Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
VOLUME SERVICES AMERICA HOLDINGS, INC.
Adopted December 10, 2003

ARTICLE I.
STOCKHOLDERS
                    Section 1. The annual meeting of the stockholders of the Corporation forthe purpose of electing directors and for the transaction of such otherbusiness as may properly be brought before the meeting shall be held on suchdate, and at such time and place within or without the State of Delaware, asmay be designated from time to time by the Board of Directors.
                    Section 2. Except as otherwise required by law and subject to the rightsof the holders of any series of Preferred Stock, special meetings ofstockholders of the Corporation may be called only by (i) the Chairman of theBoard of Directors of the Corporation or by the Board of Directors pursuant toa resolution approved by the Board of Directors or (ii) by the Board ofDirectors upon a request by the holders of at least 25% in voting power of allshares of the Corporation entitled to vote at such meeting. The purpose orpurposes of the proposed meeting shall be included in the notice setting forthsuch call.
                    Section 3. Except as otherwise provided by law, the Restated Certificateof Incorporation or these By-Laws, notice of the time, place and, in the caseof a special meeting, the purpose or purposes of the meeting of stockholdersshall be given not earlier than sixty, nor less than ten days previous thereto,to each stockholder of record entitled to vote at the meeting. If mailed, suchnotice shall be deemed to be given when deposited in the United States mail,postage pre-paid, directed to the stockholder at such address as appears on therecords of the Corporation.
                    Section 4. Except as otherwise provided by law, the Restated Certificateof Incorporation or these By-Laws, the holders of one-third in voting power ofthe stock issued and outstanding and entitled to vote thereat, present inperson or represented by proxy, shall constitute a quorum at all meetings ofthe stockholders for the transaction of business, except that the holders of amajority in voting power of the stock issued and outstanding and entitled tovote thereat, present in person or represented by proxy, shall be required toconstitute a quorum for (i) a vote for any director in a contested election,(ii) the removal of a director or (iii) the filling of a vacancy on the Boardof Directors. If at any regularly called meeting of stockholders there be lessthan a quorum present, the stockholders present may adjourn the meeting fromtime to time without further notice other than announcement at the meetinguntil a quorum shall be present or represented. At such adjourned meeting atwhich a quorum shall be present or represented any business may be transactedwhich might have been transacted at the original meeting. If the adjournment isfor more than 30 days, or if, after the adjournment, a new record date is fixedfor
 

 

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the adjourned meeting, a notice of the adjourned meeting shall be given toeach stockholder of record entitled to vote at the meeting.
                    Section 5. The Chairman of the Board, or in the Chairman’s absence or atthe Chairman’s direction, any officer of the Corporation shall call allmeetings of the stockholders to order and shall act as chairman of suchmeeting. The Secretary of the Corporation or, in such officer’s absence, anAssistant Secretary shall act as secretary of the meeting. If neither theSecretary nor an Assistant Secretary is present, the chairman of the meetingshall appoint a secretary of the meeting. The date and time of the opening andthe closing of the polls for each matter upon which the stockholders will voteat a meeting shall be announced at the meeting by the person presiding over themeeting. The Board of Directors may adopt by resolution such rules andregulations for the conduct of the meeting of stockholders as it shall deemappropriate. Except to the extent inconsistent with such rules and regulationsas adopted by the Board of Directors, the person presiding over any meeting ofstockholders shall have the right and authority to convene and to adjourn themeeting, to prescribe such rules, regulations and procedures and to do all suchacts as, in the judgment of such presiding person, are appropriate for theproper conduct of the meeting. Such rules, regulations or procedures, whetheradopted by the Board of Directors or prescribed by the presiding person of themeeting, may include, without limitation, the following: (i) the establishmentof an agenda or order of business for the meeting; (ii) rules and proceduresfor maintaining order at the meeting and the safety of those present; (iii)limitations on attendance at or participation in the meeting to stockholders ofrecord of the Corporation, their duly authorized and constituted proxies orsuch other persons as the presiding person of the meeting shall determine; (iv)restrictions on entry to the meeting after the time fixed for the commencementthereof; and (v) limitations on the time allotted to questions or comments byparticipants. The presiding person at any meeting of stockholders, in additionto making any other determinations that may be appropriate to the conduct ofthe meeting, shall, if the facts warrant, determine and declare to the meetingthat a matter or business was not properly brought before the meeting and ifsuch presiding person should so determine, such presiding person shall sodeclare to the meeting and any such matter or business not properly broughtbefore the meeting shall not be transacted or considered. Unless and to theextent determined by the Board of Directors or the person presiding over themeeting, meetings of stockholders shall not be required to be held inaccordance with the rules of parliamentary procedure.
                    Section 6. At all meetings of stockholders, any stockholder entitled tovote thereat shall be entitled to vote in person or by proxy, but no proxyshall be voted after three years from its date, unless such proxy provides fora longer period. Without limiting the manner in which a stockholder mayauthorize another person or persons to act for such stockholder as proxypursuant to the General Corporation Law of the State of Delaware (the “DGCL”),the following shall constitute a valid means by which a stockholder may grantsuch authority: (1) a stockholder may execute a writing authorizing anotherperson or persons to act for such stockholder as proxy, and execution of thewriting may be accomplished by the stockholder or the stockholder’s authorizedofficer, director, employee or agent signing such writing or causing his or hersignature to be affixed to such writing by any reasonable means including, butnot limited to, by facsimile signature; or (2) a stockholder may authorizeanother person or persons to act for such stockholder as proxy by transmittingor authorizing the transmission of a telegram, cablegram or other means ofelectronic transmission to the person who will be the holder of the proxy or toa proxy solicitation firm, proxy support service organization or like

