{"id":41637,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/goldman-sachs-amended-and-restated-bylaws.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"goldman-sachs-amended-and-restated-bylaws","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/goldman-sachs-amended-and-restated-bylaws.html","title":{"rendered":"Goldman Sachs Amended and Restated Bylaws"},"content":{"rendered":"
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AMENDED AND RESTATED<\/b>\n\n\n\n<\/p>
BY-LAWS<\/b>\n\n\n<\/p>
OF<\/b>\n\n\n\n<\/p>
THE GOLDMAN SACHS GROUP, INC.<\/b>\n\n\n\n<\/p>
ARTICLE I\n\n\n\n<\/p>
Stockholders<\/u>\n\n\n<\/p>
Section 1.1. Annual Meetings<\/u>. An annual meeting of stockholders shall be held for the\nelection of directors at such date, time and place either within or without the State of Delaware\nas may be designated by the Board of Directors from time to time. Any other business properly\nbrought before the meeting may be transacted at the annual meeting.\n\n\n<\/p>
Section 1.2. Special Meetings<\/u>. Special meetings of stockholders may be called at any\ntime by, and only by, the Board of Directors, to be held at such date, time and place either within\nor without the State of Delaware as may be stated in the notice of the meeting.\n\n\n<\/p>
Section 1.3. Notice of Meetings<\/u>. Whenever stockholders are required or permitted to\ntake any action at a meeting, a written notice of the meeting shall be given which shall state the\nplace, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes\nfor which the meeting is called. Unless otherwise required by law, the written notice of any\nmeeting shall be given not less than ten nor more than sixty days before the date of the meeting to\neach stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be\ngiven when deposited in the United States mail, postage prepaid, directed to the stockholder at\nsuch stockholder';s address as it appears on the records of the Corporation.\n\n\n<\/p>
Section 1.4. Adjournments<\/u>. Any meeting of stockholders, annual or special, may be\nadjourned from time to time, to reconvene at the same or some other place, and notice need not be\ngiven of any such adjourned meeting if the time and place thereof are announced at the meeting at\nwhich the adjournment is taken. At the adjourned meeting the Corporation may transact any business\nwhich might have been transacted at the original meeting. If the adjournment is for more than\nthirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a\nnotice of the adjourned meeting shall be given to each stockholder of record entitled to vote at\nthe meeting.\n\n\n\n<\/p>
Section 1.5. Quorum<\/u>. At each meeting of stockholders, except where otherwise required\nby law, the certificate of incorporation or these by-laws, the holders of a\n\n\n<\/p>
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majority of the outstanding shares of stock entitled to vote on a matter at the meeting,\npresent in person or represented by proxy, shall constitute a quorum. For purposes of the\nforegoing, where a separate vote by class or classes is required for any matter, the holders of a\nmajority of the outstanding shares of such class or classes, present in person or represented by\nproxy, shall constitute a quorum to take action with respect to that vote on that matter. Two or\nmore classes or series of stock shall be considered a single class if the holders thereof are\nentitled to vote together as a single class at the meeting. In the absence of a quorum of the\nholders of any class of stock entitled to vote on a matter, the meeting of such class may be\nadjourned from time to time in the manner provided by Sections 1.4 and 1.6 of these by-laws until a\nquorum of such class shall be so present or represented. Shares of its own capital stock belonging\non the record date for the meeting to the Corporation or to another corporation, if a majority of\nthe shares entitled to vote in the election of directors of such other corporation is held,\ndirectly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for\nquorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation\nto vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.\n\n\n<\/p>
Section 1.6. Organization<\/u>. Meetings of stockholders shall be presided over by a\nChairman of the Board, if any, or in the absence of a Chairman of the Board by a Vice Chairman of\nthe Board, if any, or in the absence of a Vice Chairman of the Board by a Chief Executive Officer,\nor in the absence of a Chief Executive Officer by a President, or in the absence of a President by\na Chief Operating Officer, or in the absence of a Chief Operating Officer by a Vice President, or\nin the absence of the foregoing persons by a chairman designated by the Board of Directors, or in\nthe absence of such designation by a chairman chosen at the meeting. A Secretary, or in the absence\nof a Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of\na Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act\nas secretary of the meeting.\n\n\n\n<\/p>
The order of business at each such meeting shall be as determined by the chairman of the\nmeeting. The chairman of the meeting shall have the right and authority to adjourn a meeting of\nstockholders without a vote of stockholders and to prescribe such rules, regulations and procedures\nand to do all such acts and things as are necessary or desirable for the proper conduct of the\nmeeting and are not inconsistent with any rules or regulations adopted by the Board of Directors\npursuant to the provisions of the certificate of incorporation, including the establishment of\nprocedures for the maintenance of order and safety, limitations on the time allotted to questions\nor comments on the affairs of the Corporation, restrictions on entry to such meeting after the time\nprescribed for the commencement thereof and the opening and closing of the voting polls for each\nitem upon which a vote is to be taken.\n\n\n<\/p>
Section 1.7. Inspectors<\/u>. Prior to any meeting of stockholders, the Board of Directors,\na Chairman of the Board, a Vice Chairman of the Board, a Chief Executive Officer, a President, a\nChief Operating Officer, a Vice President or any other officer designated by the Board shall\nappoint one or more inspectors to act at such meeting and make a written report thereof and may\ndesignate one or more persons as alternate inspectors to replace any inspector who fails to act. If\nno inspector or alternate is able to\n\n\n<\/p>
