**Exhibit 3.1**

 

**SECOND**

**AMENDED AND RESTATEDBYLAWS**

**of**

**CATELLUS DEVELOPMENT CORPORATION**

 

*Effectiveas of May 4, 2004*

 

****1.**MEETINGS OF STOCKHOLDERS.**

 

1.1. **Annual Meeting.** An annual meeting ofthe stockholders shall be held at such time, date, and place within or without the State of Delaware as the Board of Directors (the “Board”) may fix for the purpose of electing directors and transacting such other business as may comebefore the meeting. 

 

1.2. **Special Meetings.**Special meetings of the stockholders may only be called by resolution of the Board or by the chairman of the board, the chief executive officer, or the president, and not by the stockholders. Only business related to the purposes set forth in thenotice of the meeting may be transacted at a special meeting. 

 

1.3. **Place and Time of Special Meetings.** Special Meetings of the stockholders may be held in or outside Delaware at the place and time specified by the Board or by the chairman of the board, the chief executive officer, or thepresident. 

 

1.4. **Notice of Meetings; Waiver ofNotice.** Written notice of each meeting of stockholders shall be given to each stockholder entitled to vote at the meeting, except that (a) it shall not be necessary to give notice to any stockholder who submits a signed waiver of noticebefore or after the meeting, and (b) no notice of an adjourned meeting need be given except when required under Section 1.5 of these bylaws or by law. Each notice of a meeting shall be given, in writing, personally, via facsimile or by mail, notless than 10 nor more than 60 days before the meeting and shall state the time and place of the meeting, and unless it is the annual meeting, shall state at whose direction or request the meeting is called and the purposes for which it is called.Notice shall be deemed duly given when (i) delivered personally, (ii) sent via facsimile to a number at which the stockholder has consented to receive notice, or (iii) mailed to a stockholder at his address on the corporation’s records. Theattendance of any stockholder at a meeting, without protesting at the beginning of the meeting that the meeting is not lawfully called or convened, shall constitute a waiver of notice by him. 

 

1.5. **Quorum.** At any meeting of stockholders, the presence inperson or by proxy of the holders of a majority of the shares entitled to vote shall constitute a quorum for the transaction of any business. In the absence of a quorum a majority in voting interest of those present or, if no stockholders arepresent, any officer entitled to 

preside at or to act as secretary of the meeting, may adjourn the meeting until a quorum is present. At any adjournedmeeting at which a quorum is present any action may be taken which might have been taken at the meeting as originally called. No notice of an adjourned meeting need be given if the time and place are announced at the meeting at which the adjournmentis taken except that, if adjournment is for more than thirty days or if, after the adjournment, a new record date is fixed for the meeting, notice of the adjourned meeting shall be given pursuant to Section 1.4. 

 

1.6. **Voting; Proxies.** Each stockholder of record shall beentitled to one vote for every share registered in his name. Corporate action to be taken by stockholder vote, other than the election of directors, shall be authorized by a majority of the votes cast at a meeting of stockholders, except asotherwise provided by the corporation’s Restated Certificate of Incorporation or by law or by Section 1.8 of these bylaws. Directors shall be elected in the manner provided in Section 2.1 of these bylaws. Voting, including election ofdirectors, need not be by written ballot unless requested by a stockholder at the meeting or ordered by the chairman of the meeting. Each stockholder entitled to vote at any meeting of stockholders or to express consent or to dissent from corporateaction in writing without a meeting may authorize another person to act for him by proxy. Stockholders may vote either (i) in person, (ii) by written proxy or (iii) by a transmission permitted by §212(c) of the Delaware General Corporation Law.Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission permitted by §212 of the Delaware General Corporation Law may be substituted for or used in lieu of the original writing or transmission for anyand all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. No proxy shallbe valid after three years from its date unless it provides otherwise. 

 

1.7. **List of Stockholders.** Not less than 10 days prior to the date of any meeting of stockholders, the secretary of the corporation shall prepare a complete list of stockholders entitled to vote at the meeting, arranged inalphabetical order and showing the address of each stockholder and the number of shares registered in his name. For a period of not less than 10 days prior to the meeting, the list shall be available during ordinary business hours for inspection byany stockholder for any purpose germane to the meeting. During this period, the list shall be kept at the principal place of business of the corporation. The list shall also be available for inspection by stockholders at the time and place of themeeting. 

