**Exhibit 3.5**

 

AMENDED & RESTATED 

 

BYLAWS 

 

OF NATIONAL MEDICAL HEALTH CARD SYSTEMS, INC. 

 

Effective As of November 7, 2005 

 

ARTICLE I 

 

OFFICES 

 

SECTION 1.01. Registered Office. The registered office of thecorporation in the State of Delaware shall be in the City of Dover, County of Kent, and the name of its registered agent shall be United Corporate Services, Inc. 

 

SECTION 1.02. Other Offices. The corporation may also have offices at such other places both within and without theState of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. 

 

ARTICLE II 

 

MEETINGS OF STOCKHOLDERS 

 

SECTION 2.01. Place of Meeting. All meetings of stockholders for the election of directors shall be held at such place, either within or without the State of Delaware, as shall be designated from time to timeby the Board of Directors and stated in the notice of the meeting. 

 

SECTION 2.02. Annual Meeting. The annual meeting of stockholders shall be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. 

 

SECTION 2.03. Voting List. The officer who has charge of the stockledger of the corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholderand the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to themeeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice, or if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time andplace of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. 

 

SECTION 2.04. Special Meeting. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by theCertificate of Incorporation, may be 

called by the Chairman of the Board of Directors or by the President of the corporation or by the Board of Directors orby written order of a majority of the directors. Such request or order shall state the purposes of the proposed meeting. The Chairman of the Board of Directors or the President of the corporation or directors so calling any such meeting shall fixthe time and any place, either within or without the State of Delaware, as the place for holding such meeting. 

 

SECTION 2.05. Notice of Meeting. Written notice of the annual, and each special meeting of stockholders, stating the time, place, and purpose orpurposes thereof, shall be given to each stockholder entitled to vote thereat, not less than 10 nor more than 60 days before the meeting. 

 

SECTION 2.06. Quorum. The holders of a majority of the shares of the corporation’s capital stock issued and outstanding and entitled to votethereat, present in person or represented by proxy, shall constitute a quorum at any meeting of stockholders for the transaction of business, except as otherwise provided by statute or by the Certificate of Incorporation. Except as otherwiseprovided in the Certificate of Incorporation, notwithstanding the other provisions of these bylaws, the holders of a majority of the shares of the corporation’s capital stock entitled to vote thereat, present in person or represented by proxy,whether or not a quorum is present, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. If the adjournment is for more than 30 days, or ifafter the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be presentor represented, any business may be transacted which might have been transacted at the meeting as originally notified. 

 

SECTION 2.07. Voting. When a quorum is present at any meeting of the stockholders, the vote of the holders of a majority of the shares of thecorporation’s capital stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the statutes, of the Certificate ofIncorporation or of these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. Every stockholder having the right to vote shall be entitled to vote in person, or by proxyappointed by an instrument in writing subscribed by such stockholder, bearing a date not more than three years prior to voting, unless such instrument provides for a longer period, and filed with the Secretary of the corporation before, or at thetime of, the meeting. If such instrument shall designate two or more persons to act as proxies, unless such instrument shall provide the contrary, a majority of such persons present at any meeting at which their powers thereunder are to be exercisedshall have and may exercise all the powers of voting or giving consents thereby conferred, or if only one be present, then such powers may be exercised by that one; or, if an even number attend and a majority do not agree on any particular issue,each proxy so attending shall be entitled to exercise such powers in respect of the same portion of the shares as he is of the proxies representing such shares. 

 

SECTION 2.08. Voting of Stock of Certain Holders. Shares of the corporation’s capital stock standing in the name of another corporation,domestic or foreign, may be voted by such officer, agent, or proxy as the bylaws of such corporation may prescribe, or in the absence of 

 

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such provision, as the Board of Directors of such corporation may determine. Shares standing in the name of a deceasedperson may be voted by the executor or administrator of such deceased person, either in person or by proxy. Shares standing in the name of a guardian, conservator, or trustee may be voted by such fiduciary, either in person or by proxy, but no suchfiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the name of such fiduciary. Shares standing in the name of a receiver may be voted by such receiver. A stockholder whose shares arepledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the corporation, he has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy, may represent the stock andvote thereon. 

