EX-10.2



 






	 	 	 	 	 


Exhibit
10.2



SECOND AMENDED AND RESTATED BY-LAWS




of




Polo Ralph Lauren Corporation




(A Delaware Corporation)




 





ARTICLE 1



DEFINITIONS




          As used in these By-laws, unless the context otherwise requires, the term:




          1.1 “Assistant Secretary” means an Assistant Secretary of the Corporation.




          1.2 “Assistant Treasurer” means an Assistant Treasurer of the Corporation.




          1.3 “Board” means the Board of Directors of the Corporation.




          1.4 “By-laws” means the initial by-laws of the Corporation, as amended from time to time.




          1.5 “Certificate of Incorporation” means the initial certificate of incorporation of the
Corporation, as amended, supplemented or restated from time to time.




          1.6 “Chairman” means the Chairman of the Board of Directors of the Corporation.




          1.7 “Chief Executive Officer” means the Chief Executive Officer of the Corporation.




          1.8 “Corporation” means Polo Ralph Lauren Corporation.




          1.9 “Directors” means directors of the Corporation.




          1.10 “Entire Board” means all directors of the Corporation in office, whether or not present at a
meeting of the Board, but disregarding vacancies.




          1.11 “General Corporation Law” means the General Corporation Law of the State of Delaware, as
amended from time to time.




 









 








          1.12 “Office of the Corporation” means the executive office of the Corporation, anything in Section 131 of the General Corporation Law to the contrary notwithstanding.




          1.13 “President” means the President of the Corporation.




          1.14 “Secretary” means the Secretary of the Corporation.




          1.15 “Stockholders” means stockholders of the Corporation.




          1.16 “Treasurer” means the Treasurer of the Corporation.




          1.17 “Vice Chairman” means the Vice Chairman of the Board of Directors of the Corporation.




          1.18 “Vice President” means a Vice President of the Corporation.
ARTICLE 2




ARTICLE 2



STOCKHOLDERS




          2.1 Place of Meetings. Every meeting of Stockholders shall be held at the office of the
Corporation or at such other place within or without the State of Delaware as shall be specified or
fixed in the notice of such meeting or in the waiver of notice thereof.




          2.2 Annual Meeting. A meeting of Stockholders shall be held annually for the election of
Directors and the transaction of other business as may properly come before the meeting at such
date and time as may be determined by the Board and designated in the notice of meeting.





               2.2.1 At any such annual meeting of stockholders, only such business shall be conducted, and
only such proposals shall be acted upon, as shall have been properly brought before the annual
meeting of stockholders (A) by, or at the direction of, the Board of Directors or (B) by a
stockholder of the Corporation who complies with the procedures set forth in this Section 2.2.1.
For business or a proposal to be properly brought before an annual meeting of stockholders by a
stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder’s notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the scheduled date of the annual meeting, regardless of any postponement, deferral or
adjournment of that meeting to a later date; provided, however, that if less than
70 days’ notice or prior public disclosure of the date of the annual meeting is given or made to
stockholders, notice by the stockholder to be timely must be so delivered or received not later
than the close of business on the 10th day following the earlier (i) the day on which such notice
of the date of the meeting was mailed or (ii) the day on which such public disclosure was made.



 









 





               A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before an annual meeting of stockholders (i) a description, in 500 words or less,
of the business desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and address, as they appear on the Corporation’s
books, of the stockholder proposing such business and any other stockholders known by such
stockholder to be supporting such proposal, (iii) the class and number of shares of the Corporation
which are beneficially owned by such stockholder on the date of such stockholder’s notice and by
any other stockholders known by such stockholder to be supporting such proposal on the date of such
stockholder’s notice, (iv) a description, in 500 words or less, of any interest of the stockholder
in such proposal and (v) a representation that the stockholder is a holder of record of stock of
the Corporation and intends to appear in person or by proxy at the meeting to present the proposal
specified in the notice. Notwithstanding anything these Amended and Restated By-Laws or in the
Amended and Restated Certificate of Incorporation to the contrary, no business shall be conducted
at a meeting of stockholders except in accordance with the procedures set forth in this
Section 2.2.1.



               The chairman of the meeting shall, if the facts warrant, determine and declare to the meeting
that the business was not properly brought before the meeting in accordance with the procedures
prescribed by this Section 2.2.1, and if he should so determine, he shall so declare to the meeting
and any such business not properly brought before the meeting shall not be transacted.
Notwithstanding the foregoing, nothing in this Section 2.2.1 shall be interpreted or construed to
require the inclusion of information about any such proposal in any proxy statement distributed by,
at the direction of, or on behalf of, the Board of Directors.



               2.2.2 Subject to the rights, if any, of the holders of any series of Preferred Stock then
outstanding, only persons nominated in accordance with the procedures set forth in this
Section 2.2.2 shall be eligible for election as directors. Nominations of persons for election to
the Board may be made at an annual meeting of stockholders or special meeting of stockholders
called by the Board of Directors for the purpose of electing directors (A) by or at the direction
of the Board or (B) by any stockholder of the Corporation entitled to vote for the election of
directors at such meeting who complies with the notice procedures set forth in this Section 2.2.2.
Such nominations, other than those made by or at the direction of the Board, shall be made pursuant
to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder’s
notice must be delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the scheduled date of the meeting,
regardless of any postponement, deferral or adjournment of that meeting to a later date;
provided, however, that if less than 70 days’ notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the stockholder to be timely
must be so delivered or received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of the meeting was mailed or (ii) the day
on which such public disclosure was made.



 









 





               A stockholder’s notice to the Secretary shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director (a) the name, age,
business address and residence address of such person, (b) the principal occupation or employment
of such person, (c) the class and number of shares of the Corporation which are beneficially owned
by such person on the date of such stockholder’s notice and (d) any other information relating to
such person that is required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required in each case pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended, or any successor statute thereto (the “Exchange Act”) (including, without
limitation, such person’s written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (ii) as to the stockholder giving the notice (a) the name and
address, as they appear on the Corporation’s books, of such stockholder and any other stockholders
known by such stockholder to be supporting such nominee(s), (b) the class and number of shares of
the Corporation which are beneficially owned by such stockholder on the date of such stockholder’s
notice and by any other stockholders known by such stockholder to be supporting such nominee(s) on
the date of such stockholder’s notice, (c) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons specified in the notice; and (iii) a
description of all arrangements or understandings between the stockholder and each nominee and
other person or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder.