 

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agent duly authorized by the person who will be the holder of the proxy toreceive such transmission, provided that any such telegram, cablegram or othermeans of electronic transmission must either set forth or be submitted withinformation from which it can be determined that the telegram, cablegram orelectronic transmission was authorized by the stockholder. If it is determinedthat such telegrams, cablegrams or other electronic transmissions are valid,the inspectors, or if there are no inspectors, such other persons making thatdetermination shall specify the information upon which they relied.
                    Any copy, facsimile telecommunication or other reliable reproduction ofthe writing or transmission created pursuant to the preceding paragraph of thisSection 6 may be substituted or used in lieu of the original writing ortransmission for any and all purposes for which the original writing ortransmission could be used, provided that such copy, facsimiletelecommunication or other reproduction shall be a complete reproduction of theentire original writing or transmission.
                    Proxies shall be filed with the Secretary of the meeting prior to or atthe commencement of the meeting to which they relate.
                    Section 7. When a quorum is present at any meeting, the vote of theholders of a majority in voting power of the stock present in person orrepresented by proxy and entitled to vote on the matter shall decide anyquestion brought before such meeting, unless the question is one upon which byexpress provision of statute or of the Restated Certificate of Incorporation,these By-Laws or the rules or regulations of any stock exchange applicable tothe Corporation, a different vote is required, in which case such expressprovision shall govern and control the decision of such question.
                    Section 8. In order that the Corporation may determine the stockholders(a)entitled to notice of or to vote at any meeting of stockholders or anyadjournment thereof, or (b) entitled to receive payment of any dividend orother distribution or allotment of any rights, or entitled to exercise anyrights in respect of any change, conversion or exchange of stock or for thepurpose of any other lawful action, the Board of Directors may fix a recorddate, which record date shall not precede the date upon which the resolutionfixing the record date is adopted by the Board of Directors, and which recorddate (i) in the case of clause (a) above, shall, unless otherwise required bylaw, not be more than sixty nor less than ten days before the date of suchmeeting and (ii) in the case of clause (b) above, shall not be more than sixtydays prior to such action. If for any reason the Board of Directors shall nothave fixed a record date for any such purpose, the record date for such purposeshall be determined as provided by law. A determination of the stockholders ofrecord entitled to notice of or to vote at a meeting of stockholders shallapply to any adjournment of the meeting; provided, however, that the Board ofDirectors may fix a new record date for the adjourned meeting.
                    Section 9. The officer who has charge of the stock ledger of theCorporation shall prepare and make at least ten days before every meeting ofstockholders, a complete list of the stockholders entitled to vote at themeeting, arranged in alphabetical order, and showing the address of eachstockholder and the number of shares registered in the name of eachstockholder. Such list shall be open to the examination of any stockholder, forany purpose germane to the meeting, during ordinary business hours, for aperiod of at least ten days prior to the meeting, as

 

