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Pottery Barn 2010 Annual Report Download - page 200

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by reason of the fact that he, she, his or her testator or his or her intestate is or was a director, officer, employee

or agent of the corporation or any predecessor of the corporation or serves or served at any other enterprise as a

director, officer, employee or agent at the request of the corporation or any predecessor to the corporation.

Neither any amendment nor repeal of this Article XI, nor the adoption of any provision of this Certificate of

Incorporation or the Bylaws of the corporation inconsistent with this Article XI, shall eliminate or reduce the

effect of this Article XI in respect of any matter occurring, or any cause of action, suit, claim or proceeding

accruing or arising or that, but for this Article XI, would accrue or arise, prior to such amendment, repeal or

adoption of an inconsistent provision.

ARTICLE XII

Except as provided in Article XI above, the corporation reserves the right to amend, alter, change or repeal

any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute,

and all rights conferred upon stockholders herein are granted subject to this reservation.

ARTICLE XIII

Notwithstanding that applicable law would otherwise permit action to be taken with the approval of a lesser

percentage, each of the following actions shall require the affirmative vote of not less than two-thirds of the

outstanding shares of this Corporation entitled to vote:

(a) a merger or consolidation of this Corporation or any subsidiary;

(b) the sale or other disposition by this Corporation or a subsidiary of substantially all of the assets of this

Corporation or a subsidiary; or

provided that the provisions of this Article XIII shall not apply to any such transaction solely between the

Corporation and another corporation of which 50% or more of the outstanding shares entitled to vote are owned,

directly or indirectly, by the Corporation.

Notwithstanding any other provision of this Certificate of Incorporation or the Bylaws of this Corporation

and notwithstanding that a lesser percentage may be specified by law, this Certificate of Incorporation or the

Bylaws of this Corporation, the affirmative vote of not less than two-thirds of the outstanding shares of this

Corporation entitled to vote shall be required to amend or repeal, or adopt any provision inconsistent with this

Article XIII.

ARTICLE XIV

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of

the State of Delaware shall be the sole and exclusive forum for (A) any derivative action or proceeding brought

on behalf of the Corporation, (B) any action or proceeding asserting a claim of breach of a fiduciary duty owed

by any director or officer of the Corporation to the Corporation or the Corporation’s stockholders, (C) any action

or proceeding asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the

Corporation’s Certificate of Incorporation or Bylaws, or (D) any action or proceeding asserting a claim against

the Corporation governed by the internal affairs doctrine.

ARTICLE XV

Pursuant to Section 203(b)(1) of the DGCL, the Corporation shall not be governed by the provisions of

Section 203 of the DGCL.

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