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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) June 16, 2000
----------------------
(June 9, 2000)
ACTIVISION, INC.
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(Exact Name of Registrant as Specified in Charter)
Delaware 0-12699 94-2606438
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
3100 Ocean Park Blvd., Santa Monica, CA 90405
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (310) 255-2000
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(Former Name or Former Address, if Changed Since Last Report)
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Item 5. Other Events.
Effective on June 9, 2000, Activision, Inc., a Delaware corporation
(the "Company"), reorganized into a holding company form of organizational
structure, whereby Activision Holdings, Inc., a Delaware corporation
("Activision Holdings"), became the holding company. The new holding company
organizational structure will allow Activision Holdings to manage its entire
organization more effectively and broadens the alternatives for future
financing.
The holding company organizational structure was effected by a
merger conducted pursuant to Section 251(g) of the General Corporation Law of
the State of Delaware (the "Merger"), which provides for the formation of a
holding company structure without a vote of the stockholders of the
constituent corporations. In the Merger, ATVI Merger Sub, Inc., a Delaware
corporation (the "Merger Sub"), merged with and into the Company, with the
Company as the surviving corporation (the "Surviving Corporation"). Prior to
the Merger, Activision Holdings was a direct, wholly-owned subsidiary of the
Company, and Merger Sub was a direct, wholly owned subsidiary of Activision
Holdings and was organized for the purpose of implementing the holding
company organizational structure. Pursuant to the Merger, (i) each issued
and outstanding share of common stock, $.000001 par value per share, of the
Company (including treasury shares) was converted into one share of common
stock, $.000001 par value per share of Activision Holdings, (ii) each issued
and outstanding share of Merger Sub was converted into one share of the
Surviving Corporation's common stock, and Merger Sub's corporate existence
ceased and (iii) all of the issued and outstanding shares of Activision
Holdings owned by the Company were automatically canceled and retired. As a
result of the Merger, the Company became a direct, wholly owned subsidiary of
Activision Holdings.
Immediately following the Merger, the Company changed its name to
Activision Publishing, Inc. and Activision Holdings changed its name to
Activision, Inc. Activision Holdings common stock will trade on The Nasdaq
National Market under the ticker symbol ATVI.
The conversion of shares of the Company's common stock in the
Merger occurred without an exchange of certificates. Accordingly,
certificates formerly representing shares of outstanding common stock of the
Company are deemed to represent the same number of shares of common stock of
Activision Holdings. The change to the holding company structure was tax
free for federal income tax purposes for stockholders.
A copy of the press release further describing the transaction is
attached hereto as Exhibit 99.1.
The Company hereby incorporates by reference the Agreement and Plan
of Merger attached hereto as Exhibit 2.4, Amended and Restated Certificate of
Incorporation of Activision Holdings dated as of June 1, 2000 attached hereto
as Exhibit 2.5, Amended and Restated By-laws of Activision Holdings attached
hereto as Exhibit 2.6, Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Activision Holdings dated as of June 9, 2000
attached hereto as Exhibit 2.7, and the press release attached hereto as
Exhibit 99.1, each made a part hereof, into this Item 5.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) The following Exhibits are filed as part of this report:
EXHIBIT NO. DESCRIPTION
2.4 Agreement and Plan of Merger dated as of June 9,
2000 among Activision, Inc., Activision Holdings,
Inc. and ATVI Merger Sub, Inc.
2.5 Amended and Restated Certificate of Incorporation of
Activision Holdings dated as of June 1, 2000.
2.6 Amended and Restated By-Laws of Activision Holdings.
2.7 Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Activision Holdings
dated as of June 9, 2000.
99.1 Press release issued by the Company on June 16,
2000.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACTIVISION, INC.
By: /s/ Brian G. Kelly
_______________________________
Name: Brian G. Kelly
Title: Co-Chairman
Dated: June 16, 2000
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
2.4 Agreement and Plan of Merger dated as of June 9, 2000
among Activision, Inc., Activision Holdings, Inc. and
ATVI Merger Sub, Inc.
2.5 Amended and Restated Certificate of Incorporation of
Activision Holdings dated as of June 1, 2000.
2.6 Amended and Restated By-Laws of Activision Holdings.
2.7 Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Activision Holdings dated
as of June 9, 2000.
99.1 Press release issued by the Company on June 16, 2000.
AGREEMENT AND PLAN OF MERGER
AMONG
ACTIVISION, INC.,
ACTIVISION HOLDINGS, INC.
AND
ATVI MERGER SUB, INC.
DATED AS OF JUNE 9, 2000
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Agreement"), entered into as of June
__, 2000, by and among Activision, Inc., a Delaware corporation (the
"Company"), Activision Holdings, Inc., a Delaware corporation ("Holdings")
and a direct, wholly owned subsidiary of the Company, and ATVI Merger Sub,
Inc., a Delaware corporation ("Merger Sub") and a direct, wholly owned
subsidiary of Holdings.
PRELIMINARY STATEMENTS
1. As of the date hereof, the Company's authorized capital stock
consists of fifty-five million (55,000,000) shares, of which (i) fifty
million (50,000,000) shares are designated common stock, par value $.000001
per share (the "Company Common Stock"), (ii) four million five hundred
thousand (4,500,000) shares are designated preferred stock, par value
$.000001 per share (the "Company Preferred Stock") and (iii) five hundred
thousand (500,000) shares are designated Series A Junior Preferred Stock, par
value $.000001 per share (the "Company Series A Preferred Stock"). As of May
18, 2000, 25,905,761 shares of Company Common Stock were issued and
outstanding and 576,734 shares were held in the Company's treasury, and no
shares of Company Preferred Stock or Company Series A Preferred Stock were
issued and outstanding.
2. As of the date hereof, Holdings' authorized capital stock consists
of fifty-five million (55,000,000) shares, of which (i) fifty million
(50,000,000) shares are designated common stock, par value $.000001 per share
(the "Holdings Common Stock"), (ii) four million five hundred thousand
(4,500,000) shares are designated preferred stock, par value $.000001 per
share (the "Holdings Preferred Stock") and (iii) five hundred thousand
(500,000) shares are designated Series A Junior Preferred Stock, par value
$.000001 per share (the "Holdings Series A Preferred Stock"). As of the date
hereof, one hundred (100) shares of Holdings Common Stock were issued and
outstanding and owned by the Company and no shares were held in Holdings'
treasury and no shares of Holdings Preferred Stock or Holdings Series A
Preferred Stock were issued and outstanding.
3. As of the date hereof, Merger Sub's authorized capital stock
consists of two hundred (200) shares of common stock, par value $.01 per
share (the "Merger Sub Common Stock"), of which one hundred (100) shares are
issued and outstanding on the date hereof and owned by Holdings.
4. The designations, rights and preferences, and the qualifications,
limitations and restrictions of the Holdings Common Stock are the same as
those of the Company Common Stock.
5. The Amended and Restated Certificate of Incorporation of Holdings
(the "Holdings Charter") and the By-laws of Holdings (the "Holdings By-laws")
in effect immediately after the Effective Date (as hereinafter defined) will
contain provisions identical to the Amended and Restated Certificate of
Incorporation of the Company, as amended from time to time (the "Company
Charter"), and By-laws of the Company (the "Company By-laws") in effect
immediately before the Effective Date (other than as required by Section
251(g) of the General Corporation Law of the State of Delaware (the "DGCL")).
6. The directors and executive officers of the Company immediately
prior to the Merger (as hereinafter defined) will be the directors and
executive officers of Holdings as of the Effective Date.
7. Holdings and Merger Sub are newly formed corporations organized for
the purpose of participating in the transactions herein contemplated.
8. The Company desires to create a new holding company structure by
merging Merger Sub with and into the Company, with (a) the Company continuing
as the surviving corporation of such merger and (b) each outstanding share
(or any fraction thereof) of Company Common Stock being converted in such
merger into a like number of shares of Holdings Common Stock, all in
accordance with the terms of this Agreement (the "Merger").
9. The boards of directors of Holdings, Merger Sub and the Company,
the Company, in its capacity as the sole stockholder of Holdings, and
Holdings, in its capacity as the sole stockholder of Merger Sub, have
approved this Agreement and the Merger upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained in this Agreement, and intending to be legally bound
hereby, the Company, Holdings and Merger Sub hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. In accordance with Section 251(g) of the DGCL and
subject to, and upon the terms and conditions of, this Agreement, Merger Sub
shall, at the Effective Date, be merged with and into the Company, the
separate corporate existence of Merger Sub shall cease, and the Company shall
continue as the surviving corporation of the Merger (the "Surviving
Corporation"). At the Effective Date, the effects of the Merger shall be as
provided in Section 259 of the DGCL.
