EX-4.4






EXHIBIT
4.4




[Restated electronically for

SEC filing purposes only]




GAYLORD ENTERTAINMENT COMPANY




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SECOND AMENDED AND RESTATED BY-LAWS




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OFFICES




     1. The registered office of the Corporation shall be in the City of Wilmington, County of New
Castle, State of Delaware, and the name of the resident agent in charge thereof is Corporation
Service Company. The registered office and/or registered agent of the Corporation may be changed
from time to time by the Corporation. The Corporation may also have an office in the City of
Nashville, State of Tennessee, and also offices at such other places as the Board of Directors may
from time to time appoint or the business of the Corporation may require.



SEAL




     2. The corporate seal shall have inscribed thereon the name of the Corporation, the year of
its organization and the words “Corporate Seal, Delaware.” Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.



STOCKHOLDERS’ MEETINGS




     3. All meetings of the stockholders shall be held at the office of the Corporation in
Nashville, Tennessee, or elsewhere as specified by the Board of Directors in the notice of meeting.



     4. The annual meeting of the stockholders shall be held on such date and at such time and
place as shall be designated by the Board of Directors and stated in the notice of the meeting,
when the stockholders shall elect by a plurality vote, by ballot, the members of the class of the
Board of Directors standing for election in that year and transact such other business properly
brought before the meeting.



     5. (a) No business may be transacted at an annual meeting of stockholders, other than
business that is properly brought before the meeting. To be properly brought before an annual
meeting, business must be either (i) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors (or any duly authorized committee thereof),
(ii) otherwise properly brought before the annual meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (iii) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (A) who is a stockholder of record on the date
of the giving of the notice provided for in this Paragraph 5 and on the record



 









 







date for the determination of stockholders entitled to vote at such meeting and (B) who
complies with the notice procedures set forth in this Paragraph 5; clause (iii) shall be the
exclusive means for a stockholder to submit any matters (other than matters properly brought under
Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included
in the Corporation’s notice of meeting) before an annual meeting of stockholders.



          (b) In addition to any other applicable requirements, for business to be properly brought
before an annual meeting by a stockholder such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation and such business must be a proper subject
for stockholder action.



          (c) To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and
received by the Secretary of the Corporation at the principal executive offices of the Corporation
not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided, however, in the event
that the annual meeting is called for a date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order to be timely must be so received not
earlier than the close of business on the one hundred twentieth (120th) day prior to such annual
meeting and not later than the close of business on the later of the ninetieth (90th) day prior to
such annual meeting or the tenth (10th) day following the day on which notice of the date of the
annual meeting was mailed or public disclosure of the date of the annual meeting was made,
whichever first occurs. In no event will the adjournment or postponement of an annual meeting of
stockholders commence a new time period (or extend any time period) for the giving of a
stockholder’s notice as described in this Paragraph 5.



          (d) To be in proper written form, a stockholder’s notice (the “Stockholder Proposal Notice”)
to the Secretary must set forth as to each matter such stockholder proposes to bring before the
annual meeting (other than director nominations, which are governed by Paragraph 14 of these Second
Amended and Restated By-laws (as amended from time to time, the “By-laws”)) (i) a brief description
of the business desired to be brought before the annual meeting (including the text of any
resolutions proposed for consideration) and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder and any Stockholder Associated Person
(as defined below) covered by clauses (iii), (iv) and (v) below, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned beneficially or of record by
such stockholder and any Stockholder Associated Person and the date(s) on which such stock was
acquired, (iv) a description of any economic interest in or any other right with respect to
(including from a third party), any securities of the Corporation (or any rights, options or other
securities convertible into or exercisable or exchangeable for such securities or any obligations
measured by the price or value of any securities of the Corporation, including, without limitation,
any swaps or other derivative arrangements), or any short interest in any securities of the
Corporation, held by such stockholder and any Stockholder Associated Person, (v) a description of
any material direct or indirect interest of such stockholder or any Stockholder Associated Person
in any proposal or business set forth in the Stockholder Proposal Notice, (vi) a representation
that such stockholder intends to appear in person or by proxy at the annual meeting to bring such
proper business before the annual meeting and whether or not such stockholder intends to deliver a
proxy



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statement and/or form of proxy to holders of at least the percentage of the Corporation’s
outstanding shares required to approve the proposal and/or otherwise to solicit proxies from
stockholders in support of the proposal, (vii) a certification regarding whether or not such
stockholder and any Stockholder Associated Persons have complied with all applicable federal, state
and other legal requirements in connection with such stockholder’s and/or Stockholder Associated
Persons’ acquisition of stock or other securities of the Corporation and/or such stockholder’s
and/or Stockholder Associated Persons’ acts or omissions as a stockholder of the Corporation, and
(viii) any other information relating to such stockholder that would be required to be disclosed in
a proxy statement or other filings required to be made by the stockholder in connection with
solicitations of proxies by the stockholder for a contested election of directors pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder.



