**Exhibit 3.2**

 

**AMENDEDAND RESTATED BYLAWS**

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**OF**

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**AVOCENTCORPORATION**

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**aDelaware Corporation**

** **

 

**Effectiveas of February 20, 2003**

 

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**AMENDEDAND RESTATED BYLAWS OF**

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**AVOCENTCORPORATION**

** **

(effectiveFebruary 20, 2003)

 

# ARTICLE I

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# CORPORATE OFFICES

#  

## 1.1                                 REGISTEREDOFFICE

##  

The registered office ofAvocent Corporation shall be 1209 Orange Street, in the City of Wilmington,County of New Castle, State of Delaware, 19801.  The name of the registered agent of the Corporation at such locationis The Corporation Trust Company.

 

## 1.2                                 OTHEROFFICES

##  

The board of directorsmay at any time establish other offices at any place or places where theCorporation is qualified to do business.

 

# ARTICLE II

#  

# MEETINGS OF STOCKHOLDERS

#  

## 2.1                                 PLACEOF MEETINGS

##  

Meetings of stockholdersshall be held at any place, within or outside the State of Delaware, designatedby the board of directors.  In theabsence of any such designation, stockholders’ meetings shall be held at theprincipal executive office of the Corporation.

 

## 2.2                                 ANNUALMEETING

##  

The annual meeting ofstockholders shall be held each year on a date and at a time designated by theboard of directors.  At the meeting,directors shall be elected and any other proper business may be transacted.

 

## 2.3                                 SPECIALMEETING

##  

A special meeting of thestockholders may be called at any time only by (i) the board of directors,(ii) the chairman of the board, (iii) the president or (iv) thechief executive officer.

 

If a special meeting iscalled by any person other than the board of directors, the request shall be inwriting, specifying the time of such meeting and the general nature of thebusiness

 

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proposed to betransacted, and shall be delivered personally or sent by registered mail or bytelegraphic or other facsimile transmission to the chairman of the board, thepresident, any vice president, or the secretary of the corporation.  No business may be transacted at suchspecial meeting otherwise than specified in such notice.  The officer receiving the request shallcause notice to be promptly given to the stockholders entitled to vote, inaccordance with the provisions of Sections 2.4 and 2.5 of this Article II,that a meeting will be held at the time requested by the person or persons whocalled the meeting, not less than thirty-five (35) nor more than sixty (60)days after the receipt of the request. If the notice is not given within twenty (20) days after the receipt ofthe request, the person or persons requesting the meeting may give the notice.  Nothing contained in this paragraph of thisSection 2.3 shall be construed as limiting, fixing, or affecting the timewhen a meeting of stockholders called by action of the board of directors maybe held.

 

## 2.4                                 NOTICEOF STOCKHOLDERS’ MEETINGS

##  

All notices of meetingswith stockholders shall be in writing and shall be sent or otherwise given inaccordance with Section 2.6 or Section 12.1 of these Bylaws not lessthan 10 nor more than 60 days before the date of the meeting to each stockholderentitled to vote at such meeting.  Thenotice shall specify the place, date and hour of the meeting, and, in the caseof a special meeting, the purpose or purposes for which the meeting is called.

 

## 2.5                                 ADVANCENOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS

##  

To be properly broughtbefore an annual meeting or special meeting, nominations for the election ofdirector or other business must be (a) specified in the notice of meeting (orany 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 theboard of directors, or (c) otherwise properly brought before the meeting by astockholder.  For such nominations orother business to be considered properly brought before the meeting by astockholder, such stockholder must have given timely notice and in proper formof his intent to bring such business before such meeting.  To be timely, such stockholder’s notice mustbe delivered to or mailed and received by the secretary of the Corporation notless than 90 days prior to the meeting; provided, however, that in the eventthat less than 100 days notice or prior public disclosure of the date of themeeting is given or made to stockholders, notice by the stockholder to be timelymust be so received not later than the close of business on the tenth dayfollowing the day on which such notice of the date of the meeting was mailed orsuch public disclosure was made.  To bein proper form, a stockholder’s notice to the secretary shall set forth:

 
| (i)    |   | the name and address of the stockholder who intends  to make the nominations, propose the business, and, as the case may be, the  name and address of the person or persons to be nominated or the nature of  the business to be proposed; |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                       |
| (ii)   |   | a representation that the stockholder is a holder of  record of stock of the Corporation entitled to vote at such meeting and, if  applicable, intends to appear in person or by proxy at the meeting to  nominate the person or           |

 

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|   |   | persons specified in the notice or introduce the  business specified in the notice;                                                                                                                                                                                                                                                                                                                       |
|--------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                      |
| (iii)  |   | if applicable, a description of all arrangements or  understandings between the stockholder and each nominee and any other person  or persons (naming such person or persons) pursuant to which the nomination  or nominations are to be made by the stockholder;                                                                                                                                         |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                      |
| (iv)   |   | such other information regarding each nominee or  each matter of business to be proposed by such stockholder as would be required  to be included in a proxy statement filed pursuant to the proxy rules of the  Securities and Exchange Commission had the nominee been nominated, or  intended to be nominated, or the matter been proposed, or intended to be  proposed by the board of directors; and |
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                      |
| (v)    |   | if applicable, the consent of each nominee to serve  as director of the Corporation if so elected.                                                                                                                                                                                                                                                                                                        |

###  

The chairman of themeeting may refuse to acknowledge the nomination of any person or the proposalof any business not made in compliance with the foregoing procedure.

 

## 2.6                                 MANNEROF GIVING NOTICE; AFFIDAVIT OF NOTICE

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Notice of any meeting ofstockholders shall be given:

 

### (i)                                     ifmailed, when deposited in the United States mail, postage prepaid, directed tothe stockholder at his address as it appears on the records of the Corporation;or

###  

### (ii)                                  ifelectronically transmitted, when transmitted as provided in Section 12.1of these Bylaws.

###  

An affidavit of thesecretary or an assistant secretary or of the transfer agent of the Corporationthat the notice has been given by mail or by a form of electronic transmissionshall, in the absence of fraud, be prima facie evidence of the facts statedtherein.

 

## 2.7                                 QUORUM

##  

The holders of a majorityof the stock issued and outstanding and entitled to vote thereat, present inperson or represented by proxy, shall constitute a quorum at all meetings ofthe stockholders for the transaction of business except as otherwise providedby statute or by the certificate of incorporation.  If, however, such quorum is not present or represented at anymeeting of the stockholders, then either (i) the chairman of the meeting,or (ii) the stockholders entitled to vote thereat, present in person orrepresented by proxy, shall have power to adjourn the meeting from time to time,without notice other than announcement at the meeting, until a quorum ispresent or represented.  At suchadjourned meeting at which a quorum is present or represented, any business maybe transacted that might have been transacted at the meeting as originallynoticed.

