**Table of Contents**     ARTICLE I STOCKHOLDERS  1 Section 1.1 Annual Meetings  1 Section 1.2 Special Meetings  1 Section 1.3 Notice of Meetings; Waiver  1 Section 1.4 Quorum  2 Section 1.5 Voting  2 Section 1.6 Voting by Ballot  2 Section 1.7 Adjournment  2 Section 1.8 Proxies  3 Section 1.9 Notice of Stockholder Business and Nominations  3 Section 1.10 Organization; Procedure  5 Section 1.11 Inspectors of Elections  5 Section 1.12 Opening and Closing of Polls  6 Section 1.13 No Stockholder Action by Written Consent or Telephone Conference  6      ARTICLE II BOARD OF DIRECTORS  6 Section 2.1 General Powers  6 Section 2.2 Number and Term of Office  7 Section 2.3 Election of Directors  7 Section 2.4 Annual and Regular Meetings  7 Section 2.5 Special Meetings; Notice  8 Section 2.6 Quorum; Voting  8 Section 2.7 Adjournment  8 Section 2.8 Action Without a Meeting  8 Section 2.9 Regulations; Manner of Acting  9 Section 2.10 Resignations  9 Section 2.11 Removal of Directors  9 Section 2.12 Vacancies and Newly Created Directorships  9 Section 2.13 Reliance on Accounts and Reports, etc  10 
 
i

 
     ARTICLE III COMMITTEES OF DIRECTORS AND ADVISORY BOARD  10 Section 3.1 Committees of Directors  10 Section 3.2 Proceedings  10 Section 3.3 Quorum and Manner of Acting  10 Section 3.4 Action by Telephonic Communications  11 Section 3.5 Absent or Disqualified Members  11 Section 3.6 Resignations  11 Section 3.7 Removal  11 Section 3.8 Vacancies  11      ARTICLE IV OFFICERS  11 Section 4.1 Number  11 Section 4.2 Election  11 Section 4.3 Compensation  12 Section 4.4 Removal and Resignation; Vacancies  12 Section 4.5 Authority and Duties of Officers  12 Section 4.6 Chairman of the Board  12 Section 4.7 Vice Chairman of the Board  12 Section 4.8 Chief Executive Officer  13 Section 4.9 President  13 Section 4.10 Vice Presidents  13 Section 4.11 Secretary  13 Section 4.12 Assistant Secretary  14 Section 4.13 Treasurer  14 Section 4.14 Additional Officers  14 Section 4.15 Security  14      ARTICLE V CAPITAL STOCK  15 Section 5.1 Uncertificated Shares  15 Section 5.2 Signatures; Facsimile  15 Section 5.3 Lost, Stolen or Destroyed Certificates  15 Section 5.4 Transfer of Stock  15 Section 5.5 Record Date  15 Section 5.6 Registered Stockholders  16 Section 5.7 Transfer Agent and Registrar  16 
 
ii

 
     ARTICLE VI INDEMNIFICATION  16 Section 6.1 Nature of Indemnity  16 Section 6.2 Successful Defense  17 Section 6.3 Determination that Indemnification is Proper  17 Section 6.4 Advance Payment of Expenses  18 Section 6.5 Procedure for Indemnification of Directors and Officers  18 Section 6.6 Survival; Preservation of Other Rights  19 Section 6.7 Insurance  19 Section 6.8 Severability  19 Section 6.9 Limitation on Liability  19 Section 6.10 Appearance as a Witness  20 Section 6.11 Indemnification of Employees and Agents  20      ARTICLE VII OFFICES  20 Section 7.1 Registered Office and Agent  20 Section 7.2 Other Offices  20      ARTICLE VIII GENERAL PROVISIONS  20 Section 8.1 Dividends  20 Section 8.2 Reserves  20 Section 8.3 Execution of Instruments  21 Section 8.4 Deposits  21 Section 8.5 Checks  21 Section 8.6 Sale, Transfer, etc. of Securities  21 Section 8.7 Voting as Stockholder  21 Section 8.8 Fiscal Year  21 Section 8.9 Seal  22 Section 8.10 Books and Records; Inspection  22      ARTICLE IX AMENDMENT OF BYLAWS  22 Section 9.1 Amendment  22      ARTICLE X CONSTRUCTION  22 Section 10.1 Construction  22 
 
iii

 
ARTICLE ISTOCKHOLDERSSection 1.1 Annual Meetings. The annual meeting of the stockholders of theCorporation for the election of Directors and for the transaction of such other business asproperly may come before such meeting, including, without limitation, for the purpose of thedelivery of an annual report of the Board of Directors, shall be held at such place, within orwithout the State of Delaware, such date, and such time as designated by the Board of Directors andset forth in the notice or waiver of notice of the meeting.Section 1.2 Special Meetings. Special meetings of the stockholders for any properpurpose or purposes may be called at any time by the Chief Executive Officer, or pursuant to aresolution approved by a majority of the entire Board of Directors. Such special meetings of thestockholders shall be held at such places, within or without the State of Delaware, as shall bespecified in the respective notices or waivers of notice thereof. Only business within the purposeor purposes described in the notice or waiver thereof required by these Bylaws may be conducted ata special meeting of the stockholders. No stockholder shall have the power to require that ameeting of the stockholders be held or that any matter be voted on by the stockholders at anyspecial meeting, except as required by law.Section 1.3 Notice of Meetings; Waiver.(a) Written or printed notice of the place, date and hour of the meeting of the stockholders,and, in the case of a special meeting, the purpose or purposes for which such meeting is called,shall be delivered not less than ten nor more than sixty days prior to the meeting, eitherpersonally or by mail, by or at the direction of the Board of Directors or person calling themeeting, to each stockholder of record entitled to vote at such meeting. If such notice is mailed,it shall be deemed to have been delivered to a stockholder on the third day after it is depositedin the United States mail, postage prepaid, addressed to the stockholder at his or her address asit appears on the record of stockholders of the Corporation, or, if he or she shall have filed withthe Secretary of the Corporation a written request that notices to him or her be mailed to someother address, then directed to him or her at such other address. Such further notice shall begiven as may be required by law or otherwise by these Bylaws.(b) No notice of any meeting of stockholders need be given to any stockholder who submits asigned waiver of notice, whether before or after the meeting. Neither the business to betransacted at, nor the purpose of, any regular or special meeting of the stockholders need bespecified in a written waiver of notice. The attendance of any stockholder at a meeting ofstockholders shall constitute a waiver of notice of such meeting, except when the stockholderattends a meeting for the express purpose of objecting, at the beginning of the meeting, to thetransaction of any business on the ground that the meeting is not lawfully called or convened.
 