 

SECTION 2.09. Treasury Stock. Thecorporation shall not vote, directly or indirectly, shares of its own capital stock owned by it; and such shares shall not be counted in determining the total number of outstanding shares of the corporation’s capital stock. 

 

SECTION 2.10. Fixing Record Date. The Board of Directors may fix inadvance a date, which shall not be more than 60 days nor less than 10 days preceding the date of any meeting of stockholders, nor more than 60 days preceding the date for payment of any dividend or distribution, or the date for the allotment ofrights, or the date when any change, or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining a consent, as a record date for the determination of the stockholders entitled to notice of, and to vote at,any such meeting and any adjournment thereof, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capitalstock, or to give such consent, and in such case such stockholders and only such stockholders as shall be stockholders of record on the date so fixed, shall be entitled to such notice of, and to vote at, any such meeting and any adjournment thereof,or to receive payment of such dividend or distribution, or to receive such allotment of rights, or to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the corporation afterany such record date fixed as aforesaid. 

 

ARTICLE III

 

BOARD OF DIRECTORS 

 

SECTION 3.01. Powers. The business and affairs of the corporationshall be managed by its Board of Directors, which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these bylaws directed or required to beexercised or done by the stockholders. 

 

SECTION 3.02.Number, Election and Term. The number of directors that shall constitute the whole Board of Directors shall be not less than one. Except as otherwise provided in the Certificate of Incorporation, such number of directors shall from time totime be fixed and determined by the directors and shall be set forth in the notice of any meeting of stockholders held for the purpose of electing directors. The directors shall be elected at the annual meeting of stockholders in the manner providedin the Certificate of Incorporation, except as provided in 

 

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Section 3.03 hereof or in the Certificate of Incorporation, and each director elected shall hold office until hissuccessor shall be elected and shall qualify. Directors need not be residents of Delaware or stockholders of the corporation 

 

SECTION 3.03. Lead Non-Executive Director. The Board of Directors may appoint a Lead Non-Executive Director from among the directors serving on theBoard of Directors (that is neither an officer or employee of the corporation and its subsidiaries), who shall have such duties as may be prescribed by resolution of the Board of Directors, or by policy or guidelines approved by resolution of theBoard of Directors. 

 

SECTION 3.04. Vacancies, AdditionalDirectors, and Removal From Office. Except as otherwise provided in the Certificate of Incorporation, if any vacancy occurs in the Board of Directors caused by death, resignation, retirement, disqualification, or removal from office of anydirector, or otherwise, or if any new directorship is created by an increase in the authorized number of directors, a majority of the directors then in office, though less than a quorum, or a sole remaining director, may, subject to the provisionsof Article NINTH of the Certificate of Incorporation, choose a successor or fill the newly created directorship; and a director so chosen shall hold office until the next annual meeting and shall serve until his successor shall be duly elected andshall qualify, unless sooner displaced. Directors may only be removed in accordance with Article NINTH of the Certificate of Incorporation. 

 

SECTION 3.05. Regular Meeting. A regular meeting of the Board of Directors shall be held each year, without other notice than this bylaw, at theplace of, and immediately following, the annual meeting of stockholders; and other regular meetings of the Board of Directors shall be held each year, at such time and place as the Board of Directors may provide, by resolution, either within orwithout the State of Delaware, without other notice than such resolution. 

 

SECTION 3.06. Special Meeting. A special meeting of the Board of Directors may be called by the Chairman of the Board of Directors, by the Lead Non-Executive Director or by the President of the corporation andshall be called by the Secretary on the written request of any two directors. The Chairman, Lead Non-Executive Director or President so calling, or the directors so requesting, any such meeting shall fix the time and any place, either within orwithout the State of Delaware, as the place for holding such meeting. 

 

SECTION 3.07. Notice of Special Meeting. Written notice of special meetings of the Board of Directors shall be given to each director in a manner reasonably calculated to reach such director at least 48 hours prior to the time ofsuch meeting. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the purpose of objecting to the transaction ofany business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting,except that notice shall be given of any proposed amendment to the bylaws if it is to be adopted at any special meeting or with respect to any other matter where notice is required by statute. 