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required by applicable law. The list shall also be produced at the timeand kept at the place of the meeting during the whole time thereof, and may beinspected by any stockholder who is present.
                    Section 10. The Corporation may, and shall if required by law, in advanceof any meeting of stockholders, appoint one or more inspectors of election, whomay be employees of the corporation, to act at the meeting or any adjournmentthereof and to make a written report thereof. The Corporation may designateone or more persons as alternate inspectors to replace any inspector who failsto act. In the event that no inspector so appointed or designated is able toact at a meeting of stockholders, the person presiding at the meeting shallappoint one or more inspectors to act at the meeting. Each inspector, beforeentering upon the discharge of his or her duties, shall take and sign an oathto execute faithfully the duties of inspector with strict impartiality andaccording to the best of his or her ability. The inspector or inspectors soappointed or designated shall (i) ascertain the number of shares of capitalstock of the Corporation outstanding and the voting power of each such share,(ii) determine the shares of capital stock of the Corporation represented atthe meeting and the validity of proxies and ballots, (iii) count all votes andballots, (iv) determine and retain for a reasonable period a record of thedisposition of any challenges made to any determination by the inspectors, and(v) certify their determination of the number of shares of capital stock of theCorporation represented at the meeting and such inspectors’ count of all votesand ballots. Such certification and report shall specify such other informationas may be required by law. In determining the validity and counting of proxiesand ballots cast at any meeting of stockholders of the Corporation, theinspectors may consider such information as is permitted by applicable law. Noperson who is a candidate for an office at an election may serve as aninspector at such election.
                    Section 11. (A) Annual Meetings of Stockholders. (1) Nominations ofpersons for election to the Board of Directors of the Corporation and theproposal of business to be considered by the stockholders may be made at anannual meeting of stockholders only (a)pursuant to the Corporation’s notice ofmeeting (or any supplement thereto) delivered pursuant to Article 1, Section 3of these By-Laws, (b) by or at the direction of the Board of Directors or (c)byany stockholder of the Corporation who is entitled to vote at the meeting, whohas complied with the notice procedures set forth in subparagraphs (2) and (3)of this paragraph (A) of this By-Law and who was a stockholder of record at thetime such notice is delivered to the Secretary of the Corporation.
                    (2) For nominations or other business to be properly brought before anannual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) ofthis By-Law, the stockholder must have given timely notice thereof in writingto the Secretary of the Corporation, and, in the case of business other thannominations, such other business must be a proper matter for stockholderaction. To be timely, a stockholder’s notice shall be delivered to theSecretary at the principal executive offices of the Corporation not less thanninety days nor more than one hundred twenty days prior to the firstanniversary of the preceding year’s annual meeting; provided, however, that inthe event that the date of the annual meeting is advanced by more than twentydays, or delayed by more than seventy days, from such anniversary date, noticeby the stockholder to be timely must be so delivered not earlier than the onehundred twentieth day prior to such annual meeting and not later than the closeof business on the later of the ninetieth day prior to such annual meeting orthe tenth day following the day on which public announcement of the date ofsuch meeting is first made by the Corporation. Such stockholder’s

 

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notice shall set forth (a) as to each person whom the stockholder proposesto nominate for election or re-election as a director all information relatingto such person that is required to be disclosed in solicitations of proxies forelection of directors, or is otherwise required, in each case pursuant toRegulation 14A under the Securities Exchange Act of 1934, as amended (the“Exchange Act”), including such person’s written consent to being named in theproxy statement as a nominee and to serving as a director if elected; (b) as toany other business that the stockholder proposes to bring before the meeting, abrief description of the business desired to be brought before the meeting, thetext of the proposal or business (including the text of any resolutionsproposed for consideration and in the event that such business includes aproposal to amend the By-Laws of the Corporation, the language of the proposedamendment), the reasons for conducting such business at the meeting and anymaterial interest in such business of such stockholder and the beneficialowner, if any, on whose behalf the proposal is made; and (c) as to thestockholder giving the notice and the beneficial owner, if any, on whose behalfthe nomination or proposal is made (i) the name and address of suchstockholder, as they appear on the Corporation’s books, and of such beneficialowner, (ii) the class and number of shares of the Corporation which are ownedbeneficially and of record by such stockholder and such beneficial owner, andthat such shares have been held for the period required by any applicable law,(iii) a representation that the stockholder is a holder of record of stock ofthe Corporation entitled to vote at such meeting and intends to appear inperson or by proxy at the meeting to propose such business or nomination and(iv) a representation whether the stockholder or the beneficial owner, if any,intends or is part of a group which intends (a) to deliver a proxy statementand/or form of proxy to holders of at least the percentage of the Corporation’soutstanding capital stock required to approve or adopt the proposal or electthe nominee and/or (b) otherwise to solicit proxies from stockholders insupport of such proposal or nomination. The foregoing notice requirementsshall be deemed satisfied by a stockholder if the stockholder has notified theCorporation of his or her intention to present a proposal at an annual meetingin compliance with Rule 14a-8 (or any successor thereof) promulgated under theExchange Act and such stockholder’s proposal has been included in a proxystatement that has been prepared by the Corporation to solicit proxies for suchannual meeting. The Corporation may require any proposed nominee to furnishsuch other information as it may reasonably require to determine theeligibility of such proposed nominee to serve as a director of the Corporation.
                    (3) Notwithstanding anything in the second sentence of paragraph (A)(2) ofthis By-Law to the contrary, in the event that the number of directors to beelected to the Board of Directors of the Corporation at an annual meeting isincreased and there is no public announcement by the Corporation naming all ofthe nominees for director or specifying the size of the increased Board ofDirectors made by the Corporation at least one hundred days prior to the firstanniversary of the preceding year’s annual meeting, a stockholder’s noticerequired by this By-Law shall also be considered timely, but only with respectto nominees for any new positions created by such increase, if it shall bedelivered to the Secretary at the principal executive offices of theCorporation not later than the close of business on the tenth day following theday on which such public announcement is first made by the Corporation.
                    (B) Special Meetings of Stockholders. Only such business shall beconducted at a special meeting of stockholders as shall have been broughtbefore the meeting (i) in the case of a meeting called by the Chairman of theBoard of Directors of the Corporation or by the Board of Directors pursuant toa resolution approved by the Board of Directors, pursuant to the