 

 
Section 1.4 Quorum. Except as otherwise required by law or by the RestatedCertificate of Incorporation, a quorum shall be present at a meeting of stockholders if the holdersof record of more than 50% of the then outstanding shares entitled to vote at a meeting of thestockholders are represented at the meeting in person or by proxy.Section 1.5 Voting. If, pursuant to Section 5.5 of these Bylaws, a record date hasbeen fixed, every holder of record of shares entitled to vote at a meeting of stockholders shall beentitled to one vote, or such other number of votes as may be prescribed in a Preferred StockCertificate of Designation (as such term is defined in the Restated Certificate of Incorporation),for each share outstanding in his or her name on the books of the Corporation at the close ofbusiness on such record date. If no record date has been fixed, then every holder of record ofshares entitled to vote at a meeting of stockholders shall be entitled to one vote, or such othernumber of votes as may be prescribed in a Preferred Stock Certificate of Designation, for eachshare of stock standing in his or her name on the books of the Corporation at the close of businesson the business day next preceding the day on which notice of the meeting is given, or, if noticeis waived, at the close of business on the business day next preceding the day on which the meetingis held. Except as otherwise required by law or by the Restated Certificate of Incorporation or bythese Bylaws, the vote of a majority of the shares represented in person or by proxy at any meetingat which a quorum is present shall be sufficient for the transaction of any business at suchmeeting.Section 1.6 Voting by Ballot. No vote of the stockholders need be taken by writtenballot unless otherwise required by law. Any vote which need not be taken by ballot may beconducted in any manner approved by the chairman of the meeting.Section 1.7 Adjournment. The chairman of the meeting or the holders of record of morethan 50% of the then outstanding shares entitled to vote at a meeting of the stockholders shallhave the power to adjourn such meeting from time to time, without any notice other thanannouncement at the meeting of the time and place of the holding of the adjourned meeting, providedthat if the adjournment is for more than thirty days, or if after the adjournment a new record datefor the adjourned meeting is fixed pursuant to Section 5.5 of these Bylaws, a notice of theadjourned meeting, conforming to the requirements of Section 1.3 of these Bylaws, shall be given toeach stockholder of record entitled to vote at such meeting. If such meeting is adjourned by thestockholders, the resumption of such meeting shall occur at such time and place as shall bedetermined by a vote of the holders of record of more than 50% of the then outstanding sharesentitled to vote at such meeting of the stockholders. Upon the resumption of such adjournedmeeting, any business may be transacted that might have been transacted at the meeting asoriginally called.
 
2

 
Section 1.8 Proxies. Any stockholder entitled to vote at any meeting of thestockholders or to express consent to or dissent from corporate action in writing without a meetingmay vote in person or may authorize another person or persons to vote at any such meeting andexpress such consent or dissent for him or her by proxy executed in writing by the stockholder. Astockholder may authorize a valid proxy by executing a written instrument signed by suchstockholder, or by causing his or her signature to be affixed to such writing by any reasonablemeans, including, but not limited to, by facsimile signature or photographic,photostatic, or similar reproduction or by transmitting or authorizing the transmission of atelegram or any other means of electronic communication that results in a writing to the persondesignated as the holder of the proxy, a proxy solicitation firm or a like authorized agent. Nosuch proxy shall be voted or acted upon after the expiration of three years from the date of suchproxy unless such proxy provides for a longer period. A stockholder may revoke any proxy which isnot irrevocable by attending the meeting and voting in person or by filing an instrument in writingrevoking the proxy or by filing another duly executed proxy bearing a later date with theSecretary. Proxies by telegram or other electronic communication must either set forth or besubmitted with information from which it can be determined that the telegram or other electroniccommunication was authorized by the stockholder. Any copy, facsimile telecommunication or otherreliable reproduction of a writing or transmission created pursuant to this section may besubstituted or used in lieu of the original writing or transmission for any and all purposes forwhich the original writing or transmission could be used, provided that such copy, facsimiletelecommunication or other reproduction shall be a complete reproduction of the entire originalwriting or transmission.Section 1.9 Notice of Stockholder Business and Nominations.(a) Annual Meetings of Stockholders.(1) Nominations of persons for election to the Board of Directors of the Corporation and theproposal of business to be considered by the stockholders may be made at an annual meeting ofstockholders (i) by or at the direction of the Board of Directors or the Chairman of the Board or(ii) by any stockholder of the Corporation who is entitled to vote at the meeting, who complieswith the notice procedures set forth in clauses (2) and (3) of this paragraph and who was astockholder of record at the time such notice is delivered to the Secretary or any AssistantSecretary of the Corporation.(2) For nominations or other business to be properly brought before an annual meeting by astockholder, pursuant to clause (ii) of paragraph (A)(1) of this Bylaw, the stockholder must havegiven timely notice thereof in writing to the Secretary or any Assistant Secretary of theCorporation. To be timely, a stockholder’s notice shall be delivered to the Secretary or anyAssistant Secretary at the principal executive offices of the Corporation not less than ninety daysnor more than one hundred and twenty days prior to the first anniversary of the preceding year’sannual meeting; provided, that if the date of the annual meeting is advanced by more than twentydays or delayed by more than seventy days from such anniversary date, notice by the stockholder tobe timely must be so delivered not earlier than one hundred and twenty days prior to such annualmeeting and not later than the close of business on the later of the ninetieth day prior to suchannual meeting or the tenth day following the day on which public announcement of the date of suchmeeting is first made. In no event shall the adjournment of an annual meeting commence a new timeperiod for the giving of a stockholder’s notice as described above. Such stockholder’s noticeshall set forth (a) as to each person whom the stockholder proposes to nominate for election orreelection as a Director all information relating to such person that is required to be disclosedin
 