 

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When a quorum is presentor represented at any meeting, the vote of the holders of a majority of thestock having voting power present in person or represented by proxy shalldecide any question brought before such meeting, unless the question is oneupon which, by express provisions of the statutes or of the certificate ofincorporation, a different vote is required, in which case such expressprovision shall govern and control the decision of the question.

 

## 2.8                                 ADJOURNEDMEETING; NOTICE

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When a meeting isadjourned to another time or place, unless these Bylaws otherwise require,notice need not be given of the adjourned meeting if the time and place thereofare announced at the meeting at which the adjournment is taken.  At the adjourned meeting the Corporation maytransact any business that might have been transacted at the originalmeeting.  If the adjournment is for morethan 30 days, or if after the adjournment a new record date is fixed for theadjourned meeting, a notice of the adjourned meeting shall be given to eachstockholder of record entitled to vote at the meeting.

 

## 2.9                                 VOTING

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The stockholders entitledto vote at any meeting of stockholders shall be determined in accordance withthe provisions of Sections 2.12 and 2.14 of these Bylaws, subject to theprovisions of Sections 217 and 218 of the General Corporation Law of Delaware(relating to voting rights of fiduciaries, pledgors and joint owners of stockand to voting trusts and other voting agreements).

 

Except as may beotherwise provided in the certificate of incorporation, each stockholder shallbe entitled to one vote for each share of capital stock held by suchstockholder.

 

## 2.10                           WAIVEROF NOTICE

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Whenever notice is requiredto be given under any provision of the General Corporation Law of Delaware orof the certificate of incorporation or these Bylaws, a written waiver signed bythe person entitled to notice, or a waiver by electronic transmission by aperson entitled to notice, whether before or after the time stated therein,shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of noticeof such meeting, except when the person attends a meeting for the expresspurpose of objecting, at the beginning of the meeting, to the transaction ofany business because the meeting is not lawfully called or convened.  Neither the business to be transacted at,nor the purpose of, any regular or special meeting of the stockholders need bespecified in any written waiver of notice or any waiver by electronictransmission unless so required by the certificate of incorporation or theseBylaws.

 

## 2.11                           NOSTOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

##  

The stockholders of theCorporation may not take action by written consent without a meeting but musttake any actions only at a duly called annual or special meeting ofstockholders.

 

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## 2.12                           RECORDDATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS

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In order that theCorporation may determine the stockholders entitled to notice of or to vote atany meeting of stockholders or any adjournment thereof, or entitled to expressconsent to corporate action in writing without a meeting, or entitled toreceive payment of any dividend or other distribution or allotment of anyrights, or entitled to exercise any rights in respect of any change, conversionor exchange of stock or for the purpose of any other lawful action, the boardof directors may fix, in advance, a record date, which shall not be more than60 nor less than 10 days before the date of such meeting, nor more than 60 daysprior to any other action.

 

If the board of directorsdoes not so fix a record date, the fixing of such record date shall be governedby the provisions of Section 213 of the General Corporation Law ofDelaware.

 

A determination ofstockholders of record entitled to notice of or to vote at a meeting ofstockholders shall apply to any adjournment of the meeting; provided, however,that the board of directors may fix a new record date for the adjournedmeeting.

 

## 2.13                           PROXIES

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Each stockholder entitledto vote at a meeting of stockholders or to express consent or dissent tocorporate action in writing without a meeting may authorize another person orpersons to act for such stockholder by proxy by an instrument in writing or byany other transmission permitted by law filed in accordance with the procedureestablished for the meeting, but no such proxy shall be voted or acted uponafter 3 years from its date, unless the proxy provides for a longerperiod.  A proxy shall be deemed signedif the stockholder’s name is placed on the proxy (whether by manual signature,typewriting, telegraphic or electronic or other transmission or otherwise) bythe stockholder or the stockholder’s attorney-in-fact.  The revocability of a proxy that states onits face that it is irrevocable shall be governed by the provisions ofSection 212(c) of the General Corporation Law of Delaware.

 

## 2.14                           LISTOF STOCKHOLDERS ENTITLED TO VOTE

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The officer who hascharge of the stock ledger of a Corporation shall prepare and make, at least 10days before every meeting of stockholders, a complete list of the stockholdersentitled to vote at the meeting, arranged in alphabetical order, and showingthe address of each stockholder and the number of shares registered in the nameof each stockholder.  Such list shall beopen to the examination of any stockholder, for any purpose germane to themeeting, during ordinary business hours, for a period of at least 10 days priorto the meeting, either at a place within the city where the meeting is to beheld, which place shall be specified in the notice of the meeting, or, if notso specified, at the place where the meeting is to be held.  The stock ledger shall also be produced andkept at the time and place of the meeting during the whole time thereof, andmay be inspected by any stockholder who is present.  The stock ledger shall be the only evidence as to who are thestockholders entitled to examine the stock ledger, the list of stockholders orthe books of the Corporation, or to vote in person or by proxy at any meetingof stockholders and of the number of shares held by each such stockholder.

 

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## 2.15                           CONDUCTOF BUSINESS

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Meetings of stockholdersshall be presided over by the chairman of the board, if any, or in his absenceby the president, or in his absence by a vice president, or in the absence ofthe foregoing persons by a chairman designated by the board of directors, or inthe absence of such designation by a chairman chosen at the meeting.  The secretary shall act as secretary of themeeting, but in his absence the chairman of the meeting may appoint any personto act as secretary of the meeting.  Thechairman of any meeting of stockholders shall determine the order of businessand the procedures at the meeting, including such matters as the regulation ofthe manner of voting and conduct of business.

 

# ARTICLE III

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# DIRECTORS

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## 3.1                                 POWERS

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Subject to the provisionsof the General Corporation Law of Delaware and any limitations in thecertificate of incorporation or these Bylaws relating to action required to beapproved by the stockholders or by the outstanding shares, the business andaffairs of the Corporation shall be managed and all corporate powers shall beexercised by or under the direction of the board of directors.

 

## 3.2                                 NUMBER

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The authorized number ofdirectors of the Corporation shall be established from time to time by resolutionof the Board of Directors.  No reductionof the authorized number of directors shall have the effect of removing anydirector before that director’s term of office expires.