          (e) No business shall be conducted at the annual meeting of stockholders except business
properly brought before the annual meeting in accordance with this Paragraph 5, provided, however,
that, once business has been properly brought before the annual meeting in accordance with this
Paragraph 5, nothing in this Paragraph 5 shall be deemed to preclude discussion by any stockholder
of such business. If any information submitted pursuant to this Paragraph 5 by any stockholder
submitting any proposal for business at a meeting of stockholders is inaccurate in any material
respect, such information shall be deemed not to have been provided in accordance with this
Paragraph 5. If the presiding officer at an annual meeting determines that business was not
properly brought before the annual meeting in accordance with the foregoing procedures, the
presiding officer shall declare to the meeting that the business was not properly brought before
the meeting and such business shall not be transacted. Notwithstanding the foregoing provisions of
this Paragraph 5, a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth in this
Paragraph 5.



          (f) Nothing in this Paragraph 5 shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act. Any references in these By-laws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit the requirements applicable to proposed business
to be considered pursuant to these By-laws.



          (g) As used in these By-laws, the term “Stockholder Associated Person” means, with respect to
any stockholder, (i) any person acting in concert with such stockholder, (ii) any beneficial owner
of shares of stock of the Corporation owned of record or beneficially by such stockholder (other
than a stockholder that is a depositary) and (iii) any person controlling, controlled by or under
common control with any stockholder, or any Stockholder Associated Person identified in clauses (i)
or (ii) above.



     6. The holders of a majority of the stock issued and outstanding, and entitled to vote
thereat, present in person, or represented by proxy, shall be requisite and shall constitute a
quorum at all meetings of the stockholders for the transaction of business except as otherwise
provided by law, by the Restated Certificate of Incorporation (as amended from time to time, the
“Restated Certificate of Incorporation”), or by these By-laws.



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     Where a separate vote by class or classes is required, a majority of the outstanding shares of
such class or classes, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter.



     When any meeting is convened, the presiding officer may adjourn the meeting if (a) no quorum
is present for the transaction of business, or (b) the Board of Directors determines that
adjournment is necessary or appropriate to enable the stockholders (i) to consider fully
information which the Board of Directors determines has not been made sufficiently or timely
available to stockholders or (ii) otherwise to exercise effectively their voting rights. Prior to
the time when any meeting is convened the officer who would be the presiding officer at such
meeting, if directed by the Board of Directors, may postpone the meeting if the Board determines
that postponement is necessary or appropriate to enable the stockholders (a) to consider fully
information which the Board of Directors determines has not been made sufficiently or timely
available to stockholders or (b) otherwise to exercise effectively their voting rights.



     7. At each meeting of the stockholders every stockholder having the right to vote shall be
entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such
stockholder and bearing a date not more than three years prior to said meeting, unless such
instrument provides for a longer period. Each stockholder shall have such number of votes for each
share of stock as provided in the Restated Certificate of Incorporation that is registered in his
name in the stock records of the Corporation. The vote for directors, and, upon the demand of any
stockholder, the vote upon any question before the meeting, shall be by ballot. All elections of
directors shall be decided by a plurality vote and, except as otherwise required by law or the
Restated Certificate of Incorporation or these By-laws, all other matters shall be decided by the
affirmative vote of a majority of the shares present in person or represented by proxy and entitled
to vote on such matter. Where a separate vote by class is required, unless otherwise required by
law or the Restated Certificate of Incorporation or these By-laws, the affirmative vote of a
majority of the shares of such class or classes present in person or represented by proxy at the
meeting and entitled to vote shall be the act of such class. If any instrument or agreement to
which the Corporation is a party and that has been approved by the Board of Directors specifies a
different voting standard for any matter to be considered at a meeting of the stockholders, that
voting standard shall apply in addition to the requirements set forth herein.



     8. A complete list of the stockholders entitled to vote at any meeting of stockholders,
arranged in alphabetical order, with the residence of each, and the number of voting shares held by
each, shall be prepared by the Secretary and shall be available at a place within the city where
the meeting is to be held, at least ten days before such meeting, and shall at all times, during
the usual hours for business, and during the whole time of said meeting, be open to the examination
of any stockholder for any purpose germane to the meeting.



     9. Special meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute, may be called only by the Chairman of the Board, or shall be called by the
President or Secretary at the request, in writing, of a majority of the Board of Directors. Such
request shall state the purpose or purposes of the proposed meeting.



