**Exhibit3.4**

AMENDED ANDRESTATED BY-LAWS

 

OF

 

VIASYS HEALTHCAREINC.

 

(Effective as of November15, 2001)

(As amended on November10, 2006)

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Table of Contents

 
| ARTICLE I   | STOCKHOLDERS                                      | 1      |
|-------------|---------------------------------------------------|--------|
|        |                                              |   |
| 1.1         | Place of meetings                                 | 1      |
|        |                                              |   |
| 1.2         | Annual Meeting                                    | 1      |
|        |                                              |   |
| 1.3         | Special Meetings                                  | 1      |
|        |                                              |   |
| 1.4         | Notice of Meetings                                | 1      |
|        |                                              |   |
| 1.5         | Voting List                                       | 2      |
|        |                                              |   |
| 1.6         | Quorum                                            | 2      |
|        |                                              |   |
| 1.7         | Adjournments                                      | 2      |
|        |                                              |   |
| 1.8         | Voting and Proxies                                | 2      |
|        |                                              |   |
| 1.9         | Action at Meeting                                 | 3      |
|        |                                              |   |
| 1.10        | Nomination of Directors                           | 3      |
|        |                                              |   |
| 1.11        | Notice of Business at Annual Meetings             | 4      |
|        |                                              |   |
| 1.12        | Conduct of Meetings                               | 5      |
|        |                                              |   |
| 1.13        | No Action by Written Consent in Lieu of a Meeting | 6      |
|        |                                              |   |
| ARTICLE II  | DIRECTORS                                         | 7      |
|        |                                              |   |
| 2.1         | General Powers                                    | 7      |
|        |                                              |   |
| 2.2         | Number, Election and Qualification                | 7      |
|        |                                              |   |
| 2.3         | Terms of Office                                   | 7      |
|        |                                              |   |
| 2.4         | Quorum                                            | 7      |
|        |                                              |   |
| 2.5         | Action at Meeting                                 | 7      |
|        |                                              |   |
| 2.6         | Removal                                           | 8      |
|        |                                              |   |
| 2.7         | Vacancies                                         | 8      |
|        |                                              |   |
| 2.8         | Resignation                                       | 8      |
|        |                                              |   |
| 2.9         | Regular Meetings                                  | 8      |
|        |                                              |   |
| 2.10        | Special Meetings                                  | 8      |
|        |                                              |   |
| 2.11        | Notice of Special Meetings                        | 8      |
|        |                                              |   |
| 2.12        | Meetings by Conference Communications Equipment   | 8      |
|        |                                              |   |
| 2.13        | Action by Consent                                 | 9      |
|        |                                              |   |
| 2.14        | Committees                                        | 9      |
|        |                                              |   |
| 2.15        | Compensation of Directors                         | 9      |
|        |                                              |   |
| ARTICLE III | OFFICERS                                          | 10     |
|        |                                              |   |
| 3.1         | Titles                                            | 10     |

 

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| 3.2        | Election                                          | 10     |
|------------|---------------------------------------------------|--------|
|       |                                              |   |
| 3.3        | Qualification                                     | 10     |
|       |                                              |   |
| 3.4        | Tenure                                            | 10     |
|       |                                              |   |
| 3.5        | Resignation and Removal                           | 10     |
|       |                                              |   |
| 3.6        | Vacancies                                         | 10     |
|       |                                              |   |
| 3.7        | Chairman of the Board of Directors                | 10     |
|       |                                              |   |
| 3.8        | President: Powers of Chief Executive Officer      | 11     |
|       |                                              |   |
| 3.9        | Vice Presidents                                   | 11     |
|       |                                              |   |
| 3.10       | Secretary and Assistant Secretaries               | 11     |
|       |                                              |   |
| 3.11       | Treasurer and Assistant Treasurers                | 12     |
|       |                                              |   |
| 3.12       | Salaries                                          | 12     |
|       |                                              |   |
| ARTICLE IV | CAPITAL STOCK                                     | 12     |
|       |                                              |   |
| 4.1        | Issuance of Stock                                 | 12     |
|       |                                              |   |
| 4.2        | Certificates of Stock                             | 12     |
|       |                                              |   |
| 4.3        | Transfers                                         | 13     |
|       |                                              |   |
| 4.4        | Lost, Stolen or Destroyed Certificates            | 13     |
|       |                                              |   |
| 4.5        | Record Date                                       | 13     |
|       |                                              |   |
| ARTICLE V  | GENERAL PROVISIONS                                | 14     |
|       |                                              |   |
| 5.1        | Fiscal Year                                       | 14     |
|       |                                              |   |
| 5.2        | Corporate Seal                                    | 14     |
|       |                                              |   |
| 5.3        | Waiver of Notice                                  | 14     |
|       |                                              |   |
| 5.4        | Voting of Securities                              | 14     |
|       |                                              |   |
| 5.5        | Evidence of Authority                             | 14     |
|       |                                              |   |
| 5.6        | Amended and Restated Certificate of Incorporation | 14     |
|       |                                              |   |
| 5.7        | Transactions with Interested Parties              | 14     |
|       |                                              |   |
| 5.8        | Severability                                      | 15     |
|       |                                              |   |
| 5.9        | Pronouns                                          | 15     |
|       |                                              |   |
| ARTICLE VI | AMENDMENTS                                        | 15     |

 

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ARTICLE I

STOCKHOLDERS

1.1           PLACE OF MEETINGS.  All meetings of stockholders shall be held atsuch place as may be designated from time to time by the Board of Directors,the Chairman of the Board of Directors or the President or, if not so designated,at the principal office of the Corporation. The Board of Directors may, in its sole discretion, determine that ameeting shall not be held at any place, but may instead be held solely by meansof remote communication in a manner consistent with the Delaware GeneralCorporation Law.

