22.3. QUORUM. At all meetings of the stockholders the holders of a majority of the stock issued andoutstanding and entitled to vote thereat, present in person or represented by proxy, shallconstitute a quorum requisite for the transaction of business except as otherwise provided by law,the Company’s Certificate of Incorporation, or these by-laws. Whether or not there is such a quorumat any meeting, the chairman of the meeting or the stockholders entitled to vote thereat, presentin person or by proxy, by a majority vote, may adjourn the meeting from time to time without noticeother than announcement at the meeting. If the adjournment is for more than thirty (30) days, or ifafter the adjournment a new record date is fixed for the adjourned meeting, a notice of theadjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Atsuch adjourned meeting, at which the requisite amount of voting stock shall be represented, anybusiness may be transacted that might have been transacted if the meeting had been held asoriginally called. The stockholders present in person or by proxy at a duly called meeting at whicha quorum is present may continue to transact business until adjournment, notwithstanding thewithdrawal of enough stockholders to leave less than a quorum.2.4. RIGHT TO VOTE; PROXIES. Subject to the provisions of the Company’s Certificate ofIncorporation, each holder of a share or shares of capital stock of the Company having the right tovote at any meeting shall be entitled to one vote for each such share of stock held by him. Anystockholder entitled to vote at any meeting of stockholders may vote either in person or by proxy,but no proxy that is dated more than three years prior to the meeting at which it is offered shallconfer the right to vote thereat unless the proxy provides that it shall be effective for a longerperiod. A proxy may be granted by a writing executed by the stockholder or his authorized agent orby transmission or authorization of transmission of a telegram, cablegram, or other means ofelectronic transmission to the person who will be the holder of the proxy or to a proxysolicitation firm, proxy support service organization, or like agent duly authorized by the personwho will be the holder of the proxy to receive such transmission, subject to the conditions setforth in Section 212 of the Delaware General Corporation Law, as it may be amended from time totime (the “DGCL”).2.5. VOTING. At all meetings of stockholders, except as otherwise expressly provided for bystatute, the Company’s Certificate of Incorporation, or these by-laws, (i) in all matters otherthan the election of directors, the affirmative vote of a majority of shares present in person orrepresented by proxy at the meeting and entitled to vote on such matter shall be the act of thestockholders and (ii) directors shall be elected by a plurality of the votes of the shares presentin person or represented by proxy at the meeting and entitled to vote on the election of directors.2.6. NOTICE OF ANNUAL MEETINGS. Written notice of the annual meeting of the stockholders shall bemailed to each stockholder entitled to vote thereat at such address as appears on the stock booksof the Company at least ten (10)

 

3days (and not more than sixty (60) days) prior to the meeting. The Board of Directors may postponeany annual meeting of the stockholders at its discretion, even after notice thereof has beenmailed. It shall be the duty of every stockholder to furnish to the Secretary of the Company or tothe transfer agent, if any, of the class of stock owned by him and his post-office address, and tonotify the Secretary of any change therein. Notice need not be given to any stockholder who submitsa written waiver of notice signed by him before or after the time stated therein. Attendance of astockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting,except when the stockholder attends the meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business because the meeting is not lawfullycalled or convened. Neither the business to be transacted at, nor the purpose of, any regular orspecial meeting of the stockholders need be specified in any written waiver of notice.2.7. STOCKHOLDERS’ LIST. A complete list of the stockholders entitled to vote at any meeting ofstockholders, arranged in alphabetical order and showing the address of each stockholder, and thenumber of shares registered in the name of each stockholder, shall be prepared by the Secretary andshall be open to examination of any stockholder, for any purpose germane to the meeting for aperiod of at least ten days before such meeting (i) on a reasonably accessible electronic network,provided that the information required to gain access to such list is provided with the notice ofthe meeting, or (ii) during ordinary business hours at the principal office of the corporation, andsaid list shall be open to examination during the whole time of said meeting, at the place of saidmeeting, or, if the meeting held is by remote communication, on a reasonably accessible electronicnetwork and the information required to access such list shall be provided with the notice of themeeting.2.8. SPECIAL MEETINGS. Special meetings of the stockholders for any purpose or purposes, unlessotherwise provided by statute, may be called only by the Chairman of the Board of Directors, thePresident, or a majority of the Board of Directors. Any such person or persons may postpone anyspecial meeting of the stockholders at its or their discretion, even after notice thereof has beenmailed.2.9. NOTICE OF SPECIAL MEETINGS. Written notice of a special meeting of stockholders, stating thetime and place and object thereof shall be mailed, postage prepaid, not less than ten (10) nor morethan sixty (60) days before such meeting, to each stockholder entitled to vote thereat, at suchaddress as appears on the books of the Company. No business may be transacted at such meetingexcept that referred to in said notice, or in a supplemental notice given also in compliance withthe provisions hereof, or such other business as may be germane or supplementary to that stated insaid notice or notices. Notice need not be given to any stockholder who submits a written waiver ofnotice signed by him before or after the time stated therein. Attendance of a stockholder at ameeting of stockholders shall constitute a waiver of notice of such meeting,

