**Exhibit 3.2**

 

 

**FIRST OTTAWA BANCSHARES, INC.**

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**BY-LAWS**

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**Adopted as of September 13, 2000**

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**Amended and Restated March 14, 2001**

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**Amended and Restated June 13, 2001**

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**Amended and Restated April 10, 2002**

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**Amended and Restated May 15, 2002**

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**Amended and Restated March 12, 2003**

 

 

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**By-laws of**

 

**First Ottawa Bancshares, Inc.**

 

**(a Delaware corporation)**

 

**ARTICLE I            OFFICES**

 

## **Section1.1           ***Registered Office.** *The registered office of the Corporation in theState of Delaware shall be located at Corporation Trust Center, 1209 OrangeStreet, Wilmington, Delaware, County of New Castle.  The name of the Corporation’s registered agent at such addressshall be The Corporation Trust Company.

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## **Section1.2           ***Other Offices.*  TheCorporation may also have offices at such other places both within and withoutthe State of Delaware as the Board of Directors may from time to time determineor the business of the Corporation may require.

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**ARTICLE II          STOCKHOLDERS**

 

## **Section2.1           ***Annual Meetings.*  Anannual meeting of stockholders shall be held each year for the election ofdirectors at such date, time and place either within or without the State ofDelaware as shall be designated by the Board of Directors.  Any other proper business may be transactedat the annual meeting of stockholders.

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## **Section2.2           ***Special Meetings.* Special meetings of the stockholders may only be called by amajority of the directors then in office. Each special meeting shall be held

 

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## **at suchdate, time and place either within or without the State of Illinois as shall bedesignated at least ten days prior to such meeting.**

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## **Section2.3           ***Notice of Meeting*. Unless otherwise provided by law, whenever stockholders are required orpermitted to take any action at a meeting, a written notice of the meetingshall be given which shall state the date, time and place of the meeting and,in the case of a special meeting, the purpose or purposes for which the meetingis called.  Unless otherwise provided bylaw, the written notice of any meeting shall be given not less than ten normore than sixty days before the date of the meeting to each stockholderentitled to vote at the meeting.  Ifmailed, notice is given when deposited in the United States mail, postageprepaid, directed to the stockholder at his address as it appears on therecords of the Corporation.

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## **Section2.4           ***Adjournments.*  Anymeeting of stockholders, annual or special, may adjourn from time to time toreconvene at the same or some other place, and notice need not be given of anysuch adjourned meeting if the time and place thereof are announced at themeeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any businesswhich might have been transacted at the original meeting.  If the adjournment is for more than thirtydays, or if after the adjournment a new record date is fixed for the adjournedmeeting, a notice of the adjourned meeting shall be given to each stockholderof record entitled to vote at the meeting.

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## **Section2.5           ***Quorum.** *Unlessotherwise provided by law or the certificate of incorporation, at each meetingof stockholders, the presence in person or representation

 

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## **by proxyof the holders of a majority of the outstanding shares of capital stockentitled to vote at the meeting shall constitute a quorum for the transactionof business.  In the absence of aquorum, the stockholders so present and represented may, by vote of the holdersof a majority of the shares of capital stock of the Corporation so present andrepresented, adjourn the meeting from time to time until a quorum shall attend,and the provisions of Section 2.4 of these by-laws shall apply to each suchadjournment.  Shares of its own capitalstock belonging on the record date for the meeting to the Corporation or toanother corporation, if a majority of the shares entitled to vote in theelection of directors of such other corporation is held, directly orindirectly, by the Corporation, shall neither be entitled to vote nor becounted for quorum purposes; provided, however, that the foregoing shall notlimit the right of the Corporation to vote stock, including but not limited toits own stock, held by it in a fiduciary capacity.**

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## **Section2.6           ***Organization.* Meetings of stockholders shall be presided over by the Chairman, or bythe Vice Chairman, or by the President, or in the absence of the foregoingpersons by a chairman designated by the Board of Directors, or in the absenceof such designation by a chairman chosen at the meeting.  The Secretary shall act as secretary of themeeting, but in his/her absence the chairman of the meeting may appoint anyperson to act as secretary of the meeting.