1.2           ANNUAL MEETING.  The annual meeting of stockholders for theelection of directors and for the transaction of such other business as mayproperly be brought before the meeting shall be held on a date and at a timedesignated by the Board of Directors, the Chairman of the Board of Directors orthe President (which date shall not be a legal holiday in the place where themeeting is to be held).  If no annualmeeting is held in accordance with the foregoing provisions, the Board of Directorsshall cause the meeting to be held as soon thereafter as is convenient.  If no annual meeting is held in accordancewith the foregoing provisions, a special meeting may be held in lieu of theannual meeting, and any action taken at that special meeting shall have thesame effect as if it had been taken at the annual meeting, and in such case allreferences in these By-laws to the annual meeting of the stockholders shall bedeemed to refer to such special meeting.

1.3           SPECIAL MEETINGS.  Special meetings of stockholders for anypurpose or purposes may be called at any time by the Board of Directors, theChairman of the Board of Directors or the President, but such special meetingsmay not be called by any other person or persons. Business transacted at anyspecial meeting of stockholders shall be limited to matters relating to thepurpose or purposes stated in the notice of meeting.

1.4           NOTICE OF MEETINGS.  Except as otherwise provided by law, writtennotice of each meeting of stockholders, whether annual or special, shall begiven not less than 10 nor more than 60 days before the date of the meeting toeach stockholder entitled to vote at such meeting.  Without limiting the manner by which noticemay otherwise be given to stockholders, any notice shall be effective if givenby a form of electronic transmission consented to (in a manner consistent withthe Delaware General Corporation Law) by the stockholder to whom the notice isgiven. The notices of all meetings shall state the place, if any, date and timeof the meeting and the means of remote communications, if any, by whichstockholders and proxyholders may be deemed to be present in person and vote atsuch meeting.  The notice of a specialmeeting shall state, in addition, the purpose or purposes for which the meetingis called.  If notice is given by mail,such notice shall be deemed given when deposited in the United States mail,postage prepaid, directed to the stockholder at such stockholder’s address asit appears on the records of the Corporation. If notice is given by electronic transmission, such notice shall bedeemed given at the time specified in Section 232 of the Delaware GeneralCorporation Law.

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1.5           VOTING LIST.  The Secretary shall prepare, at least 10 daysbefore 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, for a period of at least 10 days prior to the meeting: (i) on areasonably accessible electric network, provided that the information requiredto gain access to such list is provided with the notice of the meeting, or (ii)during ordinary business hours, at the principal place of business of theCorporation.  If the meeting is to beheld at a place, then the list shall be produced and kept at the time and placeof the meeting during the whole time thereof, and may be inspected by anystockholder who is present.  If themeeting is to be held solely by means of remote communication, then the listshall also be open to the examination of any stockholder during the whole timeof the meeting on a reasonably accessible electronic network, and theinformation required to access such list shall be provided with the notice ofthe meeting.

1.6           QUORUM.  Except as otherwise provided by law, theAmended and Restated Certificate of Incorporation or these By-laws, the holdersof a majority of the shares of the capital stock of the Corporation issued andoutstanding and entitled to vote at the meeting, present in person, present bymeans of remote communications in a manner, if any, authorized by the Board ofDirectors in its sole discretion or represented by proxy, shall constitute aquorum for the transaction of business. A quorum, once established at a meeting, shall not be broken by thewithdrawal of enough votes to leave less than a quorum.

1.7           ADJOURNMENTS.  Any meeting of stockholders may be adjournedfrom time to time to any other time and to any other place at which a meetingof stockholders may be held under these By-laws by the stockholders present orrepresented at the meeting and entitled to vote, although less than a quorum,or, if no stockholder is present, by any officer entitled to preside at or toact as secretary of such meeting.  Itshall not be necessary to notify any stockholder of any adjournment of lessthan 30 days if the time and place, if any, of the adjourned meeting, and themeans of remote communication, if any, by which stockholders and proxyholdersmay be deemed to be present in person and vote at such adjourned meeting, areannounced at the meeting at which adjournment is taken, unless after theadjournment a new record date is fixed for the adjourned meeting.  At the adjourned meeting, the Corporation maytransact any business that might have been transacted at the original meeting.

1.8           VOTING AND PROXIES.  Each stockholder shall have one vote for eachshare of stock entitled to vote held of record by such stockholder and aproportionate vote for each fractional share so held, unless otherwise providedby law or the Amended and Restated Certificate of Incorporation.  Each stockholder of record entitled to voteat a meeting of stockholders may vote in person or may authorize another personor persons to vote for such stockholder by a proxy executed or transmitted in amanner permitted by the Delaware General Corporation Law by the stockholder orsuch stockholder’s authorized agent and delivered (including by electronictransmission) to the Secretary of the Corporation.  No such proxy shall be voted upon after threeyears from the date of its execution, unless the proxy expressly provides for alonger period.

