Bylaws - Electronic Arts Inc.
AMENDED AND RESTATED BYLAWS
OF
ELECTRONIC ARTS INC.
( A DELAWARE CORPORATION)
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BYLAWS
OF
ELECTRONIC ARTS INC.
(a Delaware Corporation)
TABLE OF CONTENTS
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Article I - STOCKHOLDERS..............................................................................................1
Section 1.1: Annual Meetings...............................................................................1
Section 1.2: Special Meetings .............................................................................1
Section 1.3: Notice of Meetings............................................................................1
Section 1.4: Adjournments .................................................................................1
Section 1.5 Quorum........................................................................................1
Section 1.6: Organization..................................................................................2
Section 1.7: Voting; Proxies...............................................................................2
Section 1.8: Fixing Date for Termination of Stockholders of Record.........................................2
Section 1.9: List of Stockholders Entitled to Vote.........................................................3
Section 1.10: Action by Written Consent of Stockholders.....................................................3
Section 1.11: Inspectors of Elections.......................................................................4
Article II - BOARD OF DIRECTORS........................................................................................4
Section 2.1: Number; Qualifications........................................................................4
Section 2.2: Election; Resignation; Removal; Vacancies.....................................................4
Section 2.3: Regular Meetings..............................................................................4
Section 2.4: Special Meetings..............................................................................4
Section 2.5: Telephonic Meetings Permitted.................................................................5
Section 2.6: Quorum; Vote Required for Action..............................................................5
Section 2.7: Organization..................................................................................5
Section 2.8: Written Action By Directors...................................................................5
Section 2.9: Powers........................................................................................5
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TABLE OF CONTENTS (CONT.)
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Section 2.10: Compensation of Directors.....................................................................5
Article III - COMMITTEES...............................................................................................5
Section 3.1: Committees....................................................................................5
Section 3.2: Committee Rules...............................................................................6
Article IV - OFFICERS..................................................................................................6
Section 4.1: Generally.....................................................................................6
Section 4.2: Chairman of the Board.........................................................................6
Section 4.3: President.....................................................................................6
Section 4.4: Vice President................................................................................6
Section 4.5: Chief Financial Officer.......................................................................6
Section 4.6: Treasurer.....................................................................................6
Section 4.7: Secretary.....................................................................................6
Section 4.8: Delegation of Authority.......................................................................7
Section 4.9: Removal.......................................................................................7
Article V - STOCK......................................................................................................7
Section 5.1: Certificates..................................................................................7
Section 5.2: Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificate.................... 7
Section 5.3: Other regulations.............................................................................7
Article VI - INDEMNIFICATION...........................................................................................7
Section 6.1: Indemnification of Officers and Directors.....................................................7
Section 6.2: Advance of Expenses...........................................................................8
Section 6.3: Non-Exclusively of Rights.....................................................................8
Section 6.4: Indemnification Contracts.....................................................................8
Section 6.5: Effect of Amendment...........................................................................8
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TABLE OF CONTENTS (CONT.)
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Article VII - NOTICES..................................................................................................8
Section 7.1: Notice........................................................................................8
Section 7.2: Waiver of Notice..............................................................................8
Article VIII - INTERESTED DIRECTORS....................................................................................9
Section 8.1: Interested Directors..........................................................................9
Article IX - MISCELLANEOUS.............................................................................................9
Section 9.1: Fiscal Year...................................................................................9
Section 9.2: Seal..........................................................................................9
Section 9.3: Form of Records...............................................................................9
Section 9.4: Reliance Upon Books and Records...............................................................9
Section 9.5: Certificate of Incorporation Governs..........................................................9
Section 9.6: Severability..................................................................................9
Article X - AMENDMENT.................................................................................................10
Section 10.1: Amendments...................................................................................10
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BYLAWS
OF
ELECTRONIC ARTS INC.
(a Delaware Corporation)
AMENDED AND RESTATED BYLAWS OF
ELECTRONIC ARTS INC.
(a Delaware Corporation)
AMENDED THROUGH JULY 27, 1994
ARTICLE I
STOCKHOLDERS
Section 1.1: Annual Meetings. An annual meeting of stockholders shall be
held for the election of directors at such date, time and place, either within
or without the State of Delaware, as the Board of Directors shall each year fix.
