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BYLAWS
OF
RC TRANSACTION CORP.,
a Delaware corporation
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TABLE OF CONTENTS
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ARTICLE I Offices.................................. 1
Section 1.1 Registered Office........................ 1
Section 1.2 Principal Office......................... 1
Section 1.3 Other Offices............................ 1
ARTICLE II Meetings of Stockholders................. 1
Section 2.1 Time and Place of Meetings............... 1
Section 2.2 Annual Meetings.......................... 1
Section 2.3 Special Meetings......................... 1
Section 2.4 Stockholder Lists........................ 2
Section 2.5 Notice of Meetings....................... 2
Section 2.6 Quorum and Adjournment................... 2
Section 2.7 Voting................................... 3
Section 2.8 Proxies.................................. 3
Section 2.9 Inspectors of Election................... 3
Section 2.10 Action Without Meeting................... 4
ARTICLE III Directors................................ 4
Section 3.1 Powers................................... 4
Section 3.2 Number, Election and Tenure.............. 4
Section 3.3 Vacancies and Newly Created Directorships 4
Section 3.4 Meetings................................. 4
Section 3.5 Annual Meeting........................... 4
Section 3.6 Regular Meetings......................... 4
Section 3.7 Special Meetings......................... 4
Section 3.8 Quorum................................... 5
Section 3.9 Fees and Compensation.................... 5
Section 3.10 Meetings by Telephonic Communication..... 5
Section 3.11 Committees............................... 5
Section 3.12 Action Without Meetings.................. 6
Section 3.13 Removal.................................. 6
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ARTICLE IV Officers...................................... 6
Section 4.1 Appointment and Salaries...................... 6
Section 4.2 Removal and Resignation....................... 7
Section 4.3 Chairman of the Board......................... 7
Section 4.4 President..................................... 7
Section 4.5 Vice President................................ 7
Section 4.6 Secretary and Assistant Secretary............. 7
Section 4.7 Chief Financial Officer....................... 7
Section 4.8 Assistant Officers............................ 8
ARTICLE V SEAL.......................................... 8
ARTICLE VI Form of Stock Certificate..................... 8
ARTICLE VII Representation of Shares of Other Corporations 9
ARTICLE VIII Transfers of Stock............................ 9
ARTICLE IX Lost, Stolen or Destroyed Certificates........ 9
ARTICLE X Record Date................................... 10
ARTICLE XI Registered Stockholders....................... 10
ARTICLE XII Fiscal Year................................... 10
ARTICLE XIII Amendments.................................... 10
ARTICLE XIV Dividends..................................... 10
Section 14.1 Declaration................................... 10
Section 14.2 Set Aside Funds............................... 11
ARTICLE XV Indemnification and Insurance................. 11
Section 15.1 Right to Indemnification...................... 11
Section 15.2 Right of Claimant to Bring Suit............... 11
Section 15.3 Non-Exclusivity of Rights..................... 12
Section 15.4 Insurance..................................... 12
Section 15.5 Expenses as a Witness......................... 12
Section 15.6 Indemnity Agreements.......................... 12
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<PAGE>
BYLAWS
OF
RC TRANSACTION CORP.,
a Delaware corporation
ARTICLE I
Offices
Section 1.1 Registered Office. The registered office of this Corporation
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shall be in the City of Wilmington, County of New Castle, Delaware and the name
of the resident agent in charge thereof is the agent named in the Certificate of
Incorporation until changed by the Board of Directors (the "Board").
Section 1.2 Principal Office. The principal office for the transaction of
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the business of the Corporation shall be at such place as may be established by
the Board. The Board is granted full power and authority to change said
principal office from one location to another.
Section 1.3 Other Offices. The Corporation may also have an office or
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offices at such other places, either within or without the State of Delaware, as
the Board may from time to time designate or the business of the Corporation may
require.
ARTICLE II
Meetings of Stockholders
Section 2.1 Time and Place of Meetings. Meetings of stockholders shall be
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held at such time and place, within or without the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2.2 Annual Meetings. Annual meetings of the stockholders of the
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Corporation for the purpose of electing directors and for the transaction of
such other proper business as may come before such meetings may be held at such
time, date and place as the Board shall determine by resolution.