1.2 Effective Date. If all the conditions to the Merger set forth in
Article III shall have been fulfilled or waived in accordance herewith, the
parties hereto shall cause a Certificate of Merger satisfying the
requirements of the DGCL to be properly executed, verified and delivered for
filing in accordance with the DGCL on the date hereof. The Merger shall
become effective upon the acceptance for record of the Certificate of Merger
by the Secretary of State of the State of Delaware in accordance with the
DGCL or at such later time which the parties hereto shall have agreed upon
and designated in the Certificate of Merger in accordance with applicable law
as the effective time of the Merger (the "Effective Date").
1.3 Certificate of Incorporation. From and after the Effective Date,
the Company Charter, as in effect immediately prior to the Effective Date,
shall be the certificate of incorporation of the Surviving Corporation (the
"Surviving Corporation Charter") until thereafter duly amended as provided
therein or by the DGCL, except as follows:
(a) Article FIRST thereof shall be amended so as to read in its
entirety as follows:
"The name of the Corporation is Activision Publishing,
Inc."
(b) Article FOURTH thereof shall be amended so as to read in its
entirety as follows:
"The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue
is 200 shares of common stock, par value $.01 per share.
The Common Stock is sometimes hereinafter referred to as
the 'Capital Stock'."
A new Article TENTH shall be added thereto which shall be and
read in its entirety as follows:
"10.Vote of Stockholders of Activision Holdings, Inc.
Required to Approve Certain Actions.
Any act or transaction by or involving the Corporation
that requires for its adoption under the General
Corporation Law of the State of Delaware or this Amended
and Restated Certificate of Incorporation the approval of
the stockholders of the Corporation shall, pursuant to
Section 251(g) of the General Corporation Law of the
State of Delaware, require, in addition, the approval of
the stockholders of Activision Holdings, Inc., a Delaware
corporation, or any successor thereto by merger, by the
same vote that is required by the General Corporation Law
of the State of Delaware or this Amended and Restated
Certificate of Incorporation, as the case may be."
1.4 By-Laws. From and after the Effective Date, the Company By-laws,
as in effect immediately prior to the Effective Date, shall constitute the
By-laws of the Surviving Corporation (the "Surviving Corporation By-laws")
until thereafter duly amended as provided therein or by applicable law.
1.5 Directors. The directors of the Company in office immediately
prior to the Effective Date shall automatically become the directors of the
Surviving Corporation as of the Effective Date and will continue to hold
office from the Effective Date until their successors are duly elected or
appointed and qualified in the manner provided in the Surviving Corporation
Charter and Surviving Corporation By-laws, or as otherwise provided by law.
1.6 Officers. The officers of the Company in office immediately prior
to the Effective Date shall automatically become the officers of the
Surviving Corporation as of the Effective Date and will continue to hold
office from the Effective Date until the earlier of their resignation or
removal or until their successors are duly elected or appointed and qualified
in the manner provided in the Surviving Corporation Charter and Surviving
Corporation By-laws, or as otherwise provided by law.
ARTICLE II
CONVERSION OF SECURITIES.
2.1 Conversion of Company Common Stock and Company Rights. At the
Effective Date, by virtue of the Merger and without any action on the part of
Holdings, Merger Sub, the Company or the holder thereof, (i) each share of
Company Common Stock (or fraction of a share of Company Common Stock) issued
and outstanding immediately prior to the Effective Date (including treasury
shares) shall be converted into and thereafter represent one duly issued,
fully paid and nonassessable share (or equal fraction of a share) of Holdings
Common Stock and (ii) each right to purchase one one-hundredth of a share of
Company Series A Preferred Stock (each, a "Company Right") associated with
each share of Company Common Stock (or fraction of a Company Right) issued
and outstanding immediately prior to the Effective Date shall be converted
into and thereafter represent one right to purchase one one-hundredth of a
share of Holdings Series A Preferred Stock (each, a "Holdings Right") (or
equal fraction of a Holdings Right) on the same terms and conditions as the
Company Rights, and Holdings shall for all purposes be deemed to be a
successor to the Company under the Rights Agreement (as hereinafter defined).
2.2 Conversion of Merger Sub Common Stock. At the Effective Date each
share of Merger Sub Common Stock issued and outstanding immediately prior to
the Effective Date shall be converted into and thereafter represent one duly
issued, fully paid and nonassessable share of common stock, par value $.01
per share, of the Surviving Corporation.
2.3 Cancellation of Holdings Common Stock. At the Effective Date, each
share of Holdings Common Stock that is owned by the Company immediately prior
to the Merger shall automatically be canceled and retired and shall cease to
exist.
2.4 Rights of Certificate Holders. From and after the Effective Date,
holders of certificates formerly evidencing shares of Company Common Stock
and Company Rights shall cease to have any rights as stockholders of the
Company, except as provided by law; except, however, that such holders shall
have the rights set forth in Section 2.5 below.
2.5 No Surrender of Certificates. Until thereafter surrendered for
transfer or exchange, each outstanding stock certificate that, immediately
prior to the Effective Date, evidenced Company Common Stock and the
associated Company Right shall be deemed and treated for all corporate
purposes to evidence the ownership of the number of shares of Holdings Common
Stock and Holdings Rights into which such shares of Company Common Stock and
Company Rights were converted pursuant to the provisions of Section 2.1
above.
2.6 Conversion of Company Stock Options and Warrants.
(a) At the Effective Date, each option and warrant, whether or not
exercisable, to purchase shares of Company Common Stock which is then
outstanding and unexercised (a "Company Option" or a "Company Warrant," as
the case may be) shall cease to represent a right to acquire shares of
Company Common Stock and shall be converted automatically into an option or
warrant to acquire, under the same terms and conditions as were applicable to
such Company Option or Company Warrant immediately prior to the Effective
Date, shares of Holdings Common Stock, and Holdings shall assume each Company
Option and Company Warrant and each option and warrant plan or agreement
pursuant to which such Company Option and Company Warrant was granted, as the
case may be. The number of shares of Holdings Common Stock purchasable upon
exercise of such Company Option or Company Warrant shall be equal to the
number of shares of Company Common Stock that were purchasable under such
Company Option or Company Warrant immediately prior to the Effective Date.
The terms of each Company Option and Company Warrant shall, in accordance
with its terms, be subject to adjustment as appropriate to reflect any stock
split, stock dividend, recapitalization or other similar transaction with
respect to Holdings Common Stock on or subsequent to the Effective Date.
Notwithstanding the foregoing, the number of shares and the per share
exercise price of each Company Option which is intended to be an "incentive
stock option" (as defined in Section 422 of the Internal Revenue Code (the
"Code")) shall be adjusted in accordance with the requirements of Section 424
of the Code. Accordingly, with respect to any incentive stock options,
fractional shares shall be rounded down to the nearest whole number of shares
and where necessary the per share exercise price shall be rounded up to the
nearest cent.
(b) At or prior to the Effective Date, Holdings shall reserve for
issuance the number of shares of Holdings Common Stock necessary to satisfy
Holdings' obligations under Section 2.6(a).
2.7 Conversion of Company Notes.
(a) At the Effective Date, each 6 3/4% Convertible Subordinated
Note due 2005 of the Company, convertible in whole or in part into shares of
Company Common Stock which is then issued and outstanding (a "Company Note")
shall cease to be convertible into shares of Company Common Stock and shall
be convertible, under the same terms and conditions as were applicable to
such Company Note immediately prior to the Effective Date, into shares of
Holdings Common Stock. The number of shares of Holdings Common Stock
issuable upon conversion of such Company Note shall be equal to the number of
shares of Company Common Stock that were issuable under the Company Note
immediately prior to the Effective Date.
(b) As soon as practicable after the Effective Date, Holdings
shall deliver to each holder of an outstanding Company Note an appropriate
notice setting forth such holder's rights pursuant thereto, and such Company
Note shall continue in effect on the same terms and conditions (including
antidilution provisions).
(c) At or prior to the Effective Date, Holdings shall reserve for
issuance the number of shares of Holdings Common Stock necessary to satisfy
Holdings' obligations under Section 2.7(a).
ARTICLE III
CONDITIONS OF MERGER
3.1 Conditions Precedent. The obligations of the parties to this
Agreement to consummate the Merger and the transactions contemplated hereby
shall be subject to fulfillment or waiver by the parties hereto of each of
the following conditions:
(a) Prior to the Effective Date, no order, statute, rule,
regulation, executive order, injunction, stay, decree, judgment or
restraining order shall have been enacted, entered, promulgated or enforced
by any court or governmental or regulatory authority or instrumentality which
prohibits or makes illegal the consummation of the Merger or the transactions
contemplated hereby.