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act at the meeting of stockholders, the person presiding at the meeting shall appoint one or\nmore inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or\nher duties, shall take and sign an oath faithfully to execute the duties of inspector with strict\nimpartiality and according to the best of his or her ability. The inspectors shall ascertain the\nnumber of shares outstanding and the voting power of each, determine the shares represented at the\nmeeting and the validity of proxies and ballots, count all votes and ballots, determine and retain\nfor a reasonable period a record of the disposition of any challenges made to any determination by\nthe inspectors and certify their determination of the number of shares represented at the meeting\nand their count of all votes and ballots. The inspectors may appoint or retain other persons to\nassist them in the performance of their duties. The date and time of the opening and closing of the\npolls for each matter upon which the stockholders will vote at a meeting shall be announced at the\nmeeting. No ballot, proxy or vote, nor any revocation thereof or change thereto, shall be accepted\nby the inspectors after the closing of the polls. In determining the validity and counting of\nproxies and ballots, the inspectors shall be limited to an examination of the proxies, any\nenvelopes submitted therewith, any information provided by a stockholder who submits a proxy by\ntelegram, cablegram or other electronic transmission from which it can be determined that the proxy\nwas authorized by the stockholder, ballots and the regular books and records of the Corporation,\nand they may also consider other reliable information for the limited purpose of reconciling\nproxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons\nwhich represent more votes than the holder of a proxy is authorized by the record owner to cast or\nmore votes than the stockholder holds of record. If the inspectors consider other reliable\ninformation for such purpose, they shall, at the time they make their certification, specify the\nprecise information considered by them, including the person or persons from whom they obtained the\ninformation, when the information was obtained, the means by which the information was obtained and\nthe basis for the inspectors'; belief that such information is accurate and reliable.\n\n\n\n<\/p>
Section 1.8. Voting; Proxies<\/u>. Unless otherwise provided in the certificate of\nincorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled\nto one vote for each share of stock held by such stockholder which has voting power upon the matter\nin question. If the certificate of incorporation provides for more or less than one vote for any\nshare on any matter, every reference in these by-laws to a majority or other proportion of shares\nof stock shall refer to such majority or other proportion of the votes of such shares of stock.\nEach stockholder entitled to vote at a meeting of stockholders may authorize another person or\npersons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after\nthree years from its date, unless the proxy provides for a longer period. A duly executed proxy\nshall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled\nwith an interest sufficient in law to support an irrevocable power, regardless of whether the\ninterest with which it is coupled is an interest in the stock itself or an interest in the\nCorporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the\nmeeting and voting in person or by filing an instrument in writing revoking the proxy or another\nduly executed proxy bearing a later date with a Secretary. Voting at meetings of stockholders need\nnot be by written ballot unless so directed by the chairman of the meeting or the Board of\nDirectors. Directors shall be elected by a plurality of the\n\n\n<\/p>
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votes of the shares present in person or represented by proxy at the meeting and entitled to\nvote on the election of directors. In all other matters, unless otherwise required by law, the\ncertificate of incorporation or these by-laws, a majority of the votes cast for or against the\nmatter at the meeting by stockholders entitled to vote on the subject matter shall be the act of\nthe stockholders. Where a separate vote by class or classes is required, the affirmative vote of\nthe holders of a majority (or, in the case of an election of directors, a plurality) of the votes\ncast for or against the matter at the meeting by stockholders in that class or classes entitled to\nvote on the subject matter shall be the act of such class or classes, except as otherwise required\nby law, the certificate of incorporation or these by-laws.\n\n\n<\/p>
Section 1.9. Fixing Date for Determination of Stockholders of Record<\/u>. In order that\nthe Corporation may determine the stockholders entitled to notice of or to vote at any meeting of\nstockholders or any adjournment thereof, the Board of Directors may fix a record date, which record\ndate shall not precede the date upon which the resolution fixing the record date is adopted by the\nBoard of Directors, and which record date shall not be more than sixty nor less than ten days\nbefore the date of such meeting. If no record date is fixed by the Board of Directors, the record\ndate for determining stockholders entitled to notice of or to vote at a meeting of stockholders\nshall be at the close of business on the day next preceding the day on which notice is given, or,\nif notice is waived, at the close of business on the day next preceding the day on which the\nmeeting is held. A determination of stockholders of record entitled to notice of or to vote at a\nmeeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the\nBoard of Directors may fix a new record date for the adjourned meeting.\n\n\n\n<\/p>
In order that the Corporation may determine the stockholders entitled to receive payment of\nany dividend or other distribution or allotment of any rights or the stockholders entitled to\nexercise any rights in respect of any change, conversion or exchange of stock, or for the purpose\nof any other lawful action, the Board of Directors may fix a record date, which record date shall\nnot precede the date upon which the resolution fixing the record date is adopted, and which record\ndate shall be not more than sixty days prior to the action for which a record date is being\nestablished. If no record date is fixed, the record date for determining stockholders for any such\npurpose shall be at the close of business on the day on which the Board of Directors adopts the\nresolution relating thereto.\n\n\n<\/p>