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## **Section2.7           ***Voting; Proxies.* Except as otherwise provided by the certificate of incorporation, eachstockholder shall at every meeting of the stockholders be entitled to one (1)vote for each share of the voting stock held by such stockholder, which hasvoting power on the subject matter submitted to a vote at the meeting includingin all elections of directors.  Eachstockholder entitled to vote at a meeting of stockholders or to

 

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## **expressconsent or dissent to corporate action in writing without a meeting mayauthorize another person or person to act for him by proxy, but no such proxyshall be voted or acted upon after three years from its date, unless the proxyprovides for a longer period.  A dulyexecuted proxy shall be irrevocable if it states that it is irrevocable and if,and only as long as, it is coupled with an interest sufficient in law tosupport an irrevocable power.  Astockholder may revoke any proxy which is not irrevocable by attending themeeting and voting in person or by filing an instrument in writing revoking theproxy or another duly executed proxy bearing a later date with the Secretarybefore the proxy is voted.  Unlessotherwise required by law, voting of stockholders for the election of directorsneed not be by written ballot.  Votingof stockholders for all other matters need not be by written ballot unless sodetermined at a stockholders meeting by the vote of the holders of a majorityof the outstanding shares of capital stock present in person or represented byproxy at the meeting and entitled to vote on the subject matter submitted to avote at the meeting.  Unless otherwiseprovided by law or the certificate of incorporation, the vote of the holders ofa majority of the shares of capital stock of the Corporation present in personor represented by proxy at a meeting at which a quorum is present and entitledto vote on the subject matter submitted to a vote at the meeting shall be theact of the stockholders.  Subject to therights of holders of any class or series of preferred stock, any action requiredor permitted to be taken by the holders of capital stock of the Corporationmust be effected at a duly called annual or special meeting of the holders ofcapital stock of the Corporation and may not be effected by any consent inwriting by such holders.**

 

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## **Section2.8           ***Fixing Date for Determination of Stockholders ofRecord.*  In order that the Corporation may determinethe stockholders entitled to notice of or to vote at any meeting ofstockholders or any adjournment thereof or to express consent to corporateaction in writing without a meeting, or entitled to receive payment of anydividend or other distribution or allotment of any rights, or entitled toexercise any rights in respect of any change, conversion or exchange of stockor for the purpose of any other lawful action, the Board of Directors may fix,in advance, a record date, which shall not be more than sixty nor less than tendays before the date of such meeting, more than ten days after the date uponwhich the resolution fixing the record date with respect to the taking ofcorporate action by written consent without a meeting is adopted by the Boardof Directors, nor more than sixty days prior to any other action.  If no record date is fixed:  (a) the record date for determiningstockholders entitled to notice of or to vote at a meeting of stockholdersshall be at the close of business on the day next preceding the day on whichnotice is given or, if notice is waived, at the close of business on the daynext preceding the day on which the meeting is held; (b) the record date fordetermining stockholders entitled to express consent to corporate action inwriting without a meeting, when no prior action by the Board of Directors isnecessary, shall be the day on which the first written consent is expressed;(c) the record date for determining stockholders entitled to express consent tocorporate action in writing without a meeting, when prior action by the Boardof Directors is required, shall be at the close of business on the day on whichthe Board of Directors adopts the resolution taking such prior action; and (d)the record date for determining stockholders for any other purpose shall be atthe close of business on the day on which the Board of Directors adopts theresolution relating thereto.  A

 

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## **determinationof stockholders 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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## **Section2.9           ***List of Stockholders Entitled to Vote.*  The Secretary shall make, at the earlier of ten days before everymeeting of the stockholders or ten days after the record date, a complete listof the stockholders entitled to vote at the meeting, arranged in alphabeticalorder, and showing the address of each stockholder and the number of sharesregistered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for anypurpose germane to the meeting, during ordinary business hours, for a suchperiod, either at a place within the city where the meeting is to be held,which place shall be specified in the notice of the meeting, or, if not sospecified, at the place where the meeting is to be held.  The list shall also be produced and kept atthe time and place of the meeting during the whole time thereof and may beinspected by any stockholder who is present.

 

**ARTICLE III         BOARDOF DIRECTORS**

 

## **Section3.1           ***Powers; Number; Qualifications.*  Unless otherwise provided by law or the certificate ofincorporation, the business and affairs of theCorporation shall be under the direction of a board of directors.  The number of directors constituting theentire board of directors shall not be less than eight nor more than fifteen asfixed from time to time by resolution of not less than two-thirds (2/3) of thenumber of directors which immediately prior to such proposed change had been fixed,in the manner prescribed herein, by the board of directors of the Corporation, *provided, however*, that

 

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## **the number of directors shall not be reducedas to shorten the term of any director at the time in office, and *provided further*, that the number ofdirectors constituting the entire board of directors shall be nine untilotherwise fixed as described immediately above.  No person shall be eligible for election to the board ofdirectors unless such person owns not less than 1,000 shares of theCorporation’s common stock, and has resided, for not less than six months priorto his or her election, in a county where the Corporation maintains a bankingoffice.**

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## **Section3.2           ***Election; New Directorships; Vacancies; Removal;Resignation.*  The directors of the Corporation shall be dividedinto three classes, Class I, Class II and Class III, as nearlyequal in number as the then total number of directors constituting the entireboard of directors permits with the term of office of one class expiring eachyear.  Directors of Class I shallhold office for an initial term expiring at the 2003 annual meeting, directorsof Class II shall hold office for an initial term expiring at the 2004annual meeting and directors of Class III shall hold office for an initialterm expiring at the 2005 annual meeting.

