HILTON HOTELS CORPORATION

 

BY-LAWS

 

(As Amended Through January 19, 2006)

(Amended March 22, 2007)

 

REGISTERED OFFICE

 

1.             The registered office of Hilton Hotels Corporation in the State of Delaware shall be identical to the office of the Corporation’s registered agent in the City of Dover, County of Kent.  The name of the Corporation’s registered agent in Delaware is United States Corporation Company, with offices currently at 32 Lookerman Square, Suite L-100, Dover, Delaware, or such other location as it may select in the future.

 

2.             The Corporation may also have an office or offices at such other places within and without the State of Delaware as the Board of Directors may from time to time appoint or the business of the Corporation may require.

 

SEAL

 

3.             The corporate seal shall have inscribed thereon the name of the Corporation and the words “Corporate Seal, Delaware 1946.” Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

STOCKHOLDERS’ MEETINGS

 

4.             The annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date, and at such time and place within or without the State of Delaware as may be designated by the Board of Directors.  If the Board of Directors shall take no action to the contrary, the annual meeting of stockholders shall be held on the first Thursday in May in each year if not a legal holiday, and if a legal holiday, then on the next secular day following at 10:00 o’clock a.m., when they shall elect by a plurality vote, by ballot, a Board of Directors and transact such other business as may properly be brought before the meeting.

 

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NOTICE OF STOCKHOLDER BUSINESS

 

5.             At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (c) otherwise properly brought before the meeting by a stockholder. For business to be properly brought before an annual meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation.  To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than 60 days prior to the meeting. A stockholder’s notice to the Secretary shall set forth as to each matter the 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 address, as they appear on the Corporation’s books, of the stockholder proposing such business, (c) the class and number of shares of the Corporation which are beneficially owned by the stockholder, and (d) any material interest of the stockholder in such business.  Notwithstanding anything in the By-Laws to the contrary, no business shall be conducted at an annual meeting except in accordance with the procedures set forth in this By-Law. The Chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this By-Law, and if the Chairman should so determine, the Chairman shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

 

6.             The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person, or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute, by the Certificate of Incorporation or by these By-Laws. In the absence of a quorum, a majority in interest of the stockholders entitled to vote present in person or by proxy, or, if no stockholders entitled to vote are present in person or by proxy, any officer entitled to act as secretary of such meeting, may adjourn the meeting from time to time until a quorum shall be present.

 

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7.             Directors shall be chosen by a plurality of the votes cast at the election.

 

8.             At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to said meeting, unless said instrument provides for a longer period. Each stockholder shall have one vote for each share of stock having voting power, registered in each such stockholder’s name on the books of the Corporation, and except where the transfer books of the Corporation shall have been closed or a date shall have been fixed as a record date for the determination of its stockholders entitled to vote, no share of stock shall be voted on at any election of Directors which shall have been transferred on the books of the Corporation within twenty days next preceding such election of Directors.

 

9.             Written notice of the annual meeting shall be served upon or mailed to each stockholder entitled to vote thereat at such address as appears on the stock books of the Corporation, at least ten days prior to the meeting.

 

10.           A complete list of the stockholders entitled to vote at the ensuing election arranged in alphabetical order, with the residence of each and the number of voting shares held by each, shall be prepared by the Secretary and filed in the office where the election is to be held, at least ten days before every election, and shall at all times be open to the examination of any stockholder during the usual hours for business for a purpose germane to the meeting and during the whole time of said election.

 

11.           Written notice, signed by the Chairman of the Board, the President, any Vice President, the Secretary or the Assistant Corporate Secretary or an Assistant Secretary, of every meeting of stockholders stating the purpose or purposes for which the meeting is called, and the date and time, and the place where it is to be held shall be delivered either personally or by mail, to each stockholder entitled to vote at such meeting not less than ten nor more than fifty days before the meeting, except as otherwise provided by statute.  If mailed, such notice shall be directed to a stockholder at such stockholder’s address as it shall appear on the stock books of the Corporation, unless such stockholder shall have filed with the Secretary a written request that notices intended for such stockholder be mailed to some other address, in which case it shall be mailed to the address designated in such request.