Section 1.10. List of Stockholders Entitled to Vote<\/u>. A Secretary shall prepare and\nmake, at least ten days before every meeting of stockholders, a complete list of the stockholders\nentitled to vote at the meeting, arranged in alphabetical order, and showing the address of each\nstockholder and the number of shares registered in the name of each stockholder. Such list shall be\nopen to the examination of any stockholder, for any purpose germane to the meeting, during ordinary\nbusiness hours, for a period of at least ten days prior to the meeting, either at a place within\nthe municipality where the meeting is to be held, which place shall be specified in the notice of\nthe meeting, or, if not so specified, at the place where the meeting is to be held. The list shall\nalso be produced and kept at the time and place of the meeting during the whole time thereof and\nmay be inspected by any stockholder who is present.\n\n\n<\/p>
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Section 1.11. Advance Notice of Stockholder Nominees for Director and Other Stockholder\nProposals<\/u>. (a) The matters to be considered and brought before any annual or special meeting\nof stockholders of the Corporation shall be limited to only such matters, including the nomination\nand election of directors, as shall be brought properly before such meeting in compliance with the\nprocedures set forth in this Section 1.11.\n\n\n\n<\/p>
(b) For any matter to be properly brought before any annual meeting of stockholders, the\nmatter must be (i) specified in the notice of annual meeting given by or at the direction of the\nBoard of Directors, (ii) otherwise brought before the annual meeting by or at the direction of the\nBoard of Directors or (iii) brought before the annual meeting in the manner specified in this\nSection 1.11(b)(x) by a stockholder that holds of record stock of the Corporation entitled to vote\nat the annual meeting on such matter (including any election of a director) or (y) by a person (a\n\"Nominee Holder\") that holds such stock through a nominee or \"street name\" holder of record of such\nstock and can demonstrate to the Corporation such indirect ownership of, and such Nominee Holder';s\nentitlement to vote, such stock on such matter. In addition to any other requirements under\napplicable law, the certificate of incorporation and these by-laws, persons nominated by\nstockholders for election as directors of the Corporation and any other proposals by stockholders\nshall be properly brought before an annual meeting of stockholders only if notice of any such\nmatter to be presented by a stockholder at such meeting (a \"Stockholder Notice\") shall be delivered\nto a Secretary at the principal executive office of the Corporation not less than ninety nor more\nthan one hundred and twenty days prior to the first anniversary date of the annual meeting for the\npreceding year; provided, however, that if and only if the annual meeting is not scheduled to be\nheld within a period that commences thirty days before and ends thirty days after such anniversary\ndate (an annual meeting date outside such period being referred to herein as an \"Other Meeting\nDate\"), such Stockholder Notice shall be given in the manner provided herein by the later of (i)\nthe close of business on the date ninety days prior to such Other Meeting Date or (ii) the close of\nbusiness on the tenth day following the date on which such Other Meeting Date is first publicly\nannounced or disclosed. Any stockholder desiring to nominate any person or persons (as the case may\nbe) for election as a director or directors of the Corporation at an annual meeting of stockholders\nshall deliver, as part of such Stockholder Notice, a statement in writing setting forth the name of\nthe person or persons to be nominated, the number and class of all shares of each class of stock of\nthe Corporation owned of record and beneficially by each such person, as reported to such\nstockholder by such person, the information regarding each such person required by paragraphs (a),\n(e) and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange Commission, each\nsuch person';s signed consent to serve as a director of the Corporation if elected, such\nstockholder';s name and address, the number and class of all shares of each class of stock of the\nCorporation owned of record and beneficially by such stockholder and, in the case of a Nominee\nHolder, evidence establishing such Nominee Holder';s indirect ownership of stock and entitlement to\nvote such stock for the election of directors at the annual meeting. Any stockholder who gives a\nStockholder Notice of any matter (other than a nomination for director) proposed to be brought\nbefore an annual meeting of stockholders shall deliver, as part of such Stockholder Notice, the\ntext of the proposal to be presented and a brief written statement of the reasons why such\nstockholder favors the proposal and setting forth such\n\n\n\n<\/p>
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stockholder';s name and address, the number and class of all shares of each class of stock of\nthe Corporation owned of record and beneficially by such stockholder, any material interest of such\nstockholder in the matter proposed (other than as a stockholder), if applicable, and, in the case\nof a Nominee Holder, evidence establishing such Nominee Holder';s indirect ownership of stock and\nentitlement to vote such stock on the matter proposed at the annual meeting. As used in these\nby-laws, shares \"beneficially owned\" shall mean all shares which such person is deemed to\nbeneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the\n\"Exchange Act\"). If a stockholder is entitled to vote only for a specific class or category of\ndirectors at a meeting (annual or special), such stockholder';s right to nominate one or more\nindividuals for election as a director at the meeting shall be limited to such class or category of\ndirectors.\n\n\n\n<\/p>
