§ 7.402PROXY STATEMENTS: STRATEGY & FORMS
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EXHIBIT D
BY-LAWS
OF
THACKERAY CORPORATION
(A Delaware Corporation)
ARTICLE I
S TOCKHOLDERS
1. C ERTIFICATES REPRESENTING STOCK . Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of, the corporation by the Chairman or Vice-Chai rman of the Board of
Directors, if any, or by the President or a Vice-President and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the corporation certifying the number of shares owned by him in the
corporation. Any and all signatures on any such certificate may be facsimiles. In case a ny officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon a certifica te shall have ceased to
be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.
Whenever the corporation shall be authorized to issue more than one class of stock or more than one series
of any class of stock and whenever the corporation shall issue any shares of its stock as part ly paid stock, the
certificate representing shares of any such class or series or of any such partly paid stoc k shall set forth thereon
the statements prescribed by the General Corporation Law. Any restrictions on the tra nsfer or registration of
transfer of any shares of stock of any class or series shall be noted conspicuously on the certifi cate representing
such shares.
The corporation may issue a new certificate of stock in place of any certific ate theretofore issued by it,
alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of any lost,
stolen, or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify
the corporation against any claim that may be made against it on account of t he alleged loss, theft, or
destruction of any such certificate or the issuance of any such new certificate.
2. F RACTIONAL SHARE INTERESTS . The corporation may, but shall not be required to, issue fractions of a
share. If the corporation does not issue fractions of a share, it shall (1) arrange for the dispositi on of fractional
interests by those entitled thereto, (2) pay in cash the fair value of fractions of a sha re as of the time when those
entitled to receive such fractions are determined, or (3) issue scrip or warrants in re gistered or bearer form
which shall entitle the holder to receive a certificate for a full share upon t he surrender of such scrip or warrants
aggregating a full share. A certificate for a fractional share shall, but scrip or warrant s shall not unless otherwise
provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in
any of the assets of the corporation in the event of liquidation. The Board of Directors ma y cause scrip or
warrants to be issued subject to the conditions that they shall become void if not e xchanged for certificates
representing full shares before a specificed date, or subject to the conditions that the shares for which scrip or
warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of
scrip or warrants, or subject to any other conditions which the Board of Directors may impose.
3. S TOCK TRANSFERS . Upon compliance with provisions restricting the transfer or registration of transfer
of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made
only on the stock ledger of the corporation by the registered holder thereof, or by his attorney the reunto
authorized by power of attorney duly executed and filed with the Secretary of the corporati on or with a transfer
agent or a registrar, if any, and on surrender of the
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certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon.
4. R ECORD DATE FOR STOCKHOLDERS . For the purpose of determining the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjounment thereof, or to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any dividend or ot her distribution or the
allotment of any rights, or entitled to exercise any rights in respect of any cha nge, conversion, or exchange of
stock or for the purpose of any other lawful action, the directors may fix, in advance, a record date, which shall
not be more than sixty days nor less than ten days before the date of such meeting, nor more t han sixty days
prior to any other action. If no record date is fixed, the record date for determining stockholde rs entitled to
notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held; the record date for determining stockholders entitl ed to express consent to
corporate action in writing without a meeting, when no prior action by the Board of Dire ctors is necessary, shall
be the day on which the first written consent is expressed; and the record date for determ ining stockholders for
any other purpose shall be at the close of business on the day on which the Board of Direct ors adopts the
resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at any
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that t he Board of
Directors may fix a new record date for the adjourned meeting.
5. M EANING OF CERTAIN TERMS . As used herein in respect of the right to notice of a meeting of
stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a
meeting, as the case may be, the term “share” or “shares” or “share of stock” or “ shares of stock” or
“stockholder” or “stockholders” refers to an outstanding share or shares of stock and to a holder or holders of
record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of
stock, and said reference is also intended to include any outstanding share or shares of st ock and any holder or
holders of record of outstanding shares of stock of any class upon which or upon whom the certificate of
incorporation confers such rights where there are two or more classes or series of shares of stock or upon which
or upon whom the General Corporation Law confers such rights notwithstanding that the certificat e of
incorporation may provide for more than one class or series of shares of stock, one or more of which are limited
or denied such rights thereunder; provided, however, that no such rights shall vest in the event of an increase or
a decrease in the authorized number of shares of stock of any class or series which i s otherwise denied voting
rights under the provisions of the certificate of incorporation.
