BYLAWS
OF
GUESS
?, INC.
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SECOND
AMENDED AND RESTATED
BYLAWS
OF
GUESS
?, INC.
Section
1.01
Registered
Office
.
The registered office of Guess ?, Inc. (the
“
Corporation
”) in the State of Delaware shall be at the principal
office
of The Corporation Trust Company in the City of Wilmington, County of New
Castle, and the registered agent in charge thereof shall be The Corporation
Trust Company.
Section
1.02
Other
Offices
.
The Corporation may also have an office or
offices at any other place or places within or without the State of Delaware
as
the Board of Directors of the Corporation (the “
Board
”) may from time to
time determine or the business of the Corporation may from time to time
require.
Section
2.01
Annual
Meetings
.
The annual meeting of stockholders of the
Corporation for the election of directors of the Corporation
(“
Directors
”), and for the transaction of such other business as may
properly come before such meeting, shall be held at such place, date and time
as
shall be fixed by the Board and designated in the notice or waiver of notice
of
such annual meeting.
Section
2.02
Special
Meetings
.
Special meetings of stockholders for any
purpose or purposes may be called by the Chairman of the Board or each
Co-Chairman (in the event that the position is held jointly) of the Board (each,
a “
Chairman
”), the Chief Executive Officer or each Co-Chief Executive
Officer (in the event that the position is held jointly) of the Corporation
(each, a “
Chief Executive Officer
”) or the President of the Corporation
(the “
President
”), to be held at such place, date and time as shall be
designated in the notice or waiver of notice thereof.
Only
such
business as is stated in the written notice of a special meeting may be acted
upon thereat.
(a)
Except
as
otherwise provided by law, written notice of each annual or special meeting
of
stockholders stating the place, date and time of such meeting and, in the case
of a special meeting, the purpose or purposes for which such meeting is to
be
held, shall be given personally or by first-class mail (airmail in the case
of
international communications) to each stockholder entitled to vote thereat,
not
less than 10 nor more than 60 days before the date of such
meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s address as it appears on the records of the
Corporation. If, prior to the time of mailing, the Secretary shall
have received from any stockholder a written request that notices intended
for
such stockholder are to be mailed to some address other than the address that
appears on the records of the Corporation, notices intended for such stockholder
shall be mailed to the address designated in such request.
(b)
Notice
of
a special meeting of stockholders may be given by the person or persons calling
the meeting, or, upon the written request of such person or persons, such notice
shall be given by the Secretary of the Corporation (the “
Secretary
”) or
any Assistant Secretary on behalf of such person or persons. If the
person or persons calling a special meeting of stockholders give notice thereof,
such person or persons shall deliver a copy of such notice to the
Secretary. Each request to the Secretary for the giving of notice of
a special meeting of stockholders shall state the purpose or purposes of such
meeting.
Section
2.04
Waiver
of Notice
.
Notice of any annual or special meeting of
stockholders need not be given to any stockholder who files a written waiver
of
notice with the Secretary, signed by the person entitled to notice, whether
before or after such meeting. Neither the business to be transacted
at, nor the purpose of, any meeting of stockholders need be specified in any
written waiver of notice thereof. Attendance of a stockholder at a
meeting, in person or by proxy, shall constitute a waiver of notice of such
meeting, except when such stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the grounds that the notice of such meeting was inadequate or
improperly given.
Section
2.05
Adjournments
.
Whenever
a meeting of stockholders, annual or special, is adjourned to another date,
time
or place, notice need not be given of the adjourned meeting if the date, time
and place thereof are announced at the meeting at which the adjournment is
taken. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice
of
the adjourned meeting shall be given to each stockholder entitled to vote
thereat. At the adjourned meeting, any business may be transacted
which might have been transacted at the original meeting.
When
any
meeting is convened the presiding officer, if directed by the Board, may adjourn
the meeting if (a) no quorum is present for the transaction of business, or
(b) the Board determines that adjournment is necessary or appropriate to
enable the stockholders (i) to consider fully information which the Board
determines has not been made sufficiently or timely available to stockholders
or
(ii) otherwise to exercise effectively their voting rights.