Any other proper business may be transacted at the annual meeting.
Section 1.2: Special Meetings. Special meetings of stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board, the
Chief Executive Officer, the President, or by a majority of the members of the
Board of Directors or stockholders holding shares representing not less than ten
percent of the outstanding votes entitled to be cast by all stockholders at such
meeting. Special meetings may not be called by any other person or persons.
Section 1.3: Notice of Meetings. Written notice of all meetings of
stockholders shall be given stating the place, date and time, and in the case of
a special meeting, the purpose or purposes for which the meeting is called.
Unless otherwise required by applicable law or the Certificate of Incorporation
of the Corporation, such notice shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to each stockholder entitled
to vote at such meeting.
Section 1.4: Adjournments. Any meeting of stockholders may adjourn from
time to time to reconvene at the same or other place, and notice need not be
given of any such adjourned meeting if the time, date and place thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, than a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. At the adjourned meeting the Corporation may transact
any business that might have been transacted at the original meeting.
Section 1.5: Quorum. At each meeting of stockholders the holders of a
majority of the shares of stock entitled to vote at the meeting, present in
person or represented by proxy, shall constitute a quorum for the transaction of
business, except if otherwise required by applicable law. If a quorum shall fail
to attend any meeting, the chairman of the meeting or the holders of the
majority of the shares entitled to vote who are present, in person or by proxy,
at the meeting may adjourn the meeting. Shares of the Corporation's stock
belonging to the Corporation (or to another corporation, if a majority of the
shares
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entitled to vote in the election of directors of such other corporation are
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 the Corporation or any other corporation to vote
any shares of the Corporation's stock held by it in a fiduciary capacity.
Section 1.6: Organization. Meetings of stockholders shall be presided over
by such person as the Board of Directors may designate, or, in the absence of
such person, the Chairman of the Board, or in the absence of such person, the
President of the Corporation, or in the absence of such person, such person as
may be chosen by the holders of a majority of the shares entitled to vote who
are present, in person or by proxy, at the meeting. Such person shall be
chairman of the meeting and, subject to Section 1.11 hereof, shall determine the
order of business and the procedure at the meeting, including such regulation of
the manner of voting and the conduct of discussion as seems to him or her to be
in order. The Secretary of the Corporation 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; Proxies. Unless otherwise provided by law or the
Certificate of Incorporation, and subject to the provisions of Section 1.8 of
these Bylaws, each stockholder shall be entitled to one (1) vote for each share
of stock held by such stockholder. Each stockholder entitled to vote at a
meeting of stockholders, or to express consent or dissent to corporate action in
writing without a meeting, may authorize another person or persons to act for
such stockholder by proxy. Such proxy may be prepared, transmitted and delivered
in any manner permitted by applicable law. Voting at meeting of stockholders
need not be by written ballot unless such is demanded at the meeting before
voting begins by a stockholder or stockholders holding shares representing at
least one percent (1%) of the votes entitled to vote at such meeting, or by such
stockholders' proxy; provided, however, that an election of directors shall be
by written ballot if demand is so made by any stockholder at the meeting before
voting begins. If a vote is to be taken by written ballot, then each such ballot
shall state the name of the stockholder or proxy voting and such other
information as the chairman of the meeting deems appropriate, and the ballots
shall be counted by one or more inspectors appointed pursuant to Section 1.11 of
these Bylaws. At all meetings of stockholders, directors shall be elected by a
plurality of the votes of shares present in person or represented by proxy at
the meeting and entitled to vote on the election of directors. Unless otherwise
provided by applicable law, the Certificate of Incorporation or these Bylaws,
every other matter shall be decided by the affirmative vote of the holders of
outstanding stock having not less than a majority of the votes entitled to be
cast thereon by stockholders that are present in person or represented by proxy
at the meeting and are voted for or against the matter.
Section 1.8: Fixing Date for Determination of Stockholders of Record.
(a) Generally. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors and which shall not be more than sixty
(60) nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. If no record date is fixed by the
Board of Directors, than the record date shall be as provided by applicable law.
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.