               No person (other than persons nominated by or at the directors of the Board) shall be eligible
for election as director of the Corporation unless nominated in accordance with the procedures set
forth in this Section 2.2.2. The chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the procedures
prescribed by this Section 2.2.2, and, if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.



          2.3 Deferred Meeting for Election of Directors, Etc. If the annual meeting of Stockholders
for the election of Directors and the transaction of other business is not held within the months
specified in Section 2.2 hereof, the Board shall call a meeting of Stockholders for the election of
Directors and the transaction of other business as soon thereafter as convenient.




          2.4 Other Special Meetings. A special meeting of Stockholders (other than a special
meeting for the election of Directors), unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called at any time by the Board, by the Chairman or by the
Chief Executive Officer. At any special meeting of Stockholders only such business may be
transacted as is related to the purpose or purposes of such meeting set forth in the notice thereof
given pursuant to Section 2.6 hereof or in any waiver of notice thereof given pursuant to Section
2.7 hereof.




          2.5 Fixing Record Date. For the purpose of (a) determining the Stockholders entitled (i)
to notice of or to vote at any meeting of Stockholders or any


 









 







adjournment thereof, (ii) unless otherwise provided in the Certificate of Incorporation to express
consent to corporate action in writing without a meeting or (iii) to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock; or (b) any other lawful action, the Board
may fix a record date, which record date shall not precede the date upon which the resolution
fixing the record date was adopted by the Board and which record date shall not be (x) in the case
of clause (a)(i) above, more than sixty nor less than ten days before the date of such meeting,
(y) in the case of clause (a)(ii) above, more than 10 days after the date upon which the resolution
fixing the record date was adopted by the Board and (z) in the case of clause (a)(iii) or (b)
above, more than sixty days prior to such action. If no such record date is fixed:




               2.5.1 the record date for determining Stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held;



               2.5.2 the record date for determining stockholders entitled to express consent to corporate
action in writing without a meeting (unless otherwise provided in the Certificate of
Incorporation), when no prior action by the Board is required under the General Corporation Law,
shall be the first day on which a signed written consent setting forth the action taken or proposed
to be taken is delivered to the Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded; and when prior action by
the Board is required under the General Corporation Law, the record date for determining
stockholders entitled to consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board adopts the resolution taking such prior action;
and



               2.5.3 the record date for determining stockholders for any purpose other than those specified
in Sections 2.5.1 and 2.5.2 shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.



          When a determination of Stockholders entitled to notice of or to vote at any meeting of
Stockholders has been made as provided in this Section 2.5, such determination shall apply to any
adjournment thereof unless the Board fixes a new record date for the adjourned meeting. Delivery
made to the Corporation’s registered office in accordance with Section 2.5.2 shall be by hand or by
certified or registered mail, return receipt requested.



          2.6 Notice of Meetings of Stockholders. Except as otherwise provided in Sections 2.5 and
2.7 hereof, whenever under the provisions of any statute, the Certificate of Incorporation or these
By-laws, Stockholders are required or permitted to take any action at a meeting, written notice
shall be given 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. Unless otherwise provided by any
statute, the Certificate of


 









 







Incorporation or these By-laws, a copy of the notice of any meeting shall be given, personally or
by mail, not less than ten nor more than sixty days before the date of the meeting, to each
Stockholder entitled to notice of or to vote at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the United States mail, with postage prepaid, directed to the
Stockholder at his or her address as it appears on the records of the Corporation. An affidavit of
the Secretary or an Assistant Secretary or of the transfer agent of the Corporation that the notice
required by this Section 2.6 has been given shall, in the absence of fraud, be prima facie evidence
of the facts stated therein. When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken, and at the adjourned meeting any business may be transacted that
might have been transacted at the meeting as originally called. If, however, the 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 Waivers of Notice. Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these By-laws, a waiver thereof, in writing, signed by the
Stockholder or Stockholders entitled to said notice, whether before or after the event as to which
such notice is required, shall be deemed equivalent to notice. Attendance by a Stockholder at a
meeting shall constitute a waiver of notice of such meeting except when the Stockholder attends a
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction
of any business on the ground that the meeting has not been lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special meeting of the
Stockholders need be specified in any written waiver of notice unless so required by statute, the
Certificate of Incorporation or these By-laws.




          2.8 List of Stockholders. The Secretary shall prepare and make, or cause to be prepared
and made, at least ten days before every meeting of Stockholders, a complete list of the
Stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each Stockholder and the number of shares registered in the name of each Stockholder.
Such list shall be open to the examination of any Stockholder, the Stockholder’s agent, or
attorney, at the Stockholder’s expense, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either at a place within
the city where the meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any Stockholder who is present. The Corporation shall maintain the Stockholder
list in written form or in another form capable of conversion into written form within a reasonable
time. Upon the willful neglect or refusal of the Directors to produce such a list at any meeting
for the election of Directors, they shall be ineligible for election to any office at such meeting.
The stock ledger shall be the only evidence as to who are the Stockholders entitled to examine the
stock ledger, the list of Stockholders or the books of the Corporation, or to vote in person or by
proxy at any meeting of Stockholders.




 









 








          2.9 Quorum of Stockholders; Adjournment. Except as otherwise provided by any statute, the
Certificate of Incorporation or these By-laws, the holders of one-third of all outstanding shares
of stock entitled to vote at any meeting of Stockholders, present in person or represented by
proxy, shall constitute a quorum for the transaction of any business at such meeting. When a
quorum is once present to organize a meeting of Stockholders, it is not broken by the subsequent
withdrawal of any Stockholders. The holders of a majority of the shares of stock present in person
or represented by proxy at any meeting of Stockholders, including an adjourned meeting, whether or
not a quorum is present, may adjourn such meeting to another time and place. Shares of its own
stock belonging to the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly or indirectly, by
the Corporation, shall neither be entitled to vote nor be counted for quorum purposes;
provided, however, that the foregoing shall not limit the right of the Corporation
to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.