(b) Prior to the Effective Date, the Company shall have received
the consent of PNC Bank, National Association, under that certain Credit
Agreement dated as of June 21, 1999, among the Company, Head Games
Publishing, Inc., Expert Software, Inc., the financial institutions signatory
thereto and PNC Bank, to consummate the Merger and create the holding company
structure contemplated hereby.
ARTICLE IV
COVENANTS
4.1 Election of Directors. The Company, in its capacity as the sole
stockholder of Holdings, shall elect each person who is then a member of the
board of directors of the Company as a director of Holdings (and to be the
only directors of Holdings), each of whom shall serve until the next annual
meeting of shareholders of Holdings and until his successor shall have been
elected and qualified or until such director's earlier resignation or
removal.
4.2 Intentionally Omitted.
4.3 Rights Plan and Stock Option Plans. The Company and Holdings shall
take or cause to be taken all actions necessary or desirable in order for
Holdings to assume the Rights Agreement, between the Company and Continental
Stock Transfer & Trust Company, as rights agent, dated as of April 18, 2000,
pursuant to which the Company Rights were issued (the "Rights Agreement"),
and each stock option and warrant plan or agreement pursuant to which the
Company Options and Company Warrants were granted, as the case may be.
4.4 Further Assurances. Subject to the terms of this Agreement, the
parties hereto shall take all such reasonable and lawful actions which may be
necessary or appropriate in order to effectuate the Merger, which shall
include executing and delivering an Assumption Agreement, effective upon the
Merger, in such form as the Company and Holdings determine to be appropriate
to evidence the Company's assignment to and Holdings' assumption of such
rights, interests, obligations and liabilities as the Company and Holdings
determine to be appropriate. If, at any time after the Effective Date, the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of either of Merger Sub or the Company acquired
or to be acquired by the Surviving Corporation as a result of, or in
connection with, the Merger or otherwise to carry out this Agreement, the
officers and directors of the Surviving Corporation shall be authorized to
execute and deliver, in the name and on behalf of each of Merger Sub and the
Company, all such deeds, bills of sale, assignments and assurances and to
take and do, in the name and on behalf of each of Merger Sub and the Company
or otherwise, all such other actions and things as may be necessary or
desirable to vest, perfect or confirm any and all right, title and interest
in, to and under such rights, properties or assets in the Surviving
Corporation or otherwise to carry out this Agreement.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Date
by action of the board of directors of the Company, Holdings or Merger Sub if
it is determined that for any reason the completion of the transactions
provided for herein would be inadvisable or not in the best interest of such
corporation or its stockholders. In the event of such termination and
abandonment, this Agreement shall become void and neither the Company,
Holdings or Merger Sub nor their respective stockholders, directors or
officers shall have any liability or rights with respect to such termination
and abandonment.
5.2 Amendments. This Agreement may be supplemented, amended or
modified by the mutual consent of the boards of directors of the parties to
this Agreement; provided, however, that, any amendment effected subsequent to
stockholder approval shall be subject to the restrictions contained in the
DGCL. No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by all of the parties hereto.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws.
6.2 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original
but all of which shall constitute one and the same agreement.
6.3 Entire Agreement. This Agreement, including the documents and
instruments referred to herein, constitutes the entire agreement and
supersedes all other prior agreements, arrangements and understandings, both
written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
IN WITNESS WHEREOF, Holdings, Merger Sub and the Company have caused
this Agreement to be executed as of the date first written above by the
respective officers thereunto duly authorized.
ACTIVISION, INC.
By:/s/ Brian G. Kelly
_______________________________________
Name: Brian G. Kelly
Title:Co-Chairman
ACTIVISION HOLDINGS, INC.
By:/s/ Brian G. Kelly
_______________________________________
Name: Brian G. Kelly
Title:President
ATVI MERGER SUB, INC.
By:/s/ Brian G. Kelly
_______________________________________
Name: Brian G. Kelly
Title:President
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACTIVISION HOLDINGS, INC.
A Delaware corporation
It is hereby certified that:
1. ACTIVISION HOLDINGS, INC., a Delaware corporation (the
"Corporation"), has not received any payment for any of its stock.
2. The Certificate of Incorporation of the Corporation is hereby
amended and restated to read in full as follows:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is Activision Holdings, Inc.
SECOND: The registered office of the Corporation is to be located at
1013 Centre Road, in the City of Wilmington, in the County of New Castle, in
the State of Delaware. The name of its registered agent at that address is
Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware, as it may be amended from time to
time (the "Delaware Code").
FOURTH: The total number of shares of capital stock which the
Corporation shall have authority to issue is fifty five million (55,000,000)
shares, of which four million five hundred thousand (4,500,000) shares are
designated Preferred Stock (the "Preferred Stock"), par value $.000001 per
share and aggregate par value of four and one-half Dollars ($4.50), and of
which five hundred thousand (500,000) shares are designated Series A Junior
Preferred Stock (the "Series A Preferred Stock"), par value $.000001 per
share and aggregate par value of half one dollar ($0.50) and of which fifty
million (50,000,000) shares are designated Common Stock (the "Common Stock"),
par value $.000001 per share and aggregate par value of fifty Dollars ($50).
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. SERIES A JUNIOR PREFERRED STOCK. The terms of the Series A Junior
Preferred Stock shall be as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Preferred Stock" (the "Series A Preferred
Stock") and the number of shares constituting such series shall be 500,000.
Such number of shares of Series A Preferred Stock may be increased or
decreased by resolution of the Board of Directors; provided that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number
less than the number of shares then outstanding plus the number of shares
issuable upon exercise of conversion of outstanding rights, options or other
securities issued by the Corporation.
2. Dividends and Distributions.
(a) Subject to the provisions for adjustment hereinafter set
forth, and subject to the rights of the holders of any shares of any series
of Preferred Stock ranking prior and superior to the Series A Preferred Stock
with respect to dividends, the holders of shares of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, (i) cash dividends
in an amount per share (rounded to the nearest cent) equal to 100 times the
aggregate per share amount of all cash dividends declared or paid on the
Common Stock, $.000001 par value per share, of the Corporation (the "Common
Stock") and (ii) a preferential cash dividend (the "Preferential Dividends"),
if any, in preference to the holders of Common Stock, on the first business
day of January, April, July and October, of each year (each a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Preferred Stock, payable in an amount (except in the case of the first
Quarterly Dividend Payment if the date of the first issuance of Series A
Preferred Stock is a date other than a Quarterly Dividend Payment Date, in
which case such payment shall be a prorated portion of such amount) equal to
$.000001 per share of Series A Preferred Stock less the per share amount of
all cash dividends declared on the Series A Preferred Stock pursuant to
clause (i) of this sentence since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a share of
Series A Preferred Stock. In the event the Corporation shall, at any time
after the issuance of any share or fraction of a share of Series A Preferred
Stock, make any distribution on the shares of Common Stock of the
Corporation, whether by way of a dividend or a reclassification of stock, a
recapitalization, reorganization or partial liquidation of the Corporation or
otherwise, which is payable in cash or any debt security, debt instrument,
real or personal property or any other property (other than cash dividends
subject to the immediately preceding sentence, a distribution of shares of
Common Stock or other capital stock of the Corporation or a distribution of
options, rights or warrants to acquire any such share, including any debt
security convertible into or exchangeable for any such share, at a price less
than the Fair Market Value (as hereinafter defined) of such share of Common
Stock), then, and in each such event, the Corporation shall simultaneously
pay on each then outstanding share of Series A Preferred Stock of the
Corporation a distribution, in like kind, of 100 times such distribution paid
on a share of Common Stock (subject to the provisions for adjustment
hereinafter set forth). The dividends and distributions on the Series A
Preferred Stock to which holders thereof are entitled pursuant to clause (i)
of the first sentence of this paragraph and pursuant to the second sentence
of this paragraph are hereinafter referred to as "Dividends" and the multiple
of such cash and non-cash dividends on the Common Stock applicable to the
determination of the Dividends, which shall be 100 initially but shall be
adjusted from time to time as hereinafter provided, is hereinafter referred
to as the "Dividend Multiple". In the event the Corporation shall at any
time after April 18, 2000 declare or pay any dividend or make any
distribution on Common Stock payable in shares of Common Stock, or effect a
subdivision or split or a combination, consolidation or reverse split of the
outstanding shares of Common Stock into a greater or lesser number of shares
of Common Stock, then in each such case the Dividend Multiple thereafter
applicable to the determination of the amount of Dividends which holders of
shares of Series A Preferred Stock shall be entitled to receive shall be the
Dividend Multiple applicable immediately prior to such event multiplied by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) The Corporation shall declare each Dividend at the same time
it declares any cash or non-cash dividend or distribution on the Common Stock
in respect of which a Dividend is required to be paid. No cash or non-cash
dividend or distribution on the Common Stock in respect of which a Dividend
is required to be paid shall be paid or set aside for payment on the Common
Stock unless a Dividend in respect of such dividend or distribution on the
Common Stock shall be simultaneously paid, or set aside for payment, on the
Series A Preferred Stock.