 

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Corporation’s notice of meeting pursuant to Article I, Section 3 of theseBy-Laws or (ii) in the case of a meeting called by Board of Directors upon arequest of at least 25% in voting power of all shares of the Corporationentitled to vote at such meeting, as shall have been proposed by such holdersof at least 25% in voting power of all shares, pursuant to a notice settingforth the information required pursuant to paragraph (A)(2) of this By-Law, andsuch other purposes as shall be directed by the Board of Directors, in eachcase as set forth in the Corporation’s notice of meeting pursuant to Article I,Section 3 of these By-Laws. Nominations of persons for election to the Board ofDirectors may be made at a special meeting of stockholders at which directorsare to be elected pursuant to the Corporation’s notice of meeting (a) by or atthe direction of the Board of Directors or (b) by any stockholder of theCorporation who is entitled to vote at the meeting, who complies with thenotice procedures set forth in this By-Law and who is a stockholder of recordat the time such notice is delivered to the Secretary of the Corporation.Nominations by stockholders of persons for election to the Board of Directorsmay be made at such a special meeting of stockholders if the stockholder’snotice as required by paragraph (A)(2) of this By-Law shall be delivered to theSecretary at the principal executive offices of the Corporation not later thanthe close of business on the later of the ninetieth day prior to such specialmeeting or the tenth day following the day on which public announcement isfirst made of the date of the special meeting and of the nominees proposed bythe Board of Directors to be elected at such meeting.
                    (C) General. (1) Only persons who are nominated in accordance with theprocedures set forth in this By-Law shall be eligible to serve as directorselected by the Corporation’s stockholders and only such business shall beconducted at a meeting of stockholders as shall have been brought before themeeting in accordance with the procedures set forth in this By-Law. Except asotherwise provided by law, the Restated Certificate of Incorporation or theseBy-Laws, the Chairman of the meeting shall have the power and duty to determinewhether a nomination or any business proposed to be brought before the meetingwas made in accordance with the procedures set forth in this By-Law and, if anyproposed nomination or business is not in compliance with this By-Law, todeclare that such defective nomination shall be disregarded or that suchproposed business shall not be transacted. Notwithstanding the foregoingprovisions of this By-Law, if the nominating or proposing stockholder (or aqualified representative of the nominating or proposing stockholder) does notappear at the annual or special meeting of stockholders of the Corporation topresent a nomination or business, such nomination shall be disregarded and suchproposed business shall not be transacted, notwithstanding that proxies inrespect of such vote may have been received by the Corporation.
                    (2) For purposes of this By-Law, “public announcement” shall meandisclosure in a press release reported by the Dow Jones News Service,Associated Press or comparable national news service or in a document publiclyfiled by the Corporation with the Securities and Exchange Commission pursuantto Section 13, 14 or 15(d) of the Exchange Act.
                    (3) For purposes of this By-Law, no adjournment nor notice of adjournmentof any meeting shall be deemed to constitute a new notice of such meeting forpurposes of this Section 11, and in order for any notification required to bedelivered by a stockholder pursuant to this Section 11 to be timely, suchnotification must be delivered within the periods set forth above with respectto the originally scheduled meeting.

 