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     10. Business transacted at all special meetings shall be confined to the objects stated in the
call.



     11. Written notice of a special meeting of stockholders, stating the time and place and object
thereof, shall be given not less than ten (10) nor more than sixty (60) days before the date of
such meeting to each stockholder entitled to vote at such meeting at the address as appears in the
stock records of the Corporation. If mailed, notice will be deemed given when deposited in the
United States mails, postage prepaid. When a meeting is for any reason adjourned to another time or
place, it shall not be necessary to give notice of the adjourned meeting if the time and place to
which the meeting is adjourned is announced at the meeting at which the adjournment is taken and at
the adjourned meeting only such business is transacted as might have been transacted at the
original meeting. However, if after the adjournment the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of
record on the new record date entitled to notice.



     12. Meetings of the stockholders generally shall follow accepted rules of parliamentary
procedure subject to the following:



          (a) The presiding officer of the meeting shall have absolute authority over the matters of
procedure, and there shall be no appeal from the ruling of the presiding officer. If, in his
absolute discretion, the presiding officer deems it advisable to dispense with the rules of
parliamentary procedure as to any meeting of stockholders or part thereof, he or she shall so state
and shall state the rules under which the meeting or appropriate part thereof shall be conducted.



          (b) If disorder should arise which prevents the continuation of the legitimate business of
the meeting, the presiding officer may quit the chair and announce the adjournment of the meeting;
and upon so doing, the meeting is immediately adjourned.



          (c) The presiding officer may ask or require that anyone not a bona fide stockholder or proxy
leave the meeting.



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DIRECTORS




     13. The business and affairs of the Corporation shall be managed by its Board of Directors.
The number of directors shall be fixed as provided in the Restated Certificate of Incorporation and
they shall be elected in accordance with the provisions of the Restated Certificate of
Incorporation. Each director shall be elected to serve until his or her successor shall be elected
and shall qualify.



     14. (a) Only persons who are nominated in accordance with the procedures set forth in this
Paragraph 14 shall be eligible for election as directors of the Corporation, except as may be
otherwise provided in the Restated Certificate of Incorporation with respect to the right of
holders of Preferred Stock of the Corporation to nominate and elect a specified number of directors
in certain circumstances. Nominations of persons for election to the Board of Directors may be made
at any annual meeting of stockholders, or at any special meeting of stockholders called in
accordance with Paragraph 9 for the purpose of electing directors, (i) by or at the direction of
the Board of Directors (or any duly authorized committee thereof) or (ii) by any stockholder of the
Corporation (A) who is a stockholder of record on the date of the giving of the notice provided for
in this Paragraph 14 and on the record date for the determination of stockholders entitled to vote
at such meeting and (B) who complies with the notice procedures set forth in this Paragraph 14.



          (b) In addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.



          (c) To be timely, a stockholder’s notice to the Secretary must be delivered to or mailed and
received by the Secretary of the Corporation at the principal executive offices of the Corporation
(i) in the case of an annual meeting, not less than ninety (90) days nor more than one-hundred
twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not earlier than the close of business on the one-hundred
twentieth (120th) day prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following
the day on which notice of the date of the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs; and (ii) in the case of a special
meeting of stockholders called for the purpose of electing directors, not earlier than the close of
business on the one-hundred twentieth (120th) day prior to such special meeting and not later than
the close of business on the later of the ninetieth (90th) day prior to such special meeting or the
tenth (10th) day following the day on which notice of the date of the special meeting was mailed or
public disclosure of the date of the special meeting was made, whichever first occurs. In no event
will the adjournment or postponement of a meeting of stockholders commence a new time period (or
extend any time period) for the giving of a stockholder’s notice as described in this Paragraph 14.