 

1.8. **Action by Consent Without aMeeting.**

 

(a) Subject to compliance with the proceduresset forth in this Section 1.8, any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holdersof outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action 

 

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at a meeting at which all shares entitled to vote thereon were present and voting. Every written consent shall bear thedate of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the date the earliest dated written consent was received in accordancewith this Section 1.8, a written consent or consents signed by a sufficient number of holders to take such action are delivered to the corporation in the manner prescribed in this Section 1.8. Every written consent shall be revocable by thestockholder by written instrument of revocation delivered to the corporation before the effective date of the action taken. Prompt notice of the taking of any such action shall be given to those stockholders who did not consent in writing.

 

(b) So long as any of the corporation’s securities arelisted on the New York Stock Exchange, action by the holders of any class of security so listed may not be taken by consent in writing pursuant to this Section 1.8 except with the prior approval of the New York Stock Exchange, and otherwise inaccordance with this Section 1.8. In order that the corporation may determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede thedate upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board. Any stockholder of record seekingto have the stockholders authorize or take corporate action by written consent shall, by written notice to the secretary of the corporation, request the Board to fix a record date. The Board shall promptly, but in all events within 10 days after thedate, on which such a request is received, adopt a resolution fixing the record date. If no record date has been fixed by the Board within 10 days of the date on which such a request is received, the record date for determining stockholders entitledto consent to corporate action in writing without a meeting, when no prior action by the Board is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken isdelivered to the corporation. If no record date has been fixed by the Board and prior action by the Board is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without ameeting shall be at the close of business on the date on which the Board adopts the resolution taking such prior action. Every signed written consent shall be delivered to the corporation by delivery to its registered office in Delaware, itsprincipal place of business or to any officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery shall be by hand or by certified or registered mail, return receiptrequested. 

 

(c) Material soliciting the written consent ofstockholders shall be sent to each stockholder who would be entitled to vote on the action to be taken if such action were being considered at a meeting of stockholders. Such solicitation materials shall include the form of written consent, whichshall set forth the action to be taken, and shall otherwise comply with the proxy statement disclosure standards then applicable to the corporation. The solicitation materials shall be deemed duly given when (i) delivered 

 

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personally, (ii) sent via facsimile to a number at which the stockholder has consented to receive notice, or (iii) mailedto a stockholder at his address on the corporation’s records.****The solicitation period, from the date the solicitation materials are first given to stockholders until and including the date by which stockholders must return such writtenconsent, shall be not less than 30 days. Notwithstanding anything to the contrary contained in these bylaws, no action to be taken by written consent may be taken until the expiration of the solicitation period, whether or not the requisite consentshave been signed prior to such expiration. 

 

(d)****In theevent of the delivery, in the manner provided by this Section 1.8, to the corporation of the requisite written consent or consents to take corporate action and/or any related revocation or revocations, the corporation shall engage nationallyrecognized independent inspectors of elections for the purpose of promptly performing a ministerial review of the validity of the consents and revocations. For the purpose of permitting the inspectors to perform such review, no action by writtenconsent without a meeting shall be effective until such date as the independent inspectors certify to the corporation that the consents delivered to the corporation in accordance with this Section 1.8 represent at least the minimum number of votesthat would be necessary to take the corporation action. Nothing contained in this paragraph shall in any way be construed to suggest or imply that the Board or any stockholder shall not be entitled to contest the validity of any consent orrevocation thereof, whether before or after such certification by the independent inspectors, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and theseeking of injunctive relief in such litigation). 

 

1.9.**Stockholder Nominations and Proposals.**

 

(a) Atan annual meeting of the stockholders, only such business will be conducted or considered as is properly brought before the meeting. To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or anysupplement to the notice) given by or at the direction of the Board in accordance with these bylaws and presented at the meeting by a stockholder, officer, or director, (ii) otherwise properly brought before the meeting by the presiding officer orby or at the direction of a majority of the Board, or (iii) otherwise properly requested to be brought before the meeting by a stockholder of the Company in accordance with Section 1.9(b) below. 