Section
2.06
Quorum
. Except
as otherwise provided by law or the Certificate of Incorporation of the
Corporation as in effect from time to time (the “
Certificate of
Incorporation
”), whenever a class of stock of the Corporation is entitled to
vote as a separate class, or whenever classes of stock of the Corporation are
entitled to vote together as a single class, on any matter brought before any
meeting of stockholders, whether annual or special, holders of shares entitled
to cast a majority of the votes entitled to be cast by all the holders of the
shares of stock of such class voting as a separate class, or classes voting
together as a single class, as the case may be, outstanding and entitled to
vote
thereat, present in person or by proxy, shall constitute a quorum at any such
meeting of stockholders. If, however, such quorum shall not be
present in person or by proxy at any meeting of stockholders, the stockholders
entitled to vote thereat may adjourn the meeting from time to time in accordance
with Section 2.05 hereof until a quorum shall be present in person or by
proxy.
Section
2.07
Voting
.
Except
as otherwise provided by law or the Certificate of Incorporation or these
Bylaws, when a quorum is present with respect to any matter brought before
any
meeting of the stockholders, the vote of the holders of shares entitled to
cast
a majority of the votes entitled to be cast by all the holders of the shares
constituting such quorum shall decide any such matter. Unless
otherwise provided in the Certificate of Incorporation, each stockholder present
in person or by proxy at a meeting of the stockholders shall be entitled to
cast
one vote for each share of the capital stock entitled to vote thereat held
by
such stockholder.
Section
2.08
Proxies
.
Each
stockholder entitled to vote at a meeting of stockholders or to express, in
writing, consent to or dissent from any corporate action without a meeting
may
authorize another person or persons to act for such stockholder by
proxy. Such proxy shall be filed with the Secretary before such
meeting of stockholders or such corporate action without a meeting, at such
time
as the Board may require. No proxy shall be voted or acted upon more
than three years from its date, unless the proxy provides for a longer
period.
Section
2.09
Advance
Notice of Business to be Transacted at Stockholder
Meetings
.
No business may be transacted at an annual
meeting of stockholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the
direction of the Board (or any duly authorized committee thereof) or
(c) otherwise properly brought before the annual meeting by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the
giving of the notice provided for in this Section 2.09 and on the record
date for the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.09.
In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the
Secretary.
To
be
timely, a stockholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation not less
than
60 days nor more than 90 days prior to the anniversary date of the immediately
preceding annual meeting of stockholders;
provided, however,
that in
the event that the annual meeting is called for a date that is not within 30
days before or after such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close of business on the
tenth day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting
was made, whichever first occurs.
To
be in
proper written form, a stockholder’s notice to the Secretary must set forth as
to each matter such stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and record address of such stockholder, (c) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by such stockholder, (d) a description
of all arrangements or understandings between such stockholder and any other
person or persons (including their names) in connection with the proposal of
such business by such stockholder and any material interest of such stockholder
in such business and (e) a representation that such stockholder intends to
appear in person or by proxy at the annual meeting to bring such business before
the meeting.
No
business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures
set
forth in this Section 2.09,
provided, however,
that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.09 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman
of an annual meeting determines that business was not properly brought before
the annual meeting in accordance with the foregoing procedures, the chairman
shall declare to the meeting that the business was not properly brought before
the meeting and such business shall not be transacted.
Section
3.01
General
Powers
.
The business and affairs of the Corporation
shall be managed by the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law, the
Certificate of Incorporation or these Bylaws directed or required to be
exercised or done by stockholders.
Section
3.02
Number
and Term of Office
.