6. S TOCKHOLDER MEETINGS .
—Time. The annual meeting shall be held on the date and at the time fixed, from ti me to time, by the
directors, provided, that the first annual meeting shall be held on a date within thi rteen months after the
organization of the corporation, and each successive annual meeting shall be held on a date within thirteen
months after the date of the preceding annual meeting. A special meeting shall be held on the date and at the
time fixed by the directors.
—Place. Annual meetings and special meetings shall be held at such place, within or without the State of
Delaware, as the directors may, from time to time, fix. Whenever the directors sha ll fail to fix such place, the
meeting shall be held at the registered office of the corporation in the State of Delaware.
—Call. Annual meetings and special meetings may be called by the directors or by any offic er instructed by
the directors to call the meeting.
—Notice or Waiver of Notice. Written notice of all meetings shall be given, stating the place, date, and hour
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of the meeting and stating the place within the city or other municipality or community at which the list of
stockholders of the corporation may be examined. The notice of an annual meeting
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shall state that the meeting is called for the election of directors and for the transaction of other business which
may properly come before the meeting, and shall, if any other action which could be ta ken at a special meeting
is to be taken at such annual meeting, state the purpose or purposes. The notice of a special meeting shall in all
instances state the purpose or purposes for which the meeting is called. The notice of any meeting shall also
include, or be accompanied by, any additional statements, information, or documents prescribed by the General
Corporation Law. Except as otherwise provided by the General Corporation Law, a copy of the noti ce of any
meeting shall be given, personally or by mail, not less than ten days nor more than sixty days before the date of
the meeting, unless the lapse of the prescribed period of time shall have been waived, and directed to each
stockholder at his record address or at such other address which he may have furnished by request in writing to
the Secretary of the corporation. Notice by mail shall be deemed to be given when deposi ted, with postage
thereon prepaid, in the United States Mail. If a meeting is adjourned to another tim e, not more than thirty days
hence, and/or to another place, and if an announcement of the adjourned time and/or pla ce is made at the
meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after
adjournment, fix a new record date for the adjourned meeting. Notice need not be given to any stockholder who
submits a written waiver of notice signed by him before or after the time stated therein. Attendance of a
stockholder at a meeting of stockholders shall constitute a waiver of notice of such me eting, except when the
stockholder attends the meeting for the express purpose of objecting, at the beginning of t he meeting, to the
transaction of any business because the meeting is not lawfully called or convened. Nei ther the business to be
transacted at, nor the purpose of, any regular or special meeting of the stockholders need be specified in any
written waiver of notice.
—Stockholder List. The officer who has charge of the stock ledger of the corporation shall prepare and
make, at least ten days before every meeting of stockholders, a complete list of t he stockholders, arranged in
alphabetical order, and showing the address of each stockholder and the number of shares registe red in the name
of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to
the meeting, during ordinary business hours, for a period of at least ten days prior to the me eting, either at a
place within the city or other municipality or community where the meeting is to be held, which place shall be
specified in the notice of the meeting, or if not so specified, at the place whe re the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this section or the books of the
corporation, or to vote at any meeting of stockholders.
—Conduct of Meeting. Meetings of the stockholders shall be presided over by one of the following officers
in the order of seniority and if present and acting—the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, the President, a Vice-President, or, if none of the foregoing is in office and present and acting, by
a chairman to be chosen by the stockholders. The Secretary of the corporation, or in his a bsence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secreta ry nor an Assistant Secretary is
present the Chairman of the meeting shall appoint a secretary of the meeting.
—Proxy Representation. Every stockholder may authorize another person or persons to act for him by proxy
in all matters in which a stockholder is entitled to participate, whether by wa iving notice of any meeting, voting
or participating at a meeting, or expressing consent or dissent without a meeting. E very proxy must be signed by
the stockholder or by his attorney-in-fact. No proxy shall be voted or acted upon after three yea rs from its date
unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it st ates that it is
irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest with which it i s coupled is an
interest in the stock itself or an interest in the corporation generally.