 

SECTION 3.08. Quorum. A majority of the Board of Directors shallconstitute a quorum for the transaction of business at any meeting of the Board of Directors, and the act of a 

 

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majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors,except as may be otherwise specifically provided by statute, by the Certificate of Incorporation or by these bylaws. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meetingfrom time to time, without notice other than announcement at the meeting, until a quorum shall be present. 

 

SECTION 3.09. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required orpermitted to be taken at any meeting of the Board of Directors, or of any committee thereof as provided in Article IV of these bylaws, may be taken without a meeting, if a written consent thereto is signed by all members of the Board of Directors orof such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board of Directors or such committee. 

 

SECTION 3.10. Compensation. Directors, as such, shall not be entitled to any stated salary for their services unless voted by the stockholders orthe Board of Directors; but by resolution of the Board of Directors, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board of Directors or any meeting of a committee ofdirectors. No provision of these bylaws shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor. 

 

ARTICLE IV 

 

COMMITTEE OF DIRECTORS 

 

SECTION 4.01. Designation, Powers and Name. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors,designate one or more committees, including, if they shall so determine, an Executive Committee, each such committee to consist of one or more of the directors of the corporation. The committee shall have and may exercise such of the powers of theBoard of Directors in the management of the business and affairs of the corporation as may be provided in such resolution. The committee may authorize the seal of the corporation to be affixed to all papers that may require it. The Board ofDirectors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of any member of such committee orcommittees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place ofany such absent or disqualified member. Such committee or committees shall have such name or names and such limitations of authority as may be determined from time to time by resolution adopted by the Board of Directors. 

 

SECTION 4.02. Minutes. Each committee of directors shall keep regularminutes of its proceedings and report the same to the Board of Directors when required. 

 

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SECTION 4.03. Compensation. Members of special or standing committees may be allowed compensationfor attending committee meetings, if the Board of Directors shall so determine. 

 

SECTION 4.04. Series A Dividends Committees. So long as any of the holders of shares of the Corporation’s Series A Preferred Stock are entitled to nominate and elect at least one director as provided inthe Certificate of Incorporation, the Board of Directors shall designate two committees to carry out the powers of the Board of Directors with respect to declaring dividends on the shares of the Series A Preferred Stock. One such committee shall becomprised solely of one or more of the Designated Directors (as defined in the Certificate of Incorporation) and the other such committee shall be comprised solely of one or more of the Independent Directors (as defined in the Certificate ofIncorporation). Each committee shall have the power and authority to declare dividends on the Series A Preferred Stock, and, if either committee declares such dividends, the dividends so declared shall be paid regardless of whether the other suchcommittee has acted to declare such dividends or has acted to prohibit the declaration and payment of such dividends. 

 

SECTION 4.05. Nominating and Corporate Governance Committee. The Board of Directors shall designate a nominating and corporate governance committeeto carry out the powers of the Board of Directors with respect to identifying individuals qualified to become Independent Directors (as defined in the Certificate of Incorporation), to select the Independent Director nominees to stand for electionas directors at any meeting of stockholders and to fill any Independent Director vacancy, however created, in the Board of Directors, to develop and recommend to the Board of Directors a set of corporate governance principles and to review policiesrelating to meetings of the Board of Directors. Such committee shall be comprised of a majority of Independent Directors. 

 

ARTICLE V 

 

NOTICE 

 

SECTION 5.01. Methods of Giving Notice. Whenever under the provisions of applicable statutes, the Certificate of Incorporation or these bylaws, notice is required to be given to any director, member of any committee, or stockholder,such notice shall be in writing and delivered personally or mailed to such director, member, or stockholder; provided that in the case of a director or a member of any committee such notice may be given by telephone, facsimile or telegram. Ifmailed, notice to a director, member of a committee, or stockholder shall be deemed to be given when deposited in the United States mail first class in a sealed envelope, with postage thereon prepaid, addressed, in the case of a stockholder, to thestockholder at the stockholder’s address as it appears on the records of the corporation or, in the case of a director or a member of a committee, to such person at his business address. If sent by telegraph, notice to a director or member of acommittee shall be deemed to be given when the telegram, so addressed, is delivered to the telegraph company. If sent by facsimile, notice to director or member of a committee shall be deemed given when sender receives confirmation of receipt of thefacsimile by the other party. 