3

 
solicitationsof proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”), and Rule 14a-3 thereunder, in each caseincluding any successor Rule or Regulation thereto, including such person’s written consent tobeing named in the proxy statement as a nominee and to serving as a Director if elected; (b) as toany other business that the stockholder proposes to bring before the meeting, a brief descriptionof the business desired to be brought before the meeting, the reasons for conducting such businessat the meeting and any material interest in such business of such stockholder and of any beneficialowner on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and anybeneficial owner on whose behalf the nomination or proposal is made (i) the name and address ofsuch stockholder, as they appear on the Corporation’s books, and of such beneficial owner and (ii)the class and number of shares of the Corporation which are owned beneficially and of record bysuch stockholder and such beneficial owner.(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Bylaw to thecontrary, in the event that the number of Directors to be elected to the Board of Directors isincreased and there is no public announcement naming all of the nominees for Director or specifyingthe size of the increased Board of Directors made by the Corporation at least one hundred daysprior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice underthis paragraph shall also be considered timely, but only with respect to nominees for any newpositions created by such increase, if it shall be delivered to the Secretary at the principalexecutive offices of the Corporation not later than the close of business on the tenth dayfollowing the day on which such public announcement is first made by the Corporation.(b) Special Meetings of Stockholders. Only such business as shall have been broughtbefore the special meeting of the stockholders pursuant to the Corporation’s notice of meetingpursuant to Section 1.3 of these Bylaws shall be conducted at such meeting. Nominations of personsfor election to the Board of Directors may be made at a special meeting of stockholders at whichDirectors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at thedirection of the Board of Directors or (ii) by any stockholder of the Corporation who is entitledto vote at the meeting, who complies with the notice procedures set forth in this Bylaw and who isa stockholder of record at the time such notice is delivered to the Secretary of the Corporation.Nominations by stockholders of persons for election to the Board of Directors may be made at suchspecial meeting of stockholders if the stockholder’s notice as required by paragraph (A)(2) of thisBylaw shall be delivered to the Secretary at the principal executive offices of the Corporation notearlier than the one hundred and twentieth day prior to such special meeting and not later than theclose of business on the later of the ninetieth day prior to such special meeting or the tenth dayfollowing the day on which public announcement is first made of the date of the special meeting andof the nominees proposed by the Board of Directors to be elected at such meeting. In no eventshall the adjournment of a special meeting commence a new time period for the giving of astockholder’s notice as described above.
 
4

 
(c) General.(1) Only persons who are nominated in accordance with the procedures set forth in this Bylawshall be eligible to serve as Directors and only such business shall be conducted at a meeting ofstockholders as shall have been brought before the meeting in accordance with the procedures setforth in this Bylaw. Except as otherwise provided by law, the Restated Certificate ofIncorporation or these Bylaws, the chairman of the meeting shall have the power and duty todetermine whether a nomination or any business proposed to be brought before the meeting was madein accordance with the procedures set forth in this Bylaw and, if any proposed nomination orbusiness is not in compliance with this Bylaw, to declare that such defective proposal ornomination shall be disregarded.(2) For purposes of this Bylaw, “public announcement” shall mean disclosure in a press releasereported by PR Newswire, Associated Press or comparable national news service or in a documentpublicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section13, 14 or 15(d) of the Exchange Act.(3) Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also complywith all applicable requirements of the Exchange Act and the rules and regulations thereunder withrespect to the matters set forth in this Bylaw. Nothing in this Bylaw shall be deemed to affectany right of stockholders to request inclusion of proposals in the Corporation’s proxy statementpursuant to Rule 14a-8 under the Exchange Act.Section 1.10 Organization; Procedure. At every meeting of stockholders the presidingofficer shall be the chairman of the meeting, who shall be a Director (or representative thereof)designated by a majority of the Board of Directors. The order of business and all other matters ofprocedure at every meeting of stockholders, including the regulation of the manner of voting andthe conduct of discussion as seem to him or her in order, shall be determined by such presidingofficer. All meetings of the stockholders shall be held at the principal place of business of theCorporation or at such other place within or without the State of Delaware as shall be specified orfixed in the notices or waivers of notice thereof.Section 1.11 Inspectors of Elections. Preceding any meeting of the stockholders, theBoard of Directors shall appoint one or more persons to act as inspectors of elections, and maydesignate one or more alternate inspectors. In the event no inspector or alternate is able to act,the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.Each inspector, before entering upon the discharge of the duties of an inspector, shall take andsign an oath faithfully to execute the duties of inspector with strict impartiality and accordingto the best of his or her ability. The inspector shall:(a) ascertain the number of shares outstanding and the voting power of each,(b) determine the shares represented at a meeting and the validity of proxies and ballots,count all votes and ballots,
 
5

 
(c) determine and retain for a reasonable period a record of the disposition of any challengesmade to any determination by the inspectors; and(d) certify his or her determination of the number of shares represented at the meeting, andhis or her count of all votes and ballots.The inspector may appoint or retain other persons or entities to assist in the performance ofthe duties of inspector.When determining the shares represented and the validity of proxies and ballots, the inspectorshall be limited to an examination of the proxies, any envelopes submitted with those proxies, anyinformation provided in accordance with Section 1.8 of these Bylaws, ballots and the regular booksand records of the Corporation. The inspector may consider other reliable information for thelimited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers ortheir nominees or a similar person which represent more votes than the holder of a proxy isauthorized by the record owner to cast or more votes than the stockholder holds of record. If theinspector considers other reliable information as outlined in this section, the inspector, at thetime of his or her certification pursuant to clause (d) of this section, shall specify the preciseinformation considered, the person or persons from whom the information was obtained, when thisinformation was obtained, the means by which the information was obtained, and the basis for theinspector’s belief that such information is accurate and reliable.Section 1.12 Opening and Closing of Polls. The date and time for the opening and theclosing of the polls for each matter to be voted upon at a stockholder meeting shall be announcedat the meeting. The inspector of the election shall be prohibited from accepting any ballots,proxies or votes or any revocations thereof or changes thereto after the closing of the polls,unless the Court of Chancery upon application by a stockholder shall determine otherwise.Section 1.13 No Stockholder Action by Written Consent or Telephone Conference.Any action required or permitted to be taken by the stockholders of the Corporation must beeffected at a duly called annual or special meeting of the stockholders of the Corporation, and theability of the stockholders to consent in writing or by telephone to the taking of any action isspecifically denied.ARTICLE IIBOARD OF DIRECTORSSection 2.1 General Powers. Except as may otherwise be provided by law, by theRestated Certificate of Incorporation or by these Bylaws, the property, affairs and business of theCorporation shall be managed by or under the direction of the Board of Directors and the Board ofDirectors may exercise all the powers of the Corporation and may make all decisions and take allactions for the Corporation. The powers of the Corporation which may be exercised by the Directorswithout the approval of the stockholders shall include, without limitation, the power topurchase, hold and sell investments; to borrow and loan funds and provide guarantees of theobligations of others; and to acquire other companies in the ordinary course of business.
 