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—Inspectors. The directors, in advance of any meeting, may, but need not, appoint one or more inspectors
of election to act at the meeting or any adjournment thereof. If an inspector or inspectors
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are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or act, the va cancy may be filled by
appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat.
Each inspector, if any, before entering upon the discharge of his duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability.
The inspectors, if any, shall determine the number of shares of stock outstanding and the voti ng power of each,
the shares of stock represented at the meeting, the existence of a quorum, the validi ty and effect of proxies, and
shall receive votes, ballots or consents, hear and determine all challenges and que stions arising in connection
with the right to vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as
are proper to conduct the election or vote with fairness to all stockholders. On request of t he person presiding at
the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question or
matters determined by him or them and execute a certificate of any fact found by him or them.
—Quorum. The holders of a majority of the outstanding shares of stock shall constitute a quorum at a
meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting
despite the absence of a quorum.
—Voting. Each share of stock shall entitle the holder thereof to one vote. In the election of directors, a
plurality of the votes cast shall elect. Any other action shall be authorized by a majority of the votes cast except
where the General Corporation Law prescribes a different percentage of votes and/or a diffe rent exercise of
voting power, and except as may be otherwise prescribed by the provisions of the certificate of incorporation or
these By-Laws.
7. S TOCKHOLDER ACTION WITHOUT MEETINGS . Any action required by the General Corporation Law to be
taken at any annual or special meeting of stockholders, or any action which may be t aken at any annual or
special meeting of stockholders, 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 the holders of outst anding stock having
not less than the minimum number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall be gi ven to those stockholders
who have not consented in writing.
ARTICLE IID IRECTORS
1. F UNCTIONS AND DEFINITION . The business and affairs of the corporation shall be managed by or under
the direction of the Board of Directors of the corporation. The Board of Directors shall have the authority to fix
the compensation of the members thereof. The use of the phrase “whole board” herein refers to the total number
of directors which the corporation would have if there were no vacancies.
2. Q UALIFICATIONS AND NUMBER . A director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The initial Board of Directors shall consist of el even persons. Except for the
first Board of Directors, the number of directors may be fixed from time to time by action of the stockholders or
of the directors, or, if the number is not fixed, the number shall be eleven. The number of directors may be
increased or decreased by action of the stockholders or of the directors.
3. E LECTION AND TERM . The first Board of Directors, unless the members thereof shall have been named in
the certificate of incorporation, shall be elected by the incorporator or incorporators and shall hold office until
the first annual meeting of stockholders and until their successors are elected and qualified or until their earlier
resignation or removal. Any director may resign at any time upon written notice to the corporation. Thereafter
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directors who are elected at an annual meeting of
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stockholders, and directors who are elected in the interim to fill vacancies and newly c reated directorships, shall
hold office until the next annual meeting of stockholders and until their successors are el ected and qualified or
until their earlier resignation or removal. In the interim between annual meetings of stockholders or of special
meetings of stockholders called for the election of directors and/or for the removal of one or more directors and
for the filling of any vacancies in that connection, newly created directorships and any vacancies in the Board of
Directors, including unfilled vacancies resulting from the removal of directors for cause or without cause, may
be filled by the vote of a majority of the remaining directors then in office although less than a quorum, or by
the sole remaining director.
4. M EETINGS .
—Time. Meetings shall be held at such time as the Board shall fix, except that the first meeting of a newly
elected Board shall be held as soon after its election as the directors may conveniently assemble.
—Place. Meetings shall be held at such place within or without the State of Delaware as shall be fixed by
the Board.
—Call. No call shall be required for regular meetings for which the time and place have be en fixed. Special
meetings may be called by or at the direction of the Chairman of the Board, if any, of the Vice-Chairman of the
Board, if any, of the President, or of a majority of the directors in office.