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## **At each annualmeeting of stockholders, the successors to the class of directors whose termshall then expire shall be elected to hold office for a term expiring at thethird succeeding annual meeting.  In theevent of any change in the authorized number of directors, each director thencontinuing to serve as such shall continue as a director of the class of whichhe or she is a member until the expiration of his or her current term, or hisor her prior resignation, disqualification, disability or removal.  There shall be no cumulative voting in theelection of directors.  Election ofdirectors need not be by written ballot unless the bylaws of the Corporation soprovide.**

 

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## **Any vacancieson the board of directors for any reason, and any directorships resulting fromany increase in the number of directors, may be filled only by the affirmativevote of a majority of directors then in office, although less than a quorum, orby the sole remaining director.  Anydirectors so chosen shall hold office until the next election of the class forwhich such directors shall have been chosen and until their successors shall beelected and qualified.  If the number ofdirectors is changed, any increase or decrease in the number of directors maybe allocated to any such class the board of directors selects in itsdiscretion.**

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## **A director maybe removed only for cause as determined by the affirmative vote of the holdersof at least a majority of the shares then entitled to vote generally in theelection of directors (considered for this purpose as one class) cast at anannual meeting of stockholders or at a special meeting of the stockholderscalled expressly for that purpose. Cause for removal shall include, but not be limited to, the situationwhere a director whose removal is proposed has been convicted of a felony by acourt of competent jurisdiction or has been adjudged by a court of competentjurisdiction to be liable for gross negligence or willful misconduct in theperformance of such director’s duty to the Corporation and such adjudication isno longer subject to direct appeal.**

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## **Each directorshall hold office until his successor is elected and qualified or until hisearlier death, resignation or removal. Any director may resign at any time upon written notice to theCorporation directed to the Board of Directors or the Secretary.  Such resignation shall take effect at thetime specified therein, and unless otherwise specified therein no acceptance ofsuch resignation shall be necessary to make it effective.**

 

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## **Section3.3           ***Procedure for Nomination*.  Not less than 30 days prior to the annual meeting of stockholders, theBoard of Directors shall nominate a slate of candidates including one nomineefor each available seat and shall notify the stockholders of the slate ofnominees with the proxy material submitted prior to the annual meeting.  Other nominations of qualified directors maybe made by any stockholder so long as they are received by the Secretary of theCorporation, in writing, on a form to be provided for that purpose, not lessthan ten days prior to the annual meeting, and so long as these nominationsare otherwise inconformity with applicable laws and regulations.

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## **Section3.4           ***Regular Meetings.* Regular meetings of the Board of Directors shall be held at such dates,times and places either within or without the State of Delaware as the Board ofDirectors shall from time to time determine.

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## **Section3.5           ***Special Meetings.* Special meetings of the Board of Directors may be called at any time bythe Chairman, if any, the Vice Chairman, if any, the President or by any twomembers of the Board of Directors.  Eachspecial meeting shall be held at such date, time and place either within orwithout the State of Delaware as shall be fixed by the person or personscalling the meeting.

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## **Section3.6           ***Notice of Meetings.* Written notice of each meeting of the Board of Directors shall be givenwhich shall state the date, time and place of the meeting.  The written notice of any meeting shall begiven at least twenty-four hours in advance of the meeting to eachdirector.  Notice may be given by letter,telegram, e-mail, telex or facsimile and shall be deemed to have been givenwhen, delivered to the telegraph

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## **companyor transmitted by e-mail, telex or facsimile, or forty-eight hours after depositedin the United States mail, as the case may be.**

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## **Section3.7           ***Telephonic Meetings Permitted.*  Members of the Board of Directors or any committee designated bythe Board of Directors may participate in a meeting of the Board of Directorsor of such committee by means of conference telephone or similar communicationequipment by means of which all persons participating in the meeting can heareach other, and participation in the meeting pursuant to this by-law shallconstitute presence in person at such meeting .

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## **Section3.8           ***Quorum; Vote Required for Action.*  Unless otherwise required by law, at each meeting of the Board ofDirectors, the presence of three-fourths of the total number of directors shallconstitute a quorum for the transaction of business.  The vote of a majority of the directors present at a meeting atwhich a quorum is present shall be the act of the Board of Directors, unlessthe vote of a greater number is required by law or the certificate ofincorporation.  In case at any meetingof the Board of Directors a quorum shall not be present, the members of theBoard of Directors present may by majority vote adjourn the meeting from timeto time, with notice as provided in section 3.5 for the continuation of themeeting so adjourned.