(b) Stockholder Request for Action by Written Consent. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
to the Secretary of the Corporation, request the Board of Directors to fix a
record date for such consent. Such request shall include a brief description of
the action proposed to be taken. The Board of Directors shall, within ten (10)
days after the date on which such a request is received, adopt a
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resolution fixing the record date. Such record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and shall not be more than ten (10) days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. If
no record date has been fixed by the Board of Directors within ten (10) days of
the date on which such a request is received, then the record date for
determining stockholders entitled to 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 by delivery to its registered office in the state of Delaware, to
its principal place of business, or to any officer or agent of the corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directions and prior action by the Board of
Directors is required by applicable law, then the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
Section 1.9: List of Stockholders Entitled to Vote. A complete list of
stockholders entitled to vote at any meeting of stockholders, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder, 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 (10) 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 the 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 at the meeting.
Section 1.10: Action by Written Consent of Stockholders.
(a) Procedure. Unless otherwise provided by the Certificate of
Corporation, and except as set forth in Section 1.8 above, any action required
or permitted to be taken at any annual or special meeting of the stockholders
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 number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon where present and voted. Written
stockholder consents shall bear the date of signature of each stockholder who
signs the consent and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, to its principal place of business
or to any officer or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded. 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 take
the action set forth therein unless, within sixty (60) days of the earliest
dated consent delivered to the Corporation in the manner provided above, written
consents signed by a sufficient number of stockholders to take the action set
forth therein are delivered to the Corporation in the manner provided above.
(b) Notice of Consent. Prompt notice of the taking of corporate action by
stockholders without a meeting by less than unanimous written consent of the
stockholders shall be given to those stockholders who have not consented thereto
in writing and, in the case of a Certificate Action (as defined below), if the
Delaware General Corporation Law so requires, such notice shall be given prior
to filling out the certificate in question. If the action which is consented to
requires filing a certificate under the Delaware General Corporation Law (a
"Certificate Action"), then if the Delaware General Corporation Law so requires,
the certificate so filed shall state that written stockholder consent has been
given in accordance with Section 228 of the Delaware General Corporation Law and
that written notice of the taking of corporate action by stockholders without a
meeting as described herein has been given as provided in such section.
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Section 1.11: Inspector(s) of Elections. In advance of any meeting of
stockholders, the Board of Directors shall appoint one or more Inspector(s) to
act at such meeting or any adjournment thereof and make a written report
thereof. If Inspector(s) are not so appointed or if the person(s) so appointed
fail to appear or act, the person presiding at such meeting shall appoint one or
more Inspector(s). Each Inspector, before entering upon the discharge of his or
her duties, shall take and sign an oath faithful to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his or her ability. The Inspector shall (i) determine the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at the meeting, the existence of a quorum and the validity and effect of
proxies, (iii) receive votes, ballots and consents, (iv) hear and determine all
challenges and questions arising in connection with the right to vote, (v) count
and tabulate all votes, ballots or consents, (vi) determine the results of
elections and votes, (vii) retain for a reasonable period a record of the
disposition of any challenges made to any determination by the Inspector(s), and
(viii) do such acts as are proper to conduct the election or vote with fairness
to all stockholders. On request of the person presiding at the meeting or any
stockholder entitled to vote thereon, the Inspector(s) 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. Any report or certificate made by them
shall be prima facie evidence of the facts stated and of the votes as certified
by them.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1: Number; Qualifications. The Board of Directors shall consist
of one or more members. The initial number of directors shall be six (6), and
thereafter shall be fixed from time to time by resolution of the Board of
Directors. Directors need not be stockholders of the Corporation.
Section 2.2: Election; Resignation; Removal; Vacancies. The Board of
Directors shall initially consist of the person or persons elected by the
incorporator or named in the Corporation's initial Certificate of Incorporation.