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1.9           ACTION AT MEETING.  When a quorum is present at any meeting, anymatter other than the election of directors to be voted upon by thestockholders at such meeting shall be decided by the vote of the holders ofshares of stock having a majority of the votes cast by the holders of all ofthe shares of stock present or represented and voting on such matter (or ifthere are two or more classes of stock entitled to vote as separate classes,then in the case of each such class, the holders of a majority of the stock ofthat class present or represented and voting on such matter), except when adifferent vote is required by law, the Amended and Restated Certificate ofIncorporation or these By-laws.  When aquorum is present at any meeting, any election of directors by stockholdersshall be determined by a plurality of the votes cast by the stockholdersentitled to vote on the election.

1.10         NOMINATION OF DIRECTORS.

(a)           Except for (i) any directors entitledto be elected by the holders of preferred stock or any other securities of theCorporation (other than common stock) and (ii) any directors elected inaccordance with Section 2.7 hereof by the Board of Directors to fill a vacancy,only persons who are nominated in accordance with the procedures in thisSection 1.10 shall be eligible for election as directors.  Nomination for election to the Board ofDirectors of the Corporation at a meeting of stockholders may be made (i) by orat the direction of the Board of Directors or (ii) by any stockholder of theCorporation who (x) complies with the notice procedures set forth in Section1.10(b) and (y) is a stockholder of record on the date of the giving of suchnotice and on the record date for the determination of stockholders entitled tovote at such meeting.

(b)           To be timely, a stockholder’s noticemust be received by the Secretary at the principal executive offices of theCorporation as follows:  (x) in the caseof an election of directors at an annual meeting of stockholders, not less than60 days nor more than 90 days prior to the first anniversary of the precedingyear’s annual meeting; PROVIDED, HOWEVER, that in the event that the date ofthe annual meeting in any other year is advanced by more than 20 days, ordelayed by more than 60 days, from the first anniversary of the preceding year’sannual meeting, a stockholder’s notice must be so received not earlier than theninetieth day prior to such annual meeting and not later than the close ofbusiness on the later of (A) the sixtieth day prior to such annual meeting and(B) the tenth day following the day on which notice of the date of such annualmeeting was mailed or public disclosure of the date of such annual meeting wasmade, whichever first occurs; or (y) in the case of an election of directors ata special meeting of stockholders, not earlier than the ninetieth day prior tosuch special meeting and not later than the close of business on the later of(i) the sixtieth day prior to such special meeting and (ii) the tenth day followingthe day on which notice of the date of such special meeting was mailed orpublic disclosure of the date of such special meeting was made, whichever firstoccurs.

The stockholder’s notice to the Secretary shall setforth: (a) as to each proposed nominee (i) such person’s name, age, businessaddress and, if known, residence address, (ii) such person’s principaloccupation or employment, (iii) the class and number of shares of stock of theCorporation that are beneficially owned by such person, and (iv) any otherinformation concerning such person that must be disclosed as to nominees inproxy solicitations pursuant to Regulation l4A under the Securities ExchangeAct of 1934, as amended; (b) as to the stockholder giving the notice (i) suchstockholder’s name and address, as they appear on the Corporation’s 

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books, (ii) the class and number of shares of stock ofthe Corporation that are owned, beneficially and of record, by suchstockholder, (iii) a description of all arrangements or understandings between suchstockholder and each proposed nominee and any other person or persons(including their names) pursuant to which the nomination(s) are to be made bysuch stockholder and (iv) a representation that such stockholder intends toappear in person or by proxy at the meeting to nominate the person(s) named inits notice; and (c) as to the beneficial owner, if any, on whose behalf thenomination is being made (i) such beneficial owner’s name and address, (ii) theclass and number of shares of stock of the Corporation that are beneficiallyowned by such beneficial owner, and (iii) a description of all arrangements orunderstandings between such beneficial owner and each proposed nominee and anyother person or persons (including their names) pursuant to which thenomination(s) are to be made.  Inaddition, to be effective, the stockholder’s notice must be accompanied by thewritten consent of the proposed nominee to serve as a director if elected.  The Corporation may require any proposednominee to furnish such other information as may reasonably be required todetermine the eligibility of such proposed nominee to serve as a director ofthe Corporation.

(c)           The chairman of any meeting shall, ifthe facts warrant, determine that a nomination was not made in accordance withthe provisions of this Section 1.10, and if he should so determine, he shall sodeclare to the meeting and the defective nomination shall be disregarded.

(d)           Except as otherwise required by law,nothing in this Section 1.10 shall obligate the Corporation or the Board ofDirectors to include in any proxy statement or other stockholder communicationdistributed on behalf of the Corporation or the Board of Directors informationwith respect to any nominee for director submitted by a stockholder.

1.11         NOTICE OF BUSINESS AT ANNUAL MEETINGS.

(a)           At any annual meeting of thestockholders, only such business shall be conducted as shall have been properlybrought before the meeting.  To beproperly brought before an annual meeting, business must be (1) specified inthe notice of meeting (or any supplement thereto) given by or at the directionof the Board of Directors, (ii) otherwise properly brought before the meetingby or at the direction of the Board of Directors, or (iii) properly broughtbefore the meeting by a stockholder. For business to be properly brought beforean annual meeting by a stockholder, (i) if such business relates to theelection of directors of the Corporation, the procedures in Section 1.10 mustbe complied with and (ii) if such business relates to any other matter, thestockholder must (x) have given timely notice thereof in writing to theSecretary in accordance with the procedures set forth in Section 1.11(b) and(y) be a stockholder of record on the date of the giving of such notice and onthe record date for the determination of stockholders entitled to vote at suchannual meeting.