 

## 3.3                                 CLASSESAND ELECTION OF DIRECTORS

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The Directors shall bedivided into three classes designated as Class I, Class II andClass III, respectively.  Directorsshall be assigned to each class in accordance with a resolution or resolutionsadopted by the Board of Directors.  Atthe first annual meeting of stockholders following the date hereof, the term ofoffice of the Class I Directors shall expire and Class I Directorsshall be elected for a full term of three years.  At the second annual meeting of stockholders following the datehereof, the term of office of the Class II Directors shall expire andClass II Directors shall be elected for a full term of three years.  At the third annual meeting of stockholdersfollowing the date hereof, the term of office of the Class III Directorsshall expire and Class III Directors shall be elected for a full term ofthree years.  At each succeeding annualmeeting of stockholders, directors shall be elected for a full term of threeyears to succeed the directors of the class whose terms expire at such annualmeeting.  Each Director, including aDirector elected to fill a vacancy, shall hold office until such director’ssuccessor is duly elected and qualified or until such director’s earlier death,resignation or removal.

 

All elections ofdirectors by shareholders shall be by written ballot, unless otherwise providedin the certificate of incorporation.  Ifauthorized by the board of directors, such requirement of a written ballotshall be satisfied by a ballot submitted by electronic transmission,

 

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provided that any suchelectronic transmission must be either set forth or be submitted withinformation from which it can be determined that the electronic transmissionauthorized by the stockholder or proxy holder.

 

## 3.4                                 RESIGNATIONAND VACANCIES

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Any director may resignat any time upon written notice or by electronic transmission to theCorporation.  Subject to therequirements, if any, set forth in the certificate of incorporation,stockholders may remove directors with or without cause.  Unless otherwise provided in the certificateof incorporation, any vacancy occurring in the board of directors with orwithout cause may be filled by a majority of the remaining members of the boardof directors, although such majority is less than a quorum, or by a pluralityof the votes cast at a meeting of stockholders, and each director so electedshall hold office until the expiration of the term of office of the directorwho is being replaced.

 

Unless otherwise providedin the certificate of incorporation or these Bylaws:

 
| (i)    |   | Vacancies and newly created directorships resulting  from any increase in the authorized number of directors elected by all of the  stockholders having the right to vote as a single class may be filled by a  majority of the directors then in office, although less than a quorum, or by  a sole remaining director.                                                                                                 |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                                                                                                     |
| (ii)   |   | Whenever the holders of any class or classes of  stock or series thereof are entitled to elect one or more directors by the  provisions of the certificate of incorporation, vacancies and newly created  directorships of such class or classes or series may be filled by a majority  of the directors elected by such class or classes or series thereof then in  office, or by a sole remaining director so elected. |

###  

If at any time, by reasonof death or resignation or other cause, the Corporation should have nodirectors in office, then any officer or any stockholder or an executor,administrator, trustee or guardian of a stockholder, or other fiduciaryentrusted with like responsibility for the person or estate of a stockholder,may apply to the Court of Chancery for a decree summarily ordering an electionas provided in Section 211 of the General Corporation Law of Delaware.

 

If, at the time offilling any vacancy or any newly created directorship, the directors then inoffice constitute less than a majority of the whole board (as constitutedimmediately prior to any such increase), then the Court of Chancery may, uponapplication of any stockholder or stockholders holding at least 10% of thetotal number of the shares at the time outstanding having the right to vote forsuch directors, summarily order an election to be held to fill any suchvacancies or newly created directorships, or to replace the directors chosen bythe directors then in office as aforesaid, which election shall be governed bythe provisions of Section 211 of the General Corporation Law of Delawareas far as applicable.

 

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## 3.5                                 PLACEOF MEETINGS; MEETINGS BY TELEPHONE

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The board of directors ofthe Corporation may hold meetings, both regular and special, either within oroutside the State of Delaware.

 

Unless otherwiserestricted by the certificate of incorporation or these Bylaws, members of theboard of directors, or any committee designated by the board of directors, mayparticipate in a meeting of the board of directors, or any committee, by meansof conference telephone or similar communications equipment by means of whichall persons participating in the meeting can hear each other, and suchparticipation in a meeting shall constitute presence in person at the meeting.

 

## 3.6                                 REGULARMEETINGS

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Regular meetings of theboard of directors may be held without notice at such time and at such place asshall from time to time be determined by the board.

 

## 3.7                                 SPECIALMEETINGS; NOTICE

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Special meetings of theboard of directors for any purpose or purposes may be called at any time by thechairman of the board, the president, any vice president, the secretary or anytwo directors.

 

Notice of the time andplace of special meetings shall be:

 

### (i)                                     deliveredpersonally by hand, by courier, or by telephone;

###  

### (ii)                                  sentby United States first-class mail, postage prepaid;

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### (iii)                               sentby facsimile; or

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### (iv)                              sentby electronic mail

###  

directedto each director at that director’s address, telephone number, facsimilenumber, or electronic mail address, as the case may be, as shown on the recordsof the Corporation.

 

If the notice issent by United States mail, it shall be deposited in the United States mail atleast 4 days before the time of the holding of the meeting.  If the notice is (i) delivered personally byhand, by courier, or by telephone, (ii) sent by facsimile, or (iii) sent byelectronic mail, it shall be delivered or sent at least 24 hours before thetime of the holding of the meeting.  Anyoral notice given personally or by telephone may be communicated either to thedirector or to a person at the office of the director who the person giving thenotice has reason to believe will promptly communicate it to the director.  The notice need not specify the purpose orthe place of the meeting, if the meeting is to be held at the principalexecutive office of the Corporation.

 

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## 3.8                                 QUORUM

##  

At all meetings of theboard of directors, a majority of the authorized number of directors shallconstitute a quorum for the transaction of business and the act of a majorityof the directors present at any meeting at which there is a quorum shall be theact of the board of directors, except as may be otherwise specifically providedby statute or by the certificate of incorporation.

 

## 3.9                                 WAIVEROF NOTICE

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Whenever notice isrequired to be given under any provision of the General Corporation Law ofDelaware or of the certificate of incorporation or these Bylaws, a writtenwaiver, signed by the person entitled to notice, or a waiver by electronictransmission by a person entitled to notice, whether before or after the timestated therein, shall be deemed equivalent to notice.  Attendance of a person at a meeting shall constitute a waiver ofnotice of such meeting, except when the person attends a meeting for theexpress purpose of objecting, at the beginning of the meeting, to thetransaction of any business because the meeting is not lawfully called orconvened.  Neither the business to betransacted at, nor the purpose of, any regular or special meeting of thedirectors, or members of a committee of directors, need be specified in anywritten waiver of notice or any waiver by electronic transmission unless sorequired by the certificate of incorporation or these Bylaws.