 

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12.           In the absence of a quorum, a majority in interest of the stockholders entitled to vote, present in person or by proxy, or if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside or act as secretary of such meeting, may adjourn the meeting from time to time until a quorum shall be present.

 

13.           The Board of Directors may appoint judges of election to serve at any election of Directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officer at the meeting

 

STOCKHOLDER ACTION

 

14.           Subject to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders.   Subject to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board or the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors Special meetings may be held on such date, and at such time and place within or without the State of Delaware as the Chairman of the Board or the Board of Directors, whomever has called the meeting, shall direct.

 

BOARD OF DIRECTORS

 

15.           (a)           Number, Election and Terms. Except as otherwise fixed by or pursuant to the provisions of Article IV of the Certificate of Incorporation relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect additional Directors under specified circumstances, the number of the Directors of the Corporation shall be not less than ten nor more than twenty, with the exact number of Directors to be fixed from time to time solely by resolution adopted by a majority of the total number of Directors which the Corporation would have if there were no vacancies. The

 

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Directors, other than those who may be elected by the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as determined by the Board of Directors of the Corporation, one class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1986, another class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1987, and another class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1988, with each Director to hold office until his or her successor is duly elected and qualified. At each annual meeting of the stockholders of the Corporation, the successors of the class of Directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election.

 

(b)           Newly created directorships and vacancies. Except as otherwise provided for or fixed by or pursuant to the provisions of Article N of the Certificate of Incorporation relating to the rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect Directors under specified circumstances, newly created directorships resulting from any increase in the number of Directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled only by the affirmative vote of a majority of the remaining Directors then in office, even if less than a quorum of the Board of Directors. Any Director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of Directors in which the new directorship was created or the vacancy occurs and until such Director’s successors shall have been elected and qualified. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.

 

(c)           Removal. Subject to the rights of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect Directors under specified circumstances, any Director may be removed from office, with or without cause, only by the affirmative vote of the holders of 75% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of Directors, voting together as a single class.

 

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(d)           Resignation. Any Director may resign at any time giving written notice of such resignation to the Board of Directors, Chairman of the Board, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein the acceptance of such resignation shall not be necessary to make it effective.

 

MEETINGS OF THE BOARD

 

16.           (a)           The first meeting of each newly-elected Board shall be held at such time and place, either within or without the State of Delaware, as shall be fixed by notice to be given by the Secretary of the Corporation, or at such place and time as shall be fixed by notice to be given by the Secretary of the Corporation, or at such place and time as shall be fixed by the consent in writing of all the Directors.

 

(b)           The Directors may hold their meetings and keep the books of the Corporation, at such place (within or without the States of Delaware and California) as they may from time to time determine.

 

(c)           Regular meetings of the Board may be held without notice at such time and place either within or without the State of Delaware as shall from time to time be determined by the Board.

 

(d)           Special meetings of the Board may be called by the Chairman of the Board or the President on one day’s notice to each Director, either personally or by mail or by telegram; special meetings shall be called by the Chairman of the Board or the President or Secretary in like manner and on like notice on the written request of two Directors.

 

(e)           At all meetings of the Board of Directors when the whole Board consists of an odd number of Directors, a majority of the whole Board of Directors shall be necessary and sufficient to constitute a quorum for the transaction of business and when the whole Board of Directors consists of an even number of Directors, one-half of the number of Directors shall be necessary and sufficient to constitute a quorum for the transaction of business. The act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the

 

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Board of Directors, except as may be otherwise specifically provided by a statute or by the Certificate of Incorporation or by these By-Laws.

 

17.           The property and business of the Corporation shall be managed by its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.