Subject to the rights, if any, of
holders of preferred stock of the Corporation, the Board shall consist of not
less than three nor more than fifteen members, the exact number of which shall
be fixed from time to time by the Board. The Board shall, by
resolution passed by a majority of the Board, designate the directors to serve
as initial Class I, Class II and Class III Directors upon filing
of the Certificate of Incorporation with the Secretary of State of the State
of
Delaware. Except as provided in Section 3.05 of this
Article III, Directors shall be elected by a plurality of the votes cast at
annual meetings of stockholders, and each Director so elected shall hold office
as provided by Article VIII of the Certificate of Incorporation. None
of the Directors need be stockholders of the Corporation.
Section
3.03
Nomination
of Directors and Advance Notice Thereof
.
Only persons
who are nominated in accordance with the following procedures shall be eligible
for election as Directors except as may be otherwise provided in the Certificate
of Incorporation with respect to the right of holders of preferred stock of
the
Corporation to nominate and elect a specified number of directors in certain
circumstances. Nominations of persons for election to the Board may
be made at any annual meeting of stockholders, or at any special meeting of
stockholders called for the purpose of electing Directors, (a) by or at the
direction of the Board (or any duly authorized committee thereof) or (b) by
any stockholder of the Corporation (i) who is a stockholder of record on
the date of the giving of the notice provided for in this Section and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 3.03.
In
addition to any other applicable requirements, for a nomination to be made
by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary.
To
be
timely, a stockholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation (a) in
the case of any annual meeting, not less than 60 days nor more than 90 days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders;
provided, however,
that in the event that the annual
meeting is called for a date that is not within 30 days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the
day
on which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs;
and (b) in the case of a special meeting of stockholders called for the
purpose of electing directors, not later than the close of business on the
tenth
day following the day on which notice of the date of the special meeting was
mailed or public disclosure of the date of the special meeting was made,
whichever first occurs.
To
be in
proper written form, a stockholder’s notice to the Secretary must set forth
(a) as to each person whom the stockholder proposes to nominate for
election as a Director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant
to
Section 14 of the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”), and the rules and regulations promulgated thereunder;
and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or
of
record by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder, (iv) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the persons named in its notice and (v) any other information relating to
such stockholder that would be required to be disclosed in a proxy statement
or
other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Each proposed
nominee shall consent in writing to being named as a nominee and to serve as
a
Director if elected, and such written consent must be submitted with the
stockholder’s notice to the Secretary.
No
person
shall be eligible for election as a Director unless nominated in accordance
with
the procedures set forth in this Section 3.03. If the chairman
of the meeting determines that a nomination was not made in accordance with
the
foregoing procedures, the chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be
disregarded.
Section
3.04
Resignation
.
Any
Director may resign at any time by giving written notice to the Board, the
Chairman, the Chief Executive Officer, the President or the
Secretary. Such resignation shall take effect at the time specified
in such notice or, if the time be not specified, upon receipt thereof by the
Board, the Chairman, the Chief Executive Officer, the President or the
Secretary, as the case may be. Unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it
effective.
Section
3.05
Vacancies
.
Vacancies
occurring in the Board and newly created directorships may be filled by a
majority of the Directors then in office, although less than a quorum, or by
a
sole remaining Director. Any Director elected to fill a vacancy shall
hold office for a term that shall coincide with the term of the class to which
such director shall have been elected.
(a)
Annual
Meetings
.
As soon as practicable after each annual
election of Directors by the stockholders, the Board shall meet for the purpose
of organization and the transaction of other business, unless it shall have
transacted all such business by written consent pursuant to Section 3.08
hereof.
(b)
Other
Meetings
.
Other meetings of the Board shall be held at
such times as the Board, the Chairman, the Chief Executive Officer, the
President or the Secretary shall from time to time determine.
(c)
Notice
of Meetings
.