(c) Preferential Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issuance of any shares of Series A
Preferred Stock. Accrued but unpaid Preferential Dividends shall not bear
interest. Preferential Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall not be more than 60
days prior to the date fixed for the payment thereof.
3. Voting Rights. In addition to any other voting rights required by
law, the holders of shares of Series A Preferred Stock shall have the
following voting rights:
(a) Subject to the provisions for adjustment hereinafter set
forth, each share of Series A Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the holders of the
Common Stock. The number of votes which a holder of Series A Preferred Stock
is entitled to cast, as the same may be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Vote Multiple". In
the event the Corporation shall at any time after April 18, 2000 declare or
pay any dividend on Common Stock payable in shares of Common Stock, or effect
a subdivision or split or a combination, consolidation or reverse split of
the outstanding shares of Common Stock into a greater or lesser number of
shares of Common Stock, then in each such case the Vote Multiple thereafter
applicable to the determination of the number of votes per share to which
holders of shares of Series A Preferred Stock shall be entitled after such
event shall be the Vote Multiple immediately prior to such event multiplied
by a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
(b) Except as otherwise provided in the Amended and Restated
Certificate of Incorporation or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of stockholders of the
Corporation.
(c) In the event that the Preferential Dividends accrued on the
Series A Preferred Stock for six or more quarterly dividend periods, whether
consecutive or not, shall not have been declared and paid or irrevocably set
aside for payment, the holders of record of Preferred Stock of the
Corporation of all series (including the Series A Preferred Stock), other
than any series in respect of which such right is expressly withheld by the
Amended and Restated Certificate of Incorporation or the authorizing
resolutions included in any Certificate of Designation therefor, shall have
the right, at the next meeting of stockholders called for the election of
directors, to elect two members to the Board of Directors, which directors
shall be in addition to the number required prior to such event, to serve
until the next Annual Meeting and until their successors are elected and
qualified or their earlier resignation, removal or incapacity or until such
earlier time as all accrued and unpaid Preferential Dividends upon the
outstanding shares of Series A Preferred Stock shall have been paid (or
irrevocably set aside for payment) in full. The holders of shares of Series
A Preferred Stock shall continue to have the right to elect directors as
provided by the immediately preceding sentence until all accrued and unpaid
Preferential Dividends upon the outstanding shares of Series A Preferred
Stock shall have been paid (or set aside for payment) in full. Such
directors may be removed and replaced by such stockholders, and vacancies in
such directorships may be filled only by such stockholders (or by the
remaining director elected by such stockholders, if there be one) in the
manner permitted by law; provided, however, that any such action by
stockholders shall be taken at a meeting of stockholders and shall not be
taken by written consent thereto.
(d) Except as otherwise required by the Amended and Restated
Certificate of Incorporation or by law or as set forth herein, holders of
Series A Preferred Stock shall have no other special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for the taking of any
corporate action.
4. Certain Restrictions.
(a) Whenever Preferential Dividends or Dividends payable on the
Series A Preferred Stock as provided in Section 2 are in arrears or the
Corporation shall be in default of payment thereof, thereafter and until all
accrued and unpaid Preferential Dividends and Dividends, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have been
paid, or set irrevocably aside for payment, in full, and in addition to any
and all other rights which any holder of shares of Series A Preferred Stock
may have in such circumstances, the Corporation shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration,
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to
dividends with the Series A Preferred Stock, unless dividends are
paid ratably on the Series A Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled if the full dividends accrued thereon were to be paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity with or
junior to (either as to dividends or upon liquidation, dissolution
or winding up) the Series A Preferred Stock, provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity or junior stock in exchange for shares of
any stock of the Corporation ranking junior (both as to dividends
and upon liquidation, dissolution or winding up) to the Series A
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock (either as to
dividends or upon liquidation, dissolution or winding up), except
in accordance with a purchase offer made to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(b) The Corporation shall not permit any Subsidiary (as
hereinafter defined) of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire
such shares at such time and in such manner. A "Subsidiary" of the
Corporation shall mean any corporation or other entity of which securities or
other ownership interests having ordinary voting power sufficient to elect a
majority of the board of directors of such corporation or other entity or
other persons performing similar functions are beneficially owned, directly
or indirectly, by the Corporation or by any corporation or other entity that
is otherwise controlled by the Corporation.
(c) The Corporation shall not issue any shares of Series A
Preferred Stock except upon exercise of Rights issued pursuant to that
certain Rights Agreement dated as of April 18, 2000 between the Corporation
and Continental Stock Transfer & Trust Company, as Rights Agent, as it may be
amended from time to time, a copy of which is on file with the Secretary of
the Corporation at its principal executive office and shall be made available
to stockholders of record without charge upon written request therefor
addressed to said Secretary. Notwithstanding the foregoing sentence, nothing
contained in the provisions of this Amended and Restated Certificate of
Incorporation shall prohibit or restrict the Corporation from issuing for any
purpose any series of Preferred Stock with rights and privileges similar to,
different from, or greater than, those of the Series A Preferred Stock.
5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares upon their retirement and cancellation shall become authorized
but unissued shares of Preferred Stock, without designation as to series, and
such shares may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors.
6. Liquidation, Dissolution or Winding Up. Upon any voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received for each share of
Series A Preferred Stock, subject to adjustment as hereinafter provided, (A)
$4,000 plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment or, (B) if
greater than the amount specified in clause (i)(A) of this sentence, an
amount equal to 100 times the aggregate amount to be distributed per share to
holders of Common Stock, as the same may be adjusted as hereinafter provided
and (ii) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, unless simultaneously therewith distributions are made ratably on the
Series A Preferred Stock and all other shares of such parity stock in
proportion to the total amounts to which the holders of shares of Series A
Preferred Stock are entitled under clause (i)(A) of this sentence and to
which the holders of such parity shares are entitled, in each case upon such
liquidation, dissolution or winding up. The amount to which holders of
Series A Preferred Stock may be entitled upon liquidation, dissolution or
winding up of the Corporation pursuant to clause (i)(B) of the foregoing
sentence is hereinafter referred to as the "Participating Liquidation Amount"
and the multiple of the amount to be distributed to holders of shares of
Common Stock upon the liquidation, dissolution or winding up of the
Corporation applicable pursuant to said clause to the determination of the
Participating Liquidation Amount, as said multiple may be adjusted from time
to time as hereinafter provided, is hereinafter referred to as the
"Liquidation Multiple". In the event the Corporation shall at any time after
April 18, 2000 declare or pay any dividend on Common Stock payable in shares
of Common Stock, or effect a subdivision or split or a combination,
consolidation or reverse split of the outstanding shares of Common Stock into
a greater or lesser number of shares of Common Stock, then, in each such
case, the Liquidation Multiple thereafter applicable to the determination of
the Participating Liquidation Amount to which holders of Series A Preferred
Stock shall be entitled after such event shall be the Liquidation Multiple
applicable immediately prior to such event multiplied by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
7. Certain Reclassifications and Other Events.
(a) In the event that holders of shares of Common Stock of the
Corporation receive after April 18, 2000, in respect of their shares of
Common Stock any share of capital stock of the Corporation (other than any
share of Common Stock of the Corporation), whether by way of
reclassification, recapitalization, reorganization, dividend or other
distribution or otherwise (a "Transaction"), then, and in each such event,
the dividend rights, voting rights and rights upon the liquidation,
dissolution or winding up of the Corporation of the shares of Series A
Preferred Stock shall be adjusted so that after such event the holders of
Series A Preferred Stock shall be entitled, in respect of each share of
Series A Preferred Stock held, in addition to such rights in respect thereof
to which such holder was entitled immediately prior to such adjustment, to
(i) such additional dividends as equal the Dividend Multiple in effect
immediately prior to such Transaction multiplied by the additional dividends
which the holder of a share of Common Stock shall be entitled to receive by
virtue of the receipt in the Transaction of such capital stock, (ii) such
additional voting rights as equal the Vote Multiple in effect immediately
prior to such Transaction multiplied by the additional voting rights which
the holder of a share of Common Stock shall be entitled to receive by virtue
of the receipt in the Transaction of such capital stock and (iii) such
additional distributions upon liquidation, dissolution or winding up of the
Corporation as equal the Liquidation Multiple in effect immediately prior to
such Transaction multiplied by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation,
dissolution or winding up of the Corporation by virtue of the receipt in the
Transaction of such capital stock, as the case may be, all as provided by the
terms of such capital stock.