 

COMMITTEES OF DIRECTORS

 

18.           The Board of Directors may, by resolution or resolutions passed by the vote of a majority of the whole Board of Directors in favor thereof, designate one or more committees, each committee to consist of two or more of the Directors of the Corporation, which, to the extent provided in said resolution or resolutions, shall have and may exercise the powers of the Board of Directors in the management of the business and affairs of the Corporation, and may have power to authorize the seal of the Corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Vacancies in the membership of any committee shall be filled by the Board of Directors at a regular meeting or at a special meeting called for that purpose.  At all meetings of committees of the Board of Directors, unless otherwise provided in the committee’s charter, the presence in person or telephonically of at least one half of the committee members shall constitute a quorum for the transaction of business.  The committees shall keep regular minutes of their proceedings and report the same to the Board when required.

 

COMPENSATION OF DIRECTORS

 

19.           Each Director who is not also an officer of the Corporation shall receive such stated annual stipend and such allowance for attendance at each regular or special meeting of the Board or any special or standing committee as shall be fixed from time to time by resolution of the Board, and the expenses of attendance at any such meeting by each Director shall be borne by the Corporation.

 

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OFFICERS OF THE CORPORATION

 

20.           The corporate officers of the Corporation shall be a Chairman of the Board, a Vice Chairman of the Board, a President, one or more Executive Vice Presidents, one or more corporate Senior Vice Presidents, one or more corporate Vice Presidents, a Secretary, a Treasurer and such other corporate officers to hold such offices, with such titles, for such period and have such authority and perform such duties as the Board of Directors may provide by resolution. The Board of Directors may delegate to the President and to any Executive Vice President the power to appoint any divisional Vice Presidents and to prescribe their respective terms of office, authorities and duties, and to establish their compensation.

 

21.           The compensation of all senior officers of the Corporation shall be fixed by the Personnel and Compensation Committee of the Board of Directors. The Chairman of the Board, the President, Vice Chairman, Executive Vice Presidents and corporate Senior Vice Presidents shall be referred to as senior officers.  The compensation of other corporate officers shall be determined by such person or persons to whom such authority is delegated by the Board of Directors from time to time.

 

22.           The corporate officers of the Corporation shall hold office until their successors are chosen and qualified in their stead. If the office of any such officer becomes vacant for any reason, the vacancy shall be filled by the Board of Directors.

 

POWERS AND DUTIES OF OFFICERS OF THE CORPORATION

 

23.           Subject to any resolution of the Board of Directors which may specify otherwise, the powers and duties of the various officers of the Corporation shall be as follows:

 

(a)           The Chairman of the Board of Directors shall preside at all meetings of the Board of Directors, the stockholders and the Executive Committee.

 

(b)           In the absence or incapacity of the Chairman of the Board, the President shall preside at all meetings of the Board of Directors, the stockholders and the Executive Committee.

 

(c)           The President shall be the chief executive officer of the Corporation. Subject to the authority of the Board of Directors, the President shall be responsible for the general management of the business of the Corporation and shall be responsible for implementing the

 

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policies and programs of the Board of Directors. The President shall have the power to appoint such agents and employees as in the President’s judgment may be necessary or proper for the transaction of the business of the Corporation, and shall determine their duties and recommend their compensation.  The President shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. The President shall report to the Board of Directors through the Chairman of the Board.

 

(d)           The Executive Vice Presidents and the Senior Vice Presidents perform such duties as may be delegated or prescribed by the President, the Board of Directors or the Executive Committee of the Corporation.

 

(e)           The Vice Presidents shall perform such duties and have such powers as are from time to time prescribed by the Board of Directors or Executive Committee or as delegated by the President.

 

(f)            The Secretary shall attend all sessions of the Board and all meetings of the Stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board or President, who shall supervise the Secretary. The Secretary shall keep in safe custody the seal of the Corporation and, when authorized by the Board, affix the same to any instrument requiring it and, when so affixed, it shall be attested by or an Assistant Secretary.