 

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SECTION 5.02. Written Waiver. Whenever any notice is required to be given under the provisions ofan applicable statute, the Certificate of Incorporation, or these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.

 

ARTICLE VI 

 

OFFICERS 

 

SECTION 6.01. Officers. The officers of the corporation shall be a Chairman of the Board of Directors and a ViceChairman of the Board of Directors (if such offices are created by the Board of Directors), a Chief Executive Officer, a President, and one or more Vice Presidents, any one or more of which may be designated Executive Vice President or Senior VicePresident, a Secretary and a Treasurer. The Board of Directors may appoint such other officers and agents, including Chief Financial Officer, Chief Operating Officer, Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, ineach case as the Board of Directors shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined by the Board of Directors. Any two or more offices may be held by thesame person. No officer shall execute, acknowledge, verify or countersign any instrument on behalf of the corporation in more than one capacity, if such instrument is required by law, by these bylaws or by any act of the corporation to be executed,acknowledged, verified, or countersigned by two or more officers. The Chairman and Vice Chairman of the Board of Directors shall be elected from among the directors. With the foregoing exceptions, none of the other officers need be a director, andnone of the officers need be a stockholder of the corporation. 

 

SECTION 6.02. Election and Term of Office. The officers of the corporation shall be elected annually by the Board of Directors at its first regular meeting held after the annual meeting of stockholders or as soon thereafter asconveniently possible. Each officer shall hold office until his successor shall have been chosen and shall have qualified or until his death or the effective date of his resignation or removal, or until he shall cease to be a director in the case ofthe Chairman and the Vice Chairman. 

 

SECTION 6.03. Removaland Resignation. Any officer or agent elected or appointed by the Board of Directors may be removed without cause by the affirmative vote of a majority of the Board of Directors whenever, in its judgment, the best interests of the corporationshall be served thereby, but such removal shall be without prejudice to the contractual rights, if any, of the person so removed. Any officer may resign at any time by giving written notice to the corporation. Any such resignation shall take effectat the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 

 

SECTION 6.04. Vacancies. Any vacancy occurring in any office of thecorporation by death, resignation, removal, or otherwise, may be filled by the Board of Directors for the unexpired portion of the term. 

 

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SECTION 6.05. Salaries. The salaries of all officers and agents of the corporation shall be fixedby the Board of Directors or pursuant to its direction; and no officer shall be prevented from receiving such salary by reason of his also being a director. 

 

SECTION 6.06. Chairman of the Board. The Chairman of the Board of Directors (if such office is created by the Board of Directors) shall preside atall meetings of the Board of Directors or of the stockholders of the corporation. The Chairman shall formulate and submit to the Board of Directors or the Executive Committee matters of general policy for the corporation and shall perform such otherduties as usually appertain to the office or as may be prescribed by the Board of Directors or the Executive Committee. 

 

SECTION 6.07. Vice Chairman of the Board. The Vice Chairman of the Board of Directors (if such office is created by the Board of Directors) shall,in the absence or disability of the Chairman of the Board of Directors, perform the duties and exercise the powers of the Chairman of the Board of Directors. The Vice Chairman shall perform such other duties as from time to time may be prescribed bythe Board of Directors or the Executive Committee or assigned by the Chairman of the Board of Directors. 