6

 
Section 2.2 Number and Term of Office. The number of Directors shall be fixed fromtime to time exclusively pursuant to a resolution adopted by a majority of the entire Board ofDirectors, but shall consist of not less than five (5) Directors nor more than eleven (11)Directors. The Directors, other than those who may be elected by the holders of any series ofPreferred Stock, if any, shall be divided into three classes, designated as Classes I, II and III,which shall be as nearly equal in number as possible. Directors of Class I shall be elected tohold office for a term expiring at the annual meeting of stockholders to be held in 2010, Directorsof Class II shall be elected to hold office for a term expiring at the annual meeting ofstockholders to be held in 2011 and Directors of Class III shall be elected to hold office for aterm expiring at the annual meeting of stockholders to be held in 2012. At each succeeding annualmeeting of stockholders following such initial classification and election, the respectivesuccessors of each class shall be elected for three year terms. Each Director (whenever elected)shall hold office until his or her successor has been duly elected and qualified, or until his orher earlier death, insanity, retirement, resignation or removal from office. Directors need not beresidents of the State of Delaware.Section 2.3 Election of Directors. Except as otherwise provided in Sections 2.11 and2.12 of these Bylaws, the Directors shall be elected at each annual meeting of the stockholders.If the annual meeting for the election of Directors is not held on the date designated therefor,the Directors shall cause the meeting to be held as soon thereafter as convenient. At each meetingof the stockholders for the election of Directors, provided a quorum is present, the Directorsshall be elected by a plurality of the votes validly cast in such election.Section 2.4 Annual and Regular Meetings. The annual meeting of the Board of Directorsfor the purpose of electing officers and for the transaction of such other business as may comebefore the meeting shall be held as soon as possible following adjournment of the annual meeting ofthe stockholders at the place of such annual meeting of the stockholders. Notice of such annualmeeting of the Board of Directors need not be given. The Board of Directors may from time to timeprovide by resolution for the holding of regular meetings and fix the place (which may be within orwithout the State of Delaware) and the date and hour of such meetings, provided that such meetingsshall be held no less frequently than quarterly. Notice of regular meetings need not be given,provided, however, that if the Board of Directors shall fix or change the time or place of anyregular meeting, notice of such action shall be mailed promptly, or sent by telephone, including avoice messaging system or other system or technology designed to record and communicate messages,telegraph, facsimile, electronic mail or other electronic means to each Director who shall not havebeen present at the meeting at which such action was taken, addressed to him or her at his or herusual place of business, or shall be delivered to him or her personally.
 
7

 
Section 2.5 Special Meetings; Notice. Special meetings of the Board of Directorsshall be held whenever called by the Chairman of the Board or the Chief Executive Officer, or bya majority of the Directors, date and hour as may be specified in the respective notices orwaivers of notice of such meetings. Special meetings of the Board of Directors may be called on atleast twenty-four hours’ notice to each other Director, if notice is given to each Directorpersonally or by telephone, including a voice messaging system or other system or technologydesigned to record and communicate messages, telegraph, facsimile, electronic mail or otherelectronic means or on five days’ notice from the official date of deposit in the mail if notice ismailed to each Director, addressed to him or her at his or her usual place of business. Suchnotice need not state the purpose or purposes of, nor the business to be transacted at, suchmeeting, except as may otherwise be required by law or provided for by the Restated Certificate ofIncorporation.Section 2.6 Quorum; Voting. Unless otherwise required by law or provided in theRestated Certificate of Incorporation, at all meetings of the Board of Directors, the presence of amajority of the total number of Directors then in office shall constitute a quorum for thetransaction of business of the Directors. Except as otherwise required by law, or except asprovided herein or in the Restated Certificate of Incorporation, the act or vote of a majority ofDirectors present at a meeting at which a quorum is present shall be the act or vote of the Boardof Directors. A Director who is present at a meeting of the Directors at which action on anymatter of the Corporation is taken shall be presumed to have assented to the action unless hisdissent shall be entered in the minutes of the meeting or unless he shall file his written dissentto such action with the person acting as secretary of the meeting before the adjournment thereof orshall deliver such dissent to the Corporation immediately after the adjournment of the meeting.Such right to dissent shall not apply to a Director who voted in favor of such action.Section 2.7 Adjournment. A majority of the Directors present, whether or not a quorumis present, may adjourn any meeting of the Board of Directors to another time or place. No noticeneed be given of any adjourned meeting unless the time and place of the adjourned meeting are notannounced at the time of adjournment, in which case notice conforming to the requirements ofSection 2.5 of these Bylaws shall be given to each Director.Section 2.8 Action Without a Meeting. Any action permitted or required by law, theRestated Certificate of Incorporation or these Bylaws to be taken at a meeting of the Directors orof any committee designated by the Directors may be taken without a meeting if a consent inwriting, setting forth the action to be taken, is signed by all the Directors or members of suchcommittee, as the case may be, provided that the writing or writings are filed with the minutes ofproceedings of the Board of Directors or such committee. Such consent shall have the same forceand effect as a unanimous vote at a meeting and may be stated as such in any document or instrumentfiled with the Secretary of State of Delaware, and the execution of such consent shall constituteattendance or presence in person at a meeting of the Board of Directors or any such committee, asthe case may be. Subject to the requirements of law, the Restated Certificate of Incorporation orthese Bylaws for notice of meetings, Directors, or members of any committee designated by the Boardof Directors, may participate in and hold a meeting of the Board of Directors or any committee ofDirectors, as the case may be, by means of a conference telephone or similar communicationsequipment by means of which all persons participating in the meeting can hear each other, andparticipation in such meeting shall constitute attendance and presence inperson at such meeting, except where a person participates in the meeting for the expresspurpose of objecting to the transaction of any business on the ground that the meeting is notlawfully called or convened.
 