(b) In the event that holders of shares of Common Stock of the
Corporation receive after April 18, 2000, in respect of their shares of
Common Stock any right or warrant to purchase Common Stock (including as such
a right, for all purposes of this paragraph, any security convertible into or
exchangeable for Common Stock) at a purchase price per share less than the
Fair Market Value of a share of Common Stock on the date of issuance of such
right or warrant, then and in each such event the dividend rights, voting
rights and rights upon the liquidation, dissolution or winding up of the
Corporation of the shares of Series A Preferred Stock shall each be adjusted
so that after such event the Dividend Multiple, the Vote Multiple and the
Liquidation Multiple shall each be the product of the Dividend Multiple, the
Vote Multiple and the Liquidation Multiple, as the case may be, in effect
immediately prior to such event multiplied by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the maximum number of shares
of Common Stock which could be acquired upon exercise in full of all such
rights or warrants and the denominator of which shall be the number of shares
of Common Stock outstanding immediately before such issuance of rights or
warrants plus the number of shares of Common Stock which could be purchased,
at the Fair Market Value of the Common Stock at the time of such issuance, by
the maximum aggregate consideration payable upon exercise in full of all such
rights or warrants.
(c) In the event that holders of shares of Common Stock of the
Corporation receive after April 18, 2000, in respect of their shares of
Common Stock any right or warrant to purchase capital stock of the
Corporation (other than shares of Common Stock), including as such a right,
for all purposes of this paragraph, any security convertible into or
exchangeable for capital stock of the Corporation (other than Common Stock),
at a purchase price per share less than the Fair Market Value of such shares
of capital stock on the date of issuance of such right or warrant, then and
in each such event the dividend rights, voting rights and rights upon
liquidation, dissolution or winding up of the Corporation of the shares of
Series A Preferred Stock shall each be adjusted so that after such event each
holder of a share of Series A Preferred Stock shall be entitled, in respect
of each share of Series A Preferred Stock held, in addition to such rights in
respect thereof to which such holder was entitled immediately prior to such
event, to receive (i) such additional dividends as equal the Dividend
Multiple in effect immediately prior to such event multiplied, first, by the
additional dividends to which the holder of a share of Common Stock shall be
entitled upon exercise of such right or warrant by virtue of the capital
stock which could be acquired upon such exercise and multiplied again by the
Discount Fraction (as hereinafter defined) and (ii) such additional voting
rights as equal the Vote Multiple in effect immediately prior to such event
multiplied, first, by the additional voting rights to which the holder of a
share of Common Stock shall be entitled upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction and (iii) such
additional distributions upon liquidation, dissolution or winding up of the
Corporation as equal the Liquidation Multiple in effect immediately prior to
such event multiplied, first, by the additional amount which the holder of a
share of Common Stock shall be entitled to receive upon liquidation,
dissolution or winding up of the Corporation upon exercise of such right or
warrant by virtue of the capital stock which could be acquired upon such
exercise and multiplied again by the Discount Fraction. For purposes of this
paragraph, the "Discount Fraction" shall be a fraction the numerator of which
shall be the difference between the Fair Market Value of a share of the
capital stock subject to a right or warrant distributed to holders of shares
of Common Stock of the Corporation as contemplated by this paragraph
immediately after the distribution thereof and the purchase price per share
for such share of capital stock pursuant to such right or warrant and the
denominator of which shall be the Fair Market Value of a share of such
capital stock immediately after the distribution of such right or warrant.
(d) For purposes of this Amended and Restated Certificate of
Incorporation, the "Fair Market Value" of a share of capital stock of the
Corporation (including a share of Common Stock) on any date shall be deemed
to be the average of the daily closing price per share thereof over the 30
consecutive Trading Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that, in the event that such Fair
Market Value of any such share of capital stock is determined during a period
which includes any date that is within 30 Trading Days after (i) the ex-
dividend date for a dividend or distribution on stock payable in shares of
such stock or securities convertible into shares of such stock, or (ii) the
effective date of any subdivision, split, combination, consolidation, reverse
stock split or reclassification of such stock, then, and in each such case,
the Fair Market Value shall be appropriately adjusted by the Board of
Directors of the Corporation to take into account such dividend,
distribution, subdivision, split, combination, consolidation or
reclassification. The closing price for any day shall be the last sale
price, regular way, or, in case, no such sale takes place on such day, the
average of the closing bid and asked prices, regular way (in either case, as
reported in the applicable transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange), or,
if the shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the applicable transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the shares are listed or admitted to trading or, if the shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ")
or such other system then in use, or if on any such date the shares are not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
shares selected by the Board of Directors of the Corporation. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares are listed or admitted to trading is open for
the transaction of business or, if the shares are not listed or admitted to
trading on any national securities exchange, on which the New York Stock
Exchange or such other national securities exchange as may be selected by the
Board of Directors of the Corporation is open. If the shares are not
publicly held or not so listed or traded on any day within the period of 30
Trading Days applicable to the determination of Fair Market Value thereof as
aforesaid, "Fair Market Value" shall mean the fair market value thereof per
share as determined in good faith by the Board of Directors of the
Corporation. In either case referred to in the foregoing sentence, the
determination of Fair Market Value shall be described in a statement filed
with the Secretary of the Corporation.
8. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each
outstanding share of Series A Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case
may be, for which or into which each share of Common Stock is changed or
exchanged multiplied by the highest of the Vote Multiple, the Dividend
Multiple or the Liquidation Multiple in effect immediately prior to such
event.
9. Effective Time of Adjustments.
(a) Adjustments to the Series A Preferred Stock required by the
provisions hereof shall be effective as of the time at which the event
requiring such adjustments occurs.
(b) The Corporation shall give prompt written notice to each
holder of a share of Series A Preferred Stock of the effect of any adjustment
to the voting rights, dividend rights or rights upon liquidation, dissolution
or winding up of the Corporation of such shares required by the provisions of
this Amended and Restated Certificate of Incorporation. Notwithstanding the
foregoing sentence, the failure of the Corporation to give such notice shall
not affect the validity of or the force or effect of or the requirement for
such adjustment.
10. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable at the option of the Corporation or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Corporation may
acquire shares of Series A Preferred Stock in any other manner permitted by
law and the provisions hereof and the Amended and Restated Certificate of
Incorporation of the Corporation.
11. Ranking. Unless otherwise provided in the Amended and Restated
Certificate of Incorporation of the Corporation, or a Certificate of
Designation relating to a subsequent series of preferred stock of the
Corporation, the Series A Preferred Stock shall rank junior to all other
series of the Corporation's preferred stock as to the payment of dividends
and the distribution of assets on liquidation, dissolution or winding up and
senior to the Common Stock.
12. Amendment. The provisions hereof and the Amended and Restated
Certificate of Incorporation of the Corporation shall not be amended in any
manner which would adversely affect the rights, privileges or powers of the
Series A Preferred Stock without, in addition to any other vote of
stockholders required by law, the affirmative vote of the holders of two-
thirds or more of the outstanding shares of Series A Preferred Stock, voting
together as a single class."
B. ADDITIONAL SERIES OF PREFERRED STOCK. The Preferred Stock, other than
the Series A Junior Preferred Stock, authorized by this Amended and Restated
Certificate of Incorporation may be issued by the Board of Directors from
time to time in one or more series. Subject to Article SEVENTH, the Board of
Directors is hereby authorized to fix or alter the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of redemption,
including sinking fund provisions, the redemption price or prices, and the
liquidation preferences of any wholly unissued class or series of Preferred
Stock, and the number of shares constituting any such series and the
designation thereof, or any of them.
C. COMMON STOCK. The terms of the Common Stock shall be as follows:
1. Dividend. Holders of Common Stock will be entitled to receive such
dividends as may be declared by the Board of Directors.
2. Distribution of Assets. In the event of the voluntary or
involuntary liquidation, distribution or winding up of the Corporation,
holders of Common Stock will be entitled to receive pro rata all of the
remaining assets of the Corporation available for distribution to its
stockholders.
3. Voting Rights. The holders of Common Stock shall have the general
right to vote for all purposes, including the election of directors, as
provided by law. Each holder of Common Stock shall be entitled to one vote
for each share thereof held.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
A. The number of directors of the Corporation shall be such as from time to
time shall be fixed by, or in the manner provided in the by-laws. Election
of directors need not be by ballot unless the by-laws so provide.