Section 2.3 Special Meetings. Special meetings of the stockholders of the
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Corporation for any purpose or purposes may be called at any time by the Board,
or by a committee of the Board that has been duly designated by the Board and
whose powers and authority, as provided in a resolution of the Board or in the
Bylaws of the Corporation, include the power to call such meetings, and shall be
called by the president or secretary at the request in writing of a majority of
the Board, or at the request in writing of stockholders owning a majority in
amount of the entire capital stock of the Corporation issued and outstanding and
entitled to vote but such special meetings may not be called by any other person
or persons; provided, however, that if and to the extent that any special
meeting of stockholders may be called by any other person or persons specified
in any provisions of the Certificate of Incorporation or any amendment thereto,
or any certificate filed under Section 151(g) of the Delaware General
Corporation Law (or its successor statute as in effect from time to time
hereafter), then such special meeting may also be called by the person or
persons in the manner, at the times and for
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the purposes so specified. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 2.4 Stockholder Lists. The officer who has charge of the stock
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ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered 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 meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting or at the place of the meeting, and the list shall also be available at
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.5 Notice of Meetings. Notice of each meeting of stockholders,
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whether annual or special, stating the place, date and hour of the meeting and,
in the case of a special meeting, the purpose or purposes for which such meeting
has been called, shall be given to each stockholder of record entitled to vote
at such meeting not less than ten nor more than sixty days before the date of
the meeting. Except as otherwise expressly required by law, notice of any
adjourned meeting of the stockholders need not be given if the time and place
thereof are announced at the meeting at which the adjournment is taken.
Whenever any notice is required to be given under the provisions of the
statutes or of the Certificate of Incorporation or of these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Notice of any meeting of stockholders shall be deemed waived by any
stockholder who shall attend such meeting in person or by proxy, except a
stockholder who shall attend such 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.
Section 2.6 Quorum and Adjournment. The holders of a majority of the stock
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issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum for holding all meetings of
stockholders, except as otherwise provided by applicable law or by the
Certificate of Incorporation; provided, however, that the stockholders present
at a duly called or held meeting at which a quorum is present may continue to
transact business until adjournment notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by at least a majority of the shares required to
constitute a quorum. If it shall appear that such quorum is not present or
represented at any meeting of stockholders, the Chairman of the meeting shall
have power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. The Chairman of the meeting may determine that a quorum
is present based upon any reasonable evidence of the presence in person or by
proxy of stockholders holding a majority of the
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outstanding votes, including without limitation, evidence from any record of
stockholders who have signed a register indicating their presence at the
meeting.
Section 2.7 Voting. In all matters, when a quorum is present at any
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meeting, the vote of the holders of a majority of the capital stock having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of applicable law or of the Certificate of Incorporation, a different
vote is required in which case such express provision shall govern and control
the decision of such question. Such vote may be viva voce or by written ballot;
provided, however, that the Board may, in its discretion, require a written
ballot for any vote, and further provided that all elections for directors must
be by written ballot upon demand made by a stockholder at any election and
before the voting begins.
Unless otherwise provided in the Certificate of Incorporation each
stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power
held by such stockholder.
Section 2.8 Proxies. Each stockholder entitled to vote at a meeting of
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stockholders may authorize in writing another person or persons to act for such
holder by proxy, but no proxy shall be voted or acted upon after three years
from its date, unless the person executing the proxy specifies therein the
period of time for which it is to continue in force.
Section 2.9 Inspectors of Election. The Corporation shall, in advance of
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any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation or the Chairman of
the meeting shall appoint one or more alternate inspectors to replace any
inspector who fails to act. Each inspector, before undertaking his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of the proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspector shall perform his or her duties and shall make all
determinations in accordance with the Delaware General Corporation Law
including, without limitation, Section 231 of the Delaware General Corporation
Law.
The date and time of the opening and closing of the polls for each matter
upon which the stockholders will vote at a meeting shall be announced at the
meeting. No ballot, proxies or votes, nor revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery upon application by a stockholder shall determine
otherwise.