8

 
Section 2.9 Regulations; Manner of Acting. Meetings of the Board of Directors may beheld at such place or places as shall be determined from time to time by resolution of theDirectors. At all meetings of the Board of Directors, business shall be transacted in such orderas shall from time to time be determined by resolution of the Directors to the extent consistentwith applicable law, the Restated Certificate of Incorporation and these Bylaws. The Board ofDirectors may adopt such other rules and regulations for the conduct of meetings of the Board ofDirectors and for the management of the property, affairs and business of the Corporation as theBoard of Directors may deem appropriate. Attendance of a Director at a meeting shall constitute awaiver of notice of such meeting, except where a Director attends a meeting for the express purposeof objecting to the transaction of any business on the ground that the meeting is not lawfullycalled or convened. The Directors shall act only as a Board, and the individual Directors shallhave no power as such.Section 2.10 Resignations. Any Director may resign at any time. Such resignationshall be made in writing, signed by such Director, to the Corporation and shall take effect at thetime specified therein, or if no time be specified, at the time of its receipt by the Chairman ofthe Board or the Secretary. The acceptance of a resignation shall not be necessary to make iteffective, unless expressly so provided in the resignation.Section 2.11 Removal of Directors. Any Director may be removed at any time, but onlyfor cause upon the affirmative vote of the holders of a majority of the combined voting power ofthe then outstanding stock of the Corporation entitled to vote generally in the election ofDirectors at any meeting of such stockholders, including meetings called expressly for thatpurpose, and at which a quorum of stockholders is present. Subject to the rights of the holders ofany series of preferred stock of the Corporation, any vacancy in the Board of Directors caused byany such removal shall be filled at such meeting by the stockholders entitled to vote for theelection of the Director so removed.Section 2.12 Vacancies and Newly Created Directorships. Subject to the rights of theholders of any series of preferred stock of the Corporation and except as provided in Section 2.11,if any vacancies occur in the Board of Directors, by reason of death, resignation, removal orotherwise, or if the authorized number of Directors shall be increased, the Directors then inoffice shall continue to act and such vacancies and newly created Directorships may be filled by amajority of the Directors then in office, although less than a quorum. A Director elected to filla vacancy or a newly created Directorship shall hold office until the next election of the class ofDirectors for which such Director has been chosen and until his or her successor has been electedand qualified or until his or her earlier death, resignation or removal.
 
9

 
Section 2.13 Reliance on Accounts and Reports, etc. A Director, or a member of anycommittee designated by the Board of Directors shall, in the performance of his or her duties, befully protected in relying in good faith upon the records of the Corporation and uponinformation, opinions, reports or statements presented to the Corporation by any of theCorporation’s officers or employees, or committees designated by the Board of Directors, or by anyother person as to the matters the Director or member reasonably believes are within such otherperson’s professional or expert competence and who has been selected with reasonable care by or onbehalf of the Corporation.ARTICLE IIICOMMITTEES OF DIRECTORS AND ADVISORY BOARDSection 3.1 Committees of Directors. The Board of Directors may designate one or morecommittees, each such committee to consist of one or more Directors, as fixed from time to time bythe Board of Directors. The Board of Directors may designate one or more Directors as alternatemembers of any such committee, who may replace any absent or disqualified member or members at anymeeting of such committee. Thereafter, members (and alternate members, if any) of each suchcommittee may be designated at the annual meeting of the Board of Directors. Any such committeemay be dissolved or re-designated from time to time by the Board of Directors. Each member (andeach alternate member) of any such committee (whether designated at an annual meeting of the Boardof Directors or to fill a vacancy or otherwise) shall hold office until his or her successor shallhave been designated or until he or she shall cease to be a Director, or until his or her earlierdeath, resignation or removal.Section 3.2 Proceedings. Any such committee may fix its own rules of procedure andmay meet at such place (within or without the State of Delaware), at such time and upon suchnotice, if any, as it shall determine from time to time. Any such committee shall keep regularminutes of its meetings and report the same to the Board of Directors at the next meeting of theBoard following such committee meeting, except that when the Board meeting is held within two daysafter the committee meeting, such report shall, if not made at the first meeting, be made to theBoard of Directors at its second meeting following such committee meeting.Section 3.3 Quorum and Manner of Acting. Except as may be otherwise provided in theresolution creating such committee, at all meetings of any committee the presence of members (oralternate members) constituting a majority of the total authorized membership of such committeeshall constitute a quorum for the transaction of business. The act of the majority of the memberspresent at any meeting at which a quorum is present shall be the act of such committee. Any actionrequired or permitted to be taken at any meeting of any such committee may be taken without ameeting if all members of such committee shall consent to such action in writing and such writingor writings are filed with the minutes of the proceedings of the committee. The members of anysuch committee shall act only as a committee, and the individual members of such committee shallhave no power as such.
 