 

4except when the stockholder attends the meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business because the meeting is not lawfullycalled or convened. Neither the business to be transacted at, nor the purpose of, any regular orspecial meeting of the stockholders need be specified in any written waiver of notice.2.10. INSPECTORS.1. One or more inspectors may be appointed by the Board of Directors before or at any meeting ofstockholders, or, if no such appointment shall have been made, the presiding officer may make suchappointment at the meeting. At the meeting for which the inspector or inspectors are appointed, heor they shall open and close the polls, receive and take charge of the proxies and ballots, anddecide all questions touching on the qualifications of voters, the validity of proxies, and theacceptance and rejection of votes. If any inspector previously appointed shall fail to attend orrefuse or be unable to serve, the presiding officer shall appoint an inspector in his place.2. At any time at which the Company has a class of voting stock that is (i) listed on a nationalsecurities exchange, (ii) authorized for quotation on an inter-dealer quotation system of aregistered national securities association, or (iii) held of record by more than 2,000stockholders, the provisions of Section 231 of the DGCL with respect to inspectors of election andvoting procedures shall apply, in lieu of the provisions of paragraph 1 of this Section 2.10.2.11. STOCKHOLDERS’ CONSENT IN LIEU OF MEETING. Unless otherwise provided in the Company’sCertificate of Incorporation, any action required to be taken at any annual or special meeting ofstockholders of the Company, or any action that may be taken at any annual or special meeting ofsuch stockholders, may be taken only at such a meeting, and not by written consent of stockholders.2.12. PROCEDURES. For nominations for the Board of Directors or for other business to be properlybrought by a stockholder before a meeting of stockholders, the stockholder must first have giventimely written notice thereof to the Secretary of the Company. To be timely, a notice ofnominations or other business to be brought before an annual meeting of stockholders must bedelivered to the Secretary not less than 120 nor more than 150 days prior to the first anniversaryof the date of the Company’s proxy statement delivered to stockholders in connection with thepreceding year’s annual meeting, or if the date of the annual meeting is more than 30 days beforeor more than 60 days after such anniversary, or if no proxy statement was delivered to stockholdersby the Company in connection with the preceding year’s annual meeting, such notice must bedelivered not earlier than 90 days prior to such annual meeting and not later than the later of (i)60 days prior to the annual meeting or (ii) 10 days following the date on which public announcementof the date of such annual meeting is first made by the Company. With respect to special meetingsof

 

5stockholders, such notice must be delivered to the Secretary not more than 90 days prior to suchmeeting and not later than the later of (i) 60 days prior to such meeting or (ii) 10 days followingthe date on which public announcement of the date of such meeting is first made by the Company.Such notice must contain the name and address of the stockholder delivering the notice and astatement with respect to the amount of the Company’s stock beneficially and/or legally owned bysuch stockholder, the nature of any such beneficial ownership of such stock, the beneficialownership of any such stock legally held by such stockholder but beneficially owned by one or moreothers, and the length of time for which all such stock has been beneficially and/or legally ownedby such stockholder, and information about each nominee for election as a director substantiallyequivalent to that which would be required in a proxy statement pursuant to the Securities ExchangeAct of 1934, as amended, and the rules and regulations promulgated by the Securities and ExchangeCommission thereunder, and/or a description of the proposed business to be brought before themeeting, as the case may be.**ARTICLE III. — DIRECTORS.**3.1. NUMBER OF DIRECTORS.(a) Except as otherwise provided by law, the Company’s Certificate of Incorporation, or theseby-laws, the property and business of the Company shall be managed by or under the direction of aboard of directors. Directors need not be stockholders, residents of Delaware, or citizens of theUnited States. The use of the phrase “whole board” herein refers to the total number of directorswhich the Company would have if there were no vacancies.(b) The number of directors constituting the full Board of Directors shall be as determined by theBoard of Directors from time to time. The Board of Directors shall be divided into three classes ofdirectors, as determined by the Board of Directors, such classes to be as nearly equal in number ofdirectors as possible, having staggered three-year terms of office, the term of office of thedirectors of the first such class to expire as of the first annual meeting of the Company’sstockholders following the closing of the IPO, those of the second class to expire as of the secondannual meeting of the Company’s stockholders following such closing, and those of the third classas of the third annual meeting of the Company’s stockholders following such closing, such that ateach annual meeting of stockholders after such closing, nominees will stand for election to succeedthose directors whose terms are to expire as of such meeting. Members of the Board of Directorsshall hold office until the annual meeting of stockholders at which their respective successors areelected and qualified or until their earlier death, incapacity, resignation, or removal. Except asthe DGCL or the Company’s Certificate of Incorporation may otherwise require, in the interimbetween annual meetings of stockholders or special meetings of stockholders called for the electionof directors and/or for the removal of one or more directors and for the filling of any vacancy inthat connection, any vacancies in the Board of Directors,