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## **Section3.9           ***Organization.* Meetings of the Board of Directors shall be presided over by theChairman, or in his absence by the Vice-Chairman, or in his absence by thePresident, or in their absence by a chairman chosen at the meeting.  The Secretary shall act as secretary of themeeting, but in his/her absence the chairman of the meeting may appoint anyperson to act as secretary of the meeting.

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## **Section3.10        ***Action by Directors Without a Meeting.*  Unless otherwise provided by the certificate of incorporation,any action required or permitted to be taken at any meeting of the Board ofDirectors or any committee designated by the Board of Directors may be takenwithout a meeting if all members of the Board of Directors or of such committeeconsent thereto in writing, and the writing or writings are filed with theminutes of proceedings of the Board of Directors or such committee.

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## **Section3.11        ***Compensation of Directors.*  Unless otherwise provided by the certificate of incorporation,the Board of Directors shall have the authority to fix the compensation ofdirectors, which compensation may include the reimbursement of expensesincurred in connection with meetings of the Board of Directors or a committeethereof.

 

**ARTICLE IV         COMMITTEES**

 

## **Section4.1           ***Committees.*  The Boardof Directors may, by resolution passed by a majority of the whole Board ofDirectors, designate one or more committees, each committee to consist of oneor more of the directors of the Corporation. The Board of Directors, or any Committee Chairperson, may designate oneor more directors as alternate members of any committee, who may replace anyabsent or disqualified member of such committee at any meeting thereof.

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## **Section4.2           ***Standing Committees.*  In addition to the generality of the foregoing, there shall bestanding committees of the Board consisting of the Personnel, Funds Management,Trust, Audit, Loan, Long Range Planning, and Nominating Committees.  Each Committee shall consist of at leastthree directors.  Periodic rotation

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## **ofdirectors to new committee assignments is encouraged but not required.  The chairperson of each committee shall haveserved on that committee for at least one year prior to being selected aschairperson.  Exceptions to chairpositions shall be noted in the minutes. The Audit Committee shall consist solely of outside directors.**

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The PersonnelCommittee and Long Range Planning Committee shall consist of the entire board,and shall meet on an as required basis. All other committees shall meet not less frequently than quarterly,shall maintain minutes of all activities and shall report those minutes andother information to the entire Board.

 

The NominatingCommittee shall meet as necessary and shall maintain an ongoing list ofpotential new directors.  Considerationfor new directors shall include business development opportunities, communityinvolvement, and judgment in the execution of responsibilities to theshareholders.  The Nominating Committeeshall remit to the entire board, on an annual basis in January of each year,the three nominees from which the full board may select candidates to theboard.  All voting on nominees andselection to the full board shall be by secret ballot.

 

## **Section4.3           ***Power of Committees*.  Anycommittee designated by the Board of Directors, to the extent provided in aresolution of the Board of Directors, shall have and may exercise all thepowers and authority of the Board of Directors in the management of thebusiness and affairs of the Corporation and may authorize the seal of theCorporation to be affixed to all papers which may require it; but no suchcommittee shall have the power or authority to take any action which by law mayonly be taken by the Board of Directors or to take any action with referenceto:  amending the certificate ofincorporation (except that a committee may, to the extent authorized in theresolution or

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## **resolutionsproviding for the issuance of shares of stock adopted by the Board ofDirectors, fix the designation and any of the preferences or rights of suchshares relating to dividends, redemption, dissolution, any distribution ofassets of the Corporation or the conversion into, or the exchange of suchshares for, shares of any other class or classes or any other series of thesame or any other class or classes of stock of the Corporation or fix thenumber of shares of any series of stock or authorize the increase or decreaseof the shares of any series), adopting an agreement of merger or consolidation,recommending to the stockholders the sale, lease or exchange of all orsubstantially all of the Corporation’s property and assets, recommending to thestockholders a dissolution of the Corporation or a revocation of dissolution,removing or indemnifying directors or amending these by-laws; and, unless aresolution of the Board of Directors expressly so provides, no such committeeshall have the power or authority to declare a dividend, to authorize theissuance of stock or to adopt a certificate of ownership and merger pursuant toSection 253 of the General Corporation Law of the State of Delaware.**

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## **Section4.4           ***Committee Rules.* Unless the Board of Directors otherwise provides, each committeedesignated by the Board of Directors may adopt, amend and repeal rules for theconduct of its business.  In the absenceof a resolution by the Board of Directors or a provision in the rules of suchcommittee to the contrary, the presence of a majority of the total number ofmembers of such committee shall constitute a quorum for the transaction ofbusiness, and the vote of a majority of the members present at a meeting atwhich a quorum is present shall be the act of such committee.  Only committee members may vote at acommittee meeting.