The appointment of inspectors of election shall be in the discretion of the
Board until such time as the Corporation has a class of voting stock that is (i)
listed on a national securities exchange, (ii) authorized for quotation on an
interdealer quotation system of a
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registered national securities association, or (iii) held of record by more than
2,000 stockholders, at which time appointment of inspectors shall be obligatory.
Section 2.10 Action Without Meeting. Any action of the stockholders may be
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taken without a meeting, if a majority of the stockholders consent thereto in
writing, and the writing or writings are filed with the minutes of the
proceedings of stockholders, provided, that, prompt notice of the taking of the
action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
ARTICLE III
Directors
Section 3.1 Powers. The Board shall have the power to manage or direct the
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management of the property, business and affairs of the Corporation, and except
as expressly limited by law, to exercise all of its corporate powers. The Board
may establish procedures and rules, or may authorize the Chairman of any meeting
of stockholders to establish procedures and rules, for the fair and orderly
conduct of any meeting including, without limitation, registration of the
stockholders attending the meeting, adoption of an agenda, establishing the
order of business at the meeting, recessing and adjourning the meeting for the
purposes of tabulating any votes and receiving the results thereof, the timing
of the opening and closing of the polls, and the physical layout of the
facilities for the meeting.
Section 3.2 Number, Election and Tenure. The Board shall consist of one or
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more members. The exact number shall be determined from time to time by
resolution of the Board. Until otherwise determined by such resolution, the
Board shall consist of not fewer than 2 and not greater than 7 persons, with the
exact number of directors to be set from time to time by the Board. Directors
shall be elected at the annual meeting of stockholders and each director shall
serve until such person's successor is elected and qualified or until such
person's death, retirement, resignation or removal.
Section 3.3 Vacancies and Newly Created Directorships. Any newly created
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directorship resulting from an increase in the number of directors may be filled
by a majority of the Board of Directors then in office, provided that a quorum
is present, and any other vacancy on the Board of Directors may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director.
Section 3.4 Meetings. The Board may hold meetings, both regular and
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special, either within or outside the State of Delaware.
Section 3.5 Annual Meeting. The Board shall meet as soon as practicable
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after each annual election of directors.
Section 3.6 Regular Meetings. Regular meetings of the Board shall be held
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without call or notice at such time and place as shall from time to time be
determined by resolution of the Board.
Section 3.7 Special Meetings. Special meetings of the Board may be called
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at any time, and for any purpose permitted by law, by the Chairman of the Board
(or, if the Board
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does not appoint a Chairman of the Board, the President), or by the Secretary on
the written request of any two members of the Board unless the Board consists of
only one director in which case the special meeting shall be called on the
written request of the sole director, which meetings shall be held at the time
and place designated by the person or persons calling the meeting. Notice of the
time, place and purpose of any such meeting shall be given to the directors by
the Secretary, or in case of the Secretary's absence, refusal or inability to
act, by any other officer. Any such notice may be given by mail, by telegraph,
by telephone, by facsimile, by personal service, or by any combination thereof
as to different directors. If the notice is by mail, then it shall be deposited
in a United States Post Office at least seventy-two hours before the time of the
meeting; if by telegraph, by deposit of the message with the telegraph company
at least twenty-four hours before the time of the meeting; if by telephone, by
facsimile or by personal service, communicated or delivered at least twenty-four
hours before the time of the meeting.
Section 3.8 Quorum. At all meetings of the Board, a majority of the whole
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Board shall be necessary and sufficient to constitute a quorum for the
transaction of business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the Board, except as
may be otherwise specifically provided by applicable law or by the Certificate
of Incorporation or by these Bylaws. Any meeting of the Board may be adjourned
to meet again at a stated day and hour. Even though a quorum is not present, as
required in this Section, a majority of the directors present at any meeting of
the Board, either regular or special, may adjourn from time to time until a
quorum be had. Notice of any adjourned meeting need not be given.
Section 3.9 Fees and Compensation. Each director and each member of a
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committee of the Board shall receive such fees and reimbursement of expenses
incurred on behalf of the Corporation or in attending meetings as the Board may
from time to time determine. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
Section 3.10 Meetings by Telephonic Communication. Members of the Board or
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any committee thereof may participate in a regular or special meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation in a meeting pursuant to this Section shall constitute
presence in person at such meeting.