 

6including unfilled vacancies resulting from the removal of directors for cause, may be filled bythe vote of a majority of the remaining directors then in office, although less than a quorum, orby the sole remaining director.(c) If the office of any director becomes vacant by reason of death, resignation, disqualification,removal, failure to elect, or otherwise, the remaining directors, although more or less than aquorum, by a majority vote of such remaining directors may elect a successor or successors whoshall hold office for the unexpired term.3.2. RESIGNATION. Any director of the Company may resign at any time by giving written notice tothe Chairman of the Board, the President, or the Secretary of the Company. Such resignation shalltake effect at the time specified therein, at the time of receipt if no time is specified thereinand at the time of acceptance if the effectiveness of such resignation is conditioned upon itsacceptance. Unless otherwise specified therein, the acceptance of such resignation shall not benecessary to make it effective.3.3. REMOVAL. Except as may otherwise be provided by the DGCL or the Company’s Certificate ofIncorporation, any director or the entire Board of Directors may be removed only for cause and onlyby the vote of the holders of a majority of the shares of the Company’s stock entitled to vote forthe election of directors.3.4. PLACE OF MEETINGS AND BOOKS. The Board of Directors may hold their meetings and keep the booksof the Company outside the State of Delaware, at such places as they may from time to timedetermine.3.5. GENERAL POWERS. In addition to the powers and authority expressly conferred upon them by theseby-laws, the board may exercise all such powers of the Company and do all such lawful acts andthings as are not by statute or by the Company’s Certificate of Incorporation or by these by-lawsdirected or required to be exercised or done by the stockholders.3.6. OTHER COMMITTEES. The Board of Directors may designate one or more committees, by resolutionor resolutions passed by a majority of the whole board; such committee or committees shall consistof one or more directors of the Company, and to the extent provided in the resolution orresolutions designating them, shall have and may exercise specific powers of the Board of Directorsin the management of the business and affairs of the Company to the extent permitted by statute andshall have power to authorize the seal of the Company to be affixed to all papers that may requireit. Such committee or committees shall have such name or names as may be determined from time totime by resolution adopted by the Board of Directors.

 

73.7. POWERS DENIED TO COMMITTEES. Committees of the Board of Directors shall not, in any event,have any power or authority to amend the Company’s Certificate of Incorporation (except that acommittee may, to the extent authorized in the resolution or resolutions providing for the issuanceof shares adopted by the Board of Directors as provided in Section 151(a) of the DGCL, fix thedesignations and any of the preferences or rights of such shares relating to dividends, redemption,dissolution, any distribution of assets of the Company or the conversion into, or the exchange ofsuch shares for, shares of any other class or classes or any other series of the same or any otherclass or classes of stock of the Company or fix the number of shares of any series of stock orauthorize the increase or decrease of the shares of any series), adopt an agreement of merger orconsolidation, recommend to the stockholders the sale, lease, or exchange of all or substantiallyall of the Company’s property and assets, recommend to the stockholders a dissolution of theCompany or a revocation of a dissolution, or to amend the by-laws of the Company. Further, nocommittee of the Board of Directors shall have the power or authority to declare a dividend, toauthorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant toSection 253 of the DGCL, unless the resolution or resolutions designating such committee expresslyso provides.3.8. SUBSTITUTE COMMITTEE MEMBER. In the absence or on the disqualification of a member of acommittee, 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 Boardof Directors to act at the meeting in the place of such absent or disqualified member. Anycommittee shall keep regular minutes of its proceedings and report the same to the board as may berequired by the board.3.9. COMPENSATION OF DIRECTORS. The Board of Directors shall have the power to fix the compensationof directors and members of committees of the Board. The directors may be paid their expenses, ifany, of attendance at each meeting of the Board of Directors and may be paid a fixed sum forattendance at each meeting of the Board of Directors or a stated salary as director. No suchpayment shall preclude any director from serving the Company in any other capacity and receivingcompensation therefor. Members of special or standing committees may be allowed like compensationfor attending committee meetings.3.10. REGULAR MEETINGS. No notice shall be required for regular meetings of the Board of Directorsfor which the time and place have been fixed. Written, oral, or any other mode of notice of thetime and place shall be given for special meetings in sufficient time for the convenient assemblyof the directors thereat. Notice need not be given to any director who submits a written waiver ofnotice signed by him before or after the time stated therein. Attendance of any such person at ameeting shall constitute a waiver of notice of such meeting, except when he attends a meeting forthe express purpose of objecting, at the beginning of the meeting, to the transaction of anybusiness because the meeting is not