Notwithstanding any provision of this Section 1.11 to the contrary, in the event that the\nnumber of directors to be elected to the Board of Directors of the Corporation at the next annual\nmeeting of stockholders is increased by virtue of an increase in the size of the Board of Directors\nand either all of the nominees for director at the next annual meeting of stockholders or the size\nof the increased Board of Directors is not publicly announced or disclosed by the Corporation at\nleast one hundred days prior to the first anniversary of the preceding year';s annual meeting, a\nStockholder Notice shall also be considered timely hereunder, but only with respect to nominees to\nstand for election at the next annual meeting as the result of any new positions created by such\nincrease, if it shall be delivered to a Secretary at the principal executive office of the\nCorporation not later than the close of business on the tenth day following the first day on which\nall such nominees or the size of the increased Board of Directors shall have been publicly\nannounced or disclosed.\n\n\n<\/p>
(c) Except as provided in the immediately following sentence, no matter shall be properly\nbrought before a special meeting of stockholders unless such matter shall have been brought before\nthe meeting pursuant to the Corporation';s notice of such meeting. In the event the Corporation\ncalls a special meeting of stockholders for the purpose of electing one or more directors to the\nBoard of Directors, any stockholder entitled to vote for the election of such director(s) at such\nmeeting may nominate a person or persons (as the case may be) for election to such position(s) as\nare specified in the Corporation';s notice of such meeting, but only if the Stockholder Notice\nrequired by Section 1.11(b) hereof shall be delivered to a Secretary at the principal executive\noffice of the Corporation not later than the close of business on the tenth day following the first\nday on which the date of the special meeting and either the names of all nominees proposed by the\nBoard of Directors to be elected at such meeting or the number of directors to be elected shall\nhave been publicly announced or disclosed.\n\n\n<\/p>
(d) For purposes of this Section 1.11, a matter shall be deemed to have been \"publicly\nannounced or disclosed\" if such matter is disclosed in a press release reported by the Dow Jones\nNews Service, the Associated Press or a comparable national news service or in a document publicly\nfiled by the Corporation with the Securities and Exchange Commission.\n\n\n<\/p>
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(e) In no event shall the adjournment of an annual meeting or a special meeting, or any\nannouncement thereof, commence a new period for the giving of notice as provided in this Section\n1.11. This Section 1.11 shall not apply to (i) any stockholder proposal made pursuant to Rule 14a-8\nunder the Exchange Act or (ii) any nomination of a director in an election in which only the\nholders of one or more series of Preferred Stock of the Corporation issued pursuant to Article\nFOURTH of the certificate of incorporation are entitled to vote (unless otherwise provided in the\nterms of such stock).\n\n\n<\/p>
(f) The chairman of any meeting of stockholders, in addition to making any other\ndeterminations that may be appropriate to the conduct of the meeting, shall have the power and duty\nto determine whether notice of nominees and other matters proposed to be brought before a meeting\nhas been duly given in the manner provided in this Section 1.11 and, if not so given, shall direct\nand declare at the meeting that such nominees and other matters shall not be considered.\n\n\n<\/p>
Section 1.12. Approval of Stockholder Proposals<\/u>. Except as otherwise required by law,\nany matter (other than a nomination for director) that has been properly brought before an annual\nor special meeting of stockholders of the Corporation by a stockholder (including a Nominee Holder)\nin compliance with the procedures set forth in Section 1.11 shall require for approval thereof the\naffirmative vote of the holders of not less than a majority of all outstanding shares of Common\nStock of the Corporation and all other outstanding shares of stock of the Corporation entitled to\nvote on such matter, with such outstanding shares of Common Stock and other stock considered for\nthis purpose as a single class. Any vote of stockholders required by this Section 1.12 shall be in\naddition to any other vote of stockholders of the Corporation that may be required by law, the\ncertificate of incorporation or these by-laws, by any agreement with a national securities exchange\nor otherwise.\n\n\n\n<\/p>
ARTICLE II\n\n\n\n<\/p>
Board of Directors<\/u>\n\n\n\n<\/p>
Section 2.1. Powers; Number; Qualifications<\/u>. The business and affairs of the\nCorporation shall be managed by or under the direction of the Board of Directors, except as may be\notherwise required by law or provided in the certificate of incorporation. The number of directors\nof the Corporation shall be fixed only by resolution of the Board of Directors from time to time.\nIf the holders of any class or classes of stock or series thereof are entitled by the certificate\nof incorporation to elect one or more directors, the preceding sentence shall not apply to such\ndirectors and the number of such directors shall be as provided in the terms of such stock.\nDirectors need not be stockholders.\n\n\n<\/p>
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies<\/u>. Each director\nwho is serving as a director on the effective date of these Amended and Restated By-Laws shall hold\noffice until the next annual meeting of stockholders after such date, and until his or her\nsuccessor is elected and qualified or until his or her earlier resignation or removal,\nnotwithstanding that such director may have been elected for a term that extended beyond the date\nof such next annual meeting of stockholders. At each annual\n\n\n<\/p>
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meeting of stockholders after the effective date of these Amended and Restated By-Laws,\ndirectors elected at such annual meeting shall hold office until the next annual meeting of\nstockholders, and until their successors are elected and qualified or until their earlier\nresignation or removal. Any director may resign at any time upon written notice to the Board of\nDirectors or to a Chairman of the Board, a Vice Chairman of the Board, a Chief Executive Officer, a\nPresident, a Chief Operating Officer or a Secretary. Such resignation shall take effect at the time\nspecified therein, and unless otherwise specified therein no acceptance of such resignation shall\nbe necessary to make it effective. No director may be removed except as provided in the certificate\nof incorporation. Vacancies and newly created directorships resulting from any increase in the\nauthorized number of directors (other than any directors elected in the manner described in the\nnext sentence) or from any other cause shall be filled by, and only by, a majority of the directors\nthen in office, although less than a quorum, or by the sole remaining director. Whenever the\nholders of any class or classes of stock or series thereof are entitled by the certificate of\nincorporation to elect one or more directors, vacancies and newly created directorships of such\nclass or classes or series may be filled by, and only by, a majority of the directors elected by\nsuch class or classes or series then in office, or by the sole remaining director so elected. Any\ndirector elected or appointed to fill a vacancy or a newly created directorship shall hold office\nuntil the next annual meeting of stockholders, and until his or her successor is elected and\nqualified or until his or her earlier resignation or removal.\n\n\n<\/p>