—Notice or Actual or Constructive Waiver. No notice shall be required for regular meetings for which the
time and place have been fixed. Written, oral, or any other mode of notice of t he time and place shall be given
for special meetings in sufficient time for the convenient assembly of the directors thereat. Notice need not be
given to any director or to any member of a committee of directors who submits a written waiver of notice
signed by him before or after the time stated therein. Attendance of any such person at a meeting shall constitute
a waiver of notice of such meeting, except when he attends a meeting for the express purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the
directors need be specified in any written waiver of notice.
—Quorum and Action. A majority of the whole Board shall constitute a quorum except when a vacancy or
vacancies prevents such majority, whereupon a majority of the directors in office shall const itute a quorum,
provided, that such majority shall constitute at least one-third of the whole Board. A majority of the directors
present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as herein
otherwise provided, and except as otherwise provided by the General Corporation Law, the vote of the majority
of the directors present at a meeting at which a quorum is present shall be the ac t of the Board. The quorum and
voting provisions herein stated shall not be construed as conflicting with any provisions of the General
Corporation Law and these By-Laws which govern a meeting of directors held to fill vacanc ies and newly
created directorships in the Board or action of disinterested directors.
—Chairman of the Meeting. The Chairman of the Board, if any and if present and acting, shall preside at all
meetings. Otherwise, the Vice-Chairman of the Board, if any and if present and acting, or the President, if
present and acting, or any other director chosen by the Board, shall preside.
5. R EMOVAL OF DIRECTORS . Except as may otherwise be provided by the General Corporation Law, any
director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
6. C OMMITTEES . The Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of one or more of t he directors of the corporation.
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The Board may designate one or more directors as alternate members of any committ ee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or disqualification of any
member of any such committee or committees, the member or
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members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place
of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the
Board, shall have and may exercise the powers and authority of the Board of Directors in the management of
the business and affairs of the Corporation with the exception of any authority the delegat ion of which is
prohibited by Section 141 of the General Corporation Law, and may authorize the seal of t he corporation to be
affixed to all papers which may require it.
7. W RITTEN ACTION . Any action required or permitted to be taken at any meeting of the Board of Dire ctors
or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing, and the writing or writings are filed with the m inutes of proceedings of the
Board or committee.
8. T ELEPHONE MEETINGS . Any one or more members of the Board of Directors or any committee thereof
may participate in a meeting of the Board of Directors or any such committee, as the case may be, by means of
conference telephone or similar communications equipment allowing all persons participa ting in the meeting to
hear each other at the same time. Participation shall constitute presence in person at a meet ing.
ARTICLE III O OFFICERS
1. N UMBER . The officers of the corporation shall be a Chairman of the Board, a President, one or more
Vice Presidents (the number thereof to be determined by the Board of Directors), a Secretary and a Treasurer,
each of whom shall be elected by the Board of Directors. Such other officers and assistant officers as may be
deemed necessary may be elected or appointed by the Board of Directors. Any number of offi ces may be held
by the same person. The President may but need not be chosen from among the directors.
2. E LECTION AND TERM OF O FFICE . The officers of the Corporation to be elected by the Board of Directors
shall be elected annually at the first meeting of the Board of Directors followi ng the annual election of directors.
If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may
be convenient. Each officer shall hold office until his successor shall be duly elect ed and qualified or until his
death or until he shall resign or shall have been removed in the manner hereinafter provided.
3. R EMOVAL OF OFFICERS . Any officer may be removed, either with or without cause, by the vote of a
majority of the whole Board of Directors at a special meeting called for the purpose or, except in case of any
officer elected by the Board of Directors, by any superior officer upon whom the power of removal ma y be
conferred by the Board of Directors or by these By-Laws.
4. V ACANCIES . A vacancy in any office resulting from death, resignation, removal, or any othercause, may
be filled by the Board of Directors for the unexpired portion of the term.
5. C HAIRMAN OF THE BOARD . Subject to the control of the Board of Directors, the Chairman of the Board
shall be the chief executive officer of the corporation, shall preside at all me etings of the stockholders and of the
Board of Directors at which he is present and shall have executive authority with respec t to the management of
the affairs and policies of the corporation, including all powers and authority which, by custom and usage,
ordinarily are inherent in and incident to the office of the chief executive officer of the corporation.