Section 3.11 Committees. The Board may, by resolution passed by a majority
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of the whole Board, designate committees, each committee to consist of one or
more of the directors of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Upon the absence or
disqualification of a member of a committee, if the Board has not designated one
or more alternates (or if such alternate(s) are then absent or disqualified),
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board to act at the meeting in the
place of any such absent or disqualified member or alternate. Any such
committee, to the extent provided in the resolution of the Board, shall have and
may exercise all the powers and authority of the Board in the management of the
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business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers that may require it; but no such
committee shall have the power or authority in reference to: (a) amending the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares
of stock adopted by the Board as provided in Section 151(a) of the Delaware
General Corporation Law fix the designations and any of the preferences or
rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Corporation or the conversion into, or the
exchange of such shares for, shares of any other class or classes or any other
series of the same or any other class or classes of stock of the Corporation or
fix the number of shares of any series of stock or authorize the increase or
decrease of the shares of any series); (b) adopting an agreement of merger or
consolidation under Section 251 or 252 of the Delaware General Corporation Law;
(c) recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets; (d) recommending to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution; or (e) amending the Bylaws of the Corporation. Unless the
resolution appointing such committee or the Certificate of Incorporation
expressly so provides, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Each committee shall have such name as may be
determined from time to time by resolution adopted by the Board. Each committee
shall keep minutes of its meetings and report to the Board when required.
Section 3.12 Action Without Meetings. Unless otherwise restricted by
-----------------------
applicable law or by the Certificate of Incorporation or by these Bylaws, any
action required or permitted to be taken at any meeting of the Board or of any
committee thereof may be taken without a meeting if all members of the Board or
of such committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of the proceedings of the Board
or committee.
Section 3.13 Removal. Unless otherwise restricted by the Certificate of
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Incorporation or by law, any director or the entire Board may be removed, with
or without cause, by the holders of a majority of shares entitled to vote at an
election of directors.
ARTICLE IV
Officers
Section 4.1 Appointment and Salaries. The officers of the Corporation shall
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be appointed by the Board and shall be a President and/or Chief Executive
Officer, a Chief Operating Officer, a Chief Financial Officer, and a Secretary.
The Board may also appoint a Chairman of the Board and one or more Vice
Presidents and the Board or the President may appoint such other officers
(including Assistant Secretaries and Financial Officers) as the Board or the
President may deem necessary or desirable. The officers shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board. The Board shall fix the salaries
of all officers appointed by it. Unless prohibited by applicable law or by the
Certificate of Incorporation or by these Bylaws, one person may be elected or
appointed to serve in more than one official capacity. Any vacancy occurring in
any office of the Corporation shall be filled by the Board.
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Section 4.2 Removal and Resignation. Any officer may be removed, either
-----------------------
with or without cause, by the Board or, in the case of an officer not appointed
by the Board, by the President. Any officer may resign at any time by giving
notice to the Board, the President or Secretary. Any such resignation shall take
effect at the date of receipt of such notice or at any later time specified
therein and, unless otherwise specified in such notice, the acceptance of the
resignation shall not be necessary to make it effective.
Section 4.3 Chairman of the Board. The Board may, at its election, appoint
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a Chairman of the Board. If such an officer be elected, he or she shall, if
present, preside at all meetings of the stockholders and of the Board and shall
have such other powers and duties as may from time to time be assigned to him or
her by the Board.
Section 4.4 President. Subject to such powers, if any, as may be given by
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the Board to the Chairman of the Board, if there is such an officer, the
President shall be the chief executive officer of the Corporation with the
powers of general manager, and he or she shall have supervising authority over
and may exercise general executive powers concerning all of the operations and
business of the Corporation, with the authority from time to time to delegate to
other officers such executive and other powers and duties as he or she may deem
advisable. If there be no Chairman of the Board, or in his or her absence, the
President shall preside at all meetings of the stockholders and of the Board,
unless the Board appoints another person who need not be a stockholder, officer
or director of the Corporation, to preside at a meeting of stockholders.