(b)           To be timely, a stockholder’s noticemust be received by the Secretary at the principal executive offices of theCorporation not less than 60 days nor more than 90 days prior to the firstanniversary of the preceding year’s annual meeting; PROVIDED, HOWEVER, that inthe event that the date of the annual meeting in any other year is advanced bymore than 20 days, or delayed by more than 60 days, from the first anniversaryof the preceding year’s annual meeting, a stockholder’s notice must be soreceived not earlier than the ninetieth day prior 

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to such annual meeting and not later than the close ofbusiness on the later of (A) the sixtieth day prior to such annual meeting and(B) the tenth day following the day on which notice of the date of such annualmeeting was mailed or public disclosure of the date of such annual meeting wasmade, whichever first occurs.

The stockholder’s notice to the Secretary shall setforth as to each matter the stockholder proposes to bring before the annualmeeting (i) a brief description of the business desired to be brought beforethe annual meeting and the reasons for conducting such business at the annualmeeting, (ii) the name and address, as they appear on the Corporation’s books,of the stockholder proposing such business, and the name and address of thebeneficial owner, if any, on whose behalf the proposal is made, (iii) the classand number of shares of stock of the Corporation that are owned, of record andbeneficially, by the stockholder and beneficial owner, if any, (iv) adescription of all arrangements or understandings between such stockholder orsuch beneficial owner, if any, and any other person or persons (including theirnames) in connection with the proposal of such business by such stockholder andany material interest of the stockholder or such beneficial owner, if any, insuch business, and (v) a representation that such stockholder intends to appearin person or by proxy at the annual meeting to bring such business before themeeting.  Notwithstanding anything inthese By-laws to the contrary, no business shall be conducted at any annualmeeting of stockholders except in accordance with the procedures set forth inthis Section 1.11; provided that any stockholder proposal that complies withRule 14a-8 of the proxy rules (or any successor provision) promulgated underthe Securities Exchange Act of 1934, as amended, and is to be included in theCorporation’s proxy statement for an annual meeting of stockholders shall bedeemed to comply with the requirements of this Section 1.11.

(c)           The chairman of any meeting shall, ifthe facts warrant, determine that business was not properly brought before themeeting in accordance with the provisions of this Section 1.11, and if heshould so determine, he shall so declare to the meeting and such business shallnot be brought before the meeting.

1.12         CONDUCT OF MEETINGS.

(a)           CHAIRMANOF MEETING. Meetings of stockholders shall be presided over by the Chairman ofthe Board of Directors, if any, or in the Chairman’s absence by the ViceChairman of the Board of Directors, if any, or in the Vice Chairman’s absenceby the President, or in the President’s absence by a Vice President, or in theabsence of all of the foregoing persons by a chairman designated by the Boardof Directors, or in the absence of such designation by a chairman chosen byvote of the stockholders at the meeting. The Secretary shall act as secretaryof the meeting, but in the Secretary’s absence the chairman of the meeting mayappoint any person to act as secretary of the meeting.

(b)           RULES,REGULATIONS AND PROCEDURES. The Board of Directors of the Corporation may adoptby resolution such rules, regulations and procedures for the conduct of anymeeting of stockholders of the Corporation as it shall deem appropriateincluding, without limitation, such guidelines and procedures as it may deemappropriate regarding the participation by means of remote communication ofstockholders and proxyholders not physically present at a meeting. Except tothe extent inconsistent with such rules, regulations and procedures as adoptedby the Board of Directors, the chairman of any meeting of stockholders shallhave the right and authority to prescribe such rules, regulations and 

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procedures and to do all such acts as, in the judgmentof such chairman, are appropriate for the proper conduct of the meeting. Suchrules, regulations or procedures, whether adopted by the Board of Directors orprescribed by the chairman of the meeting, may include, without limitation, thefollowing: (i) the establishment of an agenda or order of business for themeeting; (ii) rules and procedures for maintaining order at the meeting and thesafety of those present; (iii) limitations on attendance at or participation inthe meeting to stockholders of record of the Corporation, their duly authorizedand constituted proxies or such other persons as shall be determined; (iv)restrictions on entry to the meeting after the time fixed for the commencementthereof; and (v) limitations on the time allotted to questions or comments byparticipants. Unless and to the extent determined by the Board of Directors orthe chairman of the meeting, meetings of stockholders shall not be required tobe held in accordance with the rules of parliamentary procedure.

(c)           CLOSING OF POLLS. The chairman of themeeting shall announce at the meeting when the polls for each matter to bevoted upon at the meeting will be opened and closed. If no announcement ismade, the polls shall be deemed to have opened when the meeting is convened andclosed upon the final adjournment of the meeting. After the polls close, noballots, proxies or votes or any revocations or changes thereto may be accepted.