The Secretary or any Assistant Secretary
shall give written notice to each Director of each meeting of the Board, which
notice shall state the place, date, time and purpose of such
meeting. Notice of each such meeting shall be given to each Director,
if by mail, addressed to him at his residence or usual place of business, at
least two days before the day on which such meeting is to be held, or shall
be
sent to him at such place by telecopy, telegraph, cable, or other form of
recorded communication, or be delivered personally or by telephone not later
than the day before the day on which such meeting is to be held. A
written waiver of notice, signed by the Director entitled to notice, whether
before or after the time of the meeting referred to in such waiver, shall be
deemed equivalent to notice. Neither the business to be transacted
at, nor the purpose of any meeting of the Board need be specified in any written
waiver of notice thereof. Attendance of a Director at a meeting of
the Board shall constitute a waiver of notice of such meeting, except as
provided by law.
(d)
Place
of Meetings
.
The Board may hold its meetings at such
place or places within or without the State of Delaware as the Board or the
Chairman may from time to time determine, or as shall be designated in the
respective notices or waivers of notice of such meetings.
(e)
Quorum
and Manner of Acting
.
A majority of the total number of
Directors (but not less than two) shall constitute a quorum for the transaction
of business at any meeting of the Board, and the vote of a majority of those
Directors present at any such meeting at which a quorum is present shall be
necessary for the passage of any resolution or act of the Board, except as
otherwise expressly required by law, the Certificate of Incorporation or these
Bylaws. In the absence of a quorum for any such meeting, a majority
of the Directors present thereat may adjourn such meeting from time to time
until a quorum shall be present.
(f)
Organization
.
At
each meeting of the Board, one of the following shall act as chairman of the
meeting and preside, in the following order of precedence:
(i)
the
Chairman;
(ii)
the
Chief
Executive Officer or President;
(iii)
any
Director chosen by a majority of the Directors present.
The
Secretary or, in the case of his absence, any person (who shall be an Assistant
Secretary, if an Assistant Secretary is present) whom the chairman of the
meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
Section
3.07
Committees
of the Board
.
The Board may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee
to
consist of one or more Directors. The Board may designate one or more
Directors as alternate members of any committee, who may replace any absent
or
disqualified member at any meeting of such committee. In the absence
or disqualification of a member of a committee, and in the absence of a
designation by the Board of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum,
may
unanimously appoint another Director to act at the meeting in the place of
any
such absent or disqualified member. Any committee of the Board, to
the extent provided in the resolution of the Board designating such committee,
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation, and may authorize
the
seal of the Corporation to be affixed to all papers which may require it;
provided, however,
that no such committee shall have such power or
authority in reference to amending the Certificate of Incorporation (except
that
such a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board as provided
in Section 151(a) of the General Corporation Law of the State of Delaware
(the “
General Corporation Law
”), fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
of stock of the Corporation or fix the number of shares of any series of stock
or authorize the increase or decrease of the shares of any series), adopting
an
agreement of merger or consolidation under Section 251, 252, 254, 255, 256,
257, 258, 263, or 264 of the General Corporation Law, recommending to the
stockholders the sale, lease or exchange of all or substantially all the
Corporation’s property and assets, recommending to the stockholders a
dissolution of the Corporation or the revocation of a dissolution, or amending
these Bylaws;
provided, further,
however, that, unless expressly so
provided in the resolution of the Board designating such committee, no such
committee shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a certificate of ownership and merger
pursuant to Section 253 of the General Corporation Law. Each
committee of the Board shall keep regular minutes of its proceedings and report
the same to the Board when so requested by the Board.
Section
3.08
Directors’
Consent in Lieu of Meeting
.
Any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting, without prior notice and without a vote, if
a
consent in writing, setting forth the action so taken, shall be signed by all
the members of the Board or such committee and such consent is filed with the
minutes of the proceedings of the Board or such committee.
Section
3.09
Action
by Means of Telephone or Similar Communication
.
Any one
or more members of the Board, or of any committee thereof, may participate
in a
meeting of the Board or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating
in
the meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
Section
3.10
Compensation
.
Unless
otherwise restricted by the Certificate of Incorporation, the Board may
determine the compensation of Directors. In addition, as determined
by the Board, Directors may be reimbursed by the Corporation for their expenses,
if any, in the performance of their duties as Directors. No such
compensation or reimbursement shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation
therefor.
Section
4.01
Officers
.
