to law,
the certificate of incorporation and the by-laws, be prescribed from time to
time by the board of directors. Such certificate shall be signed by the chairman
or vice chairman of the board, if any, or the president or a vice president and
by the treasurer or an assistant treasurer or by the secretary or an assistant
secretary. Any of or all the signatures on the certificate may be a facsimile.
In case an officer, transfer agent, or registrar who has signed or whose
facsimile signature has been placed on such 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 he were such
officer, transfer agent, or registrar at the time of its issue.
7.2 LOSS OF CERTIFICATES. In the case of the alleged theft, loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms, including receipt of a bond
sufficient to indemnify the corporation against any claim on account thereof, as
the board of directors may prescribe.
Section 8. Transfer of Shares of Stock.
8.1 TRANSFER ON BOOKS. Subject to the restrictions, if any, stated
or noted on the stock certificate, shares of stock may be transferred on the
books of the corporation by the surrender to the corporation or its transfer
agent of the certificate therefor properly endorsed or accompanied by a written
assignment and power of attorney properly executed, with necessary transfer
stamps affixed, and with such proof of the authenticity of signature as the
board of directors or the transfer agent of the corporation may reasonably
require. Except as may be otherwise required by law, by the certificate of
incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to receive notice
and to vote or to give any consent with respect thereto and to be held liable
for such calls and assessments, if any, as may lawfully be made thereon,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been properly transferred on the books of the corporation.
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It shall be the duty of each stockholder to notify the corporation of
his post office address.
8.2 RECORD DATE AND CLOSING TRANSFER BOOKS. In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, 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 record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no such record date is fixed by the board of directors,
the record date for determining the 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. 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;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
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 days after the date upon
which the resolution fixing the record date is adopted by the board of
directors. If no such record date has been fixed by the board of directors, 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 the General Corporation Law of the State of Delaware, 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 Delaware by hand or certified or registered mail, return
receipt requested, to its principal place of business or to an officer or agent
of the corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by the General
Corporation Law of the State of Delaware, 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 day on which the board of
directors adopts the resolution taking such prior action.
In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the board of
directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty days prior to such payment, exercise or other
action. If no such record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the board of directors adopts the resolution relating thereto.
Section 9. Indemnification.
9.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil,
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criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director officer of the
corporation or is or was serving at the request of the corporation as a director
or officer of another corporation or of a partnership, joint venture, trust or
other enterprise, including service with respect to employee benefit plans
(hereinafter an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director or officer or in any other capacity
while serving as a director or officer, shall be indemnified and held harmless
by the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than such law permitted
the corporation to provide prior to such amendment), against all expense,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director or officer
and shall inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in this Section 9.1
with respect to proceedings to enforce rights to indemnification, the
corporation shall indemnify any such indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the board of directors of the corporation. The right
to indemnification conferred in this Section 9.1 shall be a contract right and
shall include the right to be paid by the corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is not further right to
appeal that such indemnitee is not entitled to be indemnified for such expenses
under this Section 9 or otherwise (hereinafter an "undertaking").
9.2 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
9.1 of these by-laws is not paid in full by the corporation within forty-five
(45) days after a written claim has been received by the corporation, the
indemnitee may at any time thereafter bring suit against the corporation to
recover the unpaid amount of the claim. If successful in whole or part in any
such suit or in a suit brought by the corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the indemnitee shall be
entitled to be paid also the expense of prosecuting or defending such suit. In
(i) any suit brought by the indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any suit by the
corporation to recover an advancement of expenses pursuant to the terms of an
undertaking the corporation shall be entitled to recover such expenses upon a
final adjudication that, the indemnitee has not met the applicable standard of
conduct set forth in the Delaware General Corporation Law. Neither the failure
of the corporation (including its board of directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of
such suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
corporation (including its board of directors, independent
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legal counsel, or its stockholders) that the indemnitee has not met such
applicable standard of conduct, shall create a presumption that the indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right hereunder, or by the corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Section 9 or otherwise shall be on the
corporation.
9.3 NON-EXCLUSIVITY OF RIGHTS. The rights of indemnification and
to the advancement of expenses conferred in this Section 9 shall not be
exclusive of and shall not affect any other right which any person may have or
thereafter acquire under any statue, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise, and shall inure to the benefit of the heirs and legal
representatives of such person.
9.4 INSURANCE. The corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
9.5 INDEMNIFICATION OF EMPLOYEES OR AGENTS OF THE CORPORATION. The
corporation may, to the extent authorized from time to time by the board of
directors, grant rights to indemnification and to the advancement of expenses,
to any employee or agent of the corporation to the fullest extent of the
provisions of this Section 9 with respect to the indemnification and advancement
of expenses of directors or officers of the corporation.
9.6 INDEMNIFICATION CONTRACTS. The board of directors is
authorized to enter into a contract with any director, officer, employee or
agent of the corporation, or any person serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee
benefit plans, providing for indemnification rights equivalent to or, if the
board of directors so determines, greater than, those provided for in this
Section 9.
9.7 EFFECT OF AMENDMENT. Any amendment, repeal or modification of
any provision of this Section 9 by the stockholders or the directors of the
corporation shall not adversely affect any right or protection of a director or
officer of the corporation existing at the time of such amendment, repeal or
modification.
Section 10. Corporate Seal.
10.1 Subject to alteration by the directors, the seal of the
corporation shall consist of a flat-faced circular die with the word "Delaware"
and the name of the corporation cut or engraved thereon, together with such
other words, dates or images as may be approved from time to time by the
directors.
Section 11. Execution of Papers.
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11.1 Except as the board of directors may generally or in
particular cases authorize the execution thereof in some other manner, all
deeds, leases, transfers, contracts, bonds, notes, checks, drafts or other
obligations made, accepted or endorsed by the corporation shall be signed by the
chairman of the board, if any, the president, a vice president or the treasurer.
Section 12. Fiscal Year.
12.1 THE FISCAL YEAR OF THE CORPORATION SHALL END ON DECEMBER 31.
Section 13. Amendments.
13.1 These by-laws may be adopted, amended or repealed by vote of a
majority of the directors then in office (except that any amendment or repeal of
Section 3.1, 3.3 or 13.1 of these bylaws shall be made only by unanimous vote of
the directors then serving) or by vote of a majority of the stock outstanding
and entitled to vote. Any by-law, whether adopted, amended or repealed by the
stockholders or directors, may be amended or reinstated by the stockholders or
the directors.
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