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                    (4) Notwithstanding the foregoing provisions of this By-Law, a stockholdershall also comply with all applicable requirements of the Exchange Act and therules and regulations thereunder with respect to the matters set forth in thisBy-Law. Nothing in this By-Law shall be deemed to affect any rights of (a)stockholders to request inclusion of proposals in the Corporation’s proxystatement pursuant to Rule 14a-8 under the Exchange Act or (b) the holders ofany series of Preferred Stock to elect directors pursuant to any applicableprovisions of the Restated Certificate of Incorporation (including anycertificate of designations relating to such series).
ARTICLE II.
BOARD OF DIRECTORS
                    Section 1. The Board of Directors of the Corporation shall consist of suchnumber of directors, not less than three, as shall from time to time be fixedexclusively by resolution of the Board of Directors. The directors shall bedivided into three classes in the manner set forth in the Restated Certificateof Incorporation of the Corporation, each class to be elected for the term setforth therein. Directors shall be elected by stockholders by a plurality ofthe votes cast by holders of shares present in person or represented by proxyand entitled to vote thereon. A majority of the total number of directors thenin office (but not less than one-third of the number of directors constitutingthe entire Board of Directors) shall constitute a quorum for the transaction ofbusiness and, except as otherwise provided by law or by the Corporation’sRestated Certificate of Incorporation, the act of a majority of the directorspresent at any meeting at which there is a quorum shall be the act of the Boardof Directors. Directors need not be stockholders.
                    Section 2. Newly created directorships in the Board of Directors thatresult from an increase in the number of directors shall be filled only by amajority of the directors then in office, although less than a quorum, or by asole remaining director; and the directors so chosen shall hold office for aterm as set forth in the Restated Certificate of Incorporation of theCorporation. A vote by the holders of a plurality of the votes cast by holdersof shares present in person or represented by proxy and entitled to votethereon shall be required to fill any vacancy not resulting from an increase inthe number of directors, and any director so elected shall have the sameremaining term as that of his predecessor. Directors may be removed only forcause, and only by the affirmative vote of at least a majority in voting powerof all shares of the Corporation entitled to vote generally in the election ofdirectors, voting as a single class.
                    Section 3. Meetings of the Board of Directors shall be held at such placewithin or without the State of Delaware as may from time to time be fixed byresolution of the Board or as may be specified in the notice of any meeting.Regular meetings of the Board of Directors shall be held at such times as mayfrom time to time be fixed by resolution of the Board and special meetings maybe held at any time upon the call of the Chairman of the Board, the ChiefExecutive Officer or a majority of the directors, by oral, or written noticeincluding, telegram, cablegram, telecopy or other means of electronictransmission, duly served on or sent or mailed to each director at suchdirector’s address or telecopy number as shown on the books of the Corporationnot less than twenty-four hours before the special meeting. The notice of anymeeting need not specify the purposes thereof. A meeting of the Board may beheld without

 

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notice immediately after the annual meeting of stockholders at the sameplace at which such meeting is held. Notice need not be given of regularmeetings of the Board held at times fixed by resolution of the Board. Notice ofany meeting need not be given to any director who shall attend such meeting inperson (except when the director attends a meeting for the express purpose ofobjecting, at the beginning of the meeting, to the transaction of any businessbecause the meeting is not lawfully called or convened), or who shall waivenotice thereof, before or after such meeting, in writing or by electronictransmission.
                    Section 4. Notwithstanding the foregoing, whenever the holders of any oneor more series of Preferred Stock issued by the Corporation shall have theright, voting separately by series, to elect directors at an annual or specialmeeting of stockholders, the election, term of office, removal, and otherfeatures of such directorships shall be governed by the terms of the RestatedCertificate of Incorporation applicable thereto, and such directors so electedshall not be divided into classes pursuant to Article Seventh of the RestatedCertificate of Incorporation unless expressly provided by such terms. Thenumber of directors that may be elected by the holders of any such series ofPreferred Stock shall be in addition to the number fixed by or pursuant to theBy-Laws. Except as otherwise expressly provided in the terms of such series,the number of directors that may be so elected by the holders of any suchseries of stock shall be elected for terms expiring at the next annual meetingof stockholders and without regard to the classification of the members of theBoard of Directors as set forth in Section 1 hereof, and vacancies amongdirectors so elected by the separate vote of the holders of any such series ofPreferred Stock shall be filled by the affirmative vote of a majority of theremaining directors elected by such series, or, if there are no such remainingdirectors, by the holders of such series in the same manner in which suchseries initially elected a director.
                    Section 5. If at any meeting for the election of directors the Corporationhas outstanding more than one class of stock, and one or more such classes orseries thereof are entitled to vote separately as a class, and there shall be aquorum of only one such class or series of stock, that class or series of stockshall be entitled to elect its quota of directors notwithstanding the absenceof a quorum of the other class or series of stock.
                    Section 6. The Board of Directors may designate three or more directors toconstitute an executive committee, one of whom shall be designated Chairman ofsuch committee. The members of such committee shall hold such office until thenext election of the Board of Directors and until their successors are electedand qualify. Any vacancy occurring in the committee shall be filled by theBoard of Directors. Regular meetings of the committee shall be held at suchtimes and on such notice and at such places as it may from time to timedetermine. The committee shall act, advise with and aid the officers of theCorporation in all matters concerning the management of its business, and shallgenerally perform such duties and exercise such powers as may from time to timebe delegated to it by the Board of Directors, and shall have authority toexercise all the powers of the Board of Directors, so far as may be permittedby law, in the management of the business and the affairs of the Corporationwhenever the Board of Directors is not in session. The committee shall have thepower to authorize the seal of the Corporation to be affixed to all paperswhich are required by the DGCL to have the seal affixed thereto. The fact thatthe executive committee has acted shall be conclusive evidence that the Boardof Directors was not in session at such time.