 

(g)           The Assistant Corporate Secretary, or the Assistant Secretaries in order of prescribe.

 

(h)           The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the proper vouchers for such disbursements, and shall render to the President and Directors, at transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond (which shall be renewed

 

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every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of this office and for the restoration to the Corporation, in case of the Treasurer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Treasurer’s possession or under the Treasurer’s control belonging to the Corporation.

 

(i)            The Assistant Treasurers in the order of their seniority shall, in the absence or disability of the Treasurer, perform the duties and exercise the powers of the Treasurer and shall perform such other duties as the Board of Directors shall prescribe.

 

CERTIFICATE OF STOCK

 

24.           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 of the Board of Directors or the President, and attested by the Secretary of the Corporation, certifying the number of shares owned by the holder in the Corporation. If such certificate is countersigned (1) by a transfer agent other than the Corporation or its employee, or (2) by a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile, provided that the transfer agent’s signature to such certificate may be a facsimile signature if the registrar’s signature is manual. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate 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.

 

TRANSFERS OF STOCK

 

25.           Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books.

 

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RECORD DATES

 

26.           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 corporate action in writing without a meeting, 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 of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than 60 days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors.

 

REGISTERED STOCKHOLDERS

 

27.           The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.

 

LOST, DESTROYED OR STOLEN CERTIFICATE

 

28.           The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates previously issued by the Corporation alleged to have been lost, destroyed or stolen, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or stolen. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, destroyed or stolen certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, destroyed or stolen.

 

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CHECKS

 

29.           All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

 

FISCAL YEAR

 

30.           The fiscal year shall begin the first day of January in each year.

 

DIVIDENDS

 

31.           Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, as amended, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock.

 

32.           Before payment of any dividend there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve fund to meeting contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the Directors may abolish any such reserve in the manner in which it was created.

 

DIRECTORS’ ANNUAL STATEMENT

 

33.           The Board of Directors shall present at each annual meeting and when called for by vote of the stockholders at any special meeting of the stockholders, a full and clear statement of the business and condition of the Corporation.

 

LIMITATION OF LIABILITY

 

34.           A Director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except for liability (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involved intentional misconduct or a

 

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knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the Director derived an improper personal benefit.

 

INDEMNIFICATION

 

35.           (a)           The Corporation shall indemnify to the full extent permitted by law any person made or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person or such person’s testator or intestate is or was a director, officer or employee of the Corporation or serves or served, at the request of the Corporation, any other enterprise as a director, officer or employee.  Expenses, including attorneys’ fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly after a request therefor and, in the case of a current director or officer of the Corporation, upon receipt by the Corporation of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation.  The rights provided to any person by this Section shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a director, officer or employee as provided above.  No amendment of this Section shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment.  For purposes of this Section, the term “Corporation” shall include any predecessor of the Corporation and any constituent corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term “other enterprise” shall include any corporation, partnership, limited liability company, joint venture, trust, association or other unincorporated organization or other entity or employee benefit plan; service “at the request of the Corporation” shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by, such director, officer or employee with respect to an employee benefit plan, its participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to an employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation.

 

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(b)           The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall not be deemed exclusive of, and shall not affect, any other rights to which those seeking indemnification or advancement of expenses may be entitled under any law, by-law, charter provision, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, and shall continue as to a person who ceased to be a director, officer or employee and shall inure to the benefit of the heirs, executors and administrators of such person.

 

INTERESTED DIRECTORS: QUORUM

 

36.           Except as set forth in Article IX of the Certificate of Incorporation, no contract or transaction between the Corporation and one or more of its Directors or officers or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorized the contract or transaction, or solely because his or her or their votes are counted for such purpose, if:

 

(a)           The material facts as to his interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the Committee, and the Board or committee in good faith authorizes the contract or transaction by a vote sufficient for such purpose without counting the vote of the interested Director or Directors; or

 

(b)           The material facts as to his or her interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or

 

(c)           The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors or a committee thereof, or the stockholders.