 

8lawfully called or convened. Neither the business to be transacted at, nor the purpose of, anyregular or special meeting of the directors need be specified in any written waiver of notice.3.11. SPECIAL MEETINGS. Special meetings of the board may be called by the Chairman of the Board,if any, or the President, on two (2) days notice to each director, or such shorter period of timebefore the meeting as will nonetheless be sufficient for the convenient assembly of the directorsso notified; special meetings shall be called by the Secretary in like manner and on like notice,on the written request of two or more directors.3.12. QUORUM. At all meetings of the Board of Directors, a majority of the whole board shall benecessary and sufficient to constitute a quorum for the transaction of business, and the act of amajority of the directors present at any meeting at which there is a quorum shall be the act of theBoard of Directors, except as may be otherwise specifically permitted or provided by statute, or bythe Company’s Certificate of Incorporation, or by these by-laws. If at any meeting of the boardthere shall be less than a quorum present, a majority of those present may adjourn the meeting fromtime to time until a quorum is obtained, and no further notice thereof need be given other than byannouncement at said meeting that shall be so adjourned.3.13. TELEPHONIC PARTICIPATION IN MEETINGS. Members of the Board of Directors or any committeedesignated by such board may participate in a meeting of the board or committee by means ofconference telephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other, and participation in a meeting pursuant to thissection shall constitute presence in person at such meeting.3.14. ACTION BY CONSENT. Unless otherwise restricted by the Company’s Certificate of Incorporationor these by-laws, any action required or permitted to be taken at any meeting of the Board ofDirectors or of any committee thereof may be taken without a meeting, if written consent thereto issigned by all members of the board or of such committee as the case may be and such written consentis filed with the minutes of proceedings of the board or committee.**ARTICLE IV. — OFFICERS.**4.1. SELECTION; STATUTORY OFFICERS. The officers of the Company shall be chosen by the Board ofDirectors. There shall be a President, a Secretary, and a Treasurer, and there may be a Chairman ofthe Board of Directors, one or more Vice Chairmen, one or more Vice Presidents, one or moreAssistant Secretaries, and one or more Assistant Treasurers, as the Board of Directors may elect.Any number of offices may be held by the same person, except that the offices of President andSecretary shall not be held by the same person simultaneously.

 

94.2. TIME OF ELECTION. The officers above named shall be chosen by the Board of Directors at itsfirst meeting after each annual meeting of stockholders. None of said officers need be a director.4.3. ADDITIONAL OFFICERS. The board may appoint such other officers and agents as it shall deemnecessary, who shall hold their offices for such terms and shall exercise such powers and performsuch duties as shall be determined from time to time by the board.4.4. TERMS OF OFFICE. Each officer of the Company shall hold office until his successor is chosenand qualified, or until his earlier resignation or removal. Any officer elected or appointed by theBoard of Directors may be removed at any time by the Board of Directors.4.5. COMPENSATION OF OFFICERS. The Board of Directors shall have power to fix the compensation ofall officers of the Company. It may authorize any officer, upon whom the power of appointingsubordinate officers may have been conferred, to fix the compensation of such subordinate officers.4.6. CHAIRMAN OF THE BOARD. The Chairman of the Board of Directors shall preside at all meetings ofthe stockholders and directors, and shall have such other duties as may be assigned to him fromtime to time by the Board of Directors.4.7. VICE-CHAIRMEN. The Vice-Chairmen shall perform such of the duties of the Chairman of the Boardon behalf of the Company as may be respectively assigned to them from time to time by the Board ofDirectors or by the Chairman of the Board.4.8. PRESIDENT. Unless the Board of Directors otherwise determines, the President shall be thechief executive officer and head of the Company. Unless there is a Chairman of the Board, thePresident shall preside at all meetings of directors and stockholders. Under the supervision of theBoard of Directors, the President shall have the general control and management of its business andaffairs, subject, however, to the right of the Board of Directors to confer any specific power,except such as may be by statute exclusively conferred on the President, upon any other officer orofficers of the Company. The President shall perform and do all acts and things incident to theposition of President and such other duties as may be assigned to him from time to time by theBoard of Directors.4.9. VICE-PRESIDENTS. The Vice-Presidents shall perform such of the duties of the President onbehalf of the Company as may be respectively assigned to them from time to time by the Board ofDirectors or by the President. The Board of Directors may designate one of the Vice-Presidents asthe Executive Vice-President, and in the absence or inability of the President to act, suchExecutive

 