B. The Board of Directors shall have power without the assent or vote of
the stockholders to make, alter, amend, change, add to or repeal the by-laws
of the Corporation as provided in the by-laws of the Corporation; to fix and
vary the amount to be reserved for any proper purpose; to authorize and cause
to be executed mortgages and liens upon all or any part of the property of
the Corporation; to determine the use and disposition of any surplus or net
profits; and to fix the times for the declaration and payment of dividends.
C. The directors in their discretion may submit any contract or act for
approval or ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering any such
act or contract, and any contract or act that shall be approved or be
ratified by the vote of the holders of a majority of the stock of the
Corporation which is represented in person or by proxy at such meeting and
entitled to vote thereat (provided that a lawful quorum of stockholders be
there represented in person or by proxy) shall be as valid and binding upon
the Corporation and upon all stockholders as though it had been approved or
ratified by every stockholder of the Corporation, whether or not the contract
or act would otherwise be open to legal attack because of directors'
interest, or for any other reason.
D. In addition to the powers and authorities hereinbefore or by statute
expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done
by the Corporation; subject, nevertheless, to the provisions of the statutes
of Delaware, of this certificate, and to any by-laws from time to time made
by the stockholders; provided, however, that no by-law so made shall
invalidate any prior act of the directors which would have been valid if such
by-law had not been made.
SIXTH: A. The personal liability of the directors of the
Corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of Section 102 of the General Corporation Law of the
State of Delaware, as the same may be amended and supplemented.
B. The Corporation, to the fullest extent permitted by Section 145 of the
General Corporation Law of the State of Delaware, as the same may be amended
and supplemented, shall indemnify any and all persons whom it shall have
power to indemnify under said section from and against any and all of the
expenses, liabilities or other matter referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administration of such a person.
C. Any modification of this Paragraph 6 by the stockholders of the
Corporation shall be prospective only and shall not adversely affect any
limitation on the personal liability of a director of the Corporation
existing at the time of such appeal on modification.
SEVENTH: Pursuant to Section 1123(a)(6) of the Bankruptcy Code of 1978,
as amended, the Corporation shall be prohibited from authorizing the issuance
of any class, or series thereof, of nonvoting equity shares, within the
meaning of such section.
EIGHTH: The Corporation shall not be governed by Section 203 of the
Delaware Code.
The amendments of the Certificate of Incorporation of the
Corporation herein certified were duly adopted, pursuant to the provisions of
Section 241 of the Delaware Code.
Dated: June 9, 2000.
/s/ Brian G. Kelly
__________________________
Brian G. Kelly
AMENDED AND RESTATED
BY-LAWS
OF
ACTIVISION HOLDINGS, INC.
ARTICLE I
OFFICES
1.1. Registered Office: The registered office of Activision Holdings,
Inc. (the "Corporation") within the State of Delaware shall be established
and maintained at the location of the registered agent of the Corporation.
1.2. Other Offices: The Corporation may have other offices, either
within or without the State of Delaware, at such place or places as. the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II.
STOCKHOLDERS
2.1. Place of Stockholders' Meetings. All meetings of the stockholders
of the Corporation shall be held at such place or places, within or without
the State of Delaware as may be fixed by the Board of Directors from time to
time or as shall be specified in the respective notices thereof.
2.2. Date and Hour of Annual Meetings of Stockholders. An annual meeting
of stockholders shall be held on such date as may be determined by the Board
of Directors.
2.3. Purposes of Annual Meetings. At each annual meeting, the
stockholders shall elect the members of the Board of Directors for the
succeeding year. At any such annual meeting any further proper business may
be transacted.
2.4. Special Meetings of Stockholders. Special meetings of the
stockholders or of any class or series thereof entitled to vote may be called
by the President, the Board of Directors, the Chairman of the Board, or at
the request in writing by one or more stockholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at
that meeting.
2.5. Notice of Meetings of Stockholders. Except as otherwise expressly
required or permitted by law, not less than ten days nor more than sixty days
before the date of every stockholders' meeting the Secretary shall give to
each stockholder of record entitled to vote at such meeting written notice,
served personally, by mail or by telegram, stating the place, date and hour
of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Such notice, if mailed, shall be deemed to
be given when deposited in the United States mail, postage prepaid, directed
to the stockholder at his address for notices to such stockholder as it
appears on the records of the Corporation.
2.6. Quorum of Stockholders. (a) Unless otherwise provided by the
Certificate of Incorporation or by law, at any meeting of the stockholders,
the presence in person or by proxy of stockholders entitled to cast a
majority of the votes thereat shall constitute a quorum.
(b) At any meeting of the stockholders at which a quorum shall be
present, a majority of those present in person or by proxy may adjourn the
meeting from time to time without notice other than announcement at the
meeting. In the absence of a quorum, the officer presiding thereat shall have
power to adjourn the meeting from time to time until a quorum shall be
present. Notice of any adjourned meeting, other than announcement at the
meeting, shall not be required to be given, except as provided in paragraph
(d) below and except where expressly required by law.
(c) At any adjourned session at which a quorum shall be present,
any business may be transacted which might have been transacted at the
meeting originally called but only those stockholders entitled to vote at the
meeting as originally noticed shall be entitled to vote at any adjournment or
adjournments thereof, unless a new record date is fixed by the Board of
Directors.
(d) If an adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.7. Chairman and Secretary of Meeting. The Chairman of the Board of
Directors, or, in his absence, the President or a Vice President, shall
preside at meetings of the stockholders. The Secretary or, in his absence, an
Assistant Secretary, shall act as secretary of the meeting shall act, or if
neither is present, then the presiding officer may appoint a person to act as
secretary of the meeting.
2.8. Voting by Stockholders. Except as may be otherwise provided by the
Certificate of Incorporation or these by-laws, at every meeting of the
stockholders each stockholder shall be entitled to one vote for each share of
stock standing in his name on the books of the Corporation on the record date
for the meeting. All elections and questions shall be decided by the vote of
a majority in interest of the stockholders present in person or represented
by proxy and entitled to vote at the meeting.
2.9. Proxies. Any stockholder entitled to vote at any meeting of
stockholders may vote either in person or by proxy. Every proxy shall be in
writing, subscribed by the stockholder or his duly authorized attorney-in-
fact, but need not be dated, sealed, witnessed or acknowledged.
2.10. Inspectors. The election of directors and any other vote by
ballot at any meeting of the stockholders shall be supervised by at least two
inspectors. Such inspectors may be appointed by the presiding officer before
or at the meeting; or if one or both inspectors so appointed shall refuse to
serve or shall not be present, such appointment shall be made by the officer
presiding at the meeting.
2.11. List of Stockholders. (a) The Corporation shall keep at its
principal executive office, or at the office of its transfer agent or
registrar, if either be appointed and as determined by resolution of the
board of directors, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of shares held by each
stockholder.
(b) A stockholder or stockholders of the Corporation holding at
least five percent (5%) in the aggregate of the outstanding voting shares of
the Corporation or who holds at least one percent (1%) of such voting shares
and has filed a Schedule 14B with the Securities and Exchange Commission
relating to the election of directors, may (i) inspect and copy the records
of stockholders' names and addresses and shareholdings during usual business
hours on five (5) days' prior written demand on the Corporation, (ii) obtain
from the transfer agent of the Corporation, on written demand and on the
tender of such transfer agent's usual charges for such list, a list of the
names and addresses of the stockholders who are entitled to vote for the
election of directors, and their shareholdings, as of the most recent record
date for which that list has been compiled or as of a date specified by the
stockholder after the date of demand. Such list shall be made available to
any such stockholder by the transfer agent on or before the later of five (5)
days after the demand is received or five (5) days after the date specified
in the demand as the date as of which the list is to be compiled.
The record of stockholders shall also be open to inspection on
the written demand of any stockholder or holder of a voting trust
certificate, at any time during usual business hours, for a purpose
reasonably related to the holder's interests as a stockholder or as the
holder of a voting trust certificate. In addition, during ordinary business
hours, for a period of at least ten days prior to the meeting, such list
shall be open to examination by any stockholder for any purpose germane to
the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or if not
so specified, at the place where the meeting is to be held.
Any inspection and copying under this Section 2.11 may be made
in person or by an agent or attorney of the stockholder or holder of a voting
trust certificate making the demand.
(c) The list shall also be produced and kept at the time and place
of the meeting during the whole time of the meeting, and it may be inspected
by any stockholder who is present.