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          (d) To be in proper written form, a stockholder’s notice (the “Stockholder Nomination
Notice”) to the Secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and residence address of
the person, (B) the principal occupation or employment of the person, (C) the class or series and
number of shares of capital stock of the Corporation which are owned beneficially or of record by
the person, (D) a description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings during the past three years, and any other material
relationships, between or among such stockholder or any Stockholder Associated Person of such
stockholder, on the one hand, and each proposed nominee, and his or her associates, on the other
hand, and (E) any other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made by the stockholder in connection with
solicitations of proxies by the stockholder for a contested election of directors pursuant to
Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder; and (ii) as
to the stockholder giving the notice (A) the name and record address of such stockholder and any
Stockholder Associated Person covered by clauses (B), (C) and (D) below, (B) the class or series
and number of shares of capital stock of the Corporation which are owned beneficially or of record
by such stockholder and any Stockholder Associated Person and the date(s) on which such stock was
acquired, (C) a description of any economic interest in or any other right with respect to
(including from a third party), any securities of the Corporation (or any rights, options or other
securities convertible into or exercisable or exchangeable for such securities or any obligations
measured by the price or value of any securities of the Corporation, including, without limitation,
any swaps or other derivative arrangements), or any short interest in any securities of the
Corporation, held by such stockholder and any Stockholder Associated Person, (D) a description of
any agreements, arrangements and understandings between or among such stockholder or any
Stockholder Associated Person, on the one hand, and any other persons (including any Stockholder
Associated Person), on the other hand, in connection with the nomination of such person for
election as a director, (E) a representation that such stockholder intends to appear in person or
by proxy at the meeting to nominate the person(s) named in its notice and whether or not such
stockholder intends to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation’s outstanding shares required to approve the nomination(s) and/or
otherwise to solicit proxies from stockholders in support of the nomination(s), (F) a certification
regarding whether or not such stockholder and Stockholder Associated Persons have complied with all
applicable federal, state and other legal requirements in connection with such stockholder’s and/or
Stockholder Associated Persons’ acquisition of stock or other securities of the Corporation and/or
such stockholder’s and/or Stockholder Associated Persons’ acts or omissions as a stockholder of the
Corporation and (G) any other information relating to such stockholder that would be required to be
disclosed in a proxy statement or other filings required to be made by the stockholder in
connection with solicitations of proxies by the stockholder for a contested election of directors
pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected, along with a completed written questionnaire with
respect to each proposed nominee with respect to the background and qualification of such proposed
nominee (which questionnaire shall be provided by the Secretary of the Corporation upon written
request). The Corporation may require any proposed nominee to furnish such additional information
as it may reasonably require to



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determine the eligibility of such proposed nominee to serve as an independent director of the
Corporation or that could be material to a reasonable stockholder’s understanding of the
independence, or lack thereof, of such nominee.



          (e) No person shall be eligible for election as a director of the Corporation unless
nominated in accordance with this Paragraph 14. If any information submitted pursuant to this
Paragraph 14 by any stockholder proposing a nominee(s) for election as a director at a meeting of
stockholders is inaccurate in any material respect, such information shall be deemed not to have
been provided in accordance with this Paragraph 14. If the presiding officer of the meeting
determines that a nomination was not made in accordance with this Paragraph 14, the presiding
officer shall declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded. Notwithstanding the foregoing provisions of this Paragraph 14, a
stockholder shall also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this Paragraph 14.



     15. The directors may hold their meetings and have one or more offices, and keep the books of
the Corporation, outside of Delaware, at the office of the Corporation in the City of Nashville,
State of Tennessee, or at such other places as they may from time to time determine.



     16. In addition to the powers and authorities expressly conferred upon them by these By-laws,
the Board of Directors may exercise all such powers of the Corporation and do all such lawful acts
and things as are not by statute or by the Restated Certificate of Incorporation or by these
By-laws directed or required to be exercised or done by the stockholders.



COMMITTEES




     17. The Board of Directors (i) may, by resolution or resolutions, passed by a majority of the
entire Board of Directors, designate one or more committees, each committee to consist of two or
more of the directors of the Corporation, and (ii) shall during such period of time as any
securities of the Corporation are listed on the New York Stock Exchange (the “NYSE”), by resolution
passed by a majority of the entire Board of Directors, designate all committees required by the
rules and regulations of the NYSE. Except to the extent restricted by applicable law or the
Restated Certificate of Incorporation, each such committee, to the extent provided in applicable
board resolutions, the Corporate Governance Guidelines and/or applicable committee charters, shall
have and may exercise all the powers and authority of the Board of Directors. Such committee or
committees shall have such name or names as may be stated in these By-laws or as may be determined
from time to time by resolution adopted by the Board of Directors. Each such committee shall serve
at the pleasure of the Board of Directors as may be determined from time to time by resolution
adopted by the Board of Directors or as required by the rules and regulations of the NYSE, if
applicable. Notice of meetings of committees of the Board of Directors will be provided in
accordance with Paragraph 23.



     18. The committees shall keep regular minutes of their proceedings and report the same to the
Board of Directors when required.



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COMPENSATION OF DIRECTORS




     19. Directors may, by resolution of the Board, be paid their expenses, if any, of attendance
at each regular or special meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors and an annual retainer or a stated salary
and/or such other consideration for services as director as determined by the Board of Directors;
provided, that nothing herein contained shall be construed to preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.