The
officers of the Corporation shall be the Chairman, the Chief Executive Officer,
the President, the Chief Operating Officer, the Secretary and the Chief
Financial Officer and may include one or more Vice Presidents (which may include
Senior Vice Presidents, Executive Vice Presidents and Senior Executive Vice
Presidents) and one or more Assistant Secretaries and one or more Assistant
Financial Officers. Any two or more offices may be held by the same
person. The offices of Chairman and Chief Executive Officer may be
held by more than one person, each with the title of Co-Chairman or Co-Chief
Executive Officer.
Section
4.02
Authority
and Duties
.
All officers, as between themselves and the
Corporation, shall have such authority and perform such duties in the management
of the Corporation as may be provided in these Bylaws or, to the extent not
so
provided, by resolution of the Board.
(a)
Each
officer shall be elected or appointed by, or in such matter as shall be
determined by, the Board and shall hold office for such term as may be
determined by the Board. Each officer shall hold office until his
successor has been appointed and qualified or his earlier death or resignation
or removal in the manner hereinafter provided. The Board may require
any officer to give security for the faithful performance of his
duties.
(b)
Any
officer may resign at any time by giving written notice to the Board, the
Chairman, any Chief Executive Officer, the President or the
Secretary. Such resignation shall take effect at the time specified
in such notice or, if the time be not specified, at the time it is accepted
by
the Board, any Chairman, any Chief Executive Officer, the President or the
Secretary, as the case may be. Unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it
effective.
(c)
All
officers and agents appointed by the Board shall be subject to removal, with
or
without cause, at any time by the Board.
Section
4.04
Vacancies
.
Any
vacancy occurring in any office of the Corporation, for any reason, shall be
filled by action of the Board. Unless earlier removed pursuant to
Section 4.03 hereof, any officer appointed by the Board to fill any such
vacancy shall serve only until such time as the unexpired term of his
predecessor expires unless reappointed by the Board.
Section
4.05
The
Chairman or Co-Chairman
.
The Chairman (as defined in
Section 2.02 of these Bylaws) shall have the power to call special meetings
of stockholders, to call special meetings of the Board and, if present, to
preside at all meetings of stockholders and all meetings of the
Board. The Chairman shall perform all duties incident to the office
of Chairman of the Board and all such other duties as may from time to time
be
assigned to the holder(s) of the office by the Board or these
Bylaws. In the event that more than one individual holds the office
of Chairman at any given time, all individuals holding such office shall be
entitled to the same privileges and benefits under these Bylaws.
Section
4.06
The
Chief Executive Officer or Co-Chief Executive
Officer
.
The Chief Executive Officer (as defined in
Section 2.02 of these Bylaws) shall, together with the President and
subject to the control of the Board, have general and active management and
control of the business and affairs of the Corporation and shall see that all
orders and resolutions of the Board are carried into effect. The
Chief Executive Officer shall perform all duties incident to the office of
Chief
Executive Officer and all such other duties as may from time to time be assigned
to the holder(s) of the office by the Board or these Bylaws. In the
event that more than one individual holds the office of Chief Executive Officer
at any given time, all individuals holding such office shall be entitled to
the
same privileges and benefits under these Bylaws.
Section
4.07
The
President
.
The President shall, together with the Chief
Executive Officer and subject to the control of the Board, have general and
active management and control of the business and affairs of the Corporation
and
shall see that all orders and resolutions of the Board are carried into
effect. The President shall perform all duties incident to the office
of President and all such other duties as may from time to time be assigned
to
him by the Board or these Bylaws.
Section
4.08
The
Chief Operating Officer
.
The Chief Operating Officer
shall, subject to the control of the Board, the Chief Executive Officer and
the
President, have general and active management and control of the operation
of
the business of the Corporation and shall see that all orders and resolutions
of
the Board, the Chief Executive Officer and the President are carried into
effect. The Chief Operating Officer shall perform all duties incident
to the office of Chief Operating Officer and all such other duties as may from
time to time be assigned to him by the Board or these Bylaws.