6. T HE PRESIDENT . Subject to the control of the Board of Directors and the Chairman of the Board, the
President shall be the chief operating officer of the corporation and shall have overall re sponsibility and
authority for the general management of the operations of the corporation, including such powers a nd authority
which, by custom and usage, ordinarily are inherent in and incident to the office of the chief operating officer,
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except as the same specifically may be limited by resolution of the Board of Directors.
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7. THE VICE PRESIDENTS . Each Vice President (or Executive Vice President, if any) shall have such powers
and perform such duties as the Board of Directors may determine or as may be assigned to hi m by the Chairman
of the Board or the President. In the absence of the President or in the event of his deat h, or inability or refusal
to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order
designated at the time of their election, or in the absence of any designation, t hen in the order of their election)
shall perform the duties of the President, and when so acting, shall have all the powers and be subject to all the
restrictions upon the President.
8. T HE SECRETARY . The Secretary shall (a) keep the minutes of the meetings of the stockholders, the Board
of Directors, and other committees thereof of which a secretary shall not have been a ppointed, on one or more
books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of
these By-Laws and as required by law; (c) be custodian of the corporate records and of the seal of the
corporation and see that the seal of the corporation is affixed to all documents, the execution of which on behalf
of the corporation under its seal is duly authorized; (d) be in charge of the stock ledger of the corporation; and
(e) in general perform all duties incident to the office of Secretary and such other dut ies as from time to time
may be assigned to him by the Chairman of the Board, the President or by the Board of Directors.
9. T HE TREASURER . The Treasurer shall have charge and custody of and be responsible for (a) all funds and
securities of the corporation; (b) the receipt for moneys due and payable to the corporati on from any source
whatsoever; (c) the deposit of all such moneys in the name of the corporation in banks, trust companies or other
depositaries; and (d) in general perform all duties incident to the office of Treasurer and such other duties as
from time to time may be assigned to him by the Chairman of the Board, the Presi dent or by the Board of
Directors.
10. A SSISTANT SECRETARIES AND ASSISTANT TREASURERS . At the request of the Secretary or in his
absence or disability, one or more Assistant Secretaries designated by the Board of Dire ctors shall have all the
powers of the Secretary. At the request of the Treasurer or in his absence or disability, one or more Assistant
Treasurers designated by the Board of Directors shall have all the powers of the Treasurer. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform such duties as shall be assigne d to them by the
Secretary or the Treasurer, respectively, or by the Chairman of the Board, the President or the Board of
Directors.
ARTICLE IV
I NDEMNIFICATION OF D IRECTORS , O FFICERS , E MPLOYEES ANY AGENTS
1. T HIRD PARTY ACTIONS .
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, or appeal therefrom whether c ivil, criminal,
administrative, investigative or otherwise (other than any 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 corporati on, or at the express or implied
request of the corporation is or was serving as a director, officer, employee, agent or trustee of (or is or was
serving in any other capacity) another corporation or a partnership, joint venture, trust or othe r enterprise
(including without limitation any affiliated 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 interest of the corporati on, and with respect to
any criminal action or proceeding had no reasonable cause to believe his conduct was unlawful.
2. D ERIVATIVE ACTIONS .
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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 or appe al therefrom to
procure a judgment in its favor by reason of the fact that he is or was a director, office r, employee or agent of
the corporation, or at the express or implied request of the corporation
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is or was serving as a director, officer, employee, agent or trustee of (or is or was serving in any other capacity)
another corporation or a partnership, joint venture, trust or other enterprise (including without l imitation any
affiliated corporation, partnership, joint venture, trust or other enterprise), against expenses (including
attorneys’ fees and amounts paid in settlement) actually and reasonably incurred by hi m in connection with the
defense or settlement of such action or suit if he acted in good faith and in a m anner he reasonably believed to
be in or not opposed to the best interests of the corporation; provided, however, that no person shall be entitled
to indemnification under this Section 2 in respect of any claim, issue or matter a s to which such person shall
have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which such action was brought shall dete rmine upon application
that, despite the adjudication of liability but in view of all the circumsta nces of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall deem proper.