 

(b) For business to be properly requested by a stockholder to be broughtbefore an annual meeting, the stockholder must (i) be a stockholder of the corporation of record at the time of the giving of notice for the annual meeting provided for in these bylaws, (ii) be entitled to vote at the annual meeting, (iii) havegiven timely notice of the business in writing to the secretary of the corporation and (iv) present the matter at the meeting unless it is presented on the stockholder’s behalf by or at the direction of the Board. A stockholder’s notice tothe secretary of the corporation must set forth as to each matter the stockholder proposes to bring before the annual meeting: (A) a description in 

 

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reasonable detail of the business desired to be brought before the annual meeting and the reasons for conducting thebusiness at the annual meeting, (B) the name and address, as they appear on the corporation’s books, of the stockholder proposing the business and of the beneficial owner, if any on whose behalf the proposal is made, (C) the class and number ofshares of the corporation that are owned beneficially and of record by the stockholder proposing the business and by the beneficial owner, if any, on whose behalf the proposal is made, (D) any material interest of the stockholder proposing thebusiness and of the beneficial owner, if any, on whose behalf the proposal is made in the business, and (E) any other information that is required to be provided by the stockholder pursuant to Regulation 14A under the Securities Exchange Act of1934, as amended (the “1934 Act”), in his capacity as a proponent of a stockholder proposal. Notwithstanding the foregoing, in order to include information with respect to a stockholder proposal in the proxy statement and form of proxy fora stockholder’s meeting, stockholders must provide notice as required by the regulations promulgated under the 1934 Act. 

 

(c) Nominations of persons for election as directors of the corporation may be made only at an annual meeting of stockholders (i) by or at the directionof the Board or (ii) by any stockholder who is a stockholder of record at the time of giving of notice provided for in these bylaws, who is entitled to vote for the election of directors at the meeting, and who complies with the procedures set forthin this bylaw. All nominations by stockholders must be made pursuant to timely notice in proper written form to the secretary of the corporation. 

 

(d) To be in proper written form, a stockholder’s notice of nomination must set forth (i) the name and address, as they appear on thecorporation’s books, of the stockholder giving the notice and of the beneficial owner, if any, on whose behalf the nomination is made; (ii) a representation that the stockholder giving the notice is a holder of record of stock of thecorporation entitled to vote at the annual meeting and intends to appear in person or by proxy at the annual meeting to nominate the person or persons specified in the notice; (iii) the class and number of shares of stock of the corporation ownedbeneficially and of record by the stockholder giving the notice and by the beneficial owner, if any, on whose behalf the nomination is made; (iv) a description of all arrangements or understandings between or among any of (A) the stockholder givingthe notice, (B) the beneficial owner on whose behalf the notice is given, (C) each nominee, and (D) any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder givingthe notice; (v) such other information regarding each nominee proposed by the stockholder giving the notice as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission underthe 1934 Act had the nominee been nominated, or intended to be nominated, by the Board; and (vi) the signed consent of each nominee to serve as a director of the corporation if so elected. The presiding officer of any annual meeting will, if thefacts warrant, determine that a nomination was not made in accordance with the procedures prescribed by this bylaw, and if he or she should so determine, he or she will so declare to the meeting, and the defective nomination will be disregarded.Notwithstanding the foregoing provisions, a stockholder must also comply with all applicable requirements of the 1934 Act, and the rules and regulations thereunder, with respect to the matters set forth in this bylaw. 

 

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(e) To be timely, a stockholder’s notice under paragraphs (b) or (d) above must be delivered to ormailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of the date of the corporation’s proxy statement released to stockholders in connection with the previousyear’s annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from the date of the previousyear’s meeting, notice by the stockholder to be timely must be so received not later than the close of business on the later of one hundred twenty (120) calendar days in advance of such annual meeting or ten (10) calendar days following thedate on which public announcement of the date of the meeting is first made. For purposes of this bylaw, “public announcement” means disclosure in a press release reported by a national news service or in a document publicly filed by thecorporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the 1934 Act, or furnished to stockholders. 