 

Interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

 

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NOTICES

 

37.           Whenever under the provisions of these By-Laws notice is required to be given to any Director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, by depositing the same in the post office or letter box, in a postpaid sealed wrapper, addressed to such Director or stockholder at such address as appears on the books of the Corporation, or, in default of other address, to such director or stockholder at the General Post Office in the City of Wilmington, Delaware, and such notice shall be deemed to be given at the time when the same shall be thus mailed.

 

38.           Whenever any notice is required to be given by a statute or the Certificate of Incorporation or the By-Laws of this Corporation, waiver there in writing signed by the person or persons entitled to such notice, whether signed before or after the time therein stated shall be deemed the equivalent to the giving of such notice, except that any alteration or repeal of these By-Laws or election of a Director to fill a vacancy or newly created directorship shall require actual notice given in accordance with these By-Laws.

 

BY-LAW AMENDMENTS

 

39.           Subject to the provisions of the Certificate of Incorporation, these By-Laws may be altered, amended or repealed at any regular meeting of the stockholders (or at any special meeting thereof duly called for that purpose) by a majority vote of the shares represented and entitled to vote at such meeting; provided that in the notice of such special meeting notice of such purpose shall be given.  Subject to the laws of the State of Delaware, the Certificate of Incorporation and these By-Laws, the Board of Directors may, by majority vote of those present at any meeting at which a quorum is present, amend these By-Laws, or enact such other By-Laws as in their judgment may be advisable for the regulation of the conduct of the affairs of the Corporation.

 

COMPLIANCE WITH THE NEW JERSEY CASINO CONTROL ACT (“CASINO ACT”) IF A SUBSIDIARY OF THE CORPORATION BECOMES A CASINO LICENSEE PURSUANT TO THE CASINO ACT

 

40.           If the Corporation becomes, and so long as it remains, either a holding company or intermediary company as to the holder of a casino licensee pursuant to the New Jersey Casino Control Act, P.L. 1977, c. 110 (NJ.S. 5:12-1 et seq., (“Casino Act”), all securities of the

 

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Corporation are held subject to the applicable provisions of the Casino Act. If a holder thereof is found to be disqualified by the New Jersey Casino Control Commission pursuant to the Casino Act then such holder shall dispose of his interest in the Corporation.

 

NOMINATIONS OF DIRECTOR CANDIDATES

 

41.           (a)           Eligibility to Make Nominations.  Nominations of candidates for election as Directors of the Corporation at any meeting of stockholders calling for election of Directors, in whole or in part (an “Election Meeting”), may be made by the Board of Directors or by any stockholder entitled to vote at such Election Meeting.

 

(b)           Procedure for Nominations by the Board of Directors. Nominations made by the Board shall be made at a meeting of the Board or by written consent of Directors in lieu of a meeting, not less than 30 days prior to the date of the Election Meeting. At the request of the Secretary of the Corporation each proposed nominee shall provide the Corporation with such information concerning such nominee as is required, under the rules of the Securities and Exchange Commission (“SEC”), to be included in the Corporation’s proxy statement soliciting proxies for his or her election as a director.

 

(c)           Procedure for Nominations by Stockholders. Not less than 60 days prior to the date of the Election Meeting any stockholder who intends to make a nomination at the Election Meeting shall deliver a notice to the Secretary of the Corporation setting forth (i) the name, age, business address and residence address of each nominee proposed in such notice, (ii) the principal occupation or employment of each such nominee, (iii) the number of shares of capital stock of the Corporation which are beneficially owned by each such nominee, and (iv) such other information concerning each such nominee as would be required, under the rules of the SEC, in a proxy statement soliciting proxies for the election of such nominees. Such notice shall include a signed consent to serve as a director of the Corporation, if elected, of each such nominee.