 

SECTION 6.08. Chief Executive Officer. Should the Board of Directors create the independent position of Chief Executive Officer, the chiefexecutive officer, subject to the control of the Board of Directors, shall in general supervise and control the business and affairs of the corporation. In the absence of the Chairman of the Board of Directors or the Vice Chairman of the Board ofDirectors (if such offices are created by the Board of Directors), the Chief Executive Officer shall preside at all meetings of the Board of Directors and of the stockholders. He may also preside at any such meeting attended by the Chairman or ViceChairman of the Board of Directors if he is so designated by the Chairman, or in the Chairman’s absence by the Vice Chairman. He shall have the power to appoint and remove subordinate officers, agents and employees, except those elected orappointed by the Board of Directors. The Chief Executive officer shall keep the Board of Directors and the Executive Committee fully informed and shall consult them concerning the business of the corporation. He may sign with the Secretary or anyother officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts, or other instruments that the Board of Directors hasauthorized to be executed, except in cases where the signing and execution thereof has been expressly delegated by these bylaws or by the Board of Directors to some other officer or agent of the corporation, or shall be required by law to beotherwise executed. He shall vote, or give a proxy to any other officer of the corporation to vote, all shares of stock of any other corporation standing in the name of the corporation and in general he shall perform all other duties normallyincident to the office of Chief Executive officer and such other duties as may be prescribed by the stockholders, the Board of Directors, or the Executive Committee from time to time. 

 

SECTION 6.09. President. The President shall be the chief operating officer of the corporation, subject to thecontrol of the Board of Directors, and shall have general and active management and control of the day-to-day business and affairs of the corporation and shall report directly to the Chief Executive officer, if the Board of Directors creates such aposition. The President shall perform such other duties as from time to time are assigned to him by the Chief Executive Officer, the Board of Directors or the Executive Committee. 

 

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SECTION 6.10. Vice Presidents. In the absence of the Chief Executive Officer and/or the President,or in the event of his inability or refusal to act, the Executive Vice President (or in the event there shall be no Vice President designated Executive Vice President, any Vice President designated by the Board of Directors) shall perform the dutiesand exercise the powers of the Chief Executive Officer and/or the President. Any Vice President may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation. The Vice Presidents shall perform such other duties asfrom time to time may be assigned to them by the Chief Executive Officer, the President, the Board of Directors or the Executive Committee. 

 

SECTION 6.11. Secretary. The Secretary shall (a) keep the minutes of the meetings of the stockholders, the Board of Directors and committees ofdirectors; (b) see that all notices are duly given in accordance with the provisions of these bylaws and as required by law; (c) be custodian of the corporate records and of the seal of the corporation, and see that the seal of the corporation or afacsimile thereof is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these bylaws; (d)keep or cause to be kept a register of the post office address of each stockholder which shall be furnished by such stockholder; (e) sign with the Chief Executive Officer, the President, or an Executive Vice President or Vice President, certificatesfor shares of the corporation, the issue of which shall have been authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation; and (g) in general, perform all duties normally incident tothe office of Secretary and such other duties as from time to time may be assigned to him by the Chief Executive Officer, the President, the Board of Directors or the Executive Committee. 

 

SECTION 6.12. Treasurer. If required by the Board of Directors, the Treasurer shall give a bond for the faithfuldischarge of his duties in such sum and with such surety or sureties as the Board of Directors shall determine. He shall (a) have charge and custody of and be responsible for all funds and securities of the corporation; (b) receive and give receiptsfor moneys due and payable to the corporation from any source whatsoever and deposit all such moneys in the name of the corporation in such banks, trust companies, or other depositories as shall be selected in accordance with the provisions ofSection 7.03 of these bylaws; (c) prepare, or cause to be prepared, for submission at each regular meeting of the Board of Directors, at each annual meeting of the stockholders, and at such other times as may be required by the Board of Directors,the Chief Executive Officer, the President or the Executive Committee, a statement of financial condition of the corporation in such detail as may be required; and (d) in general, perform all the duties incident to the office of Treasurer and suchother duties as from time to time may be assigned to him by the Chief Executive Officer, the President, the Board of Directors or the Executive Committee. 