(d)           INSPECTORS OF ELECTION. In advance ofany meeting of stockholders, the Board of Directors, the Chairman of the Boardof Directors or the President shall appoint one or more inspectors or electionto act at the meeting and make a written report thereof. One or more otherpersons may be designated as alternate inspectors to replace any inspector whofails to act. If no inspector or alternate is present, ready and willing to actat a meeting of stockholders, the chairman of the meeting shall appoint one ormore inspectors to act at the meeting. Unless otherwise required by law,inspectors may be officers, employees or agents of the Corporation. Eachinspector, before entering upon the discharge of such inspector’s duties, shalltake and sign an oath faithfully to execute the duties of inspector with strictimpartiality and according to the best of such inspector’s ability. Theinspector shall have the duties prescribed by law and shall take charge of thepo1ls and, when the vote in completed, shall make a certificate of the resultof the vote taken and of such other facts as may be required by law.

1.13         NO ACTION BY WRITTEN CONSENT IN LIEU OFA MEETING. Stockholders of the Corporation may not take any action by writtenconsent in lieu of a meeting.

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ARTICLE II

DIRECTORS

2.1           GENERAL POWERS. The business andaffairs of the Corporation shall be managed by or under the direction of aBoard of Directors, who may exercise all of the powers of the Corporationexcept as otherwise provided by law, the Amended and Restated Certificate ofIncorporation or these By-laws. In the event of a vacancy in the Board ofDirectors, the remaining directors, except as otherwise provided by law, mayexercise the powers of the full Board of Directors until the vacancy is filled.

2.2           NUMBER, ELECTION AND QUALIFICATION.Subject to the rights of holders of any series of preferred stock to electdirectors, the number of directors that shall constitute the whole Board ofDirectors shall be determined from time to time by resolution of the Board ofDirectors, but in no event shall be less than three. The directors shall beelected at the annual meeting of stockholders by such stockholders as have theright to vote on such election. Directors need not be stockholders of theCorporation.

2.3           TERMS OF OFFICE. Subject to therights of holders of any series of preferred stock to elect directors, eachdirector shall serve for a term commencing on the effective date of suchdirector’s election and ending on the date of the next annual meeting ofstockholders; provided, however, that the term of each director shall continueuntil the election and qualification of such director’s successor and shall besubject to such director’s earlier death, resignation or removal.  The term of each director who was serving asa director on May 11, 2006, shall expire at the next annual meeting ofstockholders after such date and upon the election and qualification of suchdirector’s successor and be subject to such director’s earlier death,resignation or removal, notwithstanding that such director may have beenelected for a term that extended beyond the date of such next annual meeting ofstockholders.

2.4           QUORUM. A majority of the directorsat any time in office shall constitute a quorum for the transaction of business.In the event one or more of the directors shall be disqualified to vote at anymeeting, then the required quorum shall be reduced by one for each director sodisqualified, provided that in no case shall less than one-third of the numberof directors fixed pursuant to Section 2.2 constitute a quorum. If at anymeeting of the Board of Directors there shall be less than such a quorum, amajority of the directors present may adjourn the meeting from time to timewithout further notice other than announcement at the meeting, until a quorumshall be present.

2.5           ACTION AT MEETING. Every act ordecision done or made by a majority of the directors present at a meeting dulyheld at which a quorum is present shall be regarded as the act of the Board ofDirectors unless a greater number is required by law, by the Amended andRestated Certificate of Incorporation or by these By-laws.

2.6           REMOVAL. Subject to the rights ofholders of any series of preferred stock to elect directors, directors of theCorporation may be removed only for cause by the affirmative 

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vote of the holders of at least 75% of the votes thatall the stockholders would be entitled to cast in any annual election ofdirectors.

2.7           VACANCIES. Subject to the rights ofholders of any series of preferred stock to elect directors, any vacancy in theBoard of Directors, however occurring, including a vacancy resulting from anenlargement of the Board of Directors, shall be filled only by vote of amajority of the directors then in office, although less than a quorum, or by asole remaining director and shall not be filled by stockholders. A directorelected to fill a vacancy shall be elected to hold office until election at thenext annual meeting of stockholders, subject to the election and qualificationof such director’s successor and subject to such director’s earlier death,resignation or removal.

2.8           RESIGNATION. Any director may resignby delivering a resignation in writing or by electronic transmission to theCorporation at its principal office or to the Chairman of the Board ofDirectors, the President or the Secretary. Such resignation shall be effectiveupon receipt unless it is specified to be effective at some later time or uponthe happening of some later event.

2.9           REGULAR MEETINGS. Regular meetings ofthe Board of Directors may be held without notice at such time and place asshall be determined from time to time by the Board of Directors; provided thatany director who is absent when such a determination is made shall be givennotice of the determination. A regular meeting of the Board of Directors may beheld without notice immediately after and at the same place as the annualmeeting of stockholders.

2.10         SPECIAL MEETINGS. Special meetings ofthe Board of Directors may be held at any time and place designated in a callby the Chairman of the Board of Directors, the President, two or moredirectors, or by one director in the event that there is only a single directorin office.

2.11         NOTICE OF SPECIAL MEETINGS. Notice ofany special meeting of directors shall be given to each director by theSecretary or by the officer or one of the directors calling the meeting. Noticeshall be duly given to each director (i) by giving notice to such director inperson or by telephone at least 24 hours in advance of the meeting, (ii) bysending a telegram, telecopy or electronic mail, or delivering written noticeby hand, to such director’s last known business, home or electronic mailaddress at least 48 hours in advance of the meeting, or (iii) by sending writtennotice, via first-class mail or reputable overnight courier, to such director’slast known business or home address at least 72 hours in advance of themeeting. A notice or waiver of notice of a meeting of the Board of Directorsneed not specify the purposes of the meeting.