          2.10 Voting; Proxies. Unless otherwise provided in the Certificate of Incorporation, every
Stockholder of record shall be entitled at every meeting of Stockholders to one vote for each share
of capital stock standing in his or her name on the record of Stockholders determined in accordance
with Section 2.5 hereof. If the Certificate of Incorporation provides for more or less than one
vote for any share on any matter, each reference in the By-laws or the General Corporation Law to a
majority or other proportion of stock shall refer to such majority or other proportion of the votes
of such stock. The provisions of Sections 212 and 217 of the General Corporation Law shall apply
in determining whether any shares of capital stock may be voted and the persons, if any, entitled
to vote such shares; but the Corporation shall be protected in assuming that the persons in whose
names shares of capital stock stand on the stock ledger of the Corporation are entitled to vote
such shares. Holders of redeemable shares of stock are not entitled to vote after the notice of
redemption is mailed to such holders and a sum sufficient to redeem the stocks has been deposited
with a bank, trust company, or other financial institution under an irrevocable obligation to pay
the holders the redemption price on surrender of the shares of stock. At any meeting of
Stockholders (at which a quorum was present to organize the meeting), all matters, except as
otherwise provided by statute or by the Certificate of Incorporation or by these By-laws, shall be
decided by a majority of the votes cast at such meeting by the holders of shares present in person
or represented by proxy and entitled to vote thereon, whether or not a quorum is present when the
vote is taken. All elections of Directors shall be by written ballot unless otherwise provided in
the Certificate of Incorporation. In voting on any other question on which a vote by ballot is
required by law or is demanded by any Stockholder entitled to vote, the voting shall be by ballot.
Each ballot shall be signed by the Stockholder voting or the Stockholder’s proxy and shall state
the number of shares voted. On all other questions, the voting may be viva voce.
Each Stockholder entitled to vote at a meeting of Stockholders or to express consent or dissent to
corporate action in writing without a meeting may authorize another person or persons to act for
such Stockholder by proxy. The validity and enforceability of any proxy shall be determined in
accordance with Section 212 of the General Corporation Law. A Stockholder may revoke any proxy
that


 









 







is not irrevocable by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or by delivering a proxy in accordance with applicable law bearing a
later date to the Secretary.




          2.11 Voting Procedures and Inspectors of Election at Meetings of Stockholders. The Board,
in advance of any meeting of Stockholders, may appoint one or more inspectors to act at the meeting
and make a written report thereof. The Board may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate has been
appointed or is able to act at a meeting, the person presiding at the meeting may appoint, and on
the request of any Stockholder entitled to vote thereat shall appoint, one or more inspectors to
act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall (a) ascertain the number of
shares outstanding and the voting power of each, (b) determine the shares represented at the
meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and
retain for a reasonable period a record of the disposition of any challenges made to any
determination by the inspectors, and (e) certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of their duties.
Unless otherwise provided by the Board, the date and time of the opening and the closing of the
polls for each matter upon which the Stockholders will vote at a meeting shall be determined by the
person presiding at the meeting and shall be announced at the meeting. No ballot, proxies or
votes, or any revocation thereof or change thereto, shall be accepted by the inspectors after the
closing of the polls unless the Court of Chancery of the State of Delaware upon application by a
Stockholder shall determine otherwise.




          2.12 Organization. At each meeting of Stockholders, the Chief Executive Officer, or in the
absence of the Chief Executive Officer, the Chairman, or in the absence of the Chairman, the Vice
Chairman, or in the absence of the Vice Chairman, the President, or in the absence of the
President, a Vice President, and in case more than one Vice President shall be present, that Vice
President designated by the Board (or in the absence of any such designation, the most senior Vice
President, based on age, present), shall act as chairman of the meeting. The Secretary, or in his
or her absence, one of the Assistant Secretaries, shall act as secretary of the meeting. In case
none of the officers above designated to act as chairman or secretary of the meeting, respectively,
shall be present, a chairman or a secretary of the meeting, as the case may be, shall be chosen by
a majority of the votes cast at such meeting by the holders of shares of capital stock present in
person or represented by proxy and entitled to vote at the meeting.




          2.13 Order of Business. The order of business at all meetings of Stockholders shall be as
determined by the chairman of the meeting, but the order of business to be followed at any meeting
at which a quorum is present may be changed by a majority of the votes cast at such meeting by the
holders of shares of capital stock present in person or represented by proxy and entitled to vote
at the meeting.




 









 








          2.14 Written Consent of Stockholders Without a Meeting. Unless otherwise provided in the
Certificate of Incorporation, any action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered (by hand or by certified or registered
mail, return receipt requested) to the Corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are recorded. Every
written consent shall bear the date of signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate action referred to therein unless, within
60 days of the earliest dated consent delivered in the manner required by this Section 2.14,
written consents signed by a sufficient number of holders to take action are delivered to the
Corporation as aforesaid. 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 3

Directors




          3.1 General Powers. Except as otherwise provided in the Certificate of Incorporation, the
business and affairs of the Corporation shall be managed by or under the direction of the Board.
The Board may adopt such rules and regulations, not inconsistent with the Certificate of
Incorporation or these By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers expressly conferred by
these By-laws, the Board may exercise all powers and perform all acts that are not required, by
these By-laws or the Certificate of Incorporation or by statute, to be exercised and performed by
the Stockholders.




          3.2 Number; Qualification; Term of Office. The Board shall consist of six to twenty
members (plus any directors which are entitled to be elected by any series of Preferred Stock
pursuant to the terms thereof). The number of Directors shall be fixed initially by the
incorporator and may thereafter be changed from time to time by action of the stockholders or by
action of the Board. Directors need not be stockholders. Each Director shall hold office until a
successor is elected and qualified or until the Director’s death, resignation or removal.




          3.3 Election. Directors shall, except as otherwise required by statute or by the
Certificate of Incorporation, be elected by a plurality of the votes cast at a meeting of
stockholders by the holders of shares entitled to vote in the election.