10Vice-President shall have and possess all of the powers and discharge all of the duties of thePresident, subject to the control of the Board of Directors.4.10. TREASURER. The Treasurer shall have the care and custody of all the funds and securities ofthe Company that may come into his hands as Treasurer, and the power and authority to endorsechecks, drafts and other instruments for the payment of money for deposit or collection whennecessary or proper and to deposit the same to the credit of the Company in such bank or banks ordepository as the Board of Directors, or the officers or agents to whom the Board of Directors maydelegate such authority, may designate, and he may endorse all commercial documents requiringendorsements for or on behalf of the Company. He may sign all receipts and vouchers for thepayments made to the Company. He shall render an account of his transactions to the Board ofDirectors as often as the board or the committee shall require the same. He shall enter regularlyin the books to be kept by him for that purpose full and adequate account of all moneys receivedand paid by him on account of the Company. He shall perform all acts incident to the position ofTreasurer, subject to the control of the Board of Directors. He shall when requested, pursuant tovote of the Board of Directors, give a bond to the Company conditioned for the faithful performanceof his duties, the expense of which bond shall be borne by the Company.4.11. SECRETARY. The Secretary shall keep the minutes of all meetings of the Board of Directors andof the stockholders; he shall attend to the giving and serving of all notices of the Company.Except as otherwise ordered by the Board of Directors, he shall attest the seal of the Company uponall contracts and instruments executed under such seal and shall affix the seal of the Companythereto and to all certificates of shares of capital stock of the Company. He shall have charge ofthe stock certificate book, transfer book and stock ledger, and such other books and papers as theBoard of Directors may direct. He shall, in general, perform all the duties of Secretary, subjectto the control of the Board of Directors.4.12. ASSISTANT SECRETARY. The Board of Directors or any two of the officers of the Company actingjointly may appoint or remove one or more Assistant Secretaries of the Company. Any AssistantSecretary upon his appointment shall perform such duties of the Secretary, and also any and allsuch other duties as the Board of Directors or the President or the Executive Vice-President or theTreasurer or the Secretary may designate.4.13. ASSISTANT TREASURER. The Board of Directors or any two of the officers of the Company actingjointly may appoint or remove one or more Assistant Treasurers of the Company. Any AssistantTreasurer upon his appointment shall perform such of the duties of the Treasurer, and also any andall such other duties as the Board of Directors or the President or the Executive Vice-President orthe Treasurer or the Secretary may designate.

 

114.14. SUBORDINATE OFFICERS. The Board of Directors may select such subordinate officers as it maydeem desirable. Each such officer shall hold office for such period, have such authority, andperform such duties as the Board of Directors may prescribe. The Board of Directors may, from timeto time, authorize any officer to appoint and remove subordinate officers and to prescribe thepowers and duties thereof.**ARTICLE V. — STOCK.**5.1. STOCK. The Board of Directors may provide by resolution that some or all of any or all classesand series of the Corporation’s stock may be (i) certificated; or (ii) registered in the holder’sname in uncertificated, book-entry form, in accordance with a direct registration system either (A)approved by the United States Securities and Exchange Commission and by the principal securitiesexchange on which the stock of the Corporation may from time to time be traded, or (B) as mayotherwise be authorized by Delaware Law, as any of the foregoing may be approved by the Board ofDirectors. With respect to certificated shares, the Corporation shall issue certificate(s) ofstock, signed by the Chairman of the Board of Directors, if he be elected, Chief Executive Officer,President or Vice-President, and the Chief Financial Officer or an Assistant Treasurer, orSecretary or an Assistant Secretary, to each stockholder certifying the number of shares owned byhim in the Corporation. Any of or all the signatures may be facsimiles. With respect touncertificated, book-entry shares, the Corporation or its agent shall record in book-entry form thenumber of shares owned by each stockholder in the Corporation. If shares are uncertificated, astockholder shall receive a physical certificate of stock only upon written request.5.2. FRACTIONAL SHARE INTERESTS. The Company may, but shall not be required to, issue fractions ofa share. If the Company does not issue fractions of a share, it shall (i) arrange for thedisposition of fractional interests by those entitled thereto, (ii) pay in cash the fair value offractions of a share as of the time when those entitled to receive such fractions are determined,or (iii) issue scrip or warrants in registered or bearer form that shall entitle the holder toreceive a certificate for a full share upon the surrender of such scrip or warrants aggregating afull share. A certificate for a fractional share shall, but scrip or warrants shall not unlessotherwise provided therein, entitle the holder to exercise voting rights, to receive dividendsthereon, and to participate in any of the assets of the Company in the event of liquidation. TheBoard of Directors may cause scrip or warrants to be issued subject to the conditions that theyshall become void if not exchanged for certificates representing full shares before a specifieddate, or subject to the conditions that the shares for which scrip or warrants are exchangeable maybe sold by the Company and the proceeds thereof distributed to the holders of scrip or warrants, orsubject to any other conditions that the Board of Directors may impose.