 

2. **BOARD OF DIRECTORS.**

 

2.1. **Number, Qualification, Election and Term of Directors.** The business of the corporation shall be managed by the Board, which shallconsist of nine directors. The number of directors may only be changed by resolution of a majority of the entire Board**,** and not by the stockholders, but no decrease may shorten the term of any incumbent director. Directors shall be elected ateach annual meeting of stockholders by a plurality of the votes cast and shall hold office until the next annual meeting of stockholders and until the election and qualification of their respective successors, subject to the provisions of Section2.9. As used in these bylaws, the term “entire Board” means the total number of directors that the corporation would have if there were no vacancies on the Board. 

 

2.2. **Quorum and Manner of Acting.** A majority of the entire Board shall constitute a quorum for the transactionof business at any meeting, except as provided in Section 2.10 of these bylaws. Action of the Board shall be authorized by the vote of a majority of the directors present at the time of the vote if there is a quorum, unless otherwise provided by lawor these bylaws. In the absence of a quorum a majority of the directors present may adjourn any meeting from time to time until a quorum is present. 

 

2.3. **Place of Meetings.** Meetings of the Board may be held in or outside Delaware. 

 

2.4. **Annual and Regular Meetings.** Annual meetings of the Board,for the election of officers and consideration of other matters, shall be held either (a) without 

 

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notice immediately after the annual meeting of stockholders and at the same place, or (b) as soon as practicable afterthe annual meeting of stockholders, on notice as provided in Section 2.6 of these bylaws. Regular meetings of the Board may be held without notice at such times and places as the Board determines. If the day fixed for a regular meeting is a legalholiday, the meeting shall be held on the next business day. 

 

2.5. **Special Meetings.** Special meetings of the Board may be called by the chairman of the board, chief executive officer, president, or a majority of the directors. Only business related to the purposes set forth in the noticeof meeting may be transacted at a special meeting. 

 

2.6.**Notice of Meetings; Waiver of Notice.** Notice of the time and place of each special meeting of the Board, and of each annual meeting not held immediately after the annual meeting of stockholders and at the same place, shall be given toeach director by mailing it to the director at his or her residence or usual place of business at least three days before the meeting or by delivering notice to the director personally (including by telephone) or by e-mail or facsimile at least oneday before the meeting. Notice shall be deemed duly given when (a) delivered personally, (b) sent by e-mail or facsimile (with receipt confirmed) or (c) mailed to a director’s residence or usual place of business. Notice of a special meetingshall also state the purpose or purposes for which the meeting is called. Notice need not be given to any director who submits a signed waiver of notice before or after the meeting or who attends the meeting without protesting at the beginning ofthe meeting the transaction of any business because the meeting was not lawfully called or convened. Notice of any adjourned meeting need not be given, other than by announcement at the meeting at which the adjournment is taken. 

 

2.7. **Board or Committee Action Without a Meeting.** Any actionrequired or permitted to be taken by the Board or by any committee of the Board may be taken without a meeting if all of the members of the Board or of the committee consent in writing to the adoption of a resolution authorizing the action. Theresolution and the written consents by the members of the Board or the committee shall be filed with the minutes of the proceedings of the Board or of the committee. 

 

2.8. **Participation in Board or Committee Meetings by Conference Telephone.**Any or all members of the Board orof any committee of the Board may participate in a meeting of the Board or of the committee by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other. Participation bysuch means shall constitute presence in person at the meeting. 

 

2.9. **Resignation and Removal of Directors.** Any director may resign at any time by delivering his resignation in writing to the chief executive officer, president, or secretary of the corporation, to take effect at the timespecified in the resignation; the acceptance of a resignation, unless required by its terms, shall not be necessary to make it 

 

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effective. Any or all of the directors may be removed at any time, either with or without cause, by vote of thestockholders; provided however, that a vote of a majority of the shares outstanding and entitled to vote shall be required to effect any such removal without cause. 

 

2.10. **Vacancies.**Any vacancy in the Board, including one created by an increase in the number of directors,may be filled for the unexpired term only by a majority or greater vote of the remaining directors then in office, though less than a quorum, and not by the stockholders (other than at an annual meeting of stockholders). 

 

2.11. **Compensation.** Directors shall receive such compensationas the Board determines, together with reimbursement of their reasonable expenses in connection with the performance of their duties. A director may also be paid for serving the corporation, its affiliates or subsidiaries in other capacities.