          3.4 Newly Created Directorships and Vacancies. Unless otherwise provided in the
Certificate of Incorporation, newly created Directorships resulting from an increase in the number
of Directors and vacancies occurring in the Board for any other


 









 







reason, including the removal of Directors without cause, may be filled only by (a) the affirmative
votes of a majority of the remaining directors elected by holders of each class of Common Stock or
series of Preferred Stock that (x) elected such directorship and (y) as of the date such vacancy is
filled, would be entitled to elect such directorship at the next annual meeting of stockholders or,
(b) if there are no such remaining directors, then by a plurality of the votes cast by the holders
of the class or classes of Common Stock or series of Preferred Stock that, as of the date such
vacancy is filled, would be entitled to elect such directorship at the next annual meeting of
stockholders, voting as a separate class at a meeting, special or otherwise, of the holders of
Common Stock of such class or classes or series of Preferred Stock. A Director elected to fill a
vacancy shall be elected to hold office until a successor is elected and qualified, or until the
Director’s earlier death, resignation or removal.




          3.5 Resignation. Any Director may resign at any time by written notice to the Corporation.
Such resignation shall take effect at the time therein specified, and, unless otherwise specified
in such resignation, the acceptance of such resignation shall not be necessary to make it
effective.




          3.6 Removal. Unless otherwise provided in the Certificate of Incorporation, and subject to
the provisions of Section 141(k) of the General Corporation Law, directors may be removed with or
without cause only by a majority of the holders of the class or classes of Common Stock or series
of Preferred Stock that, as of the date such removal is effected, would be entitled to elect such
directorship at the next annual meeting of stockholders.




          3.7 Compensation. Each Director, in consideration of his or her service as such, shall be
entitled to receive from the Corporation such amount per annum or such fees for attendance at
Directors’ meetings, or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by such Director in
connection with the performance of his or her duties. Each Director who shall serve as a member of
any committee of Directors in consideration of serving as such shall be entitled to such additional
amount per annum or such fees for attendance at committee meetings, or both, as the Board may from
time to time determine, together with reimbursement for the reasonable out-of-pocket expenses, if
any, incurred by such Director in the performance of his or her duties. Nothing contained in this
Section 3.7 shall preclude any Director from serving the Corporation or its subsidiaries in any
other capacity and receiving proper compensation therefor.




          3.8 Times and Places of Meetings. The Board may hold meetings, both regular and special,
either within or without the State of Delaware. The times and places for holding meetings of the
Board may be fixed from time to time by resolution of the Board or (unless contrary to a resolution
of the Board) in the notice of the meeting.




          3.9 Annual Meetings. On the day when and at the place where the annual meeting of
stockholders for the election of Directors is held, and as soon as practicable thereafter, the
Board may hold its annual meeting, without notice of such meeting, for the purposes of
organization, the election of officers and the transaction of


 









 







other business. The annual meeting of the Board may be held at any other time and place specified
in a notice given as provided in Section 3.11 hereof for special meetings of the Board or in a
waiver of notice thereof.




          3.10 Regular Meetings. Regular meetings of the Board may be held without notice at such
times and at such places as shall from time to time be determined by the Board.




          3.11 Special Meetings. Special meetings of the Board may be called by the Chairman, the
Vice Chairman, the Chief Executive Officer or the Secretary or by any two or more Directors then
serving on at least one day’s notice to each Director given by one of the means specified in
Section 3.14 hereof other than by mail, or on at least three days’ notice if given by mail.
Special meetings shall be called by the Chairman, the Vice Chairman, the Chief Executive Officer or
Secretary in like manner and on like notice on the written request of any two or more of the
Directors then serving.




          3.12 Telephone Meetings. Directors or members of any committee designated by the Board may
participate in a meeting of the Board or of such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear each other, and participation in a meeting pursuant to this Section 3.12 shall constitute
presence in person at such meeting.




          3.13 Adjourned Meetings. A majority of the Directors present at any meeting of the Board,
including an adjourned meeting, whether or not a quorum is present, may adjourn such meeting to
another time and place. At least one day’s notice of any adjourned meeting of the Board shall be
given to each Director whether or not present at the time of the adjournment, if such notice shall
be given by one of the means specified in Section 3.14 hereof other than by mail, or at least three
days’ notice if by mail. Any business may be transacted at an adjourned meeting that might have
been transacted at the meeting as originally called.




          3.14 Notice Procedure. Subject to Sections 3.11 and 3.17 hereof, whenever, under the
provisions of any statute, the Certificate of Incorporation or these By-laws, notice is required to
be given to any Director, such notice shall be deemed given effectively if given in person or by
telephone, by mail addressed to such Director at such Director’s address as it appears on the
records of the Corporation, with postage thereon prepaid, or by telegram, telex, telecopy or
similar means addressed as aforesaid.




          3.15 Waiver of Notice. Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these By-laws, a waiver thereof, in writing, signed by the person
or persons entitled to said notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance by a person at a meeting shall
constitute a waiver of notice of such meeting except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting has not been lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the Directors or a
committee of Directors need be


 









 







specified in any written waiver of notice unless so required by statute, the Certificate of
Incorporation or these By-laws.




          3.16 Organization. At each meeting of the Board, the Chairman, or in the absence of the
Chairman, the Vice Chairman, or in the absence of the Vice Chairman, the Chief Executive Officer,
or in the absence of the Chief Executive Officer, a chairman chosen by a majority of the Directors
present, shall preside. The Secretary shall act as secretary at each meeting of the Board. In
case the Secretary shall be absent from any meeting of the Board, an Assistant Secretary shall
perform the duties of secretary at such meeting; and in the absence from any such meeting of the
Secretary and all Assistant Secretaries, the person presiding at the meeting may appoint any person
to act as secretary of the meeting.




          3.17 Quorum of Directors. The presence in person of a majority of the Entire Board shall
be necessary and sufficient to constitute a quorum for the transaction of business at any meeting
of the Board, but a majority of a smaller number may adjourn any such meeting to a later date.