2.12         MEETINGS BY CONFERENCE COMMUNICATIONSEQUIPMENT. Directors may participate in meetings of the Board of Directors orany committee thereof by means of conference telephone or other communicationsequipment by means of which all persons participating in the meeting can heareach other, and participation by such means shall constitute presence in personat such meeting.

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2.13         ACTION BY CONSENT. Any action requiredor permitted to be taken at any meeting of the Board of Directors or of anycommittee thereof may be taken without a meeting, if all members of the Boardof Directors or committee, as the case may be, consent to the action in writingor by electronic transmission, and the written consents and electronictransmissions are filed with the minutes of proceedings of the Board ofDirectors or committee.

2.14         COMMITTEES. The Board of Directors maydesignate one or more committees, each committee to consist of one or more ofthe directors of the Corporation. The Board of Directors may designate one ormore directors as alternate members of any committee, who may replace anyabsent or disqualified member at any meeting of the committee. In the absenceor disqualification of a member of a committee, the member or members of the committeepresent at any meeting and not disqualified from voting, whether or not suchmember or members constitute a quorum, may unanimously appoint another memberof the Board of Directors to act at the meeting in the place of any such absentor disqualified member. Any such committee, to the extent provided in theresolution of the Board of Directors and subject to the provisions of law,shall have and may exercise all the powers and authority of the Board ofDirectors in the management of the business and affairs of the Corporation andmay authorize the seal of the Corporation to be affixed to all papers that mayrequire it. Each such committee shall keep minutes and make such reports as theBoard of Directors may from time to time request. Except as the Board ofDirectors may otherwise determine, any committee may make rules for the conductof its business, but unless otherwise provided by the directors or in suchrules, its business shall be conducted as nearly as possible in the same manneras is provided in these By-laws for the Board of Directors.

2.15         COMPENSATION OF DIRECTORS. Directorsmay be paid such compensation for their services and such reimbursement forexpenses of attendance at meetings as the Board of Directors may from time totime determine. No such payment shall preclude any director from serving theCorporation or any of its parent or subsidiary corporations in any othercapacity and receiving compensation for such service.

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ARTICLE III

OFFICERS

3.1           TITLES. The officers of theCorporation shall consist of a President, a Secretary, a Treasurer and suchother officers with such other titles as the Board of Directors may determine,including a Chairman of the Board of Directors, and one or more VicePresidents, Assistant Treasurers, and Assistant Secretaries. The Board ofDirectors may appoint such other officers as it may deem appropriate.

3.2           ELECTION. The President, Treasurerand Secretary shall be elected annually by the Board of Directors at its firstmeeting following the annual meeting of stockholders. Other officers may beappointed by the Board of Directors at such meeting or at any other meeting.

3.3           QUALIFICATION. No officer need be astockholder. Any two or more offices may be held by the same person.

3.4           TENURE. Except as otherwise providedby law, by the Amended and Restated Certificate of Incorporation or by theseBy-laws, each officer shall hold office until such officer’s successor iselected and qualified, unless a different term is specified in the resolutionelecting or appointing such officer, or until such officer’s earlier death,resignation or removal.

3.5           RESIGNATION AND REMOVAL. Any officermay resign by delivering a written resignation to the Corporation at itsprincipal office or to the Chief Executive Officer or the Secretary. Suchresignation shall be effective upon receipt unless it is specified to beeffective at some later time or upon the happening of some later event.

Any officer may beremoved at any time, with or without cause, by vote of a majority of the entirenumber of directors then in office.

Except as theBoard of Directors may otherwise determine, no officer who resigns or isremoved shall have any right to any compensation as an officer for any periodfollowing such officer’s resignation or removal, or any right to damages onaccount of such removal, whether such officer’s compensation be by the month orby the year or otherwise, unless such compensation is expressly provided in aduly authorized written agreement with the Corporation.

3.6           VACANCIES. The Board of Directors mayfill any vacancy occurring in any office for any reason and may, in itsdiscretion, leave unfilled for such period as it may determine any officesother than those of President, Treasurer and Secretary. Each such successorshall hold office for the unexpired term of such officer’s predecessor anduntil a successor is elected and qualified, or until such officer’s earlierdeath, resignation or removal.

3.7           CHAIRMAN OF THE BOARD. The Board ofDirectors may appoint from its members a Chairman of the Board of Directors. Ifthe Board of Directors appoints a Chairman of the Board of Directors, suchChairman shall perform such duties and possess such powers as are 

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assigned by the Board of Directors and, if theChairman of the Board of Directors is also designated as the Corporation’sChief Executive Officer, shall have the powers and duties of the ChiefExecutive Officer prescribed in Section 3.8 of these By-laws. Unless otherwiseprovided by the Board of Directors, the Chairman of the Board of Directorsshall preside at all meetings of the Board of Directors and stockholders.

3.8           PRESIDENT; POWERS OF CHIEF EXECUTIVEOFFICER. Unless the Board of Directors has designated the Chairman of the Boardof Directors as the Corporation’s Chief Executive Officer, the President shallbe the Chief Executive Officer of the Corporation. The Chief Executive Officershall have general charge and supervision of the business of the Corporationsubject to the direction of the Board of Directors. The President shall performsuch other duties and shall have such other powers as the Board of Directorsand the Chief Executive Officer (if the Chairman of the Board of Directors isserving in such position) may from time to time prescribe.