 

2.12. **Chairman of the Board.** The chairman of theboard shall be elected by the Board at the annual meeting of the Board. The chairman of the board shall preside at all meetings of the Board and of the stockholders and shall have such powers and duties as the Board assigns to the chairman. Thechairman shall hold office until the next annual meeting of the Board and until the election of his successor; provided, however, that the chairman may resign at anytime by delivering his resignation in writing to the chief executive officer,president, or secretary of the corporation, to take effect at the time specified in the resignation; the acceptance of a resignation, unless required by its terms, shall not be necessary to make it effective. The chairman may be removed by the Boardeither with or without cause. 

 

3. **COMMITTEES.**

 

3.1. **Committees of the Board.** The Board, by resolution adoptedby a majority of the entire Board, may designate committees of one or more directors, which shall serve at the Board’s pleasure and have such powers and duties as the Board determines. No director who is also an officer of the corporation shallbe eligible to serve as a member of the Audit, Compensation and Benefits or Corporate Governance Committee of the Board, or any committee performing a similar function. 

 

3.2. **Rules Applicable to Committees.**The Board may designate one or more directors as alternate members of anycommittee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any member of a committee, the member or members present at a meeting of the committee and not disqualified, whetheror not a quorum, may unanimously appoint another director to act at the meeting in place of the absent or disqualified member. All action of a committee shall be reported to the Board at its next meeting. Each committee may adopt rules of procedureand shall meet as provided by those rules or by resolutions of the Board. 

 

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4. **OFFICERS.**

 

4.1. **Number of Executive Officers; Security.** The executive officers of the corporation shall be the chief executive officer or president,one or more vice presidents (which may include one or more executive or senior vice presidents, if the Board so determines), a secretary and a treasurer, and such other officers as the Board may from time to time authorize and elect. Any two or moreoffices may be held by the same person. Unless otherwise required by law, the Board shall not be required to fill a vacancy in an executive office. The Board may require any officer, agent or employee to give security for the faithful performance ofhis duties. The executive officers shall have powers and duties as follows: 

 

(a) The chief executive officer of the corporation shall be the chief executive officer or the president and shall, in the absence of the chairman of the board, preside at all meetings of the Board and of thestockholders. Subject to the control of the Board, he shall have general supervision over the business of the corporation and shall have such other powers and duties as chief executive officers or presidents of corporations usually have, or as theBoard assigns to him. 

 

(b) Subject to the control of the Board,each vice president shall have such powers and duties as the Board, chief executive officer or president assigns to him. 

 

(c) Subject to the control of the Board, the treasurer shall have such powers and duties as the Board, chief executive officer or president assigns tohim. The Board may designate the treasurer or any other officer as the chief financial officer of the corporation. 

 

(d) The secretary shall be the secretary of, and keep the minutes of, all meetings of the Board and of the stockholders, shall be responsible for givingnotice of all meetings of stockholders and of the Board, and shall keep the seal and apply it to any instrument requiring it. Subject to the control of the Board, he shall have such powers and duties as the Board, chief executive officer orpresident assigns to him. In the absence of the secretary from any meeting, the minutes shall be kept by the person appointed for that purpose by the presiding officer. 

 

4.2. **Election; Term of Office.**The executive officers of the corporation shall be elected annually by theBoard and each such officer shall hold office until the next annual meeting of the Board and until the election of his successor, subject to the provisions of Section 4.4. 

 

4.3. **Subordinate Officers.** The Board, chief executive officer or president may appoint subordinate officers(including, without limitation, assistant treasurers and assistant secretaries), agents or employees, each of whom shall hold office for such period and have such powers and duties as the Board, chief executive officer or president determines. TheBoard may delegate to any other executive officer or to any 

 

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committee the power to appoint and define the powers and duties of any subordinate officers, agents or employees. Thepresident, chief executive officer or chief financial officer may designate in writing any employee with the position of “director” to execute and deliver, and any other employee to attest agreements, certificates and other documents onbehalf of the corporation in connection with any transaction authorized by the Board of Directors, whether by specific resolution or pursuant to a delegation of authority. 

 

4.4. **Resignation and Removal of Officers.** Any officer may resign at any time by delivering his resignation inwriting to the chief executive officer, president, or secretary of the corporation, to take effect at the time specified in the resignation; the acceptance of a resignation, unless required by its terms, shall not be necessary to make it effective.Any officer appointed by the Board or appointed by an executive officer or by a committee may be removed by the Board either with or without cause, and in the case of an officer appointed by an executive officer or by a committee, by the officer orcommittee who appointed him or by the chief executive officer or president. 