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**ARTICLE V          OFFICERS**

 

## **Section5.1           ***Officers; Elections.*  As soon as practicable after the annual meeting of stockholdersin each year, the Board of Directors shall elect from its membership or outsidethereof a President and a Secretary. The Board of Directors may also elect from its membership a Chairman ofthe Board of Directors (herein called “Chairman”) and a Vice Chairman of theBoard of Directors (herein called “Vice Chairman”), and from its membership oroutside thereof a Chief Executive Officer, one or more Vice Presidents, one ormore Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurerand one or more Assistant Treasurers and such other officers or agents as itmay determine.  Unless otherwiseprovided by the certificate of incorporation, any number of offices may be heldby the same person.  The Chairman andVice Chairman shall be elected by a majority secret ballot of the entire board,for a term of one year.  Those directorsserving in those offices may succeed themselves as Chairman and Vice-Chairman,for an additional one-year term.

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## **Section5.2           ***Term of Office; Resignation; Removal; Vacancies.*  Except as otherwise provided by the Board of Directors whenelecting any officer, each officer shall hold office until the first meeting ofthe Board of Directors after the annual meeting of stockholders next succeedinghis election, or until his successor is elected and qualified or until hisearlier resignation or removal.  Anyofficer may resign at any time upon written notice to the Corporation directedto the Board of Directors and the Secretary. Such resignation shall take effect at the time specified therein, andunless otherwise specified therein no acceptance of such resignation shall benecessary to make it

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## **effective.  The Board of Directors may remove anyofficer or agent with or without cause at any time.  In the event of a resignation or removal of an officer who isalso a director of the Company or any subsidiary, such resignation or removalshall also operate as a resignation or removal from the Board ofDirectors.  Any such removal shall bewithout prejudice to the contractual rights of such officer or agent, if any,with the Corporation, but the election of an officer or agent shall not ofitself create any contractual rights. Any vacancy occurring in any office of the Corporation by death,resignation, removal or otherwise may be filled for the unexpired portion ofthe term by the Board of Directors, but shall not require the filling of avacancy on the board in the event of the resignation or removal of an officerwho is also a member of the Board.**

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## **Section5.3           ***Powers and Duties.*  Theofficers of the Corporation shall have such powers and duties in the managementof the Corporation as shall be stated in these by-laws or in a resolution ofthe Board of Directors which is not inconsistent with these by-laws and, to theextent not so stated, as generally pertain to their respective offices, subjectto the control of the Board of Directors. The Secretary shall have the duty to record in a book to be kept forthat purpose the proceedings of the meetings of the stockholders, the Board ofDirectors and any committees designated by the Board of Directors.

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## **Section5.4           ***Other Officers; Security.*  The other officers, if any, of the Corporation shall have suchduties and powers as generally pertain to their respective offices and suchother duties and powers as the Board of Directors shall from time to timedelegate to each such officer.  TheBoard of Directors may require any officer, agent or 

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## **employeeto give security, by bond or otherwise, for the faithful performance of hisduties.**

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## **Section5.5           ***Compensation of Officers.*  The compensation of each officer shall be fixed by seniormanagement of the company, shall be subject to review by the Board ofDirectors, and no officer shall be prevented from receiving such compensationby virtue of his also being a director.

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**ARTICLE VI         STOCK**

 

## **Section6.1           ***Certificates.** *Every holder of one or more shares of capital stock of the Corporationshall be entitled to have a certificate signed by or in the name of theCorporation by the Chairman or Vice Chairman, if any, or the President or aVice President, and by the Treasurer or an Assistant Treasurer, if any, or theSecretary or an Assistant Secretary, certifying the number of shares owned byhim in the Corporation.  Any or all ofthe signatures on the certificate may be a facsimile.  In case any officer, transfer agent or registrar who has signedor whose facsimile signature has been placed upon a certificate shall haveceased to be such officer, transfer agent or registrar before such certificateis issued, it may be issued by the Corporation with the same effect as if hewere such officer, transfer agent or registrar at the date of issue.