 

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                    The executive committee shall keep regular minutes of its transactions andshall cause them to be recorded in a book kept in the office of the Corporationdesignated for that purpose, and shall report the same to the Board ofDirectors at its regular meeting. The committee shall make and adopt its ownrules for the government thereof and shall elect its own officers.
                    Section 7. The Board of Directors may from time to time establish suchother committees to serve at the pleasure of the Board which shall be comprisedof such members of the Board and have such duties as the Board shall from timeto time establish. Any director may belong to any number of committees of theBoard.
                    Each committee may determine the procedural rules for meeting andconducting its business and shall act in accordance therewith, except asotherwise provided herein or required by law. Provision shall be made fornotice to members of all meetings; one-third of the members shall constitute aquorum unless the committee shall consist of one or two members, in which eventone member shall constitute a quorum; and all matters shall be determined by amajority vote of the members present at any meeting at which there is a quorum.
                    Section 8. Unless otherwise restricted by the Restated Certificate ofIncorporation or these By-Laws, any action required or permitted to be taken atany meeting of the Board of Directors or of any committee thereof may be takenwithout a meeting if all members of the Board or committee, as the case may be,consent thereto in writing or by electronic transmission, and the writing orwritings or electronic transmission or transmissions are filed with the minutesof proceedings of the Board of Directors or committee, as the case may be inaccordance with applicable law.
                    Section 9. The members of the Board of Directors or any committee thereofmay participate in a meeting of such Board or committee, as the case may be, bymeans of conference telephone or other communications equipment by means ofwhich all persons participating in the meeting can hear each other, andparticipation in a meeting pursuant to this section shall constitute presencein person at such a meeting.
                    Section 10. The Board of Directors may establish policies for thecompensation of directors and for the reimbursement of the expenses ofdirectors, in each case, in connection with services provided by directors tothe Corporation.
ARTICLE III.
OFFICERS
                    Section 1. The Board of Directors shall elect officers of the Corporation,including a Chairman of the Board, a Chief Executive Officer, a Chief FinancialOfficer and a Secretary. The Board of Directors may also from time to timeelect such other officers (including a President, one or more Vice Presidents,a Treasurer, one or more Assistant Vice Presidents, one or more AssistantSecretaries and one or more Assistant Treasurers) as it may deem proper or maydelegate to any elected officer of the Corporation the power to appoint andremove any such other officers and to prescribe their respective terms ofoffice, authorities and duties. Any Vice

 

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President may be designated Executive, Senior or Corporate, or may begiven such other designation or combination of designations as the Board ofDirectors may determine. Any two or more offices may be held by the sameperson.
                    Section 2. All officers of the Corporation elected by the Board ofDirectors shall hold office for such term as may be determined by the Board ofDirectors or until their respective successors are chosen and qualified. Anyofficer may be removed from office at any time either with or without cause bythe affirmative vote of a majority of the members of the Board then in office,and, in the case of appointed officers, by any elected officer upon whom suchpower of removal shall have been conferred by the Board of Directors.
                    Section 3. Each of the officers of the Corporation elected by the Board ofDirectors or appointed by an officer in accordance with these By-Laws shallhave the powers and duties prescribed by law, by the By-Laws or by the Board ofDirectors and, in the case of appointed officers, the powers and dutiesprescribed by the appointing officer, and, unless otherwise prescribed by theBy-Laws or by the Board of Directors or such appointing officer, shall havesuch further powers and duties as ordinarily pertain to that office.
                    Section 4. Unless otherwise provided in these By-Laws, in the absence ordisability of any officer of the Corporation, the Board of Directors may,during such period, delegate such officer’s powers and duties to any otherofficer or to any director and the person to whom such powers and duties aredelegated shall, for the time being, hold such office.
ARTICLE IV.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
                    To the fullest extent permitted by the laws of the State of Delaware:
                    Section 1. Each person who was or is made a party or is threatened to bemade a party to or is otherwise involved in any actual or threatened action,suit or proceeding, whether civil, criminal, administrative or investigative(hereinafter a “proceeding”), by reason of the fact that he or she or a personof whom he or she is the legal representative is or was a director or anofficer of the Corporation or is or was serving at the request of theCorporation as a director, officer or trustee of another corporation,partnership, joint venture, trust or other enterprise, including service withrespect to an employee benefit plan (hereinafter an “indemnitee”), whether thebasis of such proceeding is alleged action in an official capacity as adirector, officer or trustee or in any other capacity while serving as adirector, officer or trustee, shall be indemnified and held harmless by theCorporation to the fullest extent authorized by the DGCL, as the same exists ormay hereafter be amended, against all expense, liability and loss (includingattorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amountspaid or to be paid in settlement) reasonably incurred or suffered by suchindemnitee in connection therewith; provided, however, that, except as providedthese By-Laws with respect to proceedings to enforce rights to indemnificationand “advancement of expenses” (as defined below), the Corporation shallindemnify any such indemnitee in connection with a proceeding (or part thereof)initiated by such indemnitee only if such proceeding (or part thereof) wasauthorized by the Board of Directors of the Corporation.