Section 2.3. Regular Meetings<\/u>. Regular meetings of the Board of Directors may be held\nat such places within or without the State of Delaware and at such times as the Board may from time\nto time determine, and if so determined notice thereof need not be given.\n\n\n<\/p>
Section 2.4. Special Meetings<\/u>. Special meetings of the Board of Directors may be held\nat any time or place within or without the State of Delaware whenever called by the Board, by a\nChairman of the Board, if any, by a Vice Chairman of the Board, if any, by a Chairperson of the\nCorporate Governance and Nominating Committee, if any, by a Chief Executive Officer, if any, by a\nPresident, if any, by a Chief Operating Officer, if any, or by any two directors. Reasonable notice\nthereof shall be given by the person or persons calling the meeting.\n\n\n<\/p>
Section 2.5. Participation in Meetings by Conference Telephone Permitted<\/u>. Unless\notherwise restricted by the certificate of incorporation or these by-laws, members of the Board of\nDirectors, or any committee designated by the Board, may participate in a meeting of the Board or\nof such committee, as the case may be, by means of conference telephone or similar communications\nequipment by means of which all persons participating in the meeting can hear each other, and\nparticipation in a meeting pursuant to this by-law shall constitute presence in person at such\nmeeting.\n\n\n\n<\/p>
Section 2.6. Quorum; Vote Required for Action<\/u>. At each meeting of the Board of\nDirectors, one-half of the number of directors equal to (i) the total number of directors fixed by\nresolution of the board of directors (including any vacancies) plus (ii) the number of directors\nelected by a holder or holders of Preferred Stock voting separately as a class, as described in the\nfourth paragraph of Article EIGHTH of the certificate of\n\n\n<\/p>
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incorporation (including any vacancies), shall constitute a quorum for the transaction of\nbusiness. The vote of a majority of the directors present at a meeting at which a quorum is present\nshall be the act of the Board unless the certificate of incorporation or these by-laws shall\nrequire a vote of a greater number. In case at any meeting of the Board a quorum shall not be\npresent, the members or a majority of the members of the Board present may adjourn the meeting from\ntime to time until a quorum shall be present.\n\n\n<\/p>
Section 2.7. Organization<\/u>. Meetings of the Board of Directors shall be presided over\nby a Chairman of the Board, if any, or in the absence of a Chairman of the Board by a Vice Chairman\nof the Board, if any, or in the absence of a Vice Chairman of the Board, by a Chief Executive\nOfficer, or in the absence of a Chief Executive Officer, by a President, or in the absence of a\nPresident, by a Chief Operating Officer, or in the absence of a Chief Operating Officer, by a\nchairman chosen at the meeting. A Secretary, or in the absence of a Secretary an Assistant\nSecretary, shall act as secretary of the meeting, but in the absence of a Secretary and any\nAssistant Secretary the chairman of the meeting may appoint any person to act as secretary of the\nmeeting.\n\n\n\n<\/p>
Section 2.8. Action by Directors Without a Meeting<\/u>. Unless otherwise restricted by the\ncertificate of incorporation or these by-laws, any action required or permitted to be taken at any\nmeeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if\nall members of the Board or of such committee, as the case may be, then in office consent thereto\nin writing, and the writing or writings are filed with the minutes of proceedings of the Board or\ncommittee.\n\n\n<\/p>
Section 2.9. Compensation of Directors<\/u>. Unless otherwise restricted by the certificate\nof incorporation or these by-laws, the Board of Directors shall have the authority to fix the\ncompensation of directors.\n\n\n<\/p>
ARTICLE III\n\n\n\n<\/p>
Committees<\/u>\n\n\n\n<\/p>
Section 3.1. Committees<\/u>. The Board of Directors may designate one or more committees,\neach committee to consist of one or more of the directors of the Corporation. The Board may\ndesignate one or more directors as alternate members of any committee, who may replace any absent\nor disqualified member at any meeting of the committee. In the absence or disqualification of a\nmember of a committee, the member or members thereof present at any meeting and not disqualified\nfrom voting, whether or not such member or members constitute a quorum, may unanimously appoint\nanother member of the Board to act at the meeting in the place of any such absent or disqualified\nmember. Any such committee, to the extent provided in the resolution of the Board of Directors or\nin these by-laws, shall have and may exercise all the powers and authority of the Board of\nDirectors in the management of the business and affairs of the Corporation, and may authorize the\nseal of the Corporation to be affixed to all papers which may require it; but no such committee\nshall have the power or authority in reference to the following matters: (i) approving or adopting,\nor recommending to the stockholders, any action or\n\n\n\n<\/p>
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matter expressly required by law to be submitted to stockholders for approval or (ii)\nadopting, amending or repealing these by-laws.\n\n\n<\/p>