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## **Section6.2           ***Lost, Stolen or Destroyed Stock Certificates;Issuance of New Certificates.*  TheCorporation may issue a new certificate of stock in the place of anycertificate theretofore issued by it, alleged to have been lost, stolen ordestroyed, and the Corporation may require the owner of the lost, stolen ordestroyed certificate, or his legal representative, to give the Corporation abond sufficient to indemnify it against any claim

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## **that maybe made against it on account of the alleged loss, theft or destruction of anysuch certificate or the issuance of such new certificate.**

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**ARTICLE VII       INDEMNIFICATION**

 

## **Section 7.1            *Indemnification.***

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***7.1.1  Actions, Suits or Proceedings other than byor in the Right of the Corporation*.**  The corporation shall indemnify any personwho 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 ofthe corporation) by reason of the fact that he or she is or was adirector,  officer, employee or agent ofthe corporation, or is or was serving at the request of the cor­poration as adirector, officer, employee or agent of another corporation, part­nership,joint venture, trust or other enterprise, or by reason of any action alleged tohave been taken or omitted in such capacity, against expenses (includingattorneys’ fees), judgments, fines and amounts paid in settlement actually andreasonably incurred by him or her or on his or her behalf in connection withsuch action, suit or proceeding and any appeal therefrom, if he or she acted ingood faith and in a manner he or she reasonably believed to be in, or notopposed to, the best interests of the corporation, and, with respect to anycriminal action or proceeding, had no reasonable cause to believe his or herconduct was unlawful.  The termi­nationof any action, suit or proceeding by judgment, order, settlement, 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 mannerwhich he or she reasonably believed to be in, or not opposed to, the bestinterests

 

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of the corporation and, withrespect to any criminal action or pro­ceeding, had reasonable cause to believethat his or her conduct was unlawful.

 

***7.1.2*  *Actions or Suits by or in the right of theCorporation*.**  Thecorporation shall indemnify any person who was or is a party or is threatenedto be made a party to any threatened, pending or completed action or suit by orin the right of the corporation to procure a judgment in its favor by reason ofthe fact that he or she is or was a director, officer, employee or agent of thecorporation oris or was serving or has agreed to serve at the request of the corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise, or by reason of any action alleged to havebeen taken or omitted in such capacity, against expenses (including attorneys’fees) actually and reasonably incurred by him or her or on his or her behalf inconnection with the defense or settlement of such action or suit and any appealtherefrom, if he or she acted in good faith and in a manner he or shereasonably believed to be in, or not opposed to, the best interests of thecorporation, except that no indemnification shall be made in respect of anyclaim, issue or matter as to which such person shall have been adjudged to beliable to the corporation unless and only to the extent that the Court ofChancery of Delaware or the court in which such action or suit was broughtshall determine upon application that, despite the adjudication of suchliability but in view of all the circumstances of the case, such person isfairly and reasonably entitled to indemnity for such costs, charges andexpenses which the Court of Chancery or such other court shall deem proper.

 

***7.1.3  Indemnification for Costs, Charges andExpenses of Successful*.**  Notwithstanding the other provisions of this Section 7.1, to theextent that a director,

 

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officer, employee or agent hasbeen successful, on the merits or otherwise, including, without limitation, tothe extent permitted by applicable law, the dis­missal of an action withoutprejudice, in defense of any action, suit or proceeding referred to in Sections7.1.1 and 7.1.2, or in defense of any claim, issue or matter therein, he or sheshall be indemnified against all costs, charges and expenses (includingattorneys’ fees) actually and reasonably incurred by him or her or on his orher behalf in connection therewith.

 

***7.1.4  Determination of Right to Indemnification*.**  Any indemnification under Sections 7.1.1 and7.1.2, (unless ordered by a court) shall be paid by the corpora­tion, if adetermination is made (a) by the board of directors by a majority vote of thedirectors who were not parties to such action, suit or proceeding, or (b) ifsuch majority of disinter­ested directors so directs, by independent legalcounsel in a written opinion, or (c) by the stockholders, that indemnifica­tionof the director or officer is proper in the circumstances because he or she hasmet the applicable standard of conduct set forth in Sections 7.1.1 and 7.1.2.

 

***7.1.5  Advance of Costs, Charges and Expenses*.**  Expenses (including attorneys’ fees)incurred by a person referred to in Sections 7.1.1 and 7.1.2 in defending acivil, criminal, administrative or investigative action, suit or proceed­ingshall be paid by the corporation in advance of the final disposition of suchaction, suit or proceeding; provided, however, that the paymentof such costs, charges and expenses incurred by a director or officer in his orher capacity as a director or officer (and not in any other capacity in whichservice was or is rendered by such person while a director or officer) inadvance of the final disposition of such action, suit or proceeding shall be madeonly upon receipt of an undertaking by or on behalf of the director or officerto repay all

 

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amounts so advanced in theevent that it shall ultimately be determined that such director or officer is notentitled to be indemnified by the corporation as authorized in thisArticle VII.  Such costs, chargesand expenses incurred by other employees and agents may be so paid upon suchterms and conditions, if any,  as themajority of the directors deems appropriate. The majority of the directors may, in the manner set forth above, andupon approval of such director or officer of the corporation, authorize thecorporation’s counsel to represent such person, in any action, suit orproceeding, whether or not the corporation is a party to such action, suit orproceeding.