Each Director shall hold office until the next annual meeting of stockholders
and until his or her successor is elected and qualified, or until his or her
earlier death, resignation or removal. Any director may resign at any time upon
written notice to the Corporation. Subject to the rights of any holders of
preferred stock then outstanding: (i) any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors and (ii) any
vacancy occurring in the Board of Directors for any cause, and any newly created
directorship resulting from any increase in the authorized number of directors
to be elected by all stockholders having the right to vote as a single class,
may be filled by the stockholders, by a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
Section 2.3: Regular Meetings. Regular meetings of the Board of Directors
may be held at such places, within or without the State of Delaware, and at such
times as the Board of Directors may from time to time determine. Notice of
regular meetings need not be given if the date, time and places thereof are
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, the President or a majority of the
members of the Board of Directors then in office and may be held at any time,
date or place, within or without the State of Delaware, as the person(s) calling
the meeting shall fix. Notice of the time, date and place of such meeting shall
be given, orally or in writing, by the person(s) calling the meeting to all
directors at least four (4) days before the meeting if the notice is mailed, or
at least two (2) days before the meeting if such notice is given by telephone,
hand delivery, telegram, telex, mailgram, facsimile or similar communication
method. Unless otherwise indicated in the notice, any and all business may be
transacted at a special meeting.
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Section 2.5: Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee of the Board, may participate in a meeting of the
Board 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
conference telephone or similar communications equipment shall constitute
presence in person at such meeting.
Section 2.6: Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the total number of authorized directors shall
constitute a quorum for the transaction of business. Except as otherwise
provided herein or in the Certificate of Incorporation, or required by law, the
vote of a majority of directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
Section 2.7: Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, 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.
Section 2.8: Written Action By Directors. Any action required or permitted
to be taken at any meeting at the Board of Directors, or of any committee
thereof, may be taken without a meeting if all members of the Board or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee,
respectively.
Section 2.9: Powers. The Board of Directors may, except as otherwise
required by law or the Certificate of Incorporation, exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation.
Section 2.10: Compensation of Directors. Directors, as such, may receive,
pursuant to a resolution of the Board of Directors, fees and other compensation
for their services as directors, including without limitation their services as
members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 3.1: Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the Directors of the Corporation. The
Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of the committee, the
member or members thereof present at any meeting of such committee who are not
disqualified from voting, whether or not he, she or they constitute 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 provided in a resolution of the Board of Directors, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board of Directors as provided in subsection (a) of
Section 151 of the Delaware General Corporation Law, fix the designations and
any of the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the Corporation, or the
conversion into, or the exchange of such shares for, shares of any other class
or classes or any other series of the same or any other class or classes of
stock of the Corporation, or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series), adopting an
agreement of merger or consolidation under Sections 251 or 252 of the Delaware
General Corporation law, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to
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the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and unless the
resolution of the Board of Directors expressly so provides, no such committee
shall have the power or authority to declare a dividend, authorize the issuance
of stock or adopt a certificate of ownership and merger pursuant to Section 253
of the Delaware General Corporation Law.
Section 3.2: Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board 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 Article II of these Bylaws.
ARTICLE IV
OFFICERS
Section 4.1: Generally. The officers of the Corporation shall consist of a
Chief Executive Officer and/or a President, one or more Vice Presidents, a
Secretary, a Treasurer and such other officers, including a Chairman of the
Board of Directors and/or Chief Financial Officer, as may from time to time be
appointed by the Board of Directors. Each officer shall hold office until his or
her successor is elected and qualified or until his or her earlier resignation
or removal. Any number of offices may be held by the same person. Any officer
may resign at any time upon written notice to the Corporation. Any vacancy
occurring in any office of the Corporation by death, resignation, removal
(pursuant to Section 4.9 below or otherwise may be filled by the Board of
Directors.
Section 4.2: Chairman of the Board. The Chairman of the Board shall have
the power to preside at all meetings of the Board of Directors and shall have
such other powers and duties as provided in these Bylaws and as the Board of
Directors may from time to time prescribe.
Section 4.3: President. Unless otherwise designated by the Board of
Directors, the President shall be the Chief Executive Officer of the
Corporation. Subject to the provisions of these Bylaws and to the direction of
the Board of Directors, the President shall have the responsibility for the
general management and control of the business and the affairs of the
Corporation and shall perform all duties and have all powers that are commonly
incident to the office of chief executive or that are delegated to the president
by the Board of Directors. The President shall have general supervision and
direction of all of the officers, employees and agents of the Corporation.