Section
4.09
Vice
Presidents
.
Vice Presidents of the Corporation (“
Vice
Presidents
”), if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Chief Executive Officer,
the
President and the Chief Operating Officer perform such other duties as the
Board
or the President shall prescribe, and in the absence or disability of all
persons holding the title of Chief Executive Officer or of President or the
Chief Operating Officer, shall perform the duties and exercise the powers of
the
Chief Executive Officer, the President or the Chief Operating Officer, as the
case may be.
Section
4.10
The
Secretary
.
The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of stockholders
and shall record all votes and the minutes of all proceedings in a book to
be
kept for that purpose, and shall perform the same duties for any committee
of
the Board when so requested by such committee. He shall give or cause
to be given notice of all meetings of stockholders and of the Board, shall
perform such other duties as may be prescribed by the Board, the Chairman,
the
Chief Executive Officer or the President, under whose supervision he shall
act. He shall keep in safe custody the seal of the Corporation and
affix the same to any instrument that requires that the seal be affixed to
it
and which shall have been duly authorized for signature in the name of the
Corporation and, when so affixed, the seal shall be attested by his signature
or
by the signature of the Chief Financial Officer of the Corporation or an
Assistant Secretary or Assistant Financial Officer of the
Corporation. He shall keep in safe custody the certificate books and
stockholder records and such other books and records of the Corporation as
the
Board, the Chairman, the Chief Executive Officer or the President may direct
and
shall perform all other duties incident to the office of Secretary and such
other duties as from time to time may be assigned to him by the Board, the
Chairman, the Chief Executive Officer or the President.
Section
4.11
Assistant
Secretaries
.
Assistant Secretaries of the Corporation
(“
Assistant Secretaries
”), if any, in order of their seniority or in any
other order determined by the Board, shall generally assist the Secretary and
perform such other duties as the Board or the Secretary shall prescribe, and,
in
the absence or disability of the Secretary, shall perform the duties and
exercise the powers of the Secretary.
Section
4.12
The
Chief Financial Officer
.
The Chief Financial Officer
shall have the care and custody of all the funds of the Corporation and shall
deposit such funds in such banks or other depositories as the Board, or any
officer or officers, or any officer and agent jointly, duly authorized by the
Board, shall, from time to time, direct or approve. He shall disburse
the funds of the Corporation under the direction of the Board, the Chairman,
the
Chief Executive Officer or the President. He shall keep a full and
accurate account of all moneys received and paid on account of the Corporation
and shall render a statement of his accounts whenever the Board, the Chairman,
the Chief Executive Officer or the President shall so request. He
shall perform all other necessary actions and duties in connection with the
administration of the financial affairs of the Corporation and shall generally
perform all the duties usually appertaining to the office of treasurer of a
corporation. When required by the Board, he shall give bonds for the
faithful discharge of his duties in such sums and with such sureties as the
Board shall approve.
Section
4.13
Assistant
Financial Officers
.
Assistant Financial Officers of the
Corporation, if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Chief Financial Officer
and
perform such other duties as the Board or the Chief Financial Officer shall
prescribe, and, in the absence or disability of the Chief Financial Officer,
shall perform the duties and exercise the powers of the Chief Financial
Officer.
Section
5.01
Execution
of Documents
.
The Chairman, the Chief Executive Officer,
the President and the Chief Operating Officer, and the officers, employees
and
agents of the Corporation designated by the Board (or any duly authorized
committee thereof to the extent permitted by law), shall have power to execute
and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts
and
other orders for the payment of money and other documents for and in the name
of
the Corporation, and each such officer, employee and agent, without further
action by the Board, may delegate such power (including authority to redelegate)
by any means, written or oral, to other officers, employees or agents of the
Corporation; and, unless so designated or expressly authorized by these Bylaws,
no officer or agent or employee shall have any power or authority to bind the
Corporation by any contract or engagement or to pledge its credit or to render
it liable pecuniarily for any purpose or to any amount.