     20. Members of special or standing committees may be allowed like compensation for attending
committee meetings.



MEETINGS OF THE BOARD




     21. The newly elected Board of Directors shall meet immediately after any annual meeting of
stockholders, or at such times as shall be fixed by the vote of the stockholders at any annual
meeting for the purpose of organization and the election of officers, and no notice of such meeting
shall be necessary to the newly elected directors.



     22. Regular meetings of the Board of Directors shall be held at such time and place as may
from time to time be determined by the Board of Directors. Notice of the time and place of such
regular meetings need not be given.



     23. Special meetings of the Board of Directors may be called by the Chairman of the Board or
President on two days’ notice to each director, either personally or by telephone, mail, express
mail, courier service, confirmed facsimile or electronic mail, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the circumstances;
special meetings shall be called by the Chairman of the Board, the President or the Secretary in
like manner and on like notice on the written request of two directors. Any member of the Board of
Directors or any committee thereof who is present at a meeting shall be conclusively presumed to
have waived notice of such meeting except when such member attends for the express purpose of
objecting at the beginning of the meeting to the transaction of any business because the meeting is
not lawfully called or convened.



     24. At all meetings of the Board of Directors or any committee, the presence of a majority of
the entire Board of Directors or such committee shall be necessary and sufficient to constitute a
quorum for the transaction of business and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors or such committee, as
applicable, except as may be otherwise provided by law, by the Restated Certificate of
Incorporation or by these By-laws. 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 of the proceedings of the Board of Directors or
committee. Any or all members of the Board of Directors, or any committee thereof, may participate
in a meeting of the Board of Directors or committee by means of conference telephone or similar
communications equipment, and such participating shall constitute presence in person at such
meeting.



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     25. No contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely because his, her or their
votes are counted for such purpose if (i) the material facts as to his, her or their relationship
or interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good faith authorizes the
contract or transaction by the affirmative vote of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material facts as to his, her
or their relationship or interest as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved, or ratified by the Board of Directors, a
committee thereof, or the stockholders. Interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.



VACANCIES




     26. Subject to the terms of any one or more classes or series of preferred stock, any vacancy
on the Board of Directors, howsoever resulting, may be filled by a majority of the directors then
in office, even if less than a quorum, or by a sole remaining director. Notwithstanding the
foregoing, whenever the holders of any one or more class or classes or series of preferred stock of
the Corporation shall have the right, voting separately as a class, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of vacancies and other
features of such directorships shall be governed by the Restated Certificate of Incorporation.



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OFFICERS




     27. The officers of the Corporation shall be chosen by the Board of Directors and shall be a
Chairman of the Board of Directors (who must be a director), a President, a Vice-President, a
Secretary and a Treasurer. The Board of Directors may also choose additional Vice Presidents,
Assistant Secretaries and Assistant Treasurers and from time to time may create and fill such other
offices as it deems necessary. Unless otherwise prohibited by statute, the Restated Certificate of
Incorporation or these By-laws, any two offices except that of President and Secretary may be held
by the same person. The officers of the Corporation need not be stockholders of the Corporation,
and, except in the case of the Chairman of the Board of Directors, such officers need not be
directors of the Corporation.



     28. The Board of Directors may appoint such other officers and agents as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of Directors.



     29. The officers of the Corporation shall hold office until their successors are chosen and
qualified.



     30. Any officer elected or appointed by the Board of Directors may be removed at any time by
the majority vote of the directors constituting a quorum. If the office of any officer or officers
becomes vacant for any reason, the vacancies shall be filled by the affirmative vote of a majority
of the directors constituting a quorum. The salaries of all officers shall be fixed by the Board of
Directors or any committee thereof, subject to applicable legal and NYSE requirements.



     31. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of and on behalf of the
Corporation by the President or any Vice President and any such officer may, in the name of and on
behalf of the Corporation, take all such action as any such officer may deem advisable to vote in
person or by proxy at any meeting of security holders of any corporation in which the Corporation
may own securities and at any such meeting shall possess and may exercise any and all rights and
power incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.



CHAIRMAN OF THE BOARD OF DIRECTORS




     32. (a) The Chairman of the Board of Directors shall preside at all meetings of the
stockholders and of the Board of the Directors and, except where by law the signature of the
President is required, the Chairman of the Board of Directors shall possess the same power as the
President to sign all contracts, certificates and other instruments of the Corporation which may be
authorized by the Board of Directors.



          (b) During the absence or disability of the President, the Chairman of the Board of Directors
shall exercise all the powers and discharge all the duties of the President.



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          (c) The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as from time to time may be assigned to him or her by these By-Laws or
by the Board of Directors.