3.9           VICE PRESIDENTS. Any Vice Presidentshall perform such duties and possess such powers as the Board of Directors orthe Chief Executive Officer may from time to time prescribe. In the event ofthe absence, inability or refusal to act of the Chief Executive Officer, thePresident (if the President is not the Chief Executive Officer), and then theVice President (or if there shall be more than one, the Vice Presidents in theorder determined by the Board of Directors), shall perform the duties of theChief Executive Officer and when so performing shall have all the powers of andbe subject to all the restrictions upon the Chief Executive Officer. The Boardof Directors may assign to any Vice President the title of Executive VicePresident, Senior Vice President or any other title selected by the Board ofDirectors.

3.l0          SECRETARY AND ASSISTANT SECRETARIES.The Secretary shall perform such duties and shall have such powers as the Boardof Directors or the Chief Executive Officer may from time to time prescribe. Inaddition, the Secretary shall perform such duties and have such powers as areincident to the office of the secretary, including without limitation the dutyand power to give notices of all meetings of stockholders and special meetingsof the Board of Directors, to attend all meetings of stockholders and the Boardof Directors and keep a record of the proceedings, to maintain a stock ledgerand prepare lists of stockholders and their addresses as required, to be custodianof corporate records and the corporate seal and to affix and attest to the sameon documents.

Any AssistantSecretary shall perform such duties and possess such powers as the Board ofDirectors, the Chief Executive Officer or the Secretary may from time to timeprescribe. In the event of the absence, inability or refusal to act of theSecretary, the Assistant Secretary (or if there shall be more than one, theAssistant Secretaries in the order determined by the Board of Directors) shallperform the duties and exercise the powers of the Secretary.

In the absence ofthe Secretary or any Assistant Secretary at any meeting of stockholders ordirectors, the chairman of the meeting shall designate a temporary secretary tokeep a record of the meeting.

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3.11         TREASURER AND ASSISTANT TREASURERS. TheTreasurer shall perform such duties and shall have such powers as may from timeto time be assigned by the Board of Directors or the Chief Executive Officer.In addition, the Treasurer shall perform such duties and have such powers asare incident to the office of treasurer, including without limitation the dutyand power to keep and be responsible for all funds and securities of theCorporation, to deposit funds of the Corporation in depositories selected inaccordance with these By-laws, to disburse such funds as ordered by the Boardof Directors, to make proper accounts of such funds, and to render as requiredby the Board of Directors statements of all such transactions and of thefinancial condition of the Corporation.

The AssistantTreasurers shall perform such duties and possess such powers as the Board ofDirectors, the Chief Executive Officer or the Treasurer may from time to timeprescribe. In the event of the absence, inability or refusal to act of theTreasurer, the Assistant Treasurer (or if there shall be more than one, theAssistant Treasurers in the order determined by the Board of Directors) shallperform the duties and exercise the powers of the Treasurer.

3.12         SALARIES. Officers of the Corporationshall be entitled to such salaries, compensation or reimbursement as shall befixed or allowed from time to time by the Board of Directors.

ARTICLE IV

CAPITAL STOCK

4.1           ISSUANCE OF STOCK. Unless otherwisevoted by the stockholders and subject to the provisions of the Amended andRestated Certificate of Incorporation, the whole or any part of any unissuedbalance of the authorized capital stock of the Corporation or the whole or anypart of any unissued balance of the authorized capital stock of the Corporationheld in its treasury may be issued, sold, transferred or otherwise disposed ofby vote of the Board of Directors in such manner, for such consideration and onsuch terms as the Board of Directors may determine.

4.2           CERTIFICATES OF STOCK. Every holderof stock of the Corporation shall be entitled to have a certificate, in suchform as may be prescribed by law and by the Board of Directors, certifying thenumber and class of shares owned by such holder in the Corporation. Each suchcertificate shall be signed by, or in the name of the Corporation by, theChairman or Vice Chairman, if any, of the Board of Directors, or the Presidentor a Vice President, and the Treasurer or an Assistant Treasurer, or theSecretary or an Assistant Secretary of the Corporation. Any or all of thesignatures on the certificate may be a facsimile.

Each certificatefor shares of stock that are subject to any restriction on transfer pursuant tothe Amended and Restated Certificate of Incorporation, these By-laws,applicable securities laws or any agreement among any number of stockholders oramong such holders and the Corporation shall have conspicuously noted on theface or back of the certificate either the full text of the restriction or astatement of the existence of such restriction.

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There shall be setforth on the face or back of each certificate representing shares of such classor series of stock of the Corporation a statement that the Corporation willfurnish without charge to each stockholder who so requests a copy of the fulltext of the powers, designations, preferences and relative, participating,optional or other special rights of each class of stock or series thereof andthe qualifications, limitations or restrictions of such preferences and/orrights.