Section
5.02
Deposits
.
All
funds of the Corporation not otherwise employed shall be deposited from time
to
time to the credit of the Corporation or otherwise as the Board, or any officer
of the Corporation to whom power in this respect shall have been given by the
Board, shall direct.
Section
5.03
Proxies
in Respect of Stock or Other Securities of Other
Corporations
.
The Board shall designate the officers of
the Corporation who shall have authority from time to time to appoint an agent
or agents of the Corporation to exercise in the name and on behalf of the
Corporation the powers and rights that the Corporation may have as the holder
of
stock or other securities in any other corporation, and to vote or consent
in
respect of such stock or securities. Such designated officers may
instruct the person or persons so appointed as to the manner of exercising
such
powers and rights, and such designated officers may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate
seal, or otherwise, such written proxies, powers of attorney or other
instruments as they may deem necessary or proper in order that the Corporation
may exercise such powers and rights.
Section
6.01
Certificates
Evidencing Shares
.
Shares of stock of the Corporation
may be certificated or uncertificated, as provided under the General Corporation
Law. Every owner of shares of stock of the Corporation, upon written
request to the transfer agent or registrar of the Corporation, shall be entitled
to a physical certificate certifying the number and class of shares of stock
of
the Corporation owned by him, which certificate shall be in such form as may
be
prescribed by the Board. Certificates shall be issued in consecutive
order and shall be numbered in the order of their issue, and shall be signed
by
the Chairman, the Chief Executive Officer, the President, the Chief Operating
Officer or any Vice President and by the Secretary, any Assistant Secretary,
the
Chief Financial Officer or any Assistant Financial Officer. Any or
all signatures on such certificate may be a facsimile. In the event
any such officer who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to hold such office or to be employed
by
the Corporation before such certificate is issued, such certificate may be
issued by the Corporation with the same effect as if such officer had held
such
office on the date of issue.
Section
6.02
Stock
Ledger
.
A stock ledger in one or more counterparts shall
be kept by the Secretary, in which shall be recorded (i) the name and address
of
each person, firm or corporation owning the shares issued by the Corporation,
(ii) the number of shares of stock held by such person, firm or corporation,
(iii) the date of issuance thereof and, (iv) in the case of cancellation, the
date of cancellation. Except as otherwise expressly required by law,
the person in whose name shares of stock stand on the stock ledger of the
Corporation shall be deemed the owner and record holder thereof for all purposes
as regards the Corporation.
Section
6.03
Transfer
of Shares
.
Registration of transfers of shares of stock
shall be made only in the stock ledger of the Corporation upon request of the
registered holder of such shares, or of his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, and
(a)
if
such
shares are represented by a physical certificate, upon the surrender of such
certificate or certificates evidencing such shares properly endorsed or
accompanied by a stock power duly executed, or
(b)
if
such
shares are uncertificated, upon proper instructions from the registered holder
of such shares.
In
either
case, the registered holder of such shares shall provide such proof of the
authenticity of the signatures as the Corporation may reasonably
require.
Section
6.04
Addresses
of Stockholders
.
Each stockholder shall designate to the
Secretary an address at which notices of meetings and all other corporate
notices may be served or mailed to such stockholder, and, if any stockholder
shall fail to so designate such an address, corporate notices may be served
upon
such stockholder by mail directed to the mailing address, if any, as the same
appears in the stock ledger of the Corporation or at the last known mailing
address of such stockholder.
Section
6.05
Lost,
Destroyed, Stolen and Mutilated Certificates
.
A holder
of shares of stock of the Corporation shall promptly notify the Corporation
of
any loss, destruction or mutilation of any physical certificate or certificates
evidencing all or any such shares of stock. The Corporation may issue
a duplicate certificate or uncertificated shares in place of any certificate
theretofore issued by it and alleged to have been mutilated, lost, stolen or
destroyed, upon the surrender of the mutilated certificate or, in the case
of
loss, theft or destruction of the certificate, upon satisfactory proof of such
loss, theft or destruction;
provided
,
however
, that if such
shares have ceased to be certificated, a new certificate shall be issued only
upon written request to the transfer agent or registrar of the
Corporation. The Corporation may, in its discretion, require the
record holder of the shares of stock evidenced by the lost, stolen or destroyed
certificate or his legal representative to give the Corporation a bond
sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or
the
issuance of such duplicate certificate or uncertificated shares.