          3.18 Action by Majority Vote. Except as otherwise expressly required by statute, the
Certificate of Incorporation or these By-laws, the act of a majority of the Directors present at a
meeting at which a quorum is present shall be the act of the Board.




          3.19 Action Without Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the
Board or of any committee thereof may be taken without a meeting if all Directors or members of
such committee, as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee.




ARTICLE 4

COMMITTEES OF THE BOARD




          The Board may, by resolution passed by a vote of a majority of the entire 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 such committee. If a member of a committee
shall be absent from any meeting, or disqualified from voting thereat, the remaining member or
members present and not disqualified from voting, whether or not such member or members constitute
a quorum, may, by a unanimous vote, appoint another member of the Board to act at the meeting in
the place of any such absent or disqualified member. Any such committee, to the extent provided in
the resolution of the Board passed as aforesaid, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be impressed on all papers that may require it, but no
such committee shall have the power or authority of the Board in reference to amending the
Certificate of Incorporation, adopting an agreement of merger or consolidation under section 251 or
section 252 of the


 









 







General Corporation Law, recommending to the stockholders (a) the sale, lease or exchange of
all or substantially all of the Corporation’s property and assets, or (b) a dissolution of the
Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee shall have the power
and authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger pursuant to Section 253 of the General Corporation Law. Unless otherwise
specified in the resolution of the Board designating a committee, at all meetings of such committee
a majority of the total number of members of the committee shall constitute a quorum for the
transaction of business, and the vote of a majority of the members of the committee present at any
meeting at which there is a quorum shall be the act of the committee. Each committee shall keep
regular minutes of its meetings. Unless the Board otherwise provides, each committee designated by
the Board may make, alter and repeal rules for the conduct of its business. In the absence of such
rules each committee shall conduct its business in the same manner as the Board conducts its
business pursuant to Article 3 of these By-laws.




          ARTICLE 5
OFFICERS




          5.1 Positions. The officers of the Corporation shall be a Chief Executive Officer, a
Secretary, a Treasurer and such other officers as the Board may appoint, including a Chairman, a
Vice Chairman, a President, one or more Vice Presidents and one or more Assistant Secretaries and
Assistant Treasurers, who shall exercise such powers and perform such duties as shall be determined
from time to time by the Board. The Board may designate one or more Vice Presidents as Executive
Vice Presidents and may use descriptive words or phrases to designate the standing, seniority or
areas of special competence of the Vice Presidents elected or appointed by it. Any number of
offices may be held by the same person unless the Certificate of Incorporation or these By-laws
otherwise provide.




          5.2 Appointment. The officers of the Corporation shall be chosen by the Board at its
annual meeting or at such other time or times as the Board shall determine.




          5.3 Compensation. The compensation of all officers of the Corporation shall be fixed by
the Board. No officer shall be prevented from receiving a salary or other compensation by reason
of the fact that the officer is also a Director.




          5.4 Term of Office. Each officer of the Corporation shall hold office for the term for
which he or she is elected and until such officer’s successor is chosen and qualifies or until such
officer’s earlier death, resignation or removal. Any officer may resign at any time upon written
notice to the Corporation. Such resignation shall take effect at the date of receipt of such
notice or at such later time as is therein specified, and, unless otherwise specified, the
acceptance of such resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if any. Any officer
elected or appointed by the Board may be


 









 







removed at any time, with or without cause, by vote of a majority of the entire Board. Any vacancy
occurring in any office of the Corporation shall be filled by the Board. The removal of an officer
without cause shall be without prejudice to the officer’s contract rights, if any. The election or
appointment of an officer shall not of itself create contract rights.




          5.5 Fidelity Bonds. The Corporation may secure the fidelity of any or all of its officers
or agents by bond or otherwise.




          5.6 Chairman. The Chairman, if one shall have been appointed, shall preside at all
meetings of the Board and shall exercise such powers and perform such other duties as shall be
determined from time to time by the Board.




          5.7 Vice Chairman. The Vice Chairman, if one shall have been appointed, shall exercise
such powers and perform such other duties as shall be determined from time to time by the Board.




          5.8 Chief Executive Officer. The Chief Executive Officer of the Corporation shall have
general supervision over the business of the Corporation, subject, however, to the control of the
Board and of any duly authorized committee of Directors. The Chief Executive Officer shall preside
at all meetings of the Stockholders and at all meetings of the Board at which the Chairman (if
there be one) or the Vice Chairman (if there be one) is not present. The Chief Executive Officer
may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts and other
instruments except in cases in which the signing and execution thereof shall be expressly delegated
by the Board or by these By-laws to some other officer or agent of the Corporation or shall be
required by statute otherwise to be signed or executed and, in general, the Chief Executive Officer
shall perform all duties incident to the office of Chief Executive Officer of a corporation and
such other duties as may from time to time be assigned to the Chief Executive Officer by the Board.




          5.9 President. At the request of the Chief Executive Officer, or, in the Chief Executive
Officer’s absence, at the request of the Board, the President, if one shall have been appointed,
shall perform all of the duties of the Chief Executive Officer and, in so performing, shall have
all the powers of, and be subject to all restrictions upon, the Chief Executive Officer. The
President may sign and execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof shall be expressly
delegated by the Board or by these By-laws to some other officer or agent of the Corporation, or
shall be required by statute otherwise to be signed or executed, and the President shall perform
such other duties as from time to time may be assigned to the President by the Board or by the
Chief Executive Officer.




          5.10 Vice Presidents. At the request of the Chief Executive Officer, or, in the Chief
Executive Officer’s absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board, or, in the absence of any such designation, in order of
seniority based on age) perform all of the duties of the Chief





 












 




Executive Officer and, in so performing, shall have all the powers of, and be subject to all
restrictions upon, the Chief Executive Officer. Any Vice President may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments, except in cases in
which the signing and execution thereof shall be expressly delegated by the Board or by these
By-laws to some other officer or agent of the Corporation, or shall be required by statute
otherwise to be signed or executed, and each Vice President shall perform such other duties as from
time to time may be assigned to such Vice President by the Board or by the Chief Executive Officer.