 

SECTION 6.13. Assistant Secretary and Treasurer. The Assistant Secretaries and Assistant Treasurers shall, in general, perform such duties as shallbe assigned to them by the Secretary or the Treasurer, respectively, or by the Chief Executive Officer, the President, the Board of Directors, or the Executive Committee. The Assistant Secretaries and Assistant Treasurers shall, in the absence ofthe Secretary or Treasurer, respectively, perform all functions and duties which such absent officers may delegate, but such delegation shall not relieve the absent officer from the responsibilities and liabilities of his office. The AssistantSecretaries may sign, with the Chief Executive Officer, the President or a Vice President, certificates for 

 

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shares of the corporation, the issue of which shall have been authorized by a resolution of the Board of Directors. TheAssistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the Board of Directors shall determine. 

 

ARTICLE VII 

 

CONTRACTS, CHECKS AND DEPOSITS 

 

SECTION 7.01. Contracts. Subject to the provisions of Section 6.01, the Board of Directors may authorize any officer, officers, agent, or agents,to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. 

 

SECTION 7.02. Checks. All checks, demands, drafts, or other orders for the payment of money, notes, or otherevidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers or such agent or agents of the corporation, and in such manner, as shall be determined by the Board of Directors. 

 

SECTION 7.03. Deposits. All funds of the corporation not otherwiseemployed shall be deposited from time to time to the credit of the corporation in such banks, trust companies, or other depositories as the Board of Directors may select. 

 

ARTICLE VIII 

 

CERTIFICATES OF STOCK 

 

SECTION 8.01. Issuance. Each stockholder of this corporation shall be entitled to a certificate or certificates showing the number of shares ofcapital stock registered in his name on the books of the corporation. The certificates shall be in such form as may be determined by the Board of Directors, shall be issued in numerical order and shall be entered in the books of the corporation asthey are issued. They shall exhibit the holder’s name and number of shares and shall be signed by the Chief Executive Officer, the President or a Vice President and by the Secretary or an Assistant Secretary. If any certificate is countersigned(1) by a transfer agent other than the corporation or any employee of the corporation, or (2) by a registrar other than the corporation or any employee of the corporation, any other signature on the certificate may be a facsimile. If the corporationshall be authorized to issue more than one class of stock or more than one series of any class, the designations, preferences, and relative participating, optional, or other special rights of each class of stock or series thereof and thequalifications, limitations, or restrictions of such preferences and rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class of stock; provided that, except asotherwise provided by statute, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation willfurnish to each stockholder who so requests the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations, or restrictions of such 

 

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preferences and rights. All certificates surrendered to the corporation for transfer shall be canceled and no newcertificate shall be issued until the former certificate for a like number of shares shall have been surrendered and canceled, except that in the case of a lost, stolen, destroyed, or mutilated certificate a new one may be issued therefor upon suchterms and with such indemnity, if any, to the corporation as the Board of Directors may prescribe. Certificates shall not be issued representing fractional shares of stock. 

 

SECTION 8.02. Lost Certificates. The Board of Directors may direct a new certificate or certificates to be issued inplace of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen ordestroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require (1) the owner of such lost, stolen, or destroyed certificate orcertificates, or his legal representative, to advertise the same in such manner as it shall require, (2) such owner to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporationwith respect to the certificate or certificates alleged to have been lost, stolen, or destroyed, or (3) both. 

 

SECTION 8.03. Transfers. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed oraccompanied by proper evidence of succession, assignment, or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction upon itsbooks. Transfers of shares shall be made only on the books of the corporation by the registered holder thereof, or by his attorney thereunto authorized by power of attorney and filed with the Secretary of the corporation or the Transfer Agent.

 

SECTION 8.04. Registered Stockholders. The corporationshall be entitled to treat the holder of record of any share or shares of the corporation’s capital stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such shareor shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware. 

 

ARTICLE IX 

 

DIVIDENDS 

 

SECTION 9.01. Declaration. Dividends with respect to the shares of the corporation’s capital stock, subject to the provisions of theCertificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to applicable law. Dividends may be paid in cash, in property, or in shares of capital stock, subject to the provisions ofthe Certificate of Incorporation. 

 

SECTION 9.02.Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the Board of Directors from time to time, in their absolute discretion, think proper as a reserveor reserves to meet 

 

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contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for suchother purpose as the Board of Directors shall think conducive to the interest of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created. 