3. S UCCESSFUL DEFENSE .
To the extent that a director, officer, employee or agent has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Section 1 or 2 of this Article IV, or in defense of any
claim, issue or matter therein, such determination shall constitute conclusive e vidence of such person’s right to
be indemnified against expenses (including attorneys’ fees) actually and reasonably incurre d by him in
connection therewith, and the chairman of the board or the president or a vice president of the corporation shall
direct the reimbursement of all such expenses to such person.
4. D ETERMINATION OF PROPRIETY OF INDEMNIFICATION .
No person seeking indemnification under Section 1 or 2 of this Article IV shall be denied suc h
indemnification unless the board of directors or the stockholders determine in good faith or i ndependent legal
counsel for the corporation opines in writing that the standards set forth therein have not bee n met. The
corporation in a specific case also may determine that the indemnification of a ny other person is proper in the
circumstances because such person has met the applicable standard of conduct set forth in Sections 1 or 2 of this
Article IV or may provide for additional indemnification and rights to any person (including without limitation
those persons referred to in Sections 1 and 2 of this Article IV), in each case except as otherwise ordered by a
court or prohibited by law. Such determination shall be made (i) by the board of directors by a majority vote of
a quorum consisting of disinterested directors, or (ii) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal counsel in a written opini on, or (iii) by the
stockholders.
5. A DVANCES .
The corporation may pay expenses of any director, officer, agent or employee incurred in defendi ng any
action, suit or proceeding, or appeal therefrom whether civil, criminal, administrati ve, investigative or
otherwise, in advance of the final disposition of any such action, suit or proceeding by determ ination of the
board of directors that such advance is appropriate; provided the corporation receives an unde rtaking by or on
behalf of the director, officer, employee or agent involved to repay such amount unless it shal l ultimately be
determined that such person or entity is entitled to be indemnified by the corporation.
6. N ON-EXCLUSIVITY .
The indemnification and powers set forth in this Article IV shall be in addition to and the foregoing shall not
be deemed exclusive of (i) any other powers of the corporation under the certificate of inc orporation or
applicable law, or (ii) any other rights to which any person may be entitled, under any statute, certificate or
articles of incorporation, by-law, agreement, vote of stockholders or disinterested directors, or ot herwise, both
as to action in his official capacity and as to action in another capa city at the direction or express or implied
request of the corporation while holding such position. Any and all rights of any person hereunder shall
continue as to a person who has ceased to be director, officer, employee or agent and sha ll inure to the benefit
§ 7.402PROXY STATEMENTS: STRATEGY & FORMS
7-682 © 1985 Jefren Publishing Company, Inc.
of the heirs, executors and administrators of such person.
CORPORATE RESTRUCTURING§ 7.402
7-683
7. AMENDMENTS .
The foregoing provisions of this Article IV shall be deemed to constitute an agreeme nt between the
corporation and each of the persons entitled to indemnification hereunder, for as long as such provisions remain
in effect. Any amendment to the foregoing provisions of this Article IV which limits or othe rwise adversely
affects the scope of indemnification or rights of any such persons hereunder shall, as to such persons, apply only
to claims arising, or causes of action based on actions or events occurring, after such amendment and delivery
of notice of such amendment to the person or persons so affected. Until notice of such amendme nt is given to
the person or persons whose rights hereunder are adversely affected, such amendment shall have no effect on
such rights of such persons hereunder. Any person entitled to indemnification under the foregoing provisions of
this Article IV shall as to any act or omission occurring prior to the date of rece ipt of such notice, be entitled to
indemnification to the same extent as had such provisions continued as by-laws of the corporati on without such
amendment.
8. I NSURANCE .
The corporation may purchase and maintain insurance on behalf of any person who is or was a di rector,
officer, employee or agent of the corporation, or is or was serving at the express or implied re quest of the
corporation as a director, officer, employee, agent or trustee of another corporation or a partne rship, joint
venture, trust or other enterprise (including without limitation affiliates of the corporat ion), 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 this
Article IV or of Section 145 of the General Corporation Law of the State of Delaware.