10

 
Section 3.4 Action by Telephonic Communications. Members of any committee designatedby the Board of Directors may participate in a meeting of such committee by means of conferencetelephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other, and participation in a meeting pursuant tothis provision shall constitute presence in person at such meeting.Section 3.5 Absent or Disqualified Members. In the absence or disqualification of amember of any committee, the member or members thereof present at any meeting and not disqualifiedfrom voting, whether or not he, she or they constitute a quorum, may unanimously appoint anothermember of the Board of Directors to act at the meeting in the place of any such absent ordisqualified member.Section 3.6 Resignations. Any member (and any alternate member) of any committee mayresign at any time by delivering a written notice of resignation, signed by such member, to theChairman of the Board, the Chief Executive Officer or any President. Unless otherwise specifiedtherein, such resignation shall take effect upon delivery.Section 3.7 Removal. Any member (and any alternate member) of any committee may beremoved from his or her position as a member (or alternate member, as the case may be) of suchcommittee at any time, either for or without cause, by resolution adopted by a majority of thewhole Board of Directors.Section 3.8 Vacancies. If any vacancy shall occur in any committee, by reason ofdisqualification, death, resignation, removal or otherwise, the remaining members (and anyalternate members) shall continue to act, and any such vacancy may be filled by the Board ofDirectors.ARTICLE IVOFFICERSSection 4.1 Number. The officers of the Corporation shall be designated by the Boardof Directors and shall include such officers as the Directors may from time to time determine,which officers may (but need not) include a Chairman of the Board (who may or may not be anExecutive Chairman), a Vice Chairman of the Board, a Chief Executive Officer, one or morePresidents (and in the case of each such President, with such descriptive title, if any, as theDirectors shall deem appropriate), one or more Vice Presidents (and in the case of each such VicePresident, with such descriptive title, if any, as the Directors shall deem appropriate), aSecretary, an Assistant Secretary and a Treasurer. The Board of Directors also may elect one ormore other officers as the Board of Directors may determine. Any number of offices may be held bythe same person. No officer need be a Director of the Corporation.Section 4.2 Election. Officers shall be chosen in such manner and shall hold theiroffices for such terms as determined by the Board of Directors. Each officer shall hold officeuntil his or her successor has been elected and qualified in his stead, or until his or her earlierdeath, resignation, retirement, disqualification or removal from office.
 
11

 
Section 4.3 Compensation. The Corporation shall have the authority to pay and providecompensation and other benefits to its officers and employees. The compensation and benefits ofall officers of the Corporation shall be fixed from time to time by the Board of Directors, unlessotherwise delegated by the Board of Directors to a particular committee or officer.Section 4.4 Removal and Resignation; Vacancies. Any officer may be removed for orwithout cause at any time by the Board of Directors, or by the Chief Executive Officer or anyPresident if such powers of removal have been expressly conferred to such individuals by the Boardof Directors, but such removal shall be without prejudice to the contract rights, if any, of theperson so removed. Designation of an officer shall not itself create contract rights. Any officermay resign at any time by delivering a written notice of resignation, signed by such officer, tothe Chairman of the Board, the Chief Executive Officer or any President. Unless otherwisespecified therein, such resignation shall take effect immediately upon delivery. Any vacancyoccurring in any office of the Corporation by death, resignation, removal or otherwise, shall befilled by the Board of Directors. The Board of Directors may abolish any office at any time unlessprohibited by law or statute.Section 4.5 Authority and Duties of Officers. In addition to any specificallyenumerated duties, services and powers, the officers of the Corporation shall have such authorityand shall exercise such powers and perform such duties as may be specified by law or statute, bythe Restated Certificate of Incorporation or these Bylaws, or as the Board of Directors may fromtime to time determine or as may be assigned to such officers by any competent superior officer.The Board of Directors may also at any time limit or circumvent the enumerated duties, services andpowers of any officer. In addition to the designation of officers and the enumeration of theirrespective duties, services and powers, the Board of Directors may grant powers of attorneys toindividuals to act as agent for or on behalf of the Corporation, to do any act which would bebinding on the Corporation, to incur any expenditures on behalf of or for the Corporation, or toexecute, deliver and perform any agreements, acts, transactions or other matters on behalf of theCorporation. Such powers of attorney may be revoked or modified as deemed necessary by the Boardof Directors.Section 4.6 Chairman of the Board. The Chairman of the Board shall, if one isdesignated by the Board of Directors and is present, preside at all meetings of the stockholdersand of the Board of Directors and exercise and perform such other powers and duties as may beassigned from time to time by the Board of Directors. He shall also assist the Directors in theformulation of the policies of the Corporation, and shall be available to other officers on areasonable basis for consultation and advice.Section 4.7 Vice Chairman of the Board. The Vice Chairman of the Board, if one isdesignated by the Board of Directors, shall, in the absence of the Chairman of the Board, presideat all meetings of the stockholders and of the Board of Directors and exercise and perform suchother powers and duties as may be from time to time assigned by the Board of Directors.
 
12

 
Section 4.8 Chief Executive Officer. The Chief Executive Officer shall haveday-to-day supervision of the affairs of the Corporation, such powers and duties subject at alltimes to the authority of the Board of Directors. In the absence or disability of the Chairman ofthe Board and the Vice Chairman of the Board, the Chief Executive Officer shall exercise the powersand perform the duties of the Chairman of the Board.Section 4.9 President. Each President that is designated by the Board of Directorsshall generally assist the Chief Executive Officer and shall have such powers and perform suchduties and services as shall from time to time be prescribed or delegated to him or her by theChief Executive Officer or the Board of Directors. In the absence or disability of the ChiefExecutive Officer, the Board of Directors shall appoint one President to exercise the powers andperform the duties of the Chief Executive Officer.Section 4.10 Vice Presidents. Each Vice President that is designated by the Board ofDirectors shall generally assist one or more Presidents and shall have such powers and perform suchduties and services as shall from time to time be prescribed or delegated to him or her by one ormore Presidents or the Board of Directors.Section 4.11 Secretary. The Secretary, if one is designated by the Board ofDirectors, shall have the following powers and duties:(a) He or she shall keep or cause to be kept a record of all the proceedings of the meetingsof the stockholders and of the Board of Directors in books provided for that purpose.(b) He or she shall cause all notices to be duly given in accordance with the provisions ofthese Bylaws and as required by law.(c) Whenever any committee shall be appointed pursuant to a resolution of the Board ofDirectors, he or she shall furnish a copy of such resolution to the members of such committee.(d) He or she shall be the custodian of the records and of the seal of the Corporation andcause such seal (or a facsimile thereof) to be affixed to all certificates representing shares ofthe Corporation prior to the issuance thereof and to all instruments the execution of which onbehalf of the Corporation under its seal shall have been duly authorized in accordance with theseBylaws, and when so affixed he or she may attest the same.(e) He or she shall properly maintain and file all books, reports, statements, certificatesand all other documents and records required by law, the Restated Certificate of Incorporation orthese Bylaws.(f) He or she shall have charge of the stock books and ledgers of the Corporation and shallcause the stock and transfer books to be kept in such manner as to show at any time the number ofshares of stock of the Corporation of each class issued and outstanding,the names (alphabetically arranged) and the addresses of the holders of record of such shares,the number of shares held by each holder and the date as of which each became such holder ofrecord.
 