 

4.5. **Vacancies.** A vacancy in any office may be filled for the unexpired term in the manner prescribed in Sections 4.2 and 4.3 of these bylaws for election or appointment to the office. 

 

4.6. **Compensation.** The Board or a committee thereof shall fixthe compensation of the chief executive officer or president and may fix the compensation of the other officers, if any, or it may authorize the chief executive officer or president to fix the compensation of any other officer. 

 

5. **SHARES**.

 

5.1. **Certificates.** The corporation’s shares shall be represented by certificates in the form approved bythe Board. Each certificate shall be signed by the chairman of the board, chief executive officer, president, or a vice president and by the secretary or an assistant secretary, or the treasurer or an assistant treasurer, and shall be sealed withthe corporation’s seal or a facsimile of the seal. Any or all of the signatures on the certificate may be a facsimile. If any officer who has signed, or whose facsimile has been placed upon a certificate has ceased to be such officer before thecertificate is issued, such certificate may be issued by the corporation with the same effect as if that officer were the officer indicated on the certificate at the date of issue. 

 

5.2. **Transfers.** Shares shall be transferable only on the corporation’s books, upon surrender of thecertificate for the shares, properly endorsed. The Board may require satisfactory surety before issuing a new certificate to replace a certificate claimed to have been lost or destroyed. 

 

5.3. **Determination of Stockholders of Record.** The Board may fix, in advance, a date as the record date for thedetermination of stockholders entitled to notice 

 

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of or to vote at any meeting of the stockholders, or to express consent to or dissent from any proposal without ameeting, or to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action. The record date may not be more than 60 or less than 10 days before the date of the meeting or more than 60 days before any otheraction. 

 

6. **INDEMNIFICATION AND INSURANCE****.**

 

6.1 **Right to Indemnification.** Each person whowas or is a party or 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 aperson 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 andlosses (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 continueas 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 indemnify any such person seekingindemnification 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 andshall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment ofsuch 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 toan employee benefit plan) in advance of the final disposition of 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 ultimatelybe 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 andeffect as the foregoing indemnification of directors and officers. 

 

6.2 **Right of Claimant to Bring Suit.** If a claim under Section 6.1 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 anytime thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful in 

 

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whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be adefense 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 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, independentlegal 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 actualdetermination 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 tomeet such standard of conduct. 

 

6.3 **Non-Exclusivity ofRights.** The right to indemnification and 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 orhereafter acquire under any statute, provision of the Restated Certificate of Incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. 

 

6.4 **Insurance.** The corporation may maintain insurance, at its 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 personagainst such expense, liability or loss under Delaware law. 

 

6.5 **Expenses as a Witness.** To the extent that any director, 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 anyaction, 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. 

 

6.6 **Indemnity Agreements.** The corporation may enter into agreements with any director, officer, employee oragent of the corporation providing for indemnification to the full extent permitted by Delaware law. 

 

7. **MISCELLANEOUS.**

 

7.1. **Seal.** The Board shall adopt a corporate seal, which shall be in the form of a circle and shall bear the corporation’s name and the year and state in which it was incorporated. 

 

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7.2. **Fiscal Year.** The Board may determine the corporation’s fiscal year. Until changedby the Board, the corporation’s fiscal year shall be the calendar year. 

 

7.3. **Voting of Shares in Other Corporations.** Shares in other corporations which are held by the corporation may be represented and voted by the chief executive officer, president, or a vice president ofthis corporation or by proxy or proxies appointed by one of them. The Board may, however, appoint some other person to vote the shares. 

 

7.4. **Amendments.** These bylaws may be amended, repealed or adopted by the stockholders or by a majority of the entire Board; providedhowever, that a vote of a majority of the shares outstanding and entitled to vote shall be required to effect any such amendment by the stockholders. 

 

7.5 **Certificate.** All references in these bylaws to the Restated Certificate of Incorporation shall be deemed to refer to the RestatedCertificate of Incorporation of the corporation, as amended and in effect from time to time. 

 

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