(d) The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 2.11 or the books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
2.12. Procedure at Stockholders' Meetings. Except as otherwise
provided by these by-laws or any resolutions adopted by the stockholders or
Board of Directors, the order of business and all other matters of procedure
at every meeting of stockholders shall be determined by the presiding
officer. Not less than 15 minutes following the presentation of any
resolution to any meeting of stockholders, the presiding officer may announce
that further discussion on such resolution shall be limited to not more than
three persons who favor and not more than three persons who oppose such
resolution, each of whom shall be designated by the presiding officer and
shall thereupon be entitled to speak thereon for not more than five minutes.
After such persons, or such a lesser number thereof as shall advise the
presiding officer of their desire so to speak, shall have spoken on such
resolution, the presiding officer may direct a vote on such resolution
without further discussion thereon at the meeting.
2.13. Action Bv Consent Without Meeting. Unless otherwise provided
by the Certificate of Incorporation, any action required to be taken at any
annual or special meeting of stockholders, or any action which may be taken
at any annual or special meeting, may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the
action so taken, shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
ARTICLE III
DIRECTORS
3.1. Powers of Directors. The property, business and affairs of the
Corporation shall be managed by its Board of Directors which may exercise all
the powers of the Corporation except such as are by the law of the State of
Delaware or the Certificate of Incorporation or these by-laws required to be
exercised or done by the stockholders.
3.2. Number. Method of Election, Terms of Office of Directors. The
number of directors which shall constitute the entire Board of Directors
shall such number as the Board of Directors may determine from time to time.
Until changed by action of the Board of Directors, the number of directors
constituting the entire Board of Directors shall be seven (7). Each director
shall hold office until the next annual meeting of stockholders and until his
successor is elected and qualified, provided, however, that a director may
resign at any time. Directors need not be stockholders.
3.3. Vacancies on Board of Directors; Removal.
(a) Any director may resign his office at any time by delivering
his resignation in writing to the President or the Secretary. It will take
effect at the time specified therein or, if no time is specified, it will be
effective at the time of its receipt by the Corporation. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation.
(b) Any vacancy, or newly created directorship resulting from any
increase in the authorized number of directors, may be filled by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and any director so chosen shall hold office until the
next annual election of directors by the stockholders and until his successor
is duly elected and qualified or until his earlier resignation or removal.
(c) Removal. Any director may be removed with or without cause at
any time by the affirmative vote of stockholders holding of record in the
aggregate at least a majority of the outstanding shares of stock of the
Corporation, given at a special meeting of the stockholders called for that
purpose.
3.4 Meetings of the Board of Directors. (a) The Board of Directors may
hold their meetings, both regular and special, either within or without the
State of Delaware.
(b) Regular meetings of the Board of Directors may be held at
such time and place as shall from time to time be determined by resolution of
the Board of Directors. No notice of such regular meetings shall be required.
If the date designated for any regular meeting be a legal holiday, then the
meeting shall be held on the next day which is not a legal holiday.
(c) The first meeting of each newly elected Board of
Directors shall be held immediately following the annual meeting of the
stockholders for the election of officers and the transaction of such other
business as may come before it. If such meeting is held at the place of the
stockholders' meeting, no notice thereof shall be required.
(d) Special meetings of the Board of Directors shall be held
whenever called by direction of the Chairman of the Board of Directors or at
the written request of any one director.
(e) The Secretary shall give notice to each director of any
special meeting of the Board of Directors by mailing the same at least three
days before the meeting or by telegraphing, telexing, or delivering the same
not later than the day before the meeting. Unless required by law, such
notice need not include a statement of the business to be transacted at, or
the purpose of, any such meeting. Any and all business may be transacted at
any meeting of the Board of Directors. No notice of any adjourned meeting
need be given. No notice to or waiver by any director shall be required with
respect to any meeting at which the director is present.
3.5. Quorum and Action. Unless provided otherwise by law or the
Certificate of Incorporation, a majority of the entire board shall constitute
a quorum for the transaction of business; but it there shall be less than a
quorum at any meeting of the Board, a majority of those present may adjourn
the meeting from time to time. The vote of a majority of the directors
present at any meeting at which a quorum is present shall be necessary to
constitute the act of the Board of Directors.
3.6. Presiding Officer and Secretary of Meeting. The Chairman of the
Board of Directors, or, in his absence, the President or any Vice President,
or, in their absence a member of the Board of Directors selected by the
members present, shall preside at meetings of the Board. The Secretary shall
act as secretary of the meeting, but in his absence the presiding officer may
appoint a secretary of the meeting.
3.7. Action by Consent Without Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting if all members of the Board of
Directors or committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes or proceedings of the
Board of Directors or committee.
3.8. Action by Telephonic Conference. Members of the Board of Directors,
or any committee designated by such board, may participate in a meeting of
such board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting.
32.9. Committees. (a) The Board of Directors may, by resolution or
resolutions passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of any
member or such committee or committees, the member or members thereof present
at any such meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or
disqualified member.
(b) Any such committee, to the extent provided in the resolution
or resolutions of the Board of Directors, or in these by-laws, shall have and
may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power of authority in reference to
amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the by-laws of the Corporation; and
unless the resolution, these by-laws, or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock.
3.10. Compensation of Directors. Directors shall receive such
reasonable compensation for their service on the Board of Directors or any
committees thereof, whether in the form of salary or a lied fee for
attendance at meetings, or both, with expenses, if any, as the Board of
Directors may from time to time determine. Nothing herein contained shall be
construed to preclude any director from ser-,,ing in any other capacity and
receiving compensation therefor.
ARTICLE IV
OFFICERS
4.1. Officers, Title, Elections, Terms. (a) The elected officers of the
Corporation shall be a Chairman of the Board of Directors, a President, a
Treasurer and a Secretary, and the Board of Directors may also elect or
appoint at any time one or more Vice Presidents and such other officers as it
may determine. Two or more offices may be held by the same person.
(b) Unless otherwise specified by the Board of Directors, each
officer shall be elected or appointed to hold office until the annual meeting
of the Board of Directors next following his election or appointment and
until his successor, if any, has been elected or appointed and qualified, or
until his earlier resignation or renewal.
(c) Any vacancy in any office may be filled for the unexpired
portion of the term by the Board of Directors.
(d) Any officer may resign his office at any time. Such
resignation shall be made in writing and shall take effect at the time
specified therein or, if no time be specified, at the time of its receipt by
the Corporation. The acceptance of a resignation shall not be necessary to
make it effective, unless expressly so provided in the resignation.
(e) Any officer elected or appointed by the Board of Directors may
be removed by the Board of Directors with or without cause.
(f) The salaries of all officers of the Corporation shall be fixed
by the Board of Directors.
4.2. Removal of Elected Officers. Any elected officer may be removed at
any time, either with or without cause, by resolution adopted at any regular
or special meeting of the Board of Directors by a majority of the directors
then in office.
4.3. Duties. The officers, agent and employees of the Corporation shall
each have such powers and perform such duties in the management of the
affairs, property and business of the Corporation, subject to the control of
and limitation by the Board of Directors, as generally pertain to their
respective offices, as well as such powers and duties as may be authorized
from time to time by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1. Stock Certificates. (a) Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the name of, the
Corporation by the Chairman or the President or a Vice President, and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary, certifying the number of shares owned by him.
(b) If such certificate is countersigned by a transfer agent other
than the Corporation or it: employee, or by a registrar other than the
Corporation or its employee, the signatures of the officers of the
Corporation may be facsimiles, and, if permitted by law, any other signature
may be a facsimile.
(c) In case any officer who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
(d) Certificates of stock shall be issued in such form not
inconsistent with the Certificate of Incorporation as shall be approved by
the Board of Directors. They shall be numbered and registered in the order in
which they are issued.
(e) All certificates surrendered to the Corporation shall be
cancelled with the date of cancellation, and shall be retained by the
Secretary, together with the powers of attorney to transfer and the
assignments of the shares represented by such certificates, for such period
of time as shall be prescribed from time to time by resolution of the Board
of Directors.
5.2. Record Ownership. A record of the name and address of the holder of
each certificate, the number of shares represented thereby and the date of
issue thereof shall be made on the Corporation's books. The Corporation shall
be entitled to treat the holder of any share of stock as the holder in fact
thereof, and accordingly shall not be bound to recognize any equitable or
other claim to or interest in any share on the part of any other person,
whether or not it shall have express or other notice thereof, except as
required by law.
5.3. Transfer of Record Ownership. Transfers of stock shall be made on
the books of the corporation only by direction of the person named in the
certificate or his attorney, lawfully constituted in writing, and only upon
the surrender of the certificate therefor and a written assignment of the
shares evidenced thereby. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the
entry of the transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and transferee request the
Corporation to do so.