Section 4.4: Vice President. Each Vice President shall have all such
powers and duties as are commonly incident to the office of Vice President, or
that are delegated to him or her by the Board of Directors or the President. A
Vice President may be designated by the Board to perform the duties and exercise
the powers of the President in the event of the President's absence or
disability.
Section 4.5: Chief Financial Officer. Subject to the direction of the
Board of Directors and the President, the Chief Financial Officer shall perform
all duties and have all powers that are commonly incident to the office of chief
financial officer.
Section 4.6: Treasurer. The Treasurer shall have the custody of all moneys
and securities of the Corporation. The treasurer shall make such disbursements
of the funds of the Corporation as are authorized and shall render from time to
time an account of all such transactions. The Treasurer shall also perform such
other duties and have such powers as are commonly incident to the office of
treasurer, or as the Board of Directors or the President may from time to time
prescribe.
Section 4.7: Secretary. The Secretary shall issue or cause to be issued
all authorized notices for, and shall keep, or cause to be kept, minutes of all
meetings of the stockholders and the Board of Directors. The Secretary shall
have charge of the corporate minute books and similar records and shall perform
such
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other duties and have such other powers as are commonly incident to the office
of secretary, or as the Board of Directors or the President may from time to
time prescribe.
Section 4.8: Delegation of Authority. The Board of Directors may from time
to time delegate the powers or duties of any officer to any other officers or
agents, notwithstanding any provision hereof.
Section 4.9: Removal. Any officer of the Corporation shall serve at the
pleasure of the Board of Directors and may be removed at any time, with or
without cause, by the Board of Directors. Such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation.
ARTICLE V
STOCK
Section 5.1 Certificates. 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 of Directors, or the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the
Corporation, certifying the number of shares owned by such stockholder in the
Corporation. Any or all of the signatures on the certificate may be a facsimile.
Section 5.2: Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Corporation may issue a new certificate of stock in the place
of any certificate previously issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to agree to
indemnify the Corporation and/or 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: 5.3 Other Regulations. The issue, transfer, conversion and
registration of stock certificates shall be governed by such other regulations
as the Board of Directors may establish.
ARTICLE VI
INDEMNIFICATION
Section 6.1: Indemnification of Officers and Directors. Each person who
was or is made a party to, or is threatened to be made a party to, or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), by reason of the fact that he
or she (or a person of whom he or she is the legal representative), is or was a
director or officer of the Corporation or a Reincorporated Predecessor (as
defined below) or is or was serving at the request of the Corporation or
Reincorporated Predecessor (including any constituent 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,
shall be indemnified and held harmless by the Corporation to the fullest extent
permitted by the Delaware General Corporation Law, against all expenses,
liability and loss (including attorney fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director or
officer of the Corporation or a Reincorporated Predecessor and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that the Corporation shall indemnify any such person seeking indemnity
in connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors.
As used herein, the term "Reincorporated Predecessor" means a corporation that
is merged with and into the Corporation in a statutory merger where (a) the
Corporation is the surviving corporation of such merger; and (b) the primary
purpose of such merger is to change the corporate domicile of the Reincorporated
Predecessor.
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Section 6.2: Advance of Expenses. The Corporation shall pay all expenses
(including attorneys' fees) incurred by such a director or officer in defending
any such proceeding as they are incurred in advance of its final disposition;
provided, however, that if the Delaware General Corporation Law then so
requires, the payment of such expenses incurred by such director or officer in
advance of the final disposition of such proceeding shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it should be determined that
such director or officer is not entitled to be indemnified under this Article VI
or otherwise; and provided, further, that the Corporation shall not be required
to advance any expenses to a person against whom the Corporation directly brings
a claim, in a proceeding, alleging that such person has breached his or her duty
of loyalty to the Corporation, committed an act or omission not in good faith or
that involves intentional misconduct or a knowing violation of law, or derived
an improper personal benefit from a transaction.
Section 6.3: Non-Exclusivity of Rights. The rights conferred on any person
in this Article VI shall not be exclusive of any other right that such person
may have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote or consent of stockholders or
disinterested directors, or otherwise. Additionally, nothing in this Article VI
shall limit the ability of the Corporation, in its discretion, to indemnify or
advance expenses to persons whom the corporation is not obligated to indemnify
or advance expenses pursuant to this Article VI.