          5.11 Secretary. The Secretary shall attend all meetings of the Board and of the
Stockholders and shall record all the proceedings of the meetings of the Board and of the
stockholders in a book to be kept for that purpose, and shall perform like duties for committees of
the Board, when required. The Secretary shall give, or cause to be given, notice of all special
meetings of the Board and of the stockholders and shall perform such other duties as may be
prescribed by the Board or by the Chief Executive Officer, under whose supervision the Secretary
shall be. The Secretary shall have custody of the corporate seal of the Corporation, and the
Secretary, or an Assistant Secretary, shall have authority to impress the same on any instrument
requiring it, and when so impressed the seal may be attested by the signature of the Secretary or
by the signature of such Assistant Secretary. The Board may give general authority to any other
officer to impress the seal of the Corporation and to attest the same by such officer’s signature.
The Secretary or an Assistant Secretary may also attest all instruments signed by the Chief
Executive Officer, the President or any Vice President. The Secretary shall have charge of all the
books, records and papers of the Corporation relating to its organization and management, shall see
that the reports, statements and other documents required by statute are properly kept and filed
and, in general, shall perform all duties incident to the office of Secretary of a corporation and
such other duties as may from time to time be assigned to the Secretary by the Board or by the
Chief Executive Officer.




          5.12 Treasurer. The Treasurer shall have charge and custody of, and be responsible
for, all funds, securities and notes of the Corporation; receive and give receipts for moneys due
and payable to the Corporation from any sources whatsoever; deposit all such moneys and valuable
effects in the name and to the credit of the Corporation in such depositaries as may be designated
by the Board; against proper vouchers, cause such funds to be disbursed by checks or drafts on the
authorized depositaries of the Corporation signed in such manner as shall be determined by the
Board and be responsible for the accuracy of the amounts of all moneys so disbursed; regularly
enter or cause to be entered in books or other records maintained for the purpose full and adequate
account of all moneys received or paid for the account of the Corporation; have the right to
require from time to time reports or statements giving such information as the Treasurer may desire
with respect to any and all financial transactions of the Corporation from the officers or agents
transacting the same; render to the Chief Executive Officer or the Board, whenever the Chief
Executive Officer or the Board shall require the Treasurer so to do, an account of the financial
condition of the Corporation and of all financial transactions of the Corporation; exhibit at all
reasonable times the records and books of account to any of the Directors upon application at the
office of the


 









 







Corporation where such records and books are kept; disburse the funds of the Corporation as
ordered by the Board; and, in general, perform all duties incident to the office of Treasurer of a
corporation and such other duties as may from time to time be assigned to the Treasurer by the
Board or the Chief Executive Officer.




          5.13 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and
Assistant Treasurers shall perform such duties as shall be assigned to them by the Secretary or by
the Treasurer, respectively, or by the Board or by the Chief Executive Officer.




ARTICLE 6

CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.




          6.1 Execution of Contracts. The Board, except as otherwise provided in these By-laws,
may prospectively or retroactively authorize any officer or officers, employee or employees or
agent or agents, in the name and on behalf of the Corporation, to enter into any contract or
execute and deliver any instrument, and any such authority may be general or confined to specific
instances, or otherwise limited.




          6.2 Loans. The Board may prospectively or retroactively authorize the Chief Executive
Officer or any other officer, employee or agent of the Corporation to effect loans and advances at
any time for the Corporation from any bank, trust company or other institution, or from any firm,
corporation or individual, and for such loans and advances the person so authorized may make,
execute and deliver promissory notes, bonds or other certificates or evidences of indebtedness of
the Corporation, and, when authorized by the Board so to do, may pledge and hypothecate or transfer
any securities or other property of the Corporation as security for any such loans or advances.
Such authority conferred by the Board may be general or confined to specific instances, or
otherwise limited.




          6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the payment of money
out of the funds of the Corporation and all evidences of indebtedness of the Corporation shall be
signed on behalf of the Corporation in such manner as shall from time to time be determined by
resolution of the Board.




          6.4 Deposits. The funds of the Corporation not otherwise employed shall be deposited
from time to time to the order of the Corporation with such banks, trust companies, investment
banking firms, financial institutions or other depositaries as the Board may select or as may be
selected by an officer, employee or agent of the Corporation to whom such power to select may from
time to time be delegated by the Board.




ARTICLE 7

STOCK AND DIVIDENDS




          7.1 (a) Certificates Representing Shares. The shares of capital stock of the
Corporation may be represented by certificates in such form (consistent with the


 









 







 provisions of Section 158 of the General Corporation Law) as shall be approved by the Board.
Such certificates shall be signed by the Chairman, the Chief Executive Officer or a Vice President
and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer, and may
be impressed with the seal of the Corporation or a facsimile thereof. The signatures of the
officers upon a certificate may be facsimiles, if the certificate is countersigned by a transfer
agent or registrar other than the Corporation itself or its employee. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, such certificate may, unless otherwise ordered by the Board, be issued by
the Corporation with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.




          (b) Electronic Securities Recordation. Notwithstanding the provisions of Section
7.1(a) of this Article 7, the Corporation may adopt a system of issuance, recordation and transfer
of its shares by electronic or other means not involving any issuance of certificates, provided the
use of such system by the Corporation is permitted in accordance with applicable law.




          7.2 Transfer of Shares. Transfers of shares of capital stock of the Corporation shall
be made only on the books of the Corporation by the holder thereof or by the holder’s duly
authorized attorney appointed by a power of attorney duly executed and filed with the Secretary or
a transfer agent of the Corporation, and on surrender of the certificate or certificates
representing such shares of capital stock properly endorsed for transfer and upon payment of all
necessary transfer taxes. Except for shares of Class B Common Stock and Class C Common Stock,
which shall be retained by the Corporation as treasury shares, every certificate exchanged,
returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of
cancellation, by the Secretary or an Assistant Secretary or the transfer agent of the Corporation.
A person in whose name shares of capital stock shall stand on the books of the Corporation shall be
deemed the owner thereof to receive dividends, to vote as such owner and for all other purposes as
respects the Corporation. No transfer of shares of capital stock shall be valid as against the
Corporation, its stockholders and creditors for any purpose, except to render the transferee liable
for the debts of the Corporation to the extent provided by law, until such transfer shall have been
entered on the books of the Corporation by an entry showing from and to whom transferred.