13

 
(g) He or she shall sign (unless the Treasurer, an Assistant Treasurer or an AssistantSecretary shall have signed) certificates representing shares of the Corporation the issuance ofwhich shall have been authorized by the Board of Directors.(h) He or she shall perform, in general, all duties incident to the office of Secretary andsuch other duties as may be specified in these Bylaws or as may be assigned to him or her from timeto time by the Board of Directors, the Chief Executive Officer or any President.Section 4.12 Assistant Secretary. The Assistant Secretary, if one is designated bythe Board of Directors, shall generally assist the Secretary.Section 4.13 Treasurer. The Treasurer, if one is designated by the Board ofDirectors, or such other officer as may be designated by the Board of Directors, shall be the chiefaccounting and financial officer of the Corporation and have custody of all the funds, securitiesand other valuables of the Corporation which may have or shall come into his or her hands. TheTreasurer shall have active control of and shall be responsible for all matters pertaining to theaccounts and finances of the Corporation and shall have such powers and perform such duties as maybe prescribed by the Chief Executive Officer, any President, the Board of Directors or elsewhere inthese Bylaws.Section 4.14 Additional Officers. The Board of Directors may appoint such otherofficers and agents as it may deem appropriate, and such other officers and agents shall hold theiroffices for such terms and shall exercise such powers and perform such duties as may be determinedfrom time to time by the Board of Directors. The Board of Directors from time to time may delegateto the Chief Executive Officer or any President the power to appoint subordinate officers or agentsand to prescribe their respective rights, terms of office, authorities and duties. Any suchofficer or agent may remove any such subordinate officer or agent appointed by him or her, for orwithout cause.Section 4.15 Security. The Board of Directors may require any officer, agent oremployee of the Corporation to provide security for the faithful performance of his or her duties,in such amount and of such character as may be determined from time to time by the Board ofDirectors.
 
14

 
ARTICLE VCAPITAL STOCKSection 5.1 Uncertificated Shares. Except as otherwise provided in a resolutionapproved by the Board, all shares of capital stock of the Corporation issued after the date hereofshall be uncertificated shares. In the event that the Board elects to provide in a resolutionthat certificates shall be issued to represent any shares of capital stock of the Corporation,holders of such shares (and upon request every holder of uncertificated shares) shall be entitledto have a certificate signed by, or in the name of the Corporation, by the Chairman of the Board ora Vice Chairman of the Board, any President or a Vice President, and by the Treasurer or anAssistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of sharesregistered in certificate form. Such certificate shall be in such form as the Board may determine,to the extent consistent with applicable law, the Restated Certificate of Incorporation and theseBylaws.Section 5.2 Signatures; Facsimile. All of such signatures on the certificate referredto in Section 5.1 of these Bylaws may be a facsimile, engraved or printed, to the extent permittedby law. In case any officer, transfer agent or registrar who has signed, or whose facsimilesignature has been placed upon a certificate shall have ceased to be such officer, transfer agentor registrar before such certificate is issued, it may be issued by the Corporation with the sameeffect as if he or she were such officer, transfer agent or registrar at the date of issue.Section 5.3 Lost, Stolen or Destroyed Certificates. The Corporation may direct that anew certificate be issued in place of any certificate theretofore issued by the Corporation allegedto have been lost, stolen or destroyed, upon delivery to the Corporation of an affidavit of theowner or owners of such certificate, setting forth such allegation. The Corporation may requirethe owner of such lost, stolen or destroyed certificate, or his or her legal representative, togive the Corporation a bond sufficient to indemnify it against any claim that may be made againstit on account of the alleged loss, theft or destruction of any such certificate or the issuance ofany such new certificate.Section 5.4 Transfer of Stock. Upon surrender to the Corporation or the transferagent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriateevidence of succession, assignment or authority to transfer, the Corporation shall issue a newcertificate to the person entitled thereto, cancel the old certificate and record the transactionupon its books. Within a reasonable time after the transfer of uncertificated stock, theCorporation shall send to the registered owner thereof a written notice containing the informationrequired to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)of the Delaware General Corporation Law. Subject to the provisions of the Restated Certificate ofIncorporation and these Bylaws, the Board of Directors may prescribe such additional rules andregulations as it may deem appropriate relating to the issue, transfer and registration of sharesof the Corporation.Section 5.5 Record Date. In order to determine the stockholders entitled to noticeof, or entitled to vote at, any meeting of stockholders or any adjournment thereof, the Board ofDirectors may fix in advance a record date, which record date shall not precede the date on whichthe resolution fixing the record date is adopted by the Board of Directors, and which shall not bemore than sixty nor less than ten days before the date of such meeting. A determination ofstockholders of record entitled to notice of or entitled to vote at a meeting of stockholders shallapply to any adjournment of the meeting, provided, however, that the Board of Directors mayfix a new record date for the adjourned meeting.
 
15

 
In order that the Corporation may determine the stockholders entitled to receive payment ofany dividend or other distribution or allotment of any rights of the stockholders entitled toexercise any rights in respect of any change, conversion or exchange of stock, or for the purposeof any other lawful action, the Board of Directors may fix a record date, which record date shallnot precede the date upon which the resolution fixing the record date is adopted, and which recorddate shall be not more than sixty days prior to such action. If no record date is fixed, therecord date for determining stockholders for any such purpose shall be at the close of business onthe day on which the Board of Directors adopts the resolution relating thereto.Section 5.6 Registered Stockholders. Prior to due surrender of a certificate forregistration of transfer, the Corporation may treat the registered owner as the person exclusivelyentitled to receive dividends and other distributions, to vote, to receive notice and otherwise toexercise all the rights and powers of the owner of the shares represented by such certificate, andthe Corporation shall not be bound to recognize any equitable or legal claim to or interest in suchshares on the part of any other person, whether or not the Corporation shall have notice of suchclaim or interests. Whenever any transfer of shares shall be made for collateral security, and notabsolutely, it shall be so expressed in the entry of the transfer if, when the certificates arepresented to the Corporation for transfer or uncertificated shares are requested to be transferred,both the transferor and transferee request the Corporation to do so.Section 5.7 Transfer Agent and Registrar. The Board of Directors may appoint one ormore transfer agents and one or more registrars, and may require all certificates representingshares to bear the signature of any such transfer agents or registrars.ARTICLE VIINDEMNIFICATIONSection 6.1 Nature of Indemnity. The Corporation shall indemnify any person who wasor is a party or is threatened to be made a party to any threatened, pending or completed action,suit or proceeding (a “Proceeding”), whether civil, criminal, administrative, arbitrative orinvestigative, or any appeal in such a Proceeding or any inquiry or investigative (other than anaction by or in the right of the Corporation), by reason of the fact that he or she is or wasDirector, officer, employee or agent of the Corporation, or is or was serving at the request of theCorporation as a director, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise, against expenses (including attorneys’ fees), judgments, finesand amounts paid in settlement actually and reasonably incurred by him or her or on his or herbehalf in connection with such action, suit or proceeding and any appeal therefrom, provided thathe or she acted in good faith and in a manner he or she reasonably believed to be in or not opposedto the best interests of the Corporation, and, with respect to any criminal action or proceedinghad no reasonable cause to believe his or her conduct was
 