 

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                    Section 2. In addition to the right to indemnification conferred in thisArticle IV, an indemnitee shall also have the right to be paid by theCorporation the expenses (including attorneys’ fees) incurred in defending anysuch proceeding in advance of its final disposition (hereinafter an“advancement of expenses”); provided, however, that, if the DGCL requires, anadvancement of expenses incurred by an indemnitee in his or her capacity as adirector or officer (and not in any other capacity in which service was or isrendered by such indemnitee, including, without limitation, service to anemployee benefit plan) shall be made only upon delivery to the Corporation ofan undertaking (hereinafter an “undertaking”), by or on behalf of suchindemnitee, to repay all amounts so advanced if it shall ultimately bedetermined by final judicial decision from which there is no further right toappeal (hereinafter a “final adjudication”) that such indemnitee is notentitled to be indemnified for such expenses under this Article IV orotherwise.
                    Section 3. If, following final disposition of a proceeding, a claim forindemnification under this Article IV is not paid in full by the Corporationwithin sixty (60) days after a written claim has been received by theCorporation, or if, whether before or after final disposition of a proceeding,a claim for an advancement of expenses under this Article IV is not paid infull by the Corporation within twenty (20) days after a written claim has beenreceived by the Corporation, the indemnitee may at any time thereafter bringsuit against the Corporation to recover the unpaid amount of the claim. Ifsuccessful in whole or in part in any such suit, or in a suit brought by theCorporation to recover an advancement of expenses pursuant to the terms of anundertaking, the indemnitee shall be entitled to be paid also the expense ofprosecuting or defending such suit, including without limitation reasonableattorneys’ fees. In (i) any suit brought by the indemnitee to enforce a rightto indemnification hereunder (but not in a suit brought by the indemnitee toenforce a right to an advancement of expenses) it shall be a defense that, and(ii) in any suit brought by the Corporation to recover an advancement ofexpenses pursuant to the terms of an undertaking, the Corporation shall beentitled to recover such expenses upon a final adjudication that, theindemnitee has not met any applicable standard for indemnification set forth inthe DGCL. Neither the failure of the Corporation (including its directors whoare not parties to such action, a committee of such directors, independentlegal counsel, or its stockholders) to have made a determination thatindemnification of the indemnitee is proper in the circumstances because theindemnitee has met the applicable standard of conduct set forth in the DGCL,nor an actual determination by the Corporation (including its directors who arenot parties to such action, a committee of such directors, independent legalcounsel, or its stockholders) that the indemnitee has not met such applicablestandard of conduct, shall create a presumption that the indemnitee has not metthe applicable standard of conduct or, in the case of such a suit brought bythe indemnitee, be a defense to such suit. In any suit brought by theindemnitee to enforce a right to indemnification or to an advancement ofexpenses hereunder, or brought by the Corporation to recover an advancement ofexpenses pursuant to the terms of an undertaking, the burden of proving thatthe indemnitee is not entitled to be indemnified, or to such advancement ofexpenses, under this Article IV or otherwise shall be on the Corporation.
                    Section 4. The rights to indemnification and to the advancement ofexpenses conferred in this Article IV shall not be exclusive of any other rightwhich any person may have

 