Section
6.06
Regulations
.
The
Corporation may make such other rules and regulations as it may deem expedient,
not inconsistent with these Bylaws, concerning the issue, transfer and
registration of certificates evidencing shares of stock of the
Corporation.
Section
6.07
Fixing
Date for Determination of Stockholders of Record
.
In
order that the Corporation may determine the stockholders entitled to notice
of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to, or to dissent from, corporate action, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board may fix,
in
advance, a record date, which shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other such
corporate action. A determination of the stockholders entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of such meeting;
provided, however
, that the Board may fix a new record
date for the adjourned meeting.
Section
7.01
Seal
.
The
Board may approve and adopt a corporate seal, which shall be in the form of
a
circle and shall bear the full name of the Corporation, the year of its
incorporation and the words “Corporate Seal Delaware”.
Section
8.01
Fiscal
Year
.
The fiscal year of the Corporation shall end on
the Saturday nearest January 31 of each year unless changed by resolution of
the
Board.
(a)
The
Corporation shall indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than
an action by or in the right of the Corporation) by reason of the fact that
he
is or was a director, officer, employee or agent of the Corporation, or is
or
was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction,
or
upon a plea of
nolo contendere
or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests
of
the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
(b)
The
Corporation shall indemnify any person who was or is a party or is threatened
to
be made a party to any threatened, pending or completed action or suit by or
in
the right of the Corporation to procure a judgment in its favor by reason of
the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner
he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any
claim, issue or matter as to which such person shall have been adjudged to
be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit
was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court
of
Chancery or such other court shall deem proper.
(c)
To
the
extent that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 9.01(a) and (b) of these Bylaws, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection therewith.
(d)
Any
indemnification under Section 9.01(a) and (b) of these Bylaws (unless
ordered by a court) shall be made by the Corporation only as authorized in
the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met
the
applicable standard of conduct set forth in Section 9.01(a) and (b) of
these Bylaws. Such determination shall be made (i) by a majority
vote of directors who are not parties to such action, suit or proceeding even
though less than a quorum, or (ii) if there are no such directors, if such
directors so direct, by independent legal counsel in a written opinion, or
(iii) by the stockholders of the Corporation.
(e)
Expenses
(including attorneys’ fees) incurred by an officer or director in defending any
civil, criminal, administrative or investigative action, suit or proceeding
may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation pursuant to this
Article IX. Such expenses (including attorneys’ fees) incurred
by other employees and agents may be so paid upon such terms and conditions,
if
any, as the Board deems appropriate.
(f)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
other Sections of this Article IX shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any law, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in an official capacity
and as to action in another capacity while holding such office.
(g)
For
purposes of this Article IX, references to “the Corporation” shall include,
in addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority
to
indemnify its directors, officers, employees or agents so that any person who
is
or was a director, officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the
provisions of this Article IX with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its
separate existence had continued.
(h)
For
purposes of this Article IX, references to “other enterprises” shall
include employee benefit plans; references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to “serving at the request of the Corporation” shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves service by, such director, officer, employee
or
agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred to in this Article
IX.
(i)
The
indemnification and advancement of expenses provided by, or granted pursuant
to,
this Article IX shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section
9.02
Insurance
for Indemnification
.
The Corporation may purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against him and incurred by him in any such capacity, or arising out
of
his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of Section 145 of
the General Corporation Law.
Section
10.01
Amendments
.
These
Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws
may be adopted, either by the Board or by the stockholders of the Corporation
upon the affirmative vote of the holders of at least 66-2/3% of the outstanding
capital stock entitled to vote thereon.
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