16

 
unlawful. The indemnification providedin this Article VI could involve indemnification for negligenceor under theories of strict liability. In the case of an action or suit by or in the right ofthe Corporation to procure a judgment in its favor (1) the indemnification of a Director or officershall be limited to expenses (including attorneys’ fees) actually and reasonably incurred by suchperson in the defense or settlement of such action or suit, and (2) no indemnification shall bemade in respect of any claim, issue or matter as to which such person shall have been adjudged tobe liable to the Corporation unless and only to the extent that the Delaware Court of Chancery orthe court in which such action or suit was brought shall determine upon application that, despitethe adjudication of liability but in view of all the circumstances of the case, such person isfairly and reasonably entitled to indemnity for such expenses which the Delaware Court of Chanceryor such other court shall deem proper. Notwithstanding the foregoing, but subject to Section 6.5of these Bylaws, the Corporation shall not be obligated to indemnify a Director or officer of theCorporation in respect of a Proceeding (or part thereof) instituted by such Director or officer,unless such Proceeding (or part thereof) has been authorized by the Board of Directors.The termination of 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 presumptionthat the person did not act in good faith and in a manner which he or she reasonably believed to bein or not opposed to the best interests of the Corporation, and, with respect to any criminalaction or proceeding, had reasonable cause to believe that his or her conduct was unlawful.The rights granted pursuant to this Article VI shall be deemed contract rights. No amendment,modification or repeal of this Article VI shall have the effect of limiting or denying any suchrights with respect to actions taken or Proceedings arising prior to any such amendment,modification or repeal.Section 6.2 Successful Defense. To the extent that a present or former Director orofficer of the Corporation has been successful on the merits or otherwise in defense of any action,suit or proceeding referred to in Section 6.1 of these Bylaws or in defense of any claim, issue ormatter therein, he or she shall be indemnified against expenses (including attorneys’ fees)actually and reasonably incurred by him or her in connection therewith.Section 6.3 Determination that Indemnification is Proper. Any indemnification of apresent or former Director or officer of the Corporation under Section 6.1 of these Bylaws (unlessordered by a court) shall be made by the Corporation unless a determination is made thatindemnification of the Director or officer is not proper in the circumstances because he or she hasnot met the applicable standard of conduct set forth in Section 6.1 of these Bylaws. Any suchdetermination shall be made (1) by a majority vote of the Directors who are not parties to suchaction, suit or proceeding, even though less than a quorum, (2) by a committee of such Directorsdesignated by majority vote of such Directors, even though less than a quorum, (3) if there are nosuch Directors, or if such Directors so direct, by independent legal counsel in a written opinionor (4) by the stockholders.
 
17

 
Section 6.4 Advance Payment of Expenses. The right to indemnification conferred inthis Article VI shall include the right to be paid or reimbursed by the Corporation the reasonableexpenses incurred by a person of the type entitled to be indemnified under Sections 6.1, 6.2, and6.3 who was, is, or is threatened to be made a named defendant or respondent in a Proceeding inadvance of the final disposition of the Proceeding and without any determination as to the person’sultimate entitlement to indemnification; provided, however, that the payment of such expensesincurred by any such person in advance of the final disposition of a Proceeding shall be made onlyupon delivery to the Corporation of a written affirmation by such person of his or her good faithbelief that he or she has met the standard of conduct necessary for indemnification under thisArticle VI and a written undertaking, by or on behalf of such person, to repay all amounts soadvanced if it shall ultimately be determined that such person is not entitled to be indemnifiedunder this Article VI or otherwise. The Board of Directors may authorize the Corporation’s counselto represent such present or former Director or officer in any action, suit or proceeding, whetheror not the Corporation is a party to such action, suit or proceeding.Section 6.5 Procedure for Indemnification of Directors and Officers. Anyindemnification of a Director or officer of the Corporation under Sections 6.1, 6.2, and 6.3 ofthese Bylaws, or advance of costs, charges and expenses to a Director or officer under Section 6.4of these Bylaws, shall be made promptly, and in any event within thirty days, upon the writtenrequest of such person. If a determination by the Corporation that the Director or officer isentitled to indemnification pursuant to this Article is required, and the Corporation fails torespond within sixty days to a written request for indemnity, the Corporation shall be deemed tohave approved such request. If the Corporation denies a written request for indemnity oradvancement of expenses, in whole or in part, or if payment in full pursuant to such request is notmade within thirty days, the right to indemnification or advances as granted by this Article shallbe enforceable by the Director or officer in any court of competent jurisdiction. Such person’scosts and expenses incurred in connection with successfully establishing his or her right toindemnification, in whole or in part, in any such action shall also be indemnified by theCorporation. It shall be a defense to any such action (other than an action brought to enforce aclaim for the advance of costs, charges and expenses under Section 6.4 of these Bylaws where therequired undertaking, if any, has been received by or tendered to the Corporation) that theclaimant has not met the standard of conduct set forth in Section 6.1 of these Bylaws, but theburden of proving such defense shall be on the Corporation. Neither the failure of the Corporation(including its Board