4.3           TRANSFERS. Except as otherwiseestablished by rules and regulations adopted by the Board of Directors, andsubject to applicable law, shares of stock may be transferred on the books ofthe Corporation by the surrender to the Corporation or its transfer agent ofthe certificate representing such shares properly endorsed or accompanied by awritten assignment or power of attorney properly executed, and with such proofof authority or the authenticity of signature as the Corporation or itstransfer agent may reasonably require. Except as may be otherwise required bylaw, by the Amended and Restated Certificate of Incorporation or by theseBy-laws, the Corporation shall be entitled to treat the record holder of stockas shown on its books as the owner of such stock for all purposes, includingthe payment of dividends and the right to vote with respect to such stock,regardless of any transfer, pledge or other disposition of such stock until theshares have been transferred on the books of the Corporation in accordance withthe requirements of these By-laws.

4.4           LOST, STOLEN OR DESTROYEDCERTIFICATES. The Corporation may issue a new certificate of stock in place ofany previously issued certificate alleged to have been lost, stolen, ordestroyed, upon such terms and conditions as the Board of Directors mayprescribe, including the presentation of reasonable evidence of such loss,theft or destruction and the giving of such indemnity as the Board of Directorsmay require for the protection of the Corporation or any transfer agent orregistrar.

4.5           RECORD DATE. The Board of Directorsmay fix in advance a date as a record date for the determination of thestockholders entitled to notice of or to vote at any meeting of stockholders,or entitled to receive payment of any dividend or other distribution orallotment of any rights in respect of any change, conversion or exchange ofstock, or for the purpose of any other lawful action. Such record date shallnot be more than 60 nor less than 10 days before the date of such meeting, normore than 60 days prior to any other action to which such record date relates.

If no record dateis fixed, the record date for determining stockholders entitled to notice of orto vote at a meeting of stockholders shall be at the close of business on theday before the day on which notice is given, or, if notice is waived, at theclose of business on the day before the day on which the meeting is held. If norecord date is fixed, the record date for determining stockholders for anyother purpose shall be at the close of business on the day on which the Boardof Directors adopts the resolution relating to such purpose.

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.

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ARTICLE V

GENERAL PROVISIONS

5.1           FISCAL YEAR. Except as from time totime otherwise designated by the Board of Directors, the fiscal year of theCorporation shall end on the Saturday closest to December 31.

5.2           CORPORATE SEAL. The corporate sealshall be in such form as shall be approved by the Board of Directors.

5.3           WAIVER OF NOTICE. Whenever notice isrequired to be given by law, by the Amended and Restated Certificate ofIncorporation or by these By-laws, a written waiver, signed by the personentitled to notice or a waiver by electronic transmission by the personentitled to notice, whether before, at or after the time stated in such waiver,or the attendance of such person at such meeting shall be deemed equivalent tosuch notice.

5.4           VOTING OF SECURITIES. Except as theBoard of Directors may otherwise designate, the President or the Treasurer maywaive notice of, and act as, or appoint any person or persons to act as, proxyor attorney-in-fact for this corporation (with or without power ofsubstitution) at any meeting of stockholders or shareholders of any othercorporation or organization, the securities of which may be held by thiscorporation.

5.5           EVIDENCE OF AUTHORITY. A certificateby the Secretary, or an Assistant Secretary, or a temporary Secretary, as toany action taken by the stockholders, directors, a committee or any officer orrepresentative of the Corporation shall as to all persons who rely on thecertificate in good faith be conclusive evidence of such action.

5.6           AMENDED AND RESTATED CERTIFICATE OFINCORPORATION. All references in these By-laws to the Amended and RestatedCertificate of Incorporation shall be deemed to refer to the Amended andRestated Certificate of Incorporation of the Corporation, as amended and ineffect from time to time.

5.7           TRANSACTIONS WITH INTERESTED PARTIES.No contract or transaction between the Corporation and one or more of thedirectors or officers, or between the Corporation and any other corporation,partnership, association, or other organization in which one or more of thedirectors or officers are directors or officers, or have a financial interest,shall be void or voidable solely for this reason, or solely because thedirector or officer is present at or participates in the meeting of the Boardof Directors or a committee of the Board of Directors at which the contract ortransaction is authorized or solely because any such director’s or officer’s votesare counted for such purpose, if:

(a)           The material facts as to the director’sor officer’s relationship or interest and as to the contract or transaction aredisclosed or are known to the Board of Directors or the committee, and theBoard of Directors or committee in good faith authorizes the contract or 

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transaction by the affirmative votes of a majority ofthe disinterested directors, even though the disinterested directors be lessthan a quorum;

(b)           The material facts as to the director’sor officer’s relationship or interest and as to the contract or transaction aredisclosed or are known to the stockholders entitled to vote thereon, and thecontract or transaction is specifically approved in good faith by vote of thestockholders; or

(c)           The contract or transaction is fairas to the Corporation as of the time it is authorized, approved or ratified, bythe Board of Directors, a committee of the Board of Directors, or thestockholders.  Common or interested directorsmay be counted in determining the presence of a quorum at a meeting of theBoard of Directors or of a committee that authorizes the contract ortransaction.

5.8           SEVERABILITY. Any determination thatany provision of these By-laws is for any reason inapplicable, illegal orineffective shall not affect or invalidate any other provision of theseBy-laws.

5.9           PRONOUNS. All pronouns used in theseBy-laws shall be deemed to refer to the masculine, feminine or neuter, singularor plural, as the identity of the person or persons may require.

ARTICLE VI

AMENDMENTS

These By-laws maybe altered, amended or repealed, in whole or in part, or new By-laws may beadopted by the Board of Directors or by the stockholders as provided in theAmended and Restated Certificate of Incorporation.

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