9. E FFECT OF R EORGANIZATION .
For the purposes of this Article IV references to “the corporation” shall include in additi on to the resulting
corporation, any constituent corporation (including any constituent of a constituent corporation) a bsorbed in a
consolidation or merger which, if its separate existence had continued, would have had power a nd authority to
indemnify its directors, officers, employees or agents, so that any person who is or was a direc tor, officer,
employee or agent of such constituent corporation, or is or was serving at the request of such c orporation as a
director, officer, employee, agent or trustee of another corporation or a partnership, joint vent ure, trust or other
enterprise, shall stand in the same position under the provisions of this Article IV with re spect to the resulting or
surviving corporation as he would have with respect to such constituent corporation if its sepa rate existence had
continued.
10. P RESUMPTIONS .
The termination of any action, suit or proceeding by judgment, order, settlement, convi ction or upon a plea
of nolo contendere or its equivalent, shall not of itself create a presumption tha t the person seeking
indemnification did not act in good faith and in a manner which he reasonably believed to be in or not opposed
to the best interest of the corporation, or with respect to any criminal action or proceeding, a presumption that
the person had reasonable cause to believe that his conduct was unlawful.
11. S EVERABILITY .
If any part of this Article IV shall be found, in any action, suit or proceeding or appeal there from or in any
other circumstances or as to any particular officer, director, employee or agent to be unenforceable, ineffective
or invalid for any reason, the enforceability, effect and validity of the remaining parts or of such parts in other
circumstances shall not be affected, except as otherwise required by applicable law.
ARTICLE V
§ 7.402PROXY STATEMENTS: STRATEGY & FORMS
7-684 © 1985 Jefren Publishing Company, Inc.
CORPORATE SEAL
The corporate seal shall be in such form as the Board of Directors shall prescribe.
CORPORATE RESTRUCTURING§ 7.403
February/March 19867-677A
ARTICLE VI
F ISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board
of Directors.
ARTICLE VII
C ONTROL OVER BY-L AWS
Subject to the provisions of the certificate of incorporation and the provisions of the General
Corporation Law, the power to amend, alter or repeal these By-Laws and to adopt new B y-Laws
may be exercised by the Board of Directors (pursuant to an affirmative vote of a majorit y of the
directors then in office) or by the stockholders (pursuant to the affirmative vote of the holders of
a majority of the shares of stock outstanding and entitled to vote thereon).
§ 7.403 To convert a Massachusetts corporation into a Massachusetts Business Trust
by means of the purchase of all assets and the assumption of all liabilities of
the corporation by the Massachusetts Business Trust. Reason: to eliminate
the cost of holding stockholders meetings and to reduce certain operating
expenses including a Massachusetts excise tax based on investment income
and capital gains which is imposed on corporations but not on business trusts
(with copies of the Agreement and Plan of Reorganization and Sections 86
through 98 of the Massachusetts General Law concerning appraisal rights)
PROPOSAL 2: REORGANIZATION OF THE CORPORATION AS A MASSACHUSETTS BUSINESS TRUST
On November 13, 1984 the Board of Directors of the Corporation approved a plan whereby
all of the assets, liabilities and operations of the Corporation will be assumed and carried on by
Pioneer II, a Massachusetts business trust to be organized for that purpose (referred to herein as
the “Trust”). It is anticipated, if approved by stockholders, that the reorganization will take place
at the close of business on January 31, 1985. The purpose of the reorganization is only to effect a
change in the form of organization of the Corporation. Following the reorganization there wil l be
no material change in the operations of the Trust from that of the Corporation. The investment
objective, policies and limitations of the Trust following the reorganization will be identical to
those of the Corporation. The net asset value of shares of the Corporation will be unaffected by
the reorganization and the Trust will continue to sell and redeem its shares in the same manner
as the Corporation. The Trust will continue to be commonly known as Pioneer II and the price
of its shares will continue to be published under that name in financial journals and ne wspapers.
Subject to such policies as the Board of Trustees may determine, Pioneering Managem ent will
continue to manage the Trust’s investments and other affairs pursuant to an agreement
substantially identical to the agreement currently in effect between Pioneering Ma nagement and
the Corporation.
The Proposed Reorganization
Reasons for the Reorganization. The Board of Directors of the Corporation has proposed
the reorganization primarily in order to achieve a reduction in certain operating