Section 6.4: Indemnification Contracts. The Board of Directors is
authorized to cause the Corporation to enter into indemnification contracts 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 indemnification rights
to such person. Such rights may be greater than those provided in this Article
VI.
Section 6.5: Effect of Amendment. Any amendment, repeal or modification of
any provision of this Article VI shall be prospective only, and shall not
adversely affect any right or protection conferred on a person pursuant to this
Article VI and existing at the time of such amendment, repeal or modification.
ARTICLE VII
NOTICES
Section 7.1: Notices. Except otherwise specifically provided herein or
required by law, all notices required to be given pursuant to these Bylaws shall
be in writing and may in every instance be effectively given by hand delivery
(including use of a delivery service), by depositing such notice in the mail,
postage prepaid, or by sending such notice by prepaid telegram, telex, overnight
express courier, mailgram or facsimile. Any such notice shall be addressed to
the person whom notice is to be given at such persons address as it appears on
the records of the Corporation. The notice shall be deemed given (i) in the case
of hand delivery, when received by the person whom notice is to be given or by
any person accepting such notice on behalf of such person, (ii) in the case of
delivery by mail, upon deposit in the mail, (iii) in the case of delivery
overnight express courier, on the first business day after such notice is
dispatched, and (iv) in the case of delivery via telegram, telex, mailgram, or
facsimile, when dispatched.
Section 7.2: Waiver of Notice. Whenever notice is required to be given
under any provision by these Bylaws, a 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 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 or special meeting of the stockholders, directors or members of a
committee of directors need be specified in any written waiver of notice.
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ARTICLE VIII
INTERESTED DIRECTORS
Section 8.1: Interested Directors; Quorum. 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 its 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 that authorizes
the contract or transaction, or solely because his, her or their votes are
counted for such purpose, if: (i) the material facts as to his, her or their
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
a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; (ii) the material facts as to his, her or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders,
or; (iii) 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. 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 authorizes the contract transaction.
ARTICLE IX
MISCELLANEOUS
Section 9.1: Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 9.2: Seal. The Board of Directors may provide for a corporate
seal, which shall have the name of the Corporation inscribed thereon and shall
otherwise be in such form as may be approved from time to time by the Board of
Directors.
Section 9.3: Form of Records. Any records maintained by the Corporation in
the regular course of business, including its stock ledger, books of account and
minute books, may be kept on, or be in the form of, magnetic tape, diskettes,
photographs, microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible form within
reasonable time. The Corporation shall so convert any records so kept upon
request of any person entitled to inspect the same.
Section 9.4: Reliance Upon Books and Records. A member of the Board of
Directors, or a member of any committee designated by the Board of Directors
shall, in the performance of his or her duties, be fully protected in relying in
good faith upon records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of the Corporation's
officers or employees, or committees of the Board of Directors, or by any other
person as to matters the 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.
Section 9.5: Certificate of Incorporation Governs. In the event of any
conflict between the provisions of the Corporation's Certificate of
Incorporation and these Bylaws, the provisions of the Certificate of
Incorporation shall govern.
Section 9.6: Severability. If any provision of these Bylaws shall be held
to be invalid, illegal, unenforceable or in conflict with the provisions of the
Corporation's Certificate of Incorporation, then such provision shall
nonetheless be enforced to the maximum extent possible consistent with such
holding and
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the remaining provisions of the Bylaws (including without limitation all
portions of any section of these Bylaws containing any such provisions held to
be invalid, illegal, unenforceable, or in conflict with the Certificate of
Incorporation, that are not themselves invalid, illegal, unenforceable or in
conflict with the Certificate of Incorporation) shall remain in full force and
effect.
ARTICLE X
AMENDMENTS
Section 10.1: Amendments. Stockholders of the Corporation holding a
majority of the Corporation's outstanding voting stock shall have the power to
adopt, amend or repeal Bylaws of the Corporation. To the extent provided in the
Corporation's Certificate of Incorporation, the Board of Directors of the
Corporation shall also have the power to adopt, amend or repeal Bylaws of the
Corporation, except insofar as Bylaws adopted by the stockholders shall
otherwise provide.
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