Section 4.5 Vice President. In the absence of the President, or in the
--------------
event of the President's inability or refusal to act, the Vice President, if
any, (or if there be more than one Vice President, the Vice Presidents in the
order of their rank or, if of equal rank, then in the order designated by the
Board or the President or, in the absence of any designation, then in the order
of their appointment) shall perform the duties of the President and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. The rank of Vice Presidents in descending order shall be
Executive Vice President, Senior Vice President and Vice President. The Vice
President shall perform such other duties and have such other powers as the
Board may from time to time prescribe.
Section 4.6 Secretary and Assistant Secretary. The Secretary shall attend
---------------------------------
all meetings of the Board (unless the Board shall otherwise determine) and all
meetings of the stockholders and record all the proceedings of the meetings of
the Corporation and of the Board in a book to be kept for that purpose and shall
perform like duties for the committees when required. The Secretary shall give,
or cause to be given, notice of all meetings of stockholders and special
meetings of the Board. The Secretary shall have custody of the corporate seal of
the Corporation and shall (as well as any Assistant Secretary) have authority to
affix the same to any instrument requiring it and to attest it. The Secretary
shall perform such other duties and have such other powers as the Board or the
President may from time to time prescribe.
Section 4.7 Chief Financial Officer. The Chief Financial Officer shall have
-----------------------
custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all monies and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be
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designated by the Board. The Chief Financial Officer may disburse the funds of
the Corporation as may be ordered by the Board or the President, taking proper
vouchers for such disbursements, and shall render to the Board at its regular
meetings, or when the Board so requires, an account of transactions and of the
financial condition of the Corporation. The Chief Financial Officer shall
perform such other duties and have such other powers as the Board or the
President may from time to time prescribe.
If required by the Board, the Chief Financial Officer, if any, shall give
the Corporation a bond (which shall be renewed at such times as specified by the
Board) in such sum and with such surety or sureties as shall be satisfactory to
the Board for the faithful performance of the duties of such person's office and
for the restoration to the Corporation, in case of such person's death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in such person's possession or under
such person's control belonging to the Corporation.
Section 4.8 Assistant Officers. An assistant officer shall, in the absence
------------------
of the officer to whom such person is an assistant or in the event of such
officer's inability or refusal to act (or, if there be more than one such
assistant officer, the assistant officers in the order designated by the Board
or the President or, in the absence of any designation, then in the order of
their appointment), perform the duties and exercise the powers of such officer.
An assistant officer shall perform such other duties and have such other powers
as the Board or the President may from time to time prescribe.
ARTICLE V
SEAL
It shall not be necessary to the validity of any instrument executed by any
authorized officer or officers of the Corporation that the execution of such
instrument be evidenced by the corporate seal, and all documents, instruments,
contracts and writings of all kinds signed on behalf of the Corporation by any
authorized officer or officers shall be as effectual and binding on the
Corporation without the corporate seal, as if the execution of the same had been
evidenced by affixing the corporate seal thereto. The Board may give general
authority to any officer to affix the seal of the Corporation and to attest the
affixing by signature.
ARTICLE VI
Form of Stock Certificate
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-Chairman of the Board of Directors, if any, or by the President or a Vice-
President, and by the Chief Financial Officer or a Financial Officer, or the
Secretary or an Assistant Secretary certifying the number of shares owned in the
Corporation. Any or all of the signatures on the certificate may be a facsimile
signature. If 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 such person were
such officer, transfer agent or registrar at the date of the issuance.
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If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualification, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock. Except as otherwise provided
in Section 202 of the General Corporation Law of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
ARTICLE VII
Representation of Shares of Other Corporations
Any and all shares of any other corporation or corporations standing in the
name of the Corporation shall be voted, and all rights incident thereto shall be
represented and exercised on behalf of the Corporation, as follows: (i) as the
Board of the Corporation may determine from time to time, or (ii) in the absence
of such determination, by the Chairman of the Board, or (iii) if the Chairman of
the Board shall not vote or otherwise act with respect to the shares, by the
President. The foregoing authority may be exercised either by any such officer
in person or by any other person authorized so to do by proxy or power of
attorney duly executed by said officer.
ARTICLE VIII
Transfers of Stock
Upon surrender 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.