 

***7.1.6  Procedure for Indemnification*.**  Any indemnification under Sections 7.1.1,7.1.2 and 7.1.3, or advance of costs, charges and expenses under Section 7.1.5,shall be made promptly, and in any event within 60 days, upon the writ­tenrequest of the director, officer, employee or agent.  The right to indemnifi­cation or advances as granted by thisArticle VII shall be enforceable by the director, officer, employee oragent in any court of competent jurisdiction, if the corporation denies suchrequest, in whole or in part, or if no disposition thereof is made within 60days.  Such person’s costs and expensesincurred in connection with successfully establishing his or her right toindemnification, in whole or in part, in any such action shall also beindemnified by the corporation.  Itshall be a defense to any such action (other than an action brought to enforcea claim for the advance of costs, charges and expenses under Section 7.1.5,where the required undertaking, if any, has been received by the corporation)that the claimant has not met the standard of conduct set forth in Sections7.1.1 and 7.1.2, but the burden of proving such defense shall be on thecorporation.  Neither the failure of thecorporation (including its board of directors, its independent legal counseland its stockholders) to

 

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have made a determination priorto the commencement of such action that indemnification of the claimant isproper in the circumstances because he or she has met the applicable standardof conduct set forth in Sections 7.1.1 and 7.1.2, nor the fact that there hasbeen an actual deter­mination by the corporation (including its board ofdirectors, its independent legal counsel and its stockholders) that theclaimant has not met such applicable standard of conduct, shall be a defense tothe action or create a presumption that the claimant has not met the applicablestandard of conduct.

 

***7.1.7  Settlement*.**  The corporation shall not be obli­gated toreimburse the costs of any settlement to which it has not agreed.  If in any action, suit or proceeding,including any appeal, within the scope of Sections 7.1.1 and 7.1.2, the personto be indemnified shall have unreasonably failed to enter into a settlementthereof offered or assented to by the opposing party or parties in such action,suit or proceed­ing, then, notwithstanding any other provision hereof, theindem­nification obligation of the corporation to such person in con­nectionwith such action, suit or proceeding shall not exceed the total of the amountat which settlement could have been made and the expenses incurred by suchperson prior to the time such set­tlement could reasonably have been effected.

 

## **Section7.2            *Subsequent Amendment.***  Noamendment, termination or repeal of this Article VII or of relevantprovisions of the Delaware General Corporation Law or any other applicable lawshall affect or diminish in any way the rights of any director or officer ofthe corporation to indemnification under the provisions hereof with respect toany action, suit or proceeding arising out of, or relating to, any actions,transactions or facts occurring prior to the final adoption of such amendment,termination or repeal.

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## **Section7.3            *Other Rights; Continuation of Right to Indemnification.***  Theindemnification provided by this Article VII shall not be deemed exclusiveof any other rights to which a director, officer, employee or agent seekingindemnification may be entitled under any law (common or statutory), agreement,vote of stockholders or disinterested directors or otherwise, both as to actionin his or her official capacity and as to action in any other capacity whileholding office or while employed by or acting as agent for the corporation, andshall continue as to a person who has ceased to be a director, officer,employee or agent, and shall inure to the benefit of the estate, heirs,executors and administrators of such person. Nothing contained in this Article VII shall be deemed to prohibit,and the corporation is specifically authorized to enter into, agreements withofficers and directors providing indemnification rights and proceduresdifferent from those set forth herein. All rights to indemnifi­cation under this Article VII shall bedeemed to be a contract between the corporation and each director or officer ofthe corporation who serves or served in such capacity at any time while thisArticle VII is in effect.  Thecorporation shall not consent to any acquisition, merger, consolidation orother similar transaction unless the successor corporation assumes by operationof law or by agreement the obligations set forth in this Article VII.

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## **Section7.4            *Insurance.***  Thecorporation shall have the power to purchase and maintain insurance on behalfof any person who is or was a director, officer, employee or agent of thecorporation, or is or was serving at the request of the corporation asdirector, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise against any liability asserted against himor her and incurred by him or her in any such capacity, or arising out of hisor her status as such, whether or not the

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## **corporationwould have the power to indemnify him or her against such liability under thisArticle VII.**

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## **Section7.5            *Certain Definitions.* **For purposes of this Article VII:

## ** **

(i)            references to “thecorporation” shall include, in addition to the resulting corporation, anyconstituent corporation (including any constituent of a constituent) absorbedin a consolidation or merger which, if its separate existence had continued,would have had the power and authority to indemnify its directors, officers,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 therequest of such constituent corporation as a director, officer, employee oragent of another corporation, partnership, joint venture, trust or otherenterprises, shall stand in the same position under this Article VII withrespect to the resulting or surviving corporation as he or she would have withrespect to such constituent corporation if its separate existence hadcontinued;

 

(ii)           references to“other enterprises” shall include employee benefit plans;

 

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

 

(iv)          references to“serving at the request of the corporation” shall include any service as adirector, officer, employee or agent of the corporation which imposes dutieson, or involves services by, such director, officer, employee or agent withrespect to an employee benefit plan, its participants or beneficiaries; and

 

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(v)           a person who actedin good faith and in a manner he or she reasonably believed to be in theinterest of the participants and beneficiaries of an employee benefit planshall be deemed to have acted in a manner “not opposed to the best interests ofthe corporation,” as referred to in this Article VII.