Section 3.2. Committee Rules<\/u>. Unless the Board of Directors otherwise provides, each\ncommittee designated by the Board may adopt, amend and repeal rules for the conduct of its\nbusiness. In the absence of a provision by the Board or a provision in the rules of such committee\nto the contrary, a majority of the entire authorized number of members of such committee shall\nconstitute a quorum for the transaction of business, the vote of a majority of the members present\nat a meeting at the time of such vote if a quorum is then present shall be the act of such\ncommittee, and in other respects each committee shall conduct its business in the same manner as\nthe Board conducts its business pursuant to Article II of these by-laws.\n\n\n<\/p>
ARTICLE IV\n\n\n\n<\/p>
Officers<\/u>\n\n\n\n<\/p>
Section 4.1. Officers; Election or Appointment<\/u>. The Board of Directors shall take such\naction as may be necessary from time to time to ensure that the Corporation has such officers as\nare necessary, under Section 5.1 of these by-laws and the Delaware General Corporation Law as\ncurrently in effect or as the same may hereafter be amended, to enable it to sign stock\ncertificates. In addition, the Board of Directors at any time and from time to time may elect (i)\none or more Chairmen of the Board and\/or one or more Vice Chairmen of the Board from among its\nmembers, (ii) one or more Chief Executive Officers, one or more Presidents and\/or one or more Chief\nOperating Officers, (iii) one or more Vice Presidents, one or more Treasurers and\/or one or more\nSecretaries and\/or (iv) one or more other officers, in the case of each of (i), (ii), (iii) and\n(iv) if and to the extent the Board deems desirable. The Board of Directors may give any officer\nsuch further designations or alternate titles as it considers desirable. In addition, the Board of\nDirectors at any time and from time to time may authorize any officer of the Corporation to appoint\none or more officers of the kind described in clauses (iii) and (iv) above. Any number of offices\nmay be held by the same person and directors may hold any office unless the certificate of\nincorporation or these by-laws otherwise provide.\n\n\n<\/p>
Section 4.2. Term of Office; Resignation; Removal; Vacancies<\/u>. Unless otherwise\nprovided in the resolution of the Board of Directors electing or authorizing the appointment of any\nofficer, each officer shall hold office until his or her successor is elected or appointed and\nqualified or until his or her earlier resignation or removal. Any officer may resign at any time\nupon written notice to the Board or to such person or persons as the Board may designate. Such\nresignation shall take effect at the time specified therein, and unless otherwise specified therein\nno acceptance of such resignation shall be necessary to make it effective. The Board may remove any\nofficer with or without cause at any time. Any officer authorized by the Board to appoint a person\nto hold an office of the Corporation may also remove such person from such office with or without\ncause at any time, unless otherwise provided in the resolution of the Board providing such\nauthorization. Any such removal shall be without prejudice to the contractual rights of such\nofficer, if any, with the Corporation, but the election or\n\n\n\n<\/p>
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appointment of an officer shall not of itself create contractual rights. Any vacancy occurring\nin any office of the Corporation by death, resignation, removal or otherwise may be filled by the\nBoard at any regular or special meeting or by an officer authorized by the Board to appoint a\nperson to hold such office.\n\n\n<\/p>
Section 4.3. Powers and Duties<\/u>. The officers of the Corporation shall have such powers\nand duties in the management of the Corporation as shall be stated in these by-laws or in a\nresolution of the Board of Directors which is not inconsistent with these by-laws and, to the\nextent not so stated, as generally pertain to their respective offices, subject to the control of\nthe Board. A Secretary or such other officer appointed to do so by the Board shall have the duty to\nrecord the proceedings of the meetings of the stockholders, the Board of Directors and any\ncommittees in a book to be kept for that purpose. The Board may require any officer, agent or\nemployee to give security for the faithful performance of his or her duties.\n\n\n<\/p>
ARTICLE V\n\n\n\n<\/p>
Stock<\/u>\n\n\n<\/p>
Section 5.1. Certificates; Uncertificated Shares<\/u>. The shares of stock in the\nCorporation shall be represented by certificates, provided that the Board of Directors of the\nCorporation may provide by resolution or resolutions that some or all of any or all classes or\nseries of its stock shall be uncertificated shares. Any such resolution shall not apply to any such\nshares represented by a certificate theretofore issued until such certificate is surrendered to the\nCorporation. Notwithstanding the adoption of such a resolution or resolutions by the Board of\nDirectors of the Corporation, every holder of stock represented by certificates, and upon request\nevery holder of uncertificated shares, shall be entitled to have a certificate signed by or in the\nname of the Corporation by a Chairman or Vice Chairman of the Board or a President or Vice\nPresident, and by a Treasurer, Assistant Treasurer, Secretary or Assistant Secretary, representing\nthe number of shares of stock in the Corporation owned by such holder. If such certificate is\nmanually signed by one officer or manually countersigned by a transfer agent or by a registrar, any\nother signature on the certificate may be a facsimile. In case any officer, transfer agent or\nregistrar who has signed or whose facsimile signature has been placed upon a certificate shall have\nceased to be such officer, transfer agent or registrar before such certificate is issued, it may be\nissued by the Corporation with the same effect as if such person were such officer, transfer agent\nor registrar at the date of issue. Certificates representing shares of stock of the Corporation may\nbear such legends regarding restrictions on transfer or other matters as any officer or officers of\nthe Corporation may determine to be appropriate and lawful.\n\n\n<\/p>
If the Corporation is authorized to issue more than one class of stock or more than one series\nof any class, the powers, designations, preferences and relative, participating, optional or other\nspecial rights of each class of stock or series thereof and the qualifications or restrictions of\nsuch preferences and\/or rights shall be set forth in full or summarized on the face or back of the\ncertificate which the Corporation shall issue to represent such class or series of stock, provided\nthat, except as otherwise required by law,\n\n\n<\/p>