 

## 3.10                           ADJOURNEDMEETING; NOTICE

##  

If a quorum is notpresent at any meeting of the board of directors, then the directors presentthereat may adjourn the meeting from time to time, without notice other thanannouncement at the meeting, until a quorum is present.

 

## 3.11                           CONDUCTOF BUSINESS

##  

Meetings of the board ofdirectors shall be presided over by the chairman of the board, if any, or inhis absence by the chief executive officer, or in their absence by a chairmanchosen at the meeting.  The secretaryshall act as secretary of the meeting, but in his absence the chairman of themeeting may appoint any person to act as secretary of the meeting.  The chairman of any meeting shall determinethe order of business and the procedures at the meeting.

 

## 3.12                           BOARDACTION BY WRITTEN CONSENT WITHOUT A MEETING

##  

Unless otherwiserestricted by the certificate of incorporation or these Bylaws, any actionrequired or permitted to be taken at any meeting of the board of directors, orof any committee thereof, may be taken without a meeting if all members of theboard or committee, as the case may be, consent thereto in writing or byelectronic transmission and the writing or writings or electronic transmissionor transmissions are filed with the minutes of proceedings of the board ofdirectors or committee.  Such filingshall be in paper form if the minutes are maintained in paper form and shall bein electronic form if the minutes are maintained in electronic form.

 

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## 3.13                           FEESAND COMPENSATION OF DIRECTORS

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Unless otherwiserestricted by the certificate of incorporation or these Bylaws, the board ofdirectors shall have the authority to fix the compensation of directors.  The directors may be paid their expenses, ifany, of attendance at each meeting of the board of directors and may be paid afixed sum for attendance at each meeting of the board of directors or a statedsalary as director.  No such paymentshall preclude any director from serving the Corporation in any other capacityand receiving compensation therefor. Members of special or standing committees may be allowed likecompensation for attending committee meetings.

 

## 3.14                           REMOVALOF DIRECTORS

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Unless otherwiserestricted by statute, any director or the entire board of directors may onlybe removed pursuant to the provisions set forth in the certificate ofincorporation.  If at any time a classor series of shares is entitled to elect one or more directors, the provisionsof this Article 3.14 shall apply to the vote of that class or series andnot to the vote of the outstanding shares as a whole.

 

# ARTICLE IV

#  

# COMMITTEES

#  

## 4.1                                 COMMITTEESOF DIRECTORS

##  

The board of directorsmay, by resolution passed by a majority of the whole board, designate one ormore committees, with each committee to consist of one or more of the directorsof the Corporation.  The board maydesignate one or more directors as alternate members of any committee, who mayreplace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of amember of a committee, the member or members thereof present at any meeting andnot disqualified from voting, whether or not such member or members constitutea quorum, may unanimously appoint another member of the board of directors toact at the meeting in the place of any such absent or disqualified member.  Any such committee, to the extent providedin the resolutions of the board of directors or in the Bylaws of theCorporation, shall have and may exercise all the powers and authority of theboard of directors in the management of the business and affairs of theCorporation, and may authorize the seal of the Corporation to be affixed to allpapers that may require it; but no such committee shall have the power orauthority to (i) approve or adopt, or recommend to the stockholders, anyaction or matter expressly required by the General Corporation Law of Delawareto be submitted to stockholders for approval or (ii) adopt, approve orrepeal the Bylaws of the Corporation.

 

## 4.2                                 COMMITTEEMINUTES

##  

Each committee shall keepregular minutes of its meetings and report the same to the board of directorswhen required.

 

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## 4.3                                 MEETINGSAND ACTION OF COMMITTEES

##  

Meetings and actions ofcommittees shall be governed by, and held and taken in accordance with, theprovisions of Article III of these Bylaws, Section 3.5 (place of meetingsand meetings by telephone), Section 3.6 (regular meetings),Section 3.7 (special meetings and notice), Section 3.8 (quorum),Section 3.9 (waiver of notice), Section 3.10 (adjournment and noticeof adjournment), Section 3.11 (conduct of business) and 3.12 (actionwithout a meeting), with such changes in the context of those Bylaws as arenecessary to substitute the committee and its members for the board ofdirectors and its members; provided, however, that the time of regular meetingsof committees may also be called by resolution of the board of directors andthat notice of special meetings of committees shall also be given to allalternate members, who shall have the right to attend all meetings of thecommittee.  The board of directors mayadopt rules for the government of any committee not inconsistent with theprovisions of these Bylaws.

 

# ARTICLE V

#  

# OFFICERS

#  

## 5.1                                 OFFICERS

##  

The officers of theCorporation shall be a chief executive officer, one or more vice presidents, asecretary and a chief financial officer. The Corporation may also have, at the discretion of the board ofdirectors, a chairman of the board, a president, a chief operating officer, oneor more executive, senior or assistant vice presidents, assistant secretariesand any such other officers as may be appointed in accordance with theprovisions of Section 5.2 of these Bylaws.  Any number of offices may be held by the same person.

 

## 5.2                                 APPOINTMENTOF OFFICERS

##  

Except as otherwiseprovided in this Section 5.2, the officers of the Corporation shall beappointed by the board of directors, subject to the rights, if any, of anofficer under any contract of employment. The board of directors may appoint, or empower an officer to appoint,such officers and agents of the business as the Corporation may require(whether or not such officer or agent is described in this Article V),each of whom shall hold office for such period, have such authority, andperform such duties as are provided in these Bylaws or as the board ofdirectors may from time to time determine. Any vacancy occurring in any office of the Corporation shall be filledby the board of directors or may be filled by the officer, if any, whoappointed such officer.

 

## 5.3                                 REMOVALAND RESIGNATION OF OFFICERS

##  

Subject to the rights, ifany, of an officer under any contract of employment, any officer may beremoved, either with or without cause, by an affirmative vote of the majorityof the board of directors at any regular or special meeting of the board or,except in the case of an officer chosen by the board of directors, by anyofficer upon whom such power of removal may be conferred by the board ofdirectors or, in the case of an officer appointed by another officer, by suchother officer.

 

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Any officer may resign atany time by giving written notice to the Corporation.  Any resignation shall take effect at the date of the receipt ofthat notice or at any later time specified in that notice; and, unlessotherwise specified in that notice, the acceptance of the resignation shall notbe necessary to make it effective.  Anyresignation is without prejudice to the rights, if any, of the Corporationunder any contract to which the officer is a party.