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or hereafter acquire under any statute, the Restated Certificate ofIncorporation, these By-Laws, agreement, vote of stockholders or directors orotherwise.
                    Section 5. The Corporation may maintain insurance, at its expense, toprotect itself and any director, officer, employee or agent of the Corporationor another corporation, partnership, joint venture, trust or other enterpriseagainst any expense, liability or loss, whether or not the Corporation wouldhave the power to indemnify such person against such expense, liability or lossunder the DGCL.
                    Section 6. The Corporation may, to the extent authorized from time totime by the Board of Directors, grant rights to indemnification and to theadvancement of expenses to any employee or agent of the Corporation to thefullest extent of the provisions of this Article IV with respect to theindemnification and advancement of expenses of directors and officers of theCorporation.
                    Section 7. The rights conferred upon indemnitees in this Article IV shallbe contract rights and such rights shall continue as to an indemnitee who hasceased to be a director, officer or trustee and shall inure to the benefit ofthe indemnitee’s heirs, executors and administrators. Any amendment,alteration or repeal of this Article IV that adversely affects any right of anindemnitee or its successors shall be prospective only and shall not limit oreliminate any such right with respect to any proceeding involving anyoccurrence or alleged occurrence of any action or omission to act that tookplace prior to such amendment, alteration or repeal
ARTICLE V.
CERTIFICATES OF STOCK
                    Section 1. The shares of stock of the Corporation shall be represented bycertificates, provided that the Board of Directors may provide by resolution orresolutions that some or all of any or all classes or series of theCorporation’s stock shall be uncertificated shares. Any such resolution shallnot apply to shares represented by a certificate until such certificate issurrendered to the Corporation. Notwithstanding the adoption of such aresolution by the Board of Directors, every holder of stock represented bycertificates and upon request every holder of uncertificated shares shall beentitled to have a certificate signed by, or in the name of the Corporation bythe Chairman of the Board of Directors, or the President or a Vice President,and by the Treasurer or an Assistant Treasurer or the Secretary or an AssistantSecretary of the Corporation, or as otherwise permitted by law, representingthe number of shares registered in certificate form. Any or all the signatureson the certificate may be a facsimile.
                    Section 2. Transfers of stock shall be made on the books of theCorporation by the holder of the shares in person or by such holder’s attorneyupon surrender and cancellation of certificates for a like number of shares, oras otherwise provided by law with respect to uncertificated shares.
                    Section 3. The Corporation may issue a new certificate of stock in theplace of any certificate theretofore issued by it, alleged to have been lost,stolen or destroyed, and the Corporation may require the owner of the lost,stolen or destroyed certificate, or such owner’s

 

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legal representative, to give the Corporation a bond sufficient toindemnify it against any claim that may be made against it on account of thealleged loss, theft or destruction of any such certificate or the issuance ofsuch new certificate.
ARTICLE VI.
CORPORATE BOOKS
                    The books of the Corporation may be kept outside of the State of Delawareat such place or places as the Board of Directors may from time to timedetermine.
ARTICLE VII.
CHECKS, NOTES, PROXIES, ETC.
                    All checks and drafts on the Corporation’s bank accounts and all bills ofexchange and promissory notes, and all acceptances, obligations and otherinstruments for the payment of money, shall be signed by such officer orofficers or agent or agents as shall be hereunto authorized from time to timeby the Board of Directors. Proxies to vote and consents with respect tosecurities of other corporations owned by or standing in the name of theCorporation may be executed and delivered from time to time on behalf of theCorporation by the Chairman of the Board or the Chief Executive Officer, or byany such officers as the Board of Directors may from time to time determine.
ARTICLE VIII.
FISCAL YEAR
                    The fiscal year of the Corporation shall be fixed by the Board ofDirectors.
ARTICLE IX.
CORPORATE SEAL
                    The corporate seal shall have inscribed thereon the name of theCorporation. In lieu of the corporate seal, a facsimile thereof may beimpressed or affixed or reproduced.
ARTICLE X.
DIVIDENDS
                    Subject to the provisions of law and the provisions of the RestatedCertificate of Incorporation or any resolution or resolutions adopted by theBoard of Directors pursuant to authority expressly vested in it by the RestatedCertificate of Incorporation and Section 151 of the DGCL, the Board ofDirectors may, out of funds legally available therefor, declare dividends uponthe capital stock of the Corporation as and when it deems expedient. Beforedeclaring any dividend there may be set apart out of any funds of theCorporation legally available for dividends, such sum or sums as the Board ofDirectors from time to time in its discretion deems

 

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proper for working capital or future capital needs or as a reserve fund tomeet contingencies or for such other purposes as the Board of Directors shalldeem appropriate or in the interests of the Corporation.
ARTICLE XI.
FACSIMILE SIGNATURES
                    In addition to the provisions for use of facsimile signatures elsewherespecifically authorized in these By-Laws, facsimile signatures of any officeror officers of the Corporation may be used whenever and as authorized by theBoard of Directors or a committee thereof.
ARTICLE XII.
AMENDMENTS
                    The Board of Directors shall be authorized to make, amend, alter, change,add to or repeal these By-Laws without a stockholder vote in any manner notinconsistent with the laws of the State of Delaware, subject to the power ofthe stockholders entitled to vote to amend, alter, change, add to or repealthese By-Laws. Notwithstanding anything contained in these By-Laws to thecontrary, the affirmative vote of the holders of at least two-thirds in votingpower of all the shares of the Corporation entitled to vote generally in theelection of directors, voting together as a single class, shall be required inorder for the stockholders to amend, alter, change, add to or repeal theseBy-Laws.