PRESIDENT




     33. (a) The President shall be the Chief Executive Officer of the Corporation. The President
shall manage the business of the Corporation, and shall see that all orders and resolutions of the
Board of Directors are carried into effect. In the absence or disability of the Chairman of the
Board of Directors, the President shall preside at all meetings of the stockholders and the Board
of Directors. The President shall also perform such other duties and may exercise such other powers
as from time to time may be assigned to him or her by these By-Laws or by the Board of Directors.



          (b) The President shall execute bonds, mortgages and other contracts requiring a seal, under
the seal of the Corporation, except where required or permitted by statute to be otherwise executed
and except that the other officers of the Corporation may execute documents when so authorized by
these By-Laws, the Board of Directors or the President.



          (c) The President shall have the general powers and duties of supervision and management
usually vested in the office of president of a corporation and may exercise such other powers as
from time to time may be assigned to him or her by these By-laws or the Board of Directors.



VICE PRESIDENT




     34. The Vice-President, in the absence or disability of the President, shall perform the
duties and exercise the powers of the President, and shall perform such other duties as the Board
of Directors may prescribe.



     35. In the event that there be more than one Vice-President, they shall, in the order of their
seniority, perform the duties and exercise the powers of the President in his or her absence or
disability and shall perform such other duties as the Board of Directors may prescribe.



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THE SECRETARY AND ASSISTANT SECRETARIES




     36. (a) The Secretary shall attend all sessions of the Board of Directors and all meetings of
the stockholders and record all votes and minutes of all proceedings in a book to be kept for that
purpose; and shall perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision he or she shall be. The Secretary shall keep in safe custody the
seal of the Corporation, and when authorized by the Board of Directors, affix the same to any
instrument requiring it, and when so affixed it shall be attested by his or her signature or by the
signature of the Treasurer. The Secretary shall be sworn to the faithful discharge of his or her
duty.



          (b) The Assistant Secretaries in the order of their seniority shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the Secretary, and shall
perform such other duties as the Board of Directors shall prescribe.



THE TREASURER AND ASSISTANT TREASURERS




     37. (a) The Treasurer shall have the custody of the corporate funds and securities and shall
keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys, and other valuable effects in the name and to the credit of the
Corporation, in such depositories as may be designated by the Board of Directors.



          (b) The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board
of Directors, taking proper vouchers for such disbursements, and shall render to the President and
directors, at the regular meetings of the Board of Directors or whenever they may require it, an
account of all his or her transactions as treasurer and of the financial condition of the
Corporation.



          (c) The Treasurer shall give the Corporation a bond if required by the Board of Directors in
a sum, and with one or more sureties satisfactory to the Board of Directors, for the faithful
performance of the duties of his or her office, and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his or her possession or under his or her
control belonging to the Corporation.



          (d) The Assistant Treasurers in the order of their seniority shall, in the absence or
disability of the Treasurer, perform the duties and exercise the powers of the Treasurer, and shall
perform such other duties as the Board of Directors shall prescribe.



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DUTIES OF OFFICERS




     38. In case of the absence of any officer of the Corporation, or for any other reason that the
Board of Directors may deem sufficient, the Board of Directors may delegate, for the time being,
the powers or duties, or any of them, of such officer to any other officer, or to any director,
provided a majority of the entire Board of Directors concur therein.



CERTIFICATES OF STOCK




     39. (a) The shares of stock of the Corporation shall be represented by certificates, provided
that the Board of Directors may provide by resolution or resolutions that some or all of any or all
classes or series of stock of the Corporation shall be uncertificated shares of stock.
Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock
represented by a certificate shall be entitled to have a certificate, signed by, or in the name of,
the Corporation by the President or a Vice-President and the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares
owned by such holder in the Corporation. Any signature on a certificate of stock may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the Corporation with the same
effect as if he or she were such officer, transfer agent or registrar at the date of issue.



          (b) All certificates shall be consecutively numbered or otherwise identified. The name of the
person to whom the shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the books of the Corporation. Shares of the Corporation’s stock may also
be evidenced by registration in the holder’s name in uncertificated book-entry form on the books of
the Corporation in accordance with a direct registration system approved by the Securities and
Exchange Commission and by the NYSE or any securities exchange on which the stock of the
Corporation may from time to time be traded.



LOST CERTIFICATES




     40. The Board of Directors may direct the issuance of (i) a new certificate or certificates of
stock or (ii) uncertificated shares in place of any certificate theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or uncertificated shares, the Board of Directors may,
in its discretion and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate, or his or her legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the Corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.