 

## 5.4                                 CHAIRMANOF THE BOARD

##  

The chairman of theboard, if such an officer be elected, shall, if present, preside at meetings ofthe board of directors and exercise and perform such other powers and duties asmay from time to time be assigned to the chairman by the board of directors oras may be prescribed by these Bylaws. If there is no chief executive officer, then the chairman of the boardshall also be the chief executive officer of the Corporation and shall have thepowers and duties prescribed in Section 5.5 of these Bylaws.

 

## 5.5                                 CHIEFEXECUTIVE OFFICER

##  

The Chief ExecutiveOfficer of the Corporation shall, subject to the control of the Board ofDirectors, have general supervision, direction and control of the business andthe officers of the Corporation.  He orshe shall preside at all meetings of the stockholders and, in the absence ornonexistence of a Chairman of the Board at all meetings of the Board ofDirectors.  He or she shall have thegeneral powers and duties of management usually vested in the chief executiveofficer of a Corporation, including general supervision, direction and controlof the business and supervision of other officers of the Corporation, and shallhave such other powers and duties as may be prescribed by the Board ofDirectors or these Bylaws.

 

The Chief ExecutiveOfficer shall, without limitation, have the authority to execute bonds,mortgages and other contracts requiring a seal, under the seal of theCorporation, except where required or permitted by law to be otherwise signedand executed and except where the signing and execution thereof shall beexpressly delegated by the Board of Directors to some other officer or agent ofthe Corporation.

 

## 5.6                                 PRESIDENT

##  

Subject to suchsupervisory powers as may be given by these Bylaws or the Board of Directors tothe Chairman of the Board or the Chief Executive Officer, if there be suchofficers, the president shall have general supervision, direction and controlof the business and supervision of other officers of the Corporation, and shallhave such other powers and duties as may be prescribed by the Board ofDirectors or these Bylaws.  In the eventa Chief Executive Officer shall not be appointed, the President shall have theduties of such office.

 

## 5.7                                 VICEPRESIDENT

##  

In the absence ordisability of the president, the vice presidents, if any, in order of theirrank as fixed by the board of directors or, if not ranked, a vice presidentdesignated by the board of directors, shall perform all the duties of the chiefexecutive officer and when so acting shall have all the powers of, and besubject to all the restrictions upon, the chief executive officer.  The vice presidents shall have such otherpowers and perform such other duties as from time to

 

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time may be prescribedfor them respectively by the board of directors, these Bylaws, the chiefexecutive officer or the chairman of the board.

 

## 5.8                                 SECRETARY

##  

The secretary shall keepor cause to be kept, at the principal executive office of the Corporation orsuch other place as the board of directors may direct, a book of minutes of allmeetings and actions of directors, committees of directors, andstockholders.  The minutes shall showthe time and place of each meeting, whether regular or special (and, ifspecial, how authorized and the notice given), the names of those present atdirectors’ meetings or committee meetings, the number of shares present orrepresented at stockholders’ meetings, and the proceedings thereof.

 

The secretary shall keep,or cause to be kept, at the principal executive office of the Corporation or atthe office of the Corporation’s transfer agent or registrar, as determined byresolution of the board of directors, a share register, or a duplicate shareregister, showing the names of all stockholders and their addresses, the numberand classes of shares held by each, the number and date of certificatesevidencing such shares, and the number and date of cancellation of everycertificate surrendered for cancellation.

 

The secretary shall give,or cause to be given, notice of all meetings of the stockholders and of theboard of directors required to be given by law or by these Bylaws.  He or she shall keep the seal of theCorporation, if one be adopted, in safe custody and shall have such otherpowers and perform such other duties as may be prescribed by the board ofdirectors or by these Bylaws.

 

## 5.9                                 CHIEFFINANCIAL OFFICER

##  

The chief financialofficer shall keep and maintain, or cause to be kept and maintained, adequateand correct books and records of accounts of the properties and businesstransactions of the Corporation, including accounts of its assets, liabilities,receipts, disbursements, gains, losses, capital, retained earnings andshares.  The books of account shall atall reasonable times be open to inspection by any director.

 

The chief financialofficer shall deposit all money and other valuables in the name and to thecredit of the Corporation with such depositaries as may be designated by theboard of directors.  He or she shalldisburse the funds of the Corporation as may be ordered by the board ofdirectors, shall render to the chief executive officer and directors, wheneverthey request it, an account of all of his transactions as treasurer and of thefinancial condition of the Corporation, and shall have such other powers andperform such other duties as may be prescribed by the board of directors orthese Bylaws.

 

## 5.10                           ASSISTANTSECRETARY

##  

The assistant secretary,or, if there is more than one, the assistant secretaries in the order determinedby the stockholders or board of directors (or if there be no suchdetermination, then in the order of their election) shall, in the absence ofthe secretary or in the event of his or her inability or refusal to act,perform the duties and exercise the powers of the secretary and shall

 

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perform such other dutiesand have such other powers as the board of directors or the stockholders mayfrom time to time prescribe.

 

## 5.11                           AUTHORITYAND DUTIES OF OFFICERS

##  

In addition to theforegoing authority and duties, all officers of the Corporation shallrespectively have such authority and perform such duties in the management ofthe business of the Corporation as may be designated from time to time by theboard of directors or the stockholders.

 

# ARTICLE VI

#  

# INDEMNITY

#  

## 6.1                                 THIRDPARTY ACTIONS

##  

The Corporation shallindemnify any person who was or is a party or is threatened to be made a partyto any threatened, pending, or completed action, suit or proceeding, whethercivil, criminal, administrative or investigative (other than an action by or inthe right of the Corporation to procure a judgement in its favor) by reason ofthe fact that such person is or was director, officer, employee or agent of theCorporation, or is or was serving at the request of the Corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure trust or other enterprise, against expenses (including attorneys’fees), judgments, fines and amounts paid in settlement actually and reasonablyincurred by such person in connection with such action, suit or proceeding ifhe or she acted in good faith and in a manner he or she reasonably believed tobe in or not opposed to the best interests of the Corporation, and, withrespect to any criminal action or proceeding, had no reasonable cause tobelieve his conduct was unlawful.  Thetermination of any action, suit or proceeding by judgment, order, settlement,conviction, or upon a plea of nolo contendere or its equivalent, shall not, ofitself, create a presumption that the person did not act in good faith and in amanner which he or she reasonably believed to be in or not opposed to the bestinterest of the Corporation, and, with respect to any criminal action orproceeding, had reasonable cause to believe that his conduct was unlawful.