 

## **Section7.6            *Savings Clause.***  If thisArticle VII or any portion hereof shall be invalidated on any ground byany court of competent jurisdiction, then the corporation shall neverthelessindemnify each director or officer of the corporation as to any costs, charges,expenses (including attorney’s fees), judgments, fines and amounts paid insettlement with respect to any action, suit or proceeding, whether civil,criminal, administrative or investigative, including an action by or in theright of the corporation, to the full extent permitted by any applicable por­tionof this Article VII that shall not have been invali­dated and to the fullextant permitted by applicable law.

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## **Section7.7            *Subsequent Legislation.***  If theDelaware General Corporation Law is amended after the date hereof to furtherexpand the indemnification permitted to directors and officers of thecorporation, then the corporation shall indemnify such person to the fullestextent permitted by the Delaware General Corpora­tion Law, as so amended.

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**ARTICLE VIII      MISCELLANEOUS**

 

## **Section8.1           ***Fiscal Year.*  The fiscalyear of the Corporation shall be a calendar year.

 

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## **Section8.2           ***Seal.** *TheCorporation may have a corporate seal which shall have the name of theCorporation inscribed thereon and shall be in such form as may be approved fromtime to time by the Board of Directors.

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## **Section8.3           ***Waiver of Notice of Meetings of Stockholders,Directors and Committees.*  Whenever notice is required tobe given by law, the certificate of incorporation or these by-laws, a writtenwaiver thereof, signed by the person entitled to notice, whether before orafter the time stated therein, shall be deemed equivalent to notice.  Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except when the person attends ameeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened.  Unless otherwise providedby the certificate of incorporation, neither the business to be transacted at,nor the purpose of, any regular or special meeting of the stockholders,directors or members of a committee of directors need be specified in anywritten waiver of notice.

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## **Section8.4           ***Interested Directors, Officers, Quorum.*  No contract or transaction between the Corporation and one ormore of its directors or officers, or between the Corporation and any othercorporation, partnership, association or other organization in which one ormore of its directors or officers are directors or officers, or have afinancial interest, shall be void or voidable solely for this reason, or solelybecause the director or officer is present at or participates in the meeting ofthe Board of Directors or committee thereof which authorizes the contract ortransaction, or solely because his or their votes are counted for such purpose,if:  (a) the material facts as to hisrelationship or interest and as to the contract or transaction are disclosed orare known to the Board of 

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## **Directorsor the committee, and the Board of Directors or committee in good faithauthorizes the contract or transaction by the affirmative vote of a majority ofthe disinterested directors, even though the disinterested directors be lessthan a quorum; or (b) the material facts as to his relationship or interest andas to the contract or transaction are disclosed or are known to thestockholders entitled to vote thereon, and the contract or transaction isspecifically approved in good faith by vote of the stockholders; or (c) thecontract or transaction is fair as to the Corporation as of the time it isauthorized, approved or ratified, by the Board of Directors, a committeethereof or the stockholders.  Common orinterested directors may be counted in determining the presence of a quorum ata meeting of the Board of Directors or of a committee which authorizes thecontract or transaction.**

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## **Section8.5           ***Books and Records.*  Thebooks and records of the Corporation may be kept within or without the State ofDelaware at such place or places as may be designated from time to time by theBoard of Directors.  Any recordsmaintained by the Corporation in the regular course of its business, includingits stock ledger, books of account and minute books, may be kept on, or be inthe form of, punch cards, magnetic tape, photographs, microphotographs or anyother information storage device provided that the records so kept can beconverted into clearly legible form within a reasonable time.  The Corporation shall so convert any recordsso kept upon the request of any person entitled to inspect the same.

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## **Section8.6           ***Amendment of By-laws.*  The bylaws of the Corporation maybe amended, altered or repealed by the stockholders of the Corporation, *provided, however*, that such amendment,alteration or repeal is approved by the affirmative vote of the

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## **holders of not less than 75% of theoutstanding shares of stock of the Corporation then entitled to vote generallyin the election of directors.  Thebylaws may also be amended, altered or repealed by a majority of the directorsthen in office.**

 

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