ARTICLE IX
Lost, Stolen or Destroyed Certificates
The Board may direct a new certificate or certificates be issued in place
of any certificate theretofore issued alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of the fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing such issue of
a new certificate, the Board may, in its discretion and as a condition precedent
to the issuance, require the owner of such certificate or certificates, or such
person's legal representative, to 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 lost, stolen or destroyed certificate.
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ARTICLE X
Record Date
The Board may fix in advance a date, which shall not be more than sixty
days nor less than ten days preceding the date of any meeting of stockholders,
nor more than 60 days prior to any other action, as a record date for the
determination of stockholders entitled to notice of or to vote at any such
meeting and 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 the
rights in respect of any change, conversion or exchange of stock, and in such
case such stockholders, and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be, notwithstanding any transfer of any
stock on the books of the Corporation after any such record date fixed as
aforesaid.
ARTICLE XI
Registered Stockholders
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock of the Corporation as the holder in fact thereof and
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 expressly provided by applicable law.
ARTICLE XII
Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the
Board.
ARTICLE XIII
Amendments
Subject to any contrary or limiting provisions contained in the Certificate
of Incorporation, these Bylaws may be amended or repealed, or new Bylaws may be
adopted (a) by the affirmative vote of the holders of at least a majority of the
Common Stock of the Corporation, or (b) by the affirmative vote of the majority
of the Board at any regular or special meeting. Any Bylaws adopted or amended by
the stockholders may be amended or repealed by the Board or the stockholders.
ARTICLE XIV
Dividends
Section 14.1 Declaration. Dividends on the capital stock of the
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Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board at any regular or special meeting, pursuant to
law, and may be paid in cash, in property or in shares of capital stock.
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Section 14.2 Set Aside Funds. Before payment of any dividend, there may be
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set aside out of any funds of the Corporation available for dividends such sums
as the directors from time to time, in their absolute discretion, think proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall determine to be in the best interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE XV
Indemnification and Insurance
Section 15.1 Right to Indemnification. Each person who was or is a party or
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is threatened to be made a party to or is involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged action
or inaction in an official capacity or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent permitted by the laws of Delaware, as the
same exist or may hereafter be amended, against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith, and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; provided, however, that the Corporation shall
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indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board. The right to
indemnification conferred in this Article shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
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however, that, if the Delaware General Corporation Law requires, the payment of
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such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Section or otherwise. The
Corporation may, by action of the Board, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
Section 15.2 Right of Claimant to Bring Suit. If a claim under Section 15.1
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of this Article is not paid in full by the Corporation within thirty days after
a written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to recover the unpaid amount
of the claim and, if successful in whole or in part, the claimant shall be
entitled to be paid also the expense of prosecuting such claim. It shall be a
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defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has failed to meet a standard of
conduct which makes it permissible under Delaware law for the Corporation to
indemnify the claimant for the amount claimed. Neither the failure of the
Corporation (including its Board, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is permissible in the circumstances
because he or she has met such standard of conduct, nor an actual determination
by the Corporation (including its Board, independent legal counsel, or its
stockholders) that the claimant has not met such standard of conduct, shall be a
defense to the action or create a presumption that the claimant has failed to
meet such standard of conduct.
Section 15.3 Non-Exclusivity of Rights. The right to indemnification and
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the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Article shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
provision of the Certificate of Incorporation, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 15.4 Insurance. The Corporation may maintain insurance, at its
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expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under Delaware law.
Section 15.5 Expenses as a Witness. To the extent that any director,
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officer, employee or agent of the Corporation is by reason of such position, or
a position with another entity at the request of the Corporation, a witness in
any action, suit or proceeding, he or she shall be indemnified against all costs
and expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
Section 15.6 Indemnity Agreements. The Corporation may enter into
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agreements with any director, officer, employee or agent of the Corporation
providing for indemnification to the full extent permitted by Delaware law.
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CERTIFICATE OF SECRETARY
OF
RC TRANSACTION CORP.,
a Delaware corporation
I hereby certify that I am the duly elected and acting Secretary of RC
Transaction Corp., a Delaware corporation, and that the foregoing Bylaws,
comprising 12 pages, constitute the Bylaws of said corporation as duly adopted
by the Board of Directors on November 16, 1998.
/s/ Stephen J. Giusto
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Stephen J. Giusto
Secretary