 

## 6.2                                 ACTIONSBY OR IN THE RIGHT OF THE CORPORATION

##  

The Corporation shallindemnify any person who was or is a party or is threatened to be made a partyto any threatened, pending or completed action or suit by or in the right ofthe Corporation to procure a judgment in its favor by reason of the fact thathe or she is or was a director, officer, employee or agent of Corporation, oris or was serving at the request of the Corporation as a director, officer,employee or agent of another corporation, partnership, joint venture, trust orother enterprise against expenses (including attorneys’ fees) actually andreasonably incurred by such person in connection with the defense or settlementof such action or suit if he or she acted in good faith and in manner he or shereasonably believed to be in or not opposed to the best interests of theCorporation and except that no indemnification shall be made in respect of anyclaim, issue or matter as to which such person shall have been adjudged to beliable to the Corporation unless and only to the extent that the Delaware Courtof Chancery or the court in which such action or suit was brought shalldetermine upon application that, despite

 

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the adjudication ofliability but in view of all the circumstances of the case, such person isfairly and reasonably entitled to indemnity for such expenses which theDelaware Court of Chancery or such other court shall deem proper.

 

## 6.3                                 SUCCESSFULDEFENSE

##  

To the extent that adirector, officer, employee or agent of the Corporation has been successful onthe merits or otherwise in defense of any action, suit or proceeding referredto in Sections 6.1 and 6.2, or in defense of any claim, issue or mattertherein, such person shall be indemnified against expenses (includingattorneys’ fees) actually and reasonably incurred by him or her in connectiontherewith.

 

## 6.4                                 DETERMINATIONOF CONDUCT

##  

Any indemnification underSections 6.1 and 6.2 (unless ordered by a court) shall be made by theCorporation only as authorized in the specific case upon a determination thatthe indemnification of the director, officer, employee or agent is proper inthe circumstances because he or she has met the applicable standard of conductset forth in Sections 6.1 and 6.2.  Suchdetermination shall be made (1) by the board of Directors or the ExecutiveCommittee by a majority vote of a quorum consisting of directors who were notparties to such action, suit or proceeding, or (2) or if such quorum is notobtainable or, even if obtainable, a quorum of disinterested directors sodirects, by independent legal counsel in a written opinion, or (3) by thestockholders.

 

## 6.5                                 PAYMENTOF EXPENSES IN ADVANCE

##  

Expenses incurred indefending a civil or criminal action, suit or proceeding shall be paid by theCorporation in advance of the final disposition of such action, suit orproceeding upon receipt of an undertaking by or on behalf of the director, officer,employee or agent to repay such amount if it shall ultimately be determinedthat he or she is not entitled to be indemnified by the Corporation asauthorized in this Article VI.

 

## 6.6                                 INDEMNITYNOT EXCLUSIVE

##  

The indemnification andadvancement of expenses provided or granted pursuant to the other subsectionsof this section shall not be deemed exclusive of any other rights to whichthose seeking indemnification or advancement of expenses may be entitled underany by-law, agreement, vote of stockholders or disinterested directors orotherwise, both as to action in his official capacity and as to action inanother while holding such office.

 

## 6.7                                 INSURANCEINDEMNIFICATION

##  

The Corporation shallhave the power to purchase and maintain insurance on behalf of any person whois or was a director, officer, employee or agent of the Corporation, or is orwas serving at the request of the Corporation, as a director, officer, employeeor agent of another corporation, partnership, joint venture, trust or other enterpriseagainst any liability asserted against such person and incurred by such personin any such capacity, or arising out of his or her

 

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status as such, whetheror not the Corporation would have the power to indemnify such person againstsuch liability under the provisions of this Article VI.

 

## 6.8                                 THECORPORATION

##  

For purposes of thisArticle VI, references to “the Corporation” shall include, in addition tothe resulting Corporation, any constituent corporation (including anyconstituent of a constituent) absorbed in a consolidation or merger which, ifits separate existence had continued, would have had power and authority toindemnify its directors, officers, and employees or agents, so that any personwho is was a director, officer, employee or agent of such constituentcorporation, or is or was serving at the request of such constituentcorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, shall stand in the sameposition under and subject to the provisions of this Article VI(including, without limitation the provisions of Section 6.4) with respectto the resulting or surviving corporation as he or she would have with respectto such constituent corporation if its separate existence had continued.

 

## 6.9                                 EMPLOYEEBENEFIT PLANS

##  

For purposes of thisArticle VI, references to “other enterprises” shall include employeebenefit plans; references to “fines” shall include any excise taxes assessed ona person with respect to an employee benefit plan; and references to “servingat the request of the Corporation” shall include any service as a director,officer, employee or agent of the Corporation which imposes duties on, orinvolves services by, such director, officer, employee, or agent with respectto an employee benefit plan, its participants, or beneficiaries; and a personwho acted in good faith and in a manner he or she reasonably deemed to haveacted in a manner “not opposed to the best interests of the Corporation” asreferred to in this Article VI.

 

## 6.10                           CONTINUATIONOF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

##  

The indemnification andadvanced of expenses provided by, or granted pursuant to, this Article VIshall, unless otherwise provided when authorized or ratified, continue as to aperson who has ceased to be a director, officer, employee or agent and shallinure to the benefit of the heirs, executors and administrators of such aperson.

 

# ARTICLE VII

#  

# RECORDS AND REPORTS

#  

## 7.1                                 MAINTENANCEAND INSPECTION OF RECORDS

##  

The Corporation shall,either at its principal executive office or at such place or places asdesignated by the board of directors, keep a record of its stockholders listingtheir names and addresses and the number and class of shares held by eachstockholder, a copy of these Bylaws as amended to date, accounting books, andother records.

 

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Any stockholder ofrecord, in person or by attorney or other agent, shall, upon written demandunder oath stating the purpose thereof, have the right during the usual hoursfor business to inspect for any proper purpose the Corporation’s stock ledger,a list of its stockholders, and its other books and records and to make copiesor extracts therefrom.  A proper purposeshall mean a purpose reasonably related to such person’s interest as astockholder.  In every instance where anattorney or other agent is the person who seeks the right to inspection, thedemand under oath shall be accompanied by a power of attorney or such otherwriting that authorizes the attorney or other agent to so act on behalf of thestockholder.  The demand under oathshall be directed to the Corporation at its registered office in Delaware or atits principal place of business.