 

ARTICLE X 

 

INDEMNIFICATION 

 

SECTION 10.01. Third Party Actions. The corporation shall indemnify any director or officer of the corporation, and may indemnify any other person,who was or is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) byreason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture,trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit, or proceeding if he acted in good faith andin a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action,suit, or proceeding by judgment, order, settlement, or conviction, or upon a plea of *nolo**contendere* or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which hereasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. 

 

SECTION 10.02. Actions by or in the Right of the Corporation. Thecorporation shall indemnify any director or officer and may indemnify any other person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procurea judgment in its favor by reason of the fact that he is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another corporation,partnership, joint venture, trust, or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in amanner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liableto the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances ofthe case, such person is fairly and reasonably entitled to indemnity for such expenses as the Court of Chancery or such other court shall deem proper. 

 

SECTION 10.03. Mandatory Indemnification. To the extent that a director, officer, employee, or agent of the corporation has been successful on themerits or otherwise in defense 

 

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of any action, suit, or proceeding referred to in Sections 10.01 and 10.02, or in defense of any claim, issue, or mattertherein, he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith. 

 

SECTION 10.04. Determination of Conduct. Any indemnification under Section 10.01 or 10.02 of this Article X (unless ordered by a court) shall bemade by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth inSection 10.01 or 10.02 of this Article X. Such determination shall be made (a) by a majority vote of directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (b) if there are no such directors, or if suchdirectors so direct, by independent legal counsel in a written opinion, or (c) by the stockholders. 

 

SECTION 10.05. Payment of Expenses in Advance. Expenses incurred in defending a civil or criminal action, suit, or proceeding may be paid by thecorporation in advance of the final disposition of such action, suit, or proceeding upon receipt of an undertaking by or on behalf of the director, officer, employee, or agent to repay such amount if it shall ultimately be determined that he is notentitled to be indemnified by the corporation as authorized in this Article X. 

 

SECTION 10.06. Indemnity Not Exclusive. The indemnification and advancement of expenses provided or granted hereunder shall not be deemed exclusive of any other rights to which those seeking indemnification oradvancement of expenses may be entitled under the Certificate of Incorporation, any other bylaw, agreement, vote of stockholders, or disinterested directors or otherwise, both as to action in his official capacity and as to action in anothercapacity while holding such office. 

 

SECTION 10.07.Definitions. For purposes of this Article X: 

 

(a)“the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger that, if its separate existence had continued, wouldhave had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee, or agent of such constituent corporation, or is or was serving at the request of suchconstituent corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, shall stand in the same position under this Article X with respect to the resulting or survivingcorporation as he would have with respect to such constituent corporation if its separate existence had continued; 

 

(b) “other enterprises” shall include employee benefit plans; 

 

(c) “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan;

 

(d) “serving at the request of the corporation”shall include any service as a director, officer, employee, or agent of the corporation that imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants orbeneficiaries; and 

 

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(e) a person who acted in good faith and in a manner he reasonably believed to be in the interest of theparticipants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this Article X. 

 

SECTION 10.08. Continuation of Indemnity. The indemnification andadvancement of expenses provided or granted hereunder shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs,executors, and administrators of such a person. 

 

ARTICLE XI

 

MISCELLANEOUS 

 

SECTION 11.01. Seal. The corporate seal, if one is authorized by theBoard of Directors, shall have inscribed thereon the name of the corporation, and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

 

SECTION 11.02. Books. The books of the corporation maybe kept (subject to any provision contained in the statutes) outside the State of Delaware at the offices of the corporation, or at such other place or places as may be designated from time to time by the Board of Directors. 

 

ARTICLE XII 

 

AMENDMENT 

 

Except as provided in the Certificate of Incorporation, these bylaws may be altered, amended, or repealed by a majority of the number of directors thenconstituting the Board of Directors at any regular meeting of the Board of Directors without prior notice, or at any special meeting of the Board of Directors if notice of such alteration, amendment, or repeal be contained in the notice of suchspecial meeting, or by the stockholders at any regular or special meeting. 

 

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