 

125.3. TRANSFERS OF STOCK. Subject to any transfer restrictions then in force, the shares of stock ofthe Company shall be transferable only upon its books by the holders thereof in person or by theirduly authorized attorneys or legal representatives and upon such transfer the old certificatesshall be surrendered to the Company by the delivery thereof to the person in charge of the stockand transfer books and ledgers or to such other person as the directors may designate by whom theyshall be canceled and new certificates shall thereupon be issued. The Company shall be entitled totreat the holder of record of any share or shares of stock as the holder in fact thereof andaccordingly shall not be bound to recognize any equitable or other claim to or interest in suchshare on the part of any other person whether or not it shall have express or other notice thereofsave as expressly provided by the laws of Delaware.5.4. RECORD DATE. For the purpose of determining the stockholders entitled to notice of or to voteat any meeting of stockholders or any adjournment thereof, or to express consent to corporateaction in writing without a meeting, or entitled to receive payment of any dividend or otherdistribution or the allotment of any rights, or entitled to exercise any rights in respect of anychange, conversion, or exchange of stock or for the purpose of any other lawful action, the Boardof Directors may fix, in advance, a record date, that shall not be more than sixty (60) days norless than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to anyother action. If no such record date is fixed by the Board of Directors, the record date fordetermining stockholders entitled to notice of or to vote at a meeting of stockholders shall be atthe close of business on the day next preceding the day on which notice is given, or, if notice iswaived, at the close of business on the day next preceding the day on which the meeting is held;the record date for determining stockholders entitled to express consent to corporate action inwriting without a meeting, when no prior action by the Board of Directors is necessary, shall bethe day on which the first written consent is expressed; and the record date for determiningstockholders for any other purpose shall be at the close of business on the day on which the Boardof Directors adopts the resolution relating thereto. A determination of stockholders of recordentitled to notice of or to vote at any meeting of stockholders shall apply to any adjournment ofthe meeting; provided, however, that the Board of Directors may fix a new record date for theadjourned meeting.5.5. TRANSFER AGENT AND REGISTRAR. The Board of Directors may appoint one or more transfer agentsor transfer clerks and one or more registrars and may require all certificates of stock to bear thesignature or signatures of any of them.5.6. DIVIDENDS.1. Power to Declare. Dividends upon the capital stock of the Company, subject to the provisions ofthe Company’s Certificate of Incorporation, if any, may be declared by the Board of Directors atany regular or special meeting, pursuant to

 

13law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to theprovisions of the Company’s Certificate of Incorporation and the laws of Delaware.2. Reserves. Before payment of any dividend, there may be set aside out of any funds of the Companyavailable for dividends such sum or sums as the directors from time to time, in their absolutediscretion, think proper as a reserve or reserves to meet contingencies, or for equalizingdividends, or for repairing or maintaining any property of the Company, or for such other purposeas the directors shall think conducive to the interest of the Company, and the directors may modifyor abolish any such reserve in the manner in which it was created.5.7. LOST, STOLEN, OR DESTROYED CERTIFICATES. No certificates for shares of stock of the Companyshall be issued in place of any certificate alleged to have been lost, stolen, or destroyed, exceptupon production of such evidence of the loss, theft, or destruction and upon indemnification of theCompany and its agents to such extent and in such manner as the Board of Directors may from time totime prescribe.5.8. INSPECTION OF BOOKS. The stockholders of the Company, by a majority vote at any meeting ofstockholders duly called, or in case the stockholders shall fail to act, the Board of Directorsshall have power from time to time to determine whether and to what extent and at what times andplaces and under what conditions and regulations the accounts and books of the Company (other thanthe stock ledger) or any of them, shall be open to inspection of stockholders; and no stockholdershall have any right to inspect any account or book or document of the Company except as conferredby statute or authorized by the Board of Directors or by a resolution of the stockholders.**ARTICLE VI. — MISCELLANEOUS MANAGEMENT PROVISIONS.**6.1. CHECKS, DRAFTS, AND NOTES. All checks, drafts, or orders for the payment of money, and allnotes and acceptances of the Company shall be signed by such officer or officers, or such agent oragents, as the Board of Directors may designate.6.2. NOTICES.1. Notices to directors may, and notices to stockholders shall, be in writing and deliveredpersonally or mailed to the directors or stockholders at their addresses appearing on the books ofthe Company. Notice by mail shall be deemed to be given at the time when the same shall be mailed.Notice to directors may also be given by telegram, telecopy or orally, by telephone or in person.2. Whenever any notice is required to be given under the provisions of any applicable statute or ofthe Company’s Certificate of Incorporation or of these by-

 