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TRANSFERS OF STOCK




     41. Shares of stock of the Corporation shall only be transferred on the books of the
Corporation by the holder of record thereof or by such holder’s attorney duly authorized in
writing. Upon surrender to the Corporation of the certificate or certificates for shares endorsed
by the appropriate persons, with such evidence of the authenticity of such endorsement, transfer,
authorization and other matters as the Corporation may reasonably require, and accompanied by all
necessary stock transfer stamps, it shall be the duty of the Corporation to issue (i) a new
certificate or certificates of stock or (ii) uncertificated shares to the person entitled thereto,
cancel the old certificate or certificates and record the transaction on its books. Upon the
receipt of proper transfer instructions from the registered owner of uncertificated shares, it
shall be the duty of the Corporation to issue (i) a new certificate or certificates of stock or
(ii) uncertificated shares to the person entitled thereto and record the transaction on its books.
The Board of Directors may appoint one or more transfer agents and one or more registrars for the
transfer or registration of certificates for shares of stock or uncertificated shares of the
Corporation. The Board of Directors may make such additional rules and regulations, not
inconsistent with these By-laws, as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of stock or uncertificated shares of the Corporation.



CLOSING OF TRANSFER BOOKS




     42. The Board of Directors shall have the power to fix in advance a record date for
determining the stockholders entitled to notice of or to vote at any meeting of stockholders or the
stockholders entitled to receive payment of any dividend or the allotment or exercise of any rights
in accordance with the following provisions:



          (a) In order that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than
sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed
by the Board of Directors, the record date for determining stockholders entitled to notice or to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting;



          (b) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record
date shall be not more than sixty (60) days prior to such action. If no



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record date is fixed, the record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the Board of Directors adopts a resolution taking such
prior action.



REGISTERED STOCKHOLDERS




     43. The Corporation shall be entitled to treat the holder of record of any share or shares 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 such share on the part of any other person, whether or not it
shall have express or other notice thereof, except as expressly provided by the laws of Delaware.



INSPECTION OF BOOKS




     44. The Board of Directors shall determine from time to time whether, and, if allowed, when
and under what conditions and regulations the accounts and books of the Corporation (except such as
may by statute be specifically open to inspection) or any of them shall be open to the inspection
of the stockholders, and the stockholders’ rights in this respect are and shall be restricted and
limited accordingly to the fullest extent permitted by law.



CHECKS




     45. All checks or demands for money and notes of the Corporation shall be signed by such
officer or officers as the Board of Directors may from time to time designate.



FISCAL YEAR




     46. The fiscal year shall begin the first day of January in each year or such other date as
may be fixed by resolution of the Board of Directors.



DIVIDENDS




     47. Dividends upon the capital stock of the Corporation, subject to the provisions of the
Restated Certificate of Incorporation, if any, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of the capital stock.



     Before payment of any dividend there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the directors from time to time, in their absolute
discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other purpose as the
directors shall think conducive to the interests of the Corporation.



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NOTICES




     48. Whenever under the provisions of these By-laws, the Restated Certificate of Incorporation
or by law, written notice is required to be given to any director, officer or stockholder, it shall
not be construed to mean personal notice, but such notice will be deemed given by depositing the
same in the United States mail, postage prepaid, addressed to such stockholder, officer, or
director at such address as appears on the stock book of the Corporation and, such notice shall be
deemed to be given at the time when the same shall be deposited in the United States mail. To the
extent permitted by applicable law, written notice may also be given personally or by telephone,
express mail, courier service, confirmed facsimile or electronic mail.



     49. Whenever under the provisions of these By-laws, the Restated Certificate of Incorporation
or by law, notice is required to be given to any director, officer or stockholder, a waiver thereof
in writing, signed, by the person or persons entitled to said notice, whether before or after the
time stated therein, shall be deemed equivalent thereto.



AMENDMENTS




     50. As provided in the Restated Certificate of Incorporation, these By-Laws may be altered,
amended, changed or repealed by the affirmative vote of not less than 66-2/3% of the votes
represented by the issued and outstanding shares of capital stock of the Corporation entitled to
vote thereon, at any regular or special meeting of the stockholders if notice of the proposed
alteration or amendment be contained in the notice of the meeting, or by the affirmative vote of a
majority of the Board of Directors constituting a quorum at any regular or special meeting of the
Board of Directors.



MISCELLANEOUS PROVISIONS




     51. The President may appoint, or authorize the Vice-President to appoint, such officers and
employ such persons as he or she deems necessary for the proper management of the business and
property of the Corporation.



     52. All officers, agents, and employees appointed under Paragraph 51 shall hold their offices
or position at the discretion of the officer appointing them, and shall be subject at all times to
removal by the Board of Directors with or without cause.