          7.3 Transfer and Registry Agents. The Corporation may from time to time maintain one
or more transfer offices or agents and registry offices or agents at such place or places as may be
determined from time to time by the Board.




          7.4 Lost, Destroyed, Stolen and Mutilated Certificates. The holder of any shares of capital
stock of the Corporation shall immediately notify the Corporation of any loss, destruction, theft
or mutilation of the certificate representing such shares, and the Corporation may issue a new
certificate to replace the certificate alleged to have been lost, destroyed, stolen or mutilated.
The Board may, in its discretion, as a condition to


 









 







 the issue of any such new certificate, require the owner of the lost, destroyed, stolen or
mutilated certificate, or his or her legal representatives, to make proof satisfactory to the Board
of such loss, destruction, theft or mutilation and to advertise such fact in such manner as the
Board may require, and to give the Corporation and its transfer agents and registrars, or such of
them as the Board may require, a bond in such form, in such sums and with such surety or sureties
as the Board may direct, to indemnify the Corporation and its transfer agents and registrars
against any claim that may be made against any of them on account of the continued existence of any
such certificate so alleged to have been lost, destroyed, stolen or mutilated and against any
expense in connection with such claim.




          7.5 Rules and Regulations. The Board may make such rules and regulations as it may
deem expedient, not inconsistent with these By-laws or with the Certificate of Incorporation,
concerning the issue, transfer and registration of certificates representing shares of its capital
stock.




          7.6 Restriction on Transfer of Stock. A written restriction on the transfer or
registration of transfer of capital stock of the Corporation, if permitted by Section 202 of the
General Corporation Law and noted conspicuously on the certificate representing such capital stock,
may be enforced against the holder of the restricted capital stock or any successor or transferee
of the holder, including an executor, administrator, trustee, guardian or other fiduciary entrusted
with like responsibility for the person or estate of the holder. Unless noted conspicuously on the
certificate representing such capital stock, a restriction, even though permitted by Section 202 of
the General Corporation Law, shall be ineffective except against a person with actual knowledge of
the restriction. A restriction on the transfer or registration of transfer of capital stock of the
Corporation may be imposed either by the Certificate of Incorporation or by an agreement among any
number of stockholders or among such stockholders and the Corporation. No restriction so imposed
shall be binding with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in favor of the
restriction.




          7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate of
Incorporation and of law, the Board:




               7.7.1 may declare and pay dividends or make other distributions on the outstanding shares of
capital stock in such amounts and at such time or times as it, in its discretion, shall deem
advisable giving due consideration to the condition of the affairs of the Corporation;



               7.7.2 may use and apply, in its discretion, any of the surplus of the Corporation in
purchasing or acquiring any shares of capital stock of the Corporation, or purchase warrants
therefor, in accordance with law, or any of its bonds, debentures, notes, scrip or other securities
or evidences of indebtedness; and



               7.7.3 may set aside from time to time out of such surplus or net profits such sum or sums as,
in its discretion, it may think proper, as a reserve fund to



 









 




meet contingencies, or for equalizing dividends or for the purpose of maintaining or
increasing the property or business of the Corporation, or for any purpose it may think conducive
to the best interests of the Corporation.




 









 








ARTICLE 8

INDEMNIFICATION




          8.1 Indemnity Undertaking. To the extent not prohibited by law, the Corporation shall
indemnify any person who is or was made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding (a “Proceeding”), whether civil, criminal,
administrative or investigative, including, without limitation, an action by or in the right of the
Corporation to procure a judgment in its favor, by reason of the fact that such person, or a person
of whom such person is the legal representative, is or was a Director or officer of the
Corporation, or, at the request of the Corporation, is or was serving as a director or officer of
any other corporation or in a capacity with comparable authority or responsibilities for any
partnership, joint venture, trust, employee benefit plan or other enterprise (an “Other Entity”),
against judgments, fines, penalties, excise taxes, amounts paid in settlement and costs, charges
and expenses (including attorneys’ fees, disbursements and other charges). Persons who are not
directors or officers of the Corporation (or otherwise entitled to indemnification pursuant to the
preceding sentence) may be similarly indemnified in respect of service to the Corporation or to an
Other Entity at the request of the Corporation to the extent the Board at any time specifies that
such persons are entitled to the benefits of this Article 8.




          8.2 Advancement of Expenses. The Corporation shall, from time to time, reimburse or
advance to any Director or officer or other person entitled to indemnification hereunder the funds
necessary for payment of expenses, including attorneys’ fees and disbursements, incurred in
connection with any Proceeding, in advance of the final disposition of such Proceeding;
provided, however, that, if required by the General Corporation Law, such expenses
incurred by or on behalf of any Director or officer or other person may be paid in advance of the
final disposition of a Proceeding only upon receipt by the Corporation of an undertaking, by or on
behalf of such Director or officer (or other person indemnified hereunder), to repay any such
amount so advanced if it shall ultimately be determined by final judicial decision from which there
is no further right of appeal that such Director, officer or other person is not entitled to be
indemnified for such expenses.




          8.3 Rights Not Exclusive. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article 8 shall not be deemed
exclusive of any other rights to which a person seeking indemnification or reimbursement or
advancement of expenses may have or hereafter be entitled under any statute, the Certificate of
Incorporation, these By-laws, any agreement, any vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to action in another capacity
while holding such office.




          8.4 Continuation of Benefits. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article 8 shall continue as to a
person who has ceased to be a Director or officer (or other person indemnified hereunder) and shall
inure to the benefit of the executors, administrators, legatees and distributees of such person.




 









 








          8.5 Insurance. The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer, employee or agent of an
Other Entity, against any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person’s status as such, whether or not the Corporation would
have the power to indemnify such person against such liability under the provisions of this
Article 8, the Certificate of Incorporation or under section 145 of the General Corporation Law or
any other provision of law.