14laws, a written waiver of notice, signed by the person or persons entitled to said notice, whetherbefore or after the time stated therein or the meeting or action to which such notice relates,shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiverof notice of such meeting except when the person attends a meeting for the express purpose ofobjecting, at the beginning of the meeting, to the transaction of any business because the meetingis not lawfully called or convened.6.3. CONFLICT OF INTEREST. No contract or transaction between the Company and one or more of itsdirectors or officers, or between the Company and any other corporation, partnership, association,or other organization in which one or more of its directors or officers are directors or officers,or have a financial interest, shall be void or voidable solely for this reason, or solely becausethe director or officer is present at or participates in the meeting of the board of or committeethereof that authorized the contract or transaction, or solely because his or their votes arecounted for such purpose, if: (i) the material facts as to his relationship or interest and as tothe contract or transaction are disclosed or are known to the Board of Directors or the committeeand the board or committee in good faith authorizes the contract or transaction by the affirmativevote of a majority of the disinterested directors, even though the disinterested directors be lessthan a quorum; or(ii) the material facts as to his relationship or interest and as to the contract or transactionare disclosed or are known to the stockholders of the Company entitled to vote thereon, and thecontract or transaction as specifically approved in good faith by vote of such stockholders; or(iii) the contract or transaction is fair as to the Company as of the time it is authorized,approved, or ratified, by the Board of Directors, a committee or the stockholders. Common orinterested directors may be counted in determining the presence of a quorum at a meeting of theBoard of Directors or of a committee that authorizes the contract or transaction.

 

156.4. VOTING OF SECURITIES OWNED BY THE COMPANY. Subject always to the specific directions of theBoard of Directors, (i) any shares or other securities issued by any other corporation and owned orcontrolled by the Company may be voted in person at any meeting of security holders of such othercorporation by the President of the Company if he is present at such meeting, or in his absence bythe Treasurer of the Company if he is present at such meeting, and (ii) whenever, in the judgmentof the President, it is desirable for the Company to execute a proxy or written consent in respectto any shares or other securities issued by any other corporation and owned by the Company, suchproxy or consent shall be executed in the name of the Company by the President, without thenecessity of any authorization by the Board of Directors, affixation of corporate seal orcountersignature or attestation by another officer, provided that if the President is unable toexecute such proxy or consent by reason of sickness, absence from the United States or othersimilar cause, the Treasurer may execute such proxy or consent. Any person or persons designated inthe manner above stated as the proxy or proxies of the Company shall have full right, power andauthority to vote the shares or other securities issued by such other corporation and owned by theCompany the same as such shares or other securities might be voted by the Company.**ARTICLE VII. — INDEMNIFICATION.**7.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or is threatened to be made aparty to or is otherwise involved in any action, suit or proceeding, whether civil, criminal,administrative or investigative (a “Proceeding”), by reason of being or having been a director orofficer of the Company or serving or having served at the request of the Company as a director,trustee, officer, employee or agent of another corporation or of a partnership, joint venture,trust or other enterprise, including service with respect to an employee benefit plan (an“Indemnitee”), whether the basis of such proceeding is alleged action or failure to act in anofficial capacity as a director, trustee, officer, employee or agent or in any other capacity whileserving as a director, trustee, officer, employee or agent, shall be indemnified and held harmlessby the Company to the fullest extent authorized by the DGCL, as the same exists or may hereafter beamended (but, in the case of any such amendment, only to the extent that such amendment permits theCompany to provide broader indemnification rights than permitted prior thereto) (as used in thisArticle 7, the “Delaware Law”), against all expense, liability and loss (including attorneys’ fees,judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonablyincurred or suffered by such Indemnitee in connection therewith and such indemnification shallcontinue as to an Indemnitee who has ceased to be a director, trustee, officer, employee, or agentand shall inure to the benefit of the Indemnitee’s heirs, executors, and administrators; provided,however, that, except as provided in Section 7.2 hereof with respect to Proceedings to enforcerights to indemnification, the Company shall indemnify any such Indemnitee in connection with aProceeding (or part

 

16thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized bythe Board of Directors of the Company. The right to indemnification conferred in this Article 7shall be a contract right and shall include the right to be paid by the Company the expenses(including attorneys’ fees) incurred in defending any such Proceeding in advance of its finaldisposition (an “Advancement of Expenses”); provided, however, that, if the Delaware Law sorequires, an Advancement of Expenses incurred by an Indemnitee shall be made only upon delivery tothe Company of an undertaking (an “Undertaking”), by or on behalf of such Indemnitee, to repay allamounts so advanced if it shall ultimately be determined by final judicial decision from whichthere is no further right to appeal (a “Final Adjudication”) that such Indemnitee is not entitledto be indemnified for such expenses under this Article 7 or otherwise.7.2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 7.1 hereof is not paid in full bythe Company within sixty days after a written claim has been received by the Company, except in thecase of a claim for an Advancement of Expenses, in which case the applicable period shall be twentydays, the Indemnitee may at any time thereafter bring suit against the Company to recover theunpaid amount of the claim. If successful in whole or in part in any such suit, or in a suitbrought by the Company to recover an Advancement of Expenses pursuant to the terms of anUndertaking, the Indemnitee shall be entitled to be paid also the expense of prosecuting ordefending such suit. In (i) any suit brought by the Indemnitee to enforce a right toindemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to anAdvancement of Expenses) it shall be a defense that, and (ii) in any suit by the Company to recoveran Advancement of Expenses pursuant to the terms of an Undertaking the Company shall be entitled torecover such expenses upon a Final Adjudication that, the Indemnitee has not met the applicablestandard of conduct set forth in the Delaware Law. Neither the failure of the Company (includingits Board of Directors, independent legal counsel, or its stockholders) to have made adetermination prior to the commencement of such suit that indemnification of the Indemnitee isproper in the circumstances because the Indemnitee has met the applicable standard of conduct setforth in the Delaware Law, nor an actual determination by the Company (including its Board ofDirectors, independent legal counsel, or its stockholders) that the Indemnitee has not met suchapplicable standard of conduct, shall create a presumption that the Indemnitee has not met theapplicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be adefense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnificationor to an Advancement of Expenses hereunder, or by the Company to recover an Advancement of Expensespursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitledto be indemnified, or to such Advancement of Expenses, under this Article 7 or otherwise shall beon the Company.

 

177.3. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the Advancement of Expensesconferred in this Article 7 shall not be exclusive of any other right that any person may have orhereafter acquire under any statute, the Company’s Certificate or Incorporation, by-law, agreement,vote of stockholders or disinterested directors or otherwise.7.4. INSURANCE. The Company may maintain insurance, at its expense, to protect itself and anydirector, officer, employee or agent of the Company or another corporation, partnership, jointventure, trust or other enterprise against any expense, liability or loss, whether or not theCompany would have the power to indemnify such person against such expense, liability or loss underthis Article 7 or under the Delaware Law.7.5. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE COMPANY. The Company may, to the extentauthorized from time to time by the Board of Directors, grant rights to indemnification, and to theAdvancement of Expenses, to any employee or agent of the Company to the fullest extent of theprovisions of this Article 7 with respect to the indemnification and Advancement of Expenses ofdirectors and officers of the Company.7.6 VESTING OF RIGHTS; AMENDMENT, MODIFICATION, REPEAL. The provisions of this Article 7constitute a contract between the Company and each individual entitled to seek indemnificationhereunder. With respect to current or former directors or officers of the Company or other personscurrently entitled to seek indemnification hereunder, the Company confirms that rights conferredunder this Article 7 vested concurrently with each such person’s commencement of service as to, foror at the request of the Company; remain fully vested as of the date hereof; and shall continue inforce and effect and remain fully vested with respect to Proceeding(s) arising from an act oromission occurring or any state of facts existing at the time of or prior to the effective date ofthis Section 7.6. With respect to any director, officer or other person entitled to seekindemnification hereunder, who has not yet commenced service on behalf of the Company, the rightsconferred under this Article 7 shall fully vest, and be deemed to have fully vested, immediatelyupon such person’s commencing service as a director, officer or otherwise.Neither amendment nor repeal nor modification of any provision of this Article 7, nor the adoptionof any provision of the Company’s Certificate of Incorporation inconsistent with this Article 7shall eliminate or reduce the effect of this Article 7 in respect of any Proceeding arising from anact or omission occurring or any state of facts existing at the time of or prior to such amendment,repeal, modification or adoption of an inconsistent provision (even in the case of a Proceedingbased on such state of facts that is commenced after such inconsistent amendment becomeseffective). The rights conferred under this Article 7 shall continue notwithstanding that theperson seeking indemnification

 

18has ceased to be affiliated with the Company and shall inure to the benefit of such person’sestate, heirs, executors, administrators, legatees and distributees.**ARTICLE VIII. — AMENDMENTS.**8.1. Amendments. Subject always to any limitations imposed by the Company’s Certificate ofIncorporation, these By-Laws may be altered, amended, or repealed, or new By-Laws may be adopted,only by (i) the affirmative vote of the holders of at least a majority of the outstanding votingstock of the Company, provided, that the affirmative vote of the holders of at least 67% of theoutstanding voting stock of the Company shall be required for any such alteration, amendment,repeal, or adoption that would affect or be inconsistent with the provisions of Sections 2.11,2.12, and this Section 8.1 (in each case, in addition to any separate class vote that may berequired pursuant to the terms of any then outstanding preferred stock of the Company), or (ii) byresolution of the Board of Directors duly adopted by not less than a majority of the directors thenconstituting the full Board of Directors.