 

## 7.2                                 INSPECTIONBY DIRECTORS

##  

Any director shall havethe right to examine the Corporation’s stock ledger, a list of its stockholdersand its other books and records for a purpose reasonably related to hisposition as a director.  The Court ofChancery is hereby vested with the exclusive jurisdiction to determine whethera director is entitled to the inspection sought.  The Court may summarily order the Corporation to permit thedirector to inspect any and all books and records, the stock ledger, and thestock list and to make copies or extracts therefrom.  The Court may, in its discretion, prescribe any limitations orconditions with reference to the inspection, or award such other and furtherrelief as the Court may deem just and proper.

 

## 7.3                                 REPRESENTATIONOF SHARES OF OTHER CORPORATIONS

##  

The chairman of theboard, the chief executive officer, any vice president, the chief financialofficer, the secretary or assistant secretary of this Corporation, or any otherperson authorized by the board of directors or the chief executive officer or avice president, is authorized to vote, represent, and exercise on behalf ofthis Corporation all rights incident to any and all shares of any othercorporation or corporations standing in the name of this Corporation.  The authority granted herein may beexercised either by such person directly or by any other person authorized todo so by proxy or power of attorney duly executed by such person having the authority.

 

# ARTICLE VIII

#  

# GENERAL MATTERS

#  

## 8.1                                 CHECKS

##  

From time to time, theboard of directors shall determine by resolution which person or persons maysign or endorse all checks, drafts, other orders for payment of money, notes orother evidences of indebtedness that are issued in the name of or payable tothe Corporation, and only the persons so authorized shall sign or endorse thoseinstruments.

 

## 8.2                                 EXECUTIONOF CORPORATE CONTRACTS AND INSTRUMENTS

##  

The board of directors,except as otherwise provided in these Bylaws, may authorize any officer orofficers, or agent or agents, to enter into any contract or execute anyinstrument in the name of and on behalf of the Corporation; such authority maybe general or confined to specific

 

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instances.  Unless so authorized or ratified by theboard of directors or within the agency power of an officer, no officer, agentor employee shall have any power or authority to bind the Corporation by anycontract or engagement or to pledge its credit or to render it liable for anypurpose or for any amount.

 

## 8.3                                 STOCKCERTIFICATES; PARTLY PAID SHARES

##  

The shares of acorporation shall be represented by certificates, provided that the board ofdirectors of the Corporation may provide by resolution or resolutions that someor all of any or all classes or series of its stock shall be uncertificatedshares.  Any such resolution shall notapply to shares represented by a certificate until such certificate issurrendered to the Corporation. Notwithstanding the adoption of such a resolution by the board ofdirectors, every holder of stock represented by certificates and upon requestevery holder of uncertificated shares shall be entitled to have a certificatesigned by, or in the name of the Corporation by the chairman or vice-chairmanof the board of directors, or the president or vice-president, and by thetreasurer or an assistant treasurer, or the secretary or an assistant secretaryof such Corporation representing the number of shares registered in certificateform.  Any or all of the signatures onthe certificate may be a facsimile.  Incase any officer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate has to be such officer, transferagent or registrar before such certificate is issued, it may be issued by theCorporation with the same effect as if he or she were such officer, transferagent or registrar at the date of issue.

 

The Corporation may issuethe whole or any part of its shares as partly paid and subject to call for theremainder of the consideration to be paid therefor.  Upon the face or back of each stock certificate issued torepresent any such partly paid shares, upon the books and records of theCorporation in the case of uncertificated partly paid shares, the total amountof the consideration to be paid therefor and the amount paid thereon shall bestated.  Upon the declaration of anydividend on fully paid shares, the Corporation shall declare a dividend uponpartly paid shares of the same class, but only upon the basis of the percentageof the consideration actually paid thereon.

 

## 8.4                                 SPECIALDESIGNATION ON CERTIFICATES

##  

If the Corporation isauthorized to issue more than one class of stock or more than one series of anyclass, then the powers, the designations, the preferences, and the relative,participating, optional or other special rights of each class of stock orseries thereof and the qualifications, limitations or restrictions of suchpreferences and/or rights shall be set forth in full or summarized on the faceor back of the certificate that the Corporation shall issue to represent suchclass or series of stock; provided, however, that, except as otherwise providedin Section 202 of the General Corporation Law of Delaware, in lieu of theforegoing requirements there may be set forth on the face or back of thecertificate that the Corporation shall issue to represent such class or seriesof stock a statement that the Corporation will furnish without charge to eachstockholder who so requests the powers, the designations, the preferences, andthe relative, participating, optional or other special rights of each class ofstock or series thereof and the qualifications, limitations or restrictions ofsuch preferences and/or rights.

 

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## 8.5                                 LOSTCERTIFICATES

##  

Except as provided inthis Section 8.5, no new certificates for shares shall be issued toreplace a previously issued certificate unless the latter is surrendered to theCorporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificatedshares in the place of any certificate theretofore issued by it, alleged tohave been lost, stolen or destroyed, and the Corporation may require the ownerof the lost, stolen or destroyed certificate, or his legal representative, togive the Corporation a bond sufficient to indemnify it against any claim thatmay be made against it on account of the alleged loss, theft or destruction ofany such certificate or the issuance of such new certificate or uncertificatedshares.

 

## 8.6                                 CONSTRUCTION;DEFINITIONS

##  

Unless the contextrequires otherwise, the general provisions, rules of construction, anddefinitions in the Delaware General Corporation Law shall govern the constructionof these Bylaws. Without limiting the generality of this provision, thesingular number includes the plural, the plural number includes the singular,and the term “person” includes both a Corporation and a natural person.

 

## 8.7                                 DIVIDENDS

##  

The directors of theCorporation, subject to any restrictions contained in the certificate ofincorporation, may declare and pay dividends upon the shares of its capitalstock pursuant to the General Corporation Law of Delaware.  Dividends may be paid in cash, in property,or in shares of the Corporation’s capital stock.

 

The directors of theCorporation may set apart out of any of the funds of the Corporation availablefor dividends a reserve or reserves for any proper purpose and may abolish anysuch reserve.  Such purposes shallinclude but not be limited to equalizing dividends, repairing or maintainingany property of the Corporation, and meeting contingencies.

 

## 8.8                                 FISCALYEAR

##  

The fiscal year of theCorporation shall be fixed by resolution of the board of directors and may bechanged by the board of directors.

 

## 8.9                                 SEAL

##  

The Corporation may adopta corporate seal, which may be altered at pleasure, and may use the same bycausing it or a facsimile thereof to be impressed or affixed or in any othermanner reproduced.

 

## 8.10                           TRANSFEROF STOCK

##  

Upon surrender to theCorporation or the transfer agent of the Corporation of a certificate forshares duly endorsed or accompanied by proper evidence of succession,assignation or authority to transfer, it shall be the duty of the Corporationto issue a new certificate to the person entitled thereto, cancel the oldcertificate, and record the transaction in its books.

 

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## 8.11                           STOCKTRANSFER AGREEMENTS

##  

The Corporation shallhave power to enter into and perform any agreement with any number ofstockholders of any one or more classes of stock of the Corporation to restrictthe transfer of shares of stock of the Corporation of any one or more classesowned by such stockholders in any manner not prohibited by the GeneralCorporation Law of Delaware.

 

## 8.12                           REGISTEREDSTOCKHOLDERS

##  

The Corporation shall beentitled to recognize the exclusive right of a person registered on its booksas the owner of shares to receive dividends and to vote as such owner, shall beentitled to hold liable for calls and assessments the person registered on itsbooks as the owner of shares, and shall not be bound to recognize any equitableor other claim to or interest in such share or shares on the part of anotherperson, whether or not it shall have express or other notice thereof, except asotherwise provided by the laws of Delaware.

 

# ARTICLE IX

#  

# AMENDMENTS

#  

The original or otherBylaws of the Corporation may be adopted, amended or repealed by thestockholders entitled to vote; provided, however, that the Corporation may, inits certificate of incorporation, confer the power to adopt, amend or repealBylaws upon the directors.  The factthat such power has been so conferred upon the directors shall not divest thestockholders of the power, nor limit their power to adopt, amend or repealBylaws.

 

# ARTICLE X

#  

# DISSOLUTION

#  

If it should be deemedadvisable in the judgment of the board of directors of the Corporation that theCorporation should be dissolved, the board, after the adoption of a resolutionto that effect by a majority of the whole board at any meeting called for thatpurpose, shall cause notice to be mailed to each stockholder entitled to votethereon of the adoption of the resolution and of a meeting of stockholders totake action upon the resolution.

 

At the meeting a voteshall be taken for and against the proposed dissolution.  If a majority of the outstanding stock ofthe Corporation entitled to vote thereon votes for the proposed dissolution,then a certificate stating that the dissolution has been authorized inaccordance with the provisions of Section 275 of the General CorporationLaw of Delaware and setting forth the names and residences of the directors andofficers shall be executed, acknowledged, and filed and shall become effectivein accordance with Section 103 of the General Corporation Law ofDelaware.  Upon such certificate’sbecoming effective in accordance with Section 103 of the GeneralCorporation Law of Delaware, the Corporation shall be dissolved.

 

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# ARTICLE XI

#  

# CUSTODIAN

#  

## 11.1                           APPOINTMENTOF A CUSTODIAN IN CERTAIN CASES

##  

The Court of Chancery,upon application of any stockholder, may appoint one or more persons to becustodians and, if the Corporation is insolvent, to be receivers, of and forthe Corporation when:

 
| (i)    |   | at any meeting held for the election of directors  the stockholders are so divided that they have failed to elect successors to  directors whose terms have expired or would have expired upon qualification  of their successors; or                                                                                                    |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                                                                                     |
| (ii)   |   | the business of the Corporation is suffering or is  threatened with irreparable injury because the directors are so divided  respecting the management of the affairs of the Corporation that the required  vote for action by the board of directors cannot be obtained and the  stockholders are unable to terminate this division; or |
|   |   |                                                                                                                                                                                                                                                                                                                                     |
| (iii)  |   | the Corporation has abandoned its business and has  failed within a reasonable time to take steps to dissolve, liquidate or  distribute its assets.                                                                                                                                                                                      |

###  

## 11.2                           DUTIESOF CUSTODIAN

##  

The custodian shall haveall the powers and title of a receiver appointed under Section 291 of theGeneral Corporation Law of Delaware, but the authority of the custodian shallbe to continue the business of the Corporation and not to liquidate its affairsand distribute its assets, except when the Court of Chancery otherwise ordersand except in cases arising under Sections 226(a)(3) or 352(a)(2) of theGeneral Corporation Law of Delaware.

 

# ARTICLE XII

#  

# NOTICE BY ELECTRONIC TRANSMISSION

#  

## 12.1                           NOTICEBY ELECTRONIC TRANSMISSION

##  

Without limiting themanner by which notice otherwise may be given effectively to stockholderspursuant to the General Corporation Law of Delaware, the certificate ofincorporation or these bylaws, any notice to stockholders given by theCorporation under any provision of the General Corporation Law of Delaware, thecertificate of incorporation or these bylaws shall be effective if given by aform of electronic transmission consented to by the stockholder to whom thenotice is given.  Any such consent shallbe revocable by the stockholder by written notice to the Corporation.  Any such consent shall be deemed revoked if:

 

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| (i)    |   | the Corporation is unable to deliver by electronic  transmission two consecutive notices given by the corporation in accordance  with such consent; and                      |
|--------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                         |
| (ii)   |   | such inability becomes known to the secretary or an  assistant secretary of the Corporation or to the transfer agent, or other  person responsible for the giving of notice. |

###  

However, the inadvertentfailure to treat such inability as a revocation shall not invalidate anymeeting or other action.

 

Any notice given pursuantto the preceding paragraph shall be deemed given:

 
| (i)    |   | if by facsimile telecommunication, when directed to  a number at which the stockholder has consented to receive notice;                                                                                             |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                |
| (ii)   |   | if by electronic mail, when directed to an  electronic mail address at which the stockholder has consented to receive  notice;                                                                                      |
|   |   |                                                                                                                                                                                                                |
| (iii)  |   | if by a posting on an electronic network together  with separate notice to the stockholder of such specific posting, upon the  later of (A) such posting and (B) the giving of such separate  notice; and |
|   |   |                                                                                                                                                                                                                |
| (iv)   |   | if by any other form of electronic transmission,  when directed to the stockholder.                                                                                                                                 |

###  

An affidavit of thesecretary or an assistant secretary or of the transfer agent or other agent ofthe Corporation that the notice has been given by a form of electronictransmission shall, in the absence of fraud, be prima facie evidence of thefacts stated therein.

 

## 12.2                           DEFINITIONOF ELECTRONIC TRANSMISSION

##  

An “electronictransmission” means any form of communication, not directly involving thephysical transmission of paper, that creates a record that may be retained,retrieved, and reviewed by a recipient thereof, and that may be directlyreproduced in paper form by such a recipient through an automated process.

 

## 12.3                           INAPPLICABILITY

##  

Notice by a form ofelectronic transmission shall not apply to Sections 164, 296, 311, 312 or 324of the General Corporation Law of Delaware.

 

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