          8.6 Binding Effect. The provisions of this Article 8 shall be a contract between the
Corporation, on the one hand, and each Director and officer who serves in such capacity at any time
while this Article 8 is in effect and any other person entitled to indemnification hereunder, on
the other hand, pursuant to which the Corporation and each such Director, officer or other person
intend to be, and shall be legally bound. No repeal or modification of this Article 8 shall affect
any rights or obligations with respect to any state of facts then or theretofore existing or
thereafter arising or any proceeding theretofore or thereafter brought or threatened based in whole
or in part upon any such state of facts.




          8.7 Procedural Rights. The rights to indemnification and reimbursement or advancement
of expenses provided by, or granted pursuant to, this Article 8 shall be enforceable by any person
entitled to such indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or reimbursement or
advancement of expenses is not appropriate shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel and its stockholders)
to have made a determination prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor an actual determination
by the Corporation (including its Board of Directors, its independent legal counsel and its
stockholders) that such person is not entitled to such indemnification or reimbursement or
advancement of expenses shall constitute a defense to the action or create a presumption that such
person is not so entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such indemnification or reimbursement
or advancement of expenses, in whole or in part, in any such proceeding.




          8.8 Service Deemed at Corporation’s Request. Any Director or officer of the
Corporation serving in any capacity (a) another corporation of which a majority of the shares
entitled to vote in the election of its directors is held, directly or indirectly, by the
Corporation or (b) any employee benefit plan of the Corporation or any corporation referred to in
clause (a) shall be deemed to be doing so at the request of the Corporation.




          8.9 Election of Applicable Law. Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this Article 8 may elect
to have the right to indemnification or reimbursement


 









 







 or advancement of expenses interpreted on the basis of the applicable law in effect at the
time of the occurrence of the event or events giving rise to the applicable Proceeding, to the
extent permitted by law, or on the basis of the applicable law in effect at the time such
indemnification or reimbursement or advancement of expenses is sought. Such election shall be
made, by a notice in writing to the Corporation, at the time indemnification or reimbursement or
advancement of expenses is sought; provided, however, that if no such notice is
given, the right to indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement of expenses is
sought.




ARTICLE 9

BOOKS AND RECORDS




          9.1 Books and Records. There shall be kept at the principal office of the Corporation
correct and complete records and books of account recording the financial transactions of the
Corporation and minutes of the proceedings of the stockholders, the Board and any committee of the
Board. The Corporation shall keep at its principal office, or at the office of the transfer agent
or registrar of the Corporation, a record containing the names and addresses of all stockholders,
the number and class of shares held by each and the dates when they respectively became the owners
of record thereof.




          9.2 Form of Records. Any records maintained by the Corporation in the regular course
of its business, including its stock ledger, books of account, and minute books, may be kept on, or
be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other
information storage device, provided that the records so kept can be converted into clearly legible
written form within a reasonable time. The Corporation shall so convert any records so kept upon
the request of any person entitled to inspect the same.




          9.3 Inspection of Books and Records. Except as otherwise provided by law, the Board
shall determine from time to time whether, and, if allowed, when and under what conditions and
regulations, the accounts, books, minutes and other records of the Corporation, or any of them,
shall be open to the stockholders for inspection.




ARTICLE 10

SEAL




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




 









 








ARTICLE 11

FISCAL YEAR




          The fiscal year of the Corporation shall be fixed, and may be changed, by resolution of the
Board.




ARTICLE 12

PROXIES AND CONSENTS




          Unless otherwise directed by the Board, the Chairman, the Vice Chairman, the Chief Executive
Officer, the President, any Vice President, the Secretary or the Treasurer, or any one of them, may
execute and deliver on behalf of the Corporation proxies respecting any and all shares or other
ownership interests of any Other Entity owned by the Corporation appointing such person or persons
as the officer executing the same shall deem proper to represent and vote the shares or other
ownership interests so owned at any and all meetings of holders of shares or other ownership
interests, whether general or special, and/or to execute and deliver consents respecting such
shares or other ownership interests; or any of the aforesaid officers may attend any meeting of the
holders of shares or other ownership interests of such Other Entity and thereat vote or exercise
any or all other powers of the Corporation as the holder of such shares or other ownership
interests.




ARTICLE 13

EMERGENCY BY-LAWS




          Unless the Certificate of Incorporation provides otherwise, the following provisions of this
Article 13 shall be effective during an emergency, which is defined as when a quorum of the
Corporation’s Directors cannot be readily assembled because of some catastrophic event. During
such emergency:




          13.1 Notice to Board Members. Any one member of the Board or any one of the following
officers: Chairman, Vice Chairman, Chief Executive Officer, President, any Vice President,
Secretary, or Treasurer, may call a meeting of the Board. Notice of such meeting need be given
only to those Directors whom it is practicable to reach, and may be given in any practical manner,
including by publication and radio. Such notice shall be given at least six hours prior to
commencement of the meeting.




          13.2 Temporary Directors and Quorum. One or more officers of the Corporation present
at the emergency Board meeting, as is necessary to achieve a quorum, shall be considered to be
Directors for the meeting, and shall so serve in order of rank, and within the same rank, in order
of seniority. In the event that less than a quorum of the Directors are present (including any
officers who are to serve as Directors for the meeting), those Directors present (including the
officers serving as Directors) shall constitute a quorum.




          13.3 Actions Permitted To Be Taken. The Board as constituted in Section 13.2, and
after notice as set forth in Section 13.1 may:




 









 








               13.3.1 prescribe emergency powers to any officer of the Corporation;



               13.3.2 delegate to any officer or Director, any of the powers of the Board;



               13.3.3 designate lines of succession of officers and agents, in the event that any of them
are unable to discharge their duties;



               13.3.4 relocate the principal place of business, or designate successive or simultaneous
principal places of business; and



               13.3.5 take any other convenient, helpful or necessary action to carry on the business of the
Corporation.



ARTICLE 14

AMENDMENTS




          These By-laws may be amended or repealed and new By-laws may be adopted by a vote of the
holders of shares entitled to vote in the election of Directors or by the Board. Any By-laws
adopted or amended by the Board may be amended or repealed by the Stockholders entitled to vote
thereon.