 

(d)           Substitution of Nominees. In the event that a person is validly designated as a nominee in accordance with Paragraph (b) or Paragraph (c) hereof and shall thereafter become unable or unwilling to stand for election to the Board, the Board or the stockholder who proposed such nominee, as the case may be, may designate a substitute nominee.

 

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(e)           Determination of Compliance with Procedures. If the Chairman of the Election Meeting determines that a nomination was not made in accordance with the foregoing procedures, such nomination shall be void.

 

CONSENTS TO CORPORATE ACTION

 

42.           In the event of the delivery to the Company of a written consent or consents to corporate action purporting to be signed by or on behalf of holders of outstanding stock of the Company having not less than the number of votes that would be necessary to authorize or take the action specified therein, and/or related revocations, the Secretary or the Assistant Corporate Secretary or an Assistant Secretary shall provide for the safekeeping of the consent or consents and/or of revocations and shall conduct such reasonable investigation as he deems necessary or appropriate for the purpose of ascertaining whether the requisite vote has been obtained, and all matters incident thereto, including the validity of such consent or consents and/or revocations; provided, however, that if the corporate action to which the consent or consents relate is the removal of one or more members of the Board, the Secretary or the Assistant Corporate Secretary or an Assistant Secretary shall designate two persons, who may or may not be stockholders but who shall not be members of the Board, to serve as Inspectors and such Inspectors shall discharge the functions of the Secretary hereunder. If after such investigation the Secretary or the Assistant Corporate Secretary or an Assistant Secretary or the Inspectors, as the case may be, shall determine that the requisite vote has been obtained, that fact shall be certified on the records of the Company kept for the purpose of recording the proceedings of meetings of stockholders, and the consent or consents and/or revocations shall be filed in such records, at which time said consent or consents shall become effective as stockholder action; provided, however, that neither the Secretary, the Assistant Corporate Secretary, an Assistant Secretary nor the Inspectors, as the case may be, shall make such certification or filing, and the consent or consents shall not become effective as stockholder action, until the final termination of any proceedings which may have been commenced in the Court of Chancery of the State of Delaware or any other court of competent jurisdiction for an adjudication of any legal issues incident to determining whether the requisite vote has been obtained, unless such Court shall determine that such proceedings are not being pursued expeditiously and in good faith.

 

In conducting the investigation directed hereby, the Secretary or the Assistant Corporate Secretary or an Assistant Secretary or the Inspectors, as the case may be, may at the expense of

 

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the Company retain special legal counselor, other necessary and proper professional advisors, and such other personnel as may be necessary or appropriate, to assist them.

 

STOCKHOLDER COMMUNICATIONS

 

43.           Notwithstanding anything to the contrary contained in these By-Laws, to the extent permitted under applicable law at any time, the Corporation is authorized to communicate with stockholders electronically using, without limitation, telephone, internet or any other computer based technology, to provide reports, proxy statements and other information to stockholders and to permit voting by stockholders at stockholders meetings.

 

 

As Amended 3/22/2007:

 

Revised Text of Section 7 of By-Laws

7.             (a)           Each Director to be elected by the stockholders of the Corporation shall be elected by the affirmative vote of a majority of the votes cast with respect to that Director by the shares represented and entitled to vote thereon at a meeting of the stockholders at which a quorum is present; provided, however, that if the Board of Directors determines that the number of nominees exceeds the number of Directors to be elected at such meeting (a “Contested Election”), and such determination has not been rescinded by the Board of Directors by the date that is 20 days prior to the date for such meeting as initially announced, each of the Directors to be elected at such meeting shall be elected by the affirmative vote of a plurality of the votes cast by the shares represented and entitled to vote at such meeting.  For purposes of this Section, a “majority of the votes cast” means that the number of votes cast “for” a candidate for Director exceeds the number of votes cast “against” that Director.  In a Contested Election, stockholders will be given the choice to cast “for” or “withhold” votes for the election of Directors and shall not have the ability to cast any other vote with respect to such election of Directors.