5.4. Lost, Stolen or Destroyed Certificates. Certificates representing
shares of the stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed in such manner and
on such terms and conditions as the Board of Directors from time to time may
authorize.
5.5. Transfer Agent; Registrar; Rules Respecting Certificates. The
Corporation may maintain one or more transfer offices or agencies where stock
of the Corporation shall be transferable. The Corporation may also maintain
one or more registry offices where such stock shall be registered. The Board
of Directors may make such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of stock certificates.
5.6. Fixing Record Date for Determination of Stockholders of Record. The
Board of Directors may fix, in advance, a date as the record date for the
purpose of determining stockholders entitled to notice of, or to vote at, any
meeting of the stockholders or any adjournment thereof, or the stockholders
entitled to receive payment of any dividend or other distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or to express consent to corporate
action in writing without a meeting, or in order to make a determination of
the stockholders for the purpose of any other lawful action. Such record date
in any case shall be not more than sixty days nor less than ten days before
the date of a meeting of the stockholders, nor more than sixty days prior to
any other action requiring such determination of the stockholders. A
determination of stockholders of record entitled to notice or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date fur
the adjourned meeting.
5.7. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor at any regular or special meeting, declare dividends upon the
capital stock of the Corporation as and when they deem expedient. Before
declaring any dividend there may be set apart out of any funds of the
Corporation available for dividends, such sum or sums as the Board of
Directors from time to time in their discretion deem proper for working
capital or as a reserve fund to meet contingencies or for equalizing
dividends or for such other purposes as the Board of Directors shall deem
conducive to the interests of the Corporation.
ARTICLE VI
SECURITIES HELD BY THE CORPORATION
6.1. Voting. Unless the Board of Directors shall otherwise order, the
Chairman of the Board of Directors, the President, any Vice President, the
Secretary or the Treasurer shall have full power and authority, on behalf of
the Corporation, to attend, act and vote at any meeting of the stockholders
of any corporation in which the Corporation may hold stock, and at such
meeting to exercise any or all rights and powers incident to the ownership of
such stock, and to execute on behalf of the corporation a proxy or proxies
empowering another or others to act as aforesaid. Ile Board of Directors from
time to time may confer like powers upon any other person or persons.
6.2. General Authorization to Transfer Securities Held by the
Corporation. (a) Any of the following officers, to wit: the Chairman of the
Board of Directors, the President, any Vice President and the Treasurer shall
be, and they hereby are, authorized and empowered to transfer, convert,
endorse, sell, assign, set over and deliver any and all shares of stock,
bonds, debentures, notes, subscription warrants, stock purchase warrants,
evidence of indebtedness, or other securities now or hereafter standing in
the name of or owned by the Corporation, and to make, execute and deliver,
under the seal of the Corporation, any and all written instruments of
assignment and transfer necessary or proper to effectuate the authority
hereby conferred.
(b) Whenever there shall be annexed to any instrument of
assignment and transfer executed pursuant to and in accordance with the
foregoing paragraph (a), a certificate of the Secretary of the Corporation in
office at the date of such certificate setting forth the provisions of this
Section 6.2 and stating that they are in full force and effect and setting
forth the names of persons who are then officers of the Corporation, then all
persons to whom such instrument and annexed certificate shall thereafter
come, shall be entitled, without further inquiry or investigation and
regardless of the date of such certificate, to assume and to act in reliance
upon the assumption that the shares of stock or other securities named in
such instrument were theretofore duly and properly transferred, endorsed,
sold, assigned, set over and delivered by the Corporation, and that with
respect to such securities the authority of these provisions of the by-laws
and of such officers is still in full force and effect.
ARTICLE VII
MISCELLANEOUS
7.1. Signatories. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or such other person
or persons as the Board of Directors may from time to time designate.
7.2. Seal. The seal of the Corporation shall be in such form and shall
have such content as the Board of Directors shall from time to time
determine.
7.3. Notice and Waiver of Notice. Whenever any notice of the time, place
or purpose of any meeting of the stockholders, directors or a committee is
required to be given under the law of the State of Delaware, the Certificate
of Incorporation or these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to such notice, whether before or after the
holding thereof, or actual attendance at the meeting in person or, in the
case of any stockholder, by his attorney-in-fact, shall be deemed equivalent
to the giving of such notice to such persons.
7.4. Amendment of By-Laws. (a) By Board of Directors. The by-laws of
the Corporation may be altered, amended or repealed or new by-laws may be
made or adopted by the Board of Directors at any regular or special meeting
of the Board; provided that paragraph (c) of Section 3.3 and this Section
7.4(a) of these By-Laws may be altered, amended or repealed only by action of
the stockholders acting pursuant to Section 7.4(b) hereof.
(b) By Stockholders. The by-laws of the Corporation may also be
altered, amended or repealed or new by-laws may be made or adopted by the
vote of a majority in interest of the stockholders represented and entitled
to vote upon the election of directors, at any meeting at which a quorum is
present.
7.5. Indemnity. The Corporation shall indemnify its directors and
officers to the fullest extent allowed by law.
7.6. Fiscal Year. Except as from time to time otherwise determined by
the Board of Directors, the fiscal year of the Corporation shall end on March
31.
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ACTIVISION HOLDINGS, INC.
ACTIVISION HOLDINGS, INC., a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That pursuant to consent in writing of all of the directors
of Activision Holdings, Inc., resolutions were duly adopted setting forth a
proposed amendment of the Amended and Restated Certificate of Incorporation
of such corporation, declaring said amendment to be advisable and calling for
consideration thereof by the sole stockholder. The resolution setting forth
the proposed amendment is as follows:
RESOLVED, that the Amended and Restated Certificate of
Incorporation of this corporation be amended by changing the
Article thereof numbered "1" so that, as amended, said Article
shall be and read as follows:
"1. The name of the corporation is Activision, Inc."
SECOND: That thereafter, pursuant to resolution of all of its
directors, the sole stockholder of the corporation considered the amendment
and consented to the amendment, in writing duly signed by said stockholder.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said corporation shall not be reduced
under or by reason of said amendment.
IN WITNESS WHEREOF, said ACTIVISION HOLDINGS, INC. has caused this
certificate to be signed by its President this 9 day of June,2000.
ACTIVISION HOLDINGS, INC.
By:/s/ Brian G. Kelly
____________________________
Brian G. Kelly, President
FOR IMMEDIATE RELEASE
ACTIVISION ANNOUNCES NEW HOLDING COMPANY REORGANIZATION
Santa Monica, CA, June 16, 2000 - Activision, Inc. (NASDAQ: ATVI)
announced today that on June 9, 2000, it reorganized into a holding company
structure. The purpose of the reorganization was to provide the company with
a more flexible organizational and capital structure and to enhance its
financing options. The business operations of Activision, Inc. will not
change as a result of the reorganization. The company's existing stock
certificates represent shares of the new holding company. The common stock
of the new holding company will continue to trade on the NASDAQ National
Market under the symbol "ATVI."
As a result of the reorganization, a new parent company, Activision
Holdings, Inc., a Delaware corporation, owns 100 percent of the previously
publicly held Activision, Inc. As part of the reorganization, the former
Activision, Inc. changed its name to Activision Publishing, Inc. and
Activision Holdings, Inc. changed its name to Activision, Inc. Outstanding
shares of capital stock of the former Activision, Inc. were automatically
converted, on a share for share basis, into identical shares of common stock
of the new holding company.
Under Delaware law, the reorganization was structured in a manner
that did not require action by Activision's stockholders, whose rights,
privileges and interests will remain the same with respect to the new holding
company. The change to the holding company structure was tax free to the
company's stockholders. The by-laws, executive officers and board of
directors of the new holding company will remain the same.
Headquartered in Santa Monica, California, Activision, Inc. is a
leading worldwide developer, publisher and distributor of interactive
entertainment and leisure products.
Activision maintains operations in the US, Canada, the United
Kingdom, France, Germany, Japan, Australia and the Netherlands. More
information about Activision and its products can be found on the company's
World Wide Web site, which is located at http://www.activision.com.
The statements contained in this release that are not historical facts
are "forward-looking statements." The Company cautions readers of this press
release that a number of important factors could cause Activision's actual
future results to differ materially from those expressed in any such forward-
looking statements. These important factors, and other factors that could
affect Activision, are described in Activision's Annual Report on Form 10-K
for the fiscal year ended March 31, 1999, which was filed with the United
States Securities and Exchange Commission. Readers of this press release are
referred to such filings.