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INDEMNIFICATION




     53. (a) Subject to clause (c) of this Paragraph 53, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the fact that he or she
is or was a director or officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her or on his or her behalf in connection with such action, suit or
proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his or her conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his or her conduct was unlawful.



          (b) Subject to clause (c) of this Paragraph 53, the Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason
of the fact that he or she is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to the best interests
of the Corporation; except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the Corporation unless and
only to the extent that the Court of Chancery, or the court in which such action or suit was
brought, shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such other court shall deem proper.



          (c) Any indemnification under this Paragraph 53 (unless ordered by a court) shall be made by
the Corporation only as authorized in the specific case upon a determination that indemnification
of the present or former director or officer is proper in the circumstances because he or she has
met the applicable standard of conduct set forth in clause (a) or (b) of this Paragraph 53, as the
case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of
the directors who are not parties to such action, suit or proceeding even though less than a
quorum, or (ii) by a committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (iii) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (iv) by the stockholders.



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To the extent, however, that a present or former director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection
therewith, without the necessity of authorization in the specific case.




          (d) For purposes of any determination under clause (c) of this Paragraph 53, a person shall
be deemed to have acted in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was unlawful, if his or
her action is based on the records or books of account of the Corporation or another enterprise, or
on information supplied to him or her by the officers of the Corporation or another enterprise in
the course of their duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation or another
enterprise by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The term “another
enterprise” as used in this clause (d) shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person is or was serving at
the request of the Corporation as a director, officer, employee or agent. The provisions of this
clause (d) shall not be deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth in clauses (a) or (b)
of this Paragraph 53, as the case may be.



          (e) Notwithstanding any contrary determination in the specific case under clause (c) of this
Paragraph 53, and notwithstanding the absence of any determination thereunder, any director or
officer may apply to any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under clauses (a) and (b) of this Paragraph 53,
as the case may be. The basis of such indemnification by a court shall be a determination by such
court that indemnification of the director or officer is proper in the circumstances because he or
she has met the applicable standards of conduct set forth in clauses (a) and (b) of this Paragraph
53, as the case may be. Neither a contrary determination in the specific case under clause (c) of
this Paragraph 53 nor the absence of any determination thereunder shall be a defense to such
application or create a presumption that the director or officer seeking indemnification has not
met any applicable standard of conduct. Notice of any application for indemnification pursuant to
this clause (e) shall be given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.



          (f) Expenses (including attorneys’ fees) incurred by a present or former director or officer
in defending any civil, criminal, administrative or investigative action, suit or proceeding shall
be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he or she is not entitled to be indemnified by the
Corporation as authorized in this Paragraph 53 or applicable law. Such expenses (including
attorneys’ fees) incurred by former directors and officers may be so paid upon such terms and
conditions, if any, as the Corporation deems appropriate.



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          (g) The indemnification and advancement of expenses provided by or granted pursuant to this
Paragraph 53 shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the By-laws or any agreement, vote
of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding such office, it being the policy of the Corporation
that indemnification of the persons specified in clauses (a) and (b) of this Paragraph 53 shall be
made to the fullest extent permitted by law. The provisions of this Paragraph 53 shall not be
deemed to preclude the indemnification of any person who is not specified in clauses (a) or (b) of
this Paragraph 53 but whom the Corporation has the power or obligation to indemnify under the
provisions of the General Corporation Law of the State of Delaware, or otherwise.



          (h) The Corporation may purchase and maintain insurance on behalf of any person who is or was
a director or officer of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to indemnify him or her against
such liability under the provisions of this Paragraph 53.



          (i) For purposes of this Paragraph 53, references to the “Corporation” shall include, in
addition to the resulting corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors or officers, so that any person who
is or was a director or officer of such constituent corporation, or is or was a director or officer
of such constituent corporation serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this Paragraph 53 with
respect to the resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued. For purposes of this Paragraph 53,
references to “other enterprises” shall include employee benefit plans; references to “fines” shall
include any excise taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the request of the Corporation” shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or involves services by,
such director or officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed
to be in the interest of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred
to in this Paragraph 53.



          (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Paragraph 53 shall, unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.



20









 





          (k) Notwithstanding anything contained in this Paragraph 53 to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed by clause (e) hereof),
the Corporation shall not be obligated to indemnify any director or officer in connection with a
proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.



          (1) The Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation similar to those conferred in this Paragraph 53 to directors and officers
of the Corporation.



          (m) Any repeal or modification of this Paragraph 53 will only be prospective and will not
affect the rights under this Paragraph 53 in effect at the time of the alleged occurrence of any
acts, omissions, facts or circumstances occurring prior to such repeal or modification.




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