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in lieu of the foregoing requirements, there may be set forth on the face or back of the\ncertificate which the Corporation shall issue to represent such class or series of stock a\nstatement that the Corporation will furnish without charge to each stockholder who so requests the\npowers, designations, preferences and relative, participating, optional or other special rights of\nsuch class or series of stock and the qualifications, limitations or restrictions of such\npreferences and\/or rights. Within a reasonable time after the issuance or transfer of\nuncertificated shares of any class or series of stock, the Corporation shall send to the registered\nowner thereof a written notice containing the information required by law to be set forth or stated\non certificates representing shares of such class or series or a statement that the Corporation\nwill furnish without charge to each stockholder who so requests the powers, designations,\npreferences and relative, participating, optional or other special rights of such class or series\nand the qualifications, limitations or restrictions of such preferences and\/or rights.\n\n\n\n<\/p>
Except as otherwise expressly provided by law, the rights and obligations of the holders of\nuncertificated shares and the rights and obligations of the holders of certificates representing\nstock of the same class and series shall be identical.\n\n\n<\/p>
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New\nCertificates<\/u>. The Corporation may issue a new certificate of stock in the place of any\ncertificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the\nCorporation may require the owner of the lost, stolen or destroyed certificate, or such owner';s\nlegal representative, to give the Corporation a bond sufficient to indemnify it against any claim\nthat may be made against it on account of the alleged loss, theft or destruction of any such\ncertificate or the issuance of such new certificate.\n\n\n<\/p>
ARTICLE VI\n\n\n\n<\/p>
Miscellaneous<\/u>\n\n\n\n<\/p>
Section 6.1. Fiscal Year<\/u>. The fiscal year of the Corporation shall be determined by\nthe Board of Directors.\n\n\n<\/p>
Section 6.2. Seal<\/u>. The Corporation may have a corporate seal which shall have the name\nof the Corporation inscribed thereon and shall be in such form as may be approved from time to time\nby the Board of Directors. The corporate seal may be used by causing it or a facsimile thereof to\nbe impressed or affixed or in any other manner reproduced.\n\n\n\n<\/p>
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and Committees<\/u>.\nWhenever notice is required to be given by law or under any provision of the certificate of\nincorporation or these by-laws, a written waiver thereof, signed by the person entitled to notice,\nwhether before or after the time stated therein, shall be deemed equivalent to notice. Attendance\nof a person at a meeting shall constitute a waiver of notice of such meeting, except when the\nperson attends a meeting for the express purpose of objecting, at the beginning of the meeting, to\nthe transaction of any business because the meeting is not lawfully called or convened. Neither the\nbusiness to be transacted at, nor the purpose of, any regular or special meeting of the\nstockholders, directors or\n\n\n<\/p>
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members of a committee of directors need be specified in any written waiver of notice unless\nso required by the certificate of incorporation or these by-laws.\n\n\n<\/p>
Section 6.4. Indemnification<\/u>. The Corporation shall indemnify to the full extent\npermitted by law any person made or threatened to be made a party to any action, suit or\nproceeding, whether civil, criminal, administrative or investigative, by reason of the fact that\nsuch person or such person';s testator or intestate is or was a director or officer of the\nCorporation, is or was a director, officer, trustee, member, stockholder, partner, incorporator or\nliquidator of a Subsidiary of the Corporation, is or was a member of the Shareholders'; Committee\nacting pursuant to the Amended and Restated Shareholders'; Agreement, dated as of May 7, 1999, and\namended as of June 22, 2004, among the Corporation and the Covered Persons listed on Appendix A\nthereto, as amended from time to time, or serves or served at the request of the Corporation as a\ndirector, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any\nother capacity for any other enterprise. Expenses, including attorneys'; fees, incurred by any such\nperson in defending any such action, suit or proceeding shall be paid or reimbursed by the\nCorporation promptly upon demand by such person and, if any such demand is made in advance of the\nfinal disposition of any such action, suit or proceeding, promptly upon receipt by the Corporation\nof an undertaking of such person to repay such expenses if it shall ultimately be determined that\nsuch person is not entitled to be indemnified by the Corporation. The rights provided to any person\nby this by-law shall be enforceable against the Corporation by such person, who shall be presumed\nto have relied upon it in serving or continuing to serve as a director or officer or in such other\ncapacity as provided above. In addition, the rights provided to any person by this by-law shall\nsurvive the termination of such person as any such director, officer, trustee, member, stockholder,\npartner, incorporator or liquidator and, insofar as such person served at the request of the\nCorporation as a director, officer, trustee, member, stockholder, partner, incorporator or\nliquidator of or in any other capacity for any other enterprise, shall survive the termination of\nsuch request as to service prior to termination of such request. No amendment of this by-law shall\nimpair the rights of any person arising at any time with respect to events occurring prior to such\namendment.\n\n\n\n<\/p>
Notwithstanding anything contained in this Section 6.4, except for proceedings to enforce\nrights provided in this Section 6.4, the Corporation shall not be obligated under this Section 6.4\nto provide any indemnification or any payment or reimbursement of expenses to any director, officer\nor other person in connection with a proceeding (or part thereof) initiated by such person (which\nshall not include counterclaims or crossclaims initiated by others) unless the Board of Directors\nhas authorized or consented to such proceeding (or part thereof) in a resolution adopted by the\nBoard.\n\n\n<\/p>