(b)           If an incumbent Director who was nominated for reelection does not receive the affirmative vote of a majority of the votes cast with respect to that Director at an annual meeting at which there was no Contested Election, the Director shall promptly tender his or her resignation to the Board of Directors.  The Corporate Governance and Nominating Committee will make a recommendation to the Board of Directors whether to accept or reject the tendered resignation, or whether other action should be taken.  The Board of Directors will act on the tendered resignation, taking into account the Committee’s recommendation, within 90 days from the date of the certification of the election results and shall notify the Director concerned of its decision.  The Corporate Governance and Nominating Committee in making its recommendation, and the Board of Directors in making its decision, may each consider all factors it considers relevant, including any stated reasons for “against” votes, whether the underlying cause or causes of the “against” votes are curable, the criteria for selection of Directors, if any, set forth in the Corporation’s Corporate Governance Guidelines or other policies that are to be considered by the Corporate Governance and Nominating Committee in evaluating potential candidates for the Board of Directors as such criteria relate to each Director who has so tendered his or her resignation, the length of service of such Director, and such Director’s contributions to the Corporation.  The Corporation shall, within five business days after the Board of Directors reaches its decision, publicly disclose the decision in a periodic or current report filed with the Securities and Exchange Commission. Notwithstanding the foregoing, if the result of the Board of Directors accepting all of the tendered resignations then pending, would be that the Corporation would have fewer than three Directors who were in office before the election of Directors, the Board of Directors may determine to extend such 90-day period by an additional 90 days if it determines that such an extension is in the best interests of the Corporation and its stockholders.

 

(c)           A Director who tenders his or her resignation shall not participate in the recommendation of the Corporate Governance and Nominating Committee or the decision of the Board of Directors with respect to his or her resignation. If a majority of the members of the Corporate Governance and Nominating Committee have tendered their resignations, the Board of Directors shall appoint a committee of independent Directors who either (i) received the affirmative vote of a majority of the votes cast at the meeting or (ii) whose terms did not expire at such meeting and thus were not nominated for reelection, to consider the tendered resignations and make recommendations to the Board of Directors.  If there are not two such independent Directors, the Board of Directors shall act on the tendered resignations; provided that no Director nominated for reelection who did not receive a majority of the votes cast with respect to that Director at such meeting shall participate in or vote on the decision whether to accept or reject such Director’s tendered resignation.  If an incumbent Director’s tendered resignation is not accepted by the Board of Directors, such Director shall continue to serve until the next annual meeting and until his or her successor is duly elected, or his or her earlier resignation or removal.  If a Director’s resignation is accepted by the Board of Directors pursuant to this Section, or if a nominee for Director is not elected and the nominee is not an incumbent Director, then the Board of Directors, in its sole discretion, may fill any resulting vacancy or decrease the size of the Board of Directors pursuant to the provisions of Section 15 of these By-Laws.

(d)           The above process relating to nominees for Directors who do not receive the affirmative vote of a majority of the votes cast will be described in each proxy statement of the Corporation pertaining to the election of Directors.

 

STOCKHOLDER RIGHTS PLAN

44.           (a)   The Corporation will not adopt or maintain a stockholder rights plan, rights agreement or similar plan or agreement unless either: (i) the rights plan or agreement has been approved by the Corporation’s stockholders by the affirmative vote of a majority of the shares of the Corporation’s stock represented and entitled to vote on the matter at an annual or special meeting of stockholders; or (ii) the Board of Directors determines in the exercise of its fiduciary responsibilities that it is in the best interests of the Corporation’s stockholders to adopt the rights plan or agreement prior to stockholder approval, provided that the Corporation must seek stockholder approval of such rights plan or agreement within twelve (12)  months from the date of adoption.

(b)  Notwithstanding anything to the contrary contained in these By-Laws, the Board of Directors may not amend this Section 44 of the By-Laws without stockholder ratification by the affirmative vote of a majority of the shares of the Corporation’s stock represented and entitled to vote on the matter at an annual or special meeting of stockholders.