For purposes of this by-law, the term \"Subsidiary\" shall mean any corporation, partnership,\nlimited liability company or other entity in which the Corporation owns, directly or indirectly, a\nmajority of the economic or voting ownership interest; the term \"other enterprise\" shall include\nany corporation, partnership, limited liability company, joint venture, trust, association or other\nunincorporated organization or other entity and any employee benefit plan; the term \"officer,\" when\nused with respect to the Corporation, shall refer to any officer elected by or appointed pursuant\nto authority granted by the\n\n\n<\/p>
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Board of Directors of the Corporation pursuant to clauses (i), (ii), (iii) and (iv) of Section\n4.1 of these by-laws, when used with respect to a Subsidiary or other enterprise that is a\ncorporation, shall refer to any person elected or appointed pursuant to the by-laws of such\nSubsidiary or other enterprise or chosen in such manner as is prescribed by the by-laws of such\nSubsidiary or other enterprise or determined by the board of directors of such Subsidiary or other\nenterprise, and when used with respect to a Subsidiary or other enterprise that is not a\ncorporation or is organized in a foreign jurisdiction, the term \"officer\" shall include in addition\nto any officer of such entity, any person serving in a similar capacity or as the manager of such\nentity; service \"at the request of the Corporation\" shall include service as a director or officer\nof the Corporation which imposes duties on, or involves services by, such director or officer with\nrespect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed\non a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses;\nand action by a person with respect to an employee benefit plan which such person reasonably\nbelieves to be in the interest of the participants and beneficiaries of such plan shall be deemed\nto be action not opposed to the best interests of the Corporation.\n\n\n<\/p>
To the extent authorized from time to time by the Board of Directors, the Corporation may\nprovide to (i) any one or more employees and other agents of the Corporation, (ii) any one or more\nofficers, employees and other agents of any Subsidiary and (iii) any one or more directors,\nofficers, employees and other agents of any other enterprise, rights of indemnification and to\nreceive payment or reimbursement of expenses, including attorneys'; fees, that are similar to the\nrights conferred in this Section 6.4 on directors and officers of the Corporation or any Subsidiary\nor other enterprise. Any such rights shall have the same force and effect as they would have if\nthey were conferred in this Section 6.4.\n\n\n\n<\/p>
Nothing in this Section 6.4 shall limit the power of the Corporation or the Board of Directors\nto provide rights of indemnification and to make payment and reimbursement of expenses, including\nattorneys'; fees, to directors, officers, employees, agents and other persons otherwise than\npursuant to this Section 6.4.\n\n\n<\/p>
Section 6.5. Interested Directors; Quorum<\/u>. No contract or transaction between the\nCorporation and one or more of its directors or officers, or between the Corporation and any other\ncorporation, partnership, limited liability company, joint venture, trust, association or other\nunincorporated organization or other entity in which one or more of its directors or officers serve\nas directors, officers, trustees or in a similar capacity or have a financial interest, shall be\nvoid or voidable solely for this reason, or solely because the director or officer is present at or\nparticipates in the meeting of the Board of Directors or committee thereof which authorizes the\ncontract or transaction, or solely because his or her or their votes are counted for such purpose,\nif: (i) the material facts as to his or her relationship or interest and as to the contract or\ntransaction are disclosed or are known to the Board or the committee, and the Board or committee in\ngood faith authorizes the contract or transaction by the affirmative votes of a majority of the\ndisinterested directors, even though the disinterested directors be less than a quorum; (ii) the\nmaterial facts as to his or her relationship or interest and as to the contract or transaction are\ndisclosed or are\n\n\n<\/p>
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known to the stockholders entitled to vote thereon, and the contract or transaction is\nspecifically approved in good faith by a vote of the stockholders; or (iii) the contract or\ntransaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by\nthe Board, a committee thereof or the stockholders. Common or interested directors may be counted\nin determining the presence of a quorum at a meeting of the Board of Directors or of a committee\nwhich authorizes the contract or transaction.\n\n\n<\/p>
Section 6.6. Form of Records<\/u>. Any records maintained by the Corporation in the regular\ncourse of its business, including its stock ledger, books of account and minute books, may be kept\non, or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other\ninformation storage device, provided that the records so kept can be converted into clearly legible\nform within a reasonable time. The Corporation shall so convert any records so kept upon the\nrequest of any person entitled to inspect the same.\n\n\n<\/p>
Section 6.7. Laws and Regulations; Close of Business<\/u>. (a) For purposes of these\nby-laws, any reference to a statute, rule or regulation of any governmental body means such\nstatute, rule or regulation (including any successor thereto) as the same may be amended from time\nto time.\n\n\n<\/p>
(b) Any reference in these by-laws to the close of business on any day shall be deemed to\nmean 5:00 P.M. New York time on such day, whether or not such day is a business day.\n\n\n<\/p>
Section 6.8. Amendment of By-Laws<\/u>. These by-laws may be amended, modified or repealed,\nand new by-laws may be adopted at any time, by the Board of Directors. Stockholders of the\nCorporation may adopt additional by-laws and amend, modify or repeal any by-law whether or not\nadopted by them, but only in accordance with Article SIXTH of the certificate of incorporation.\n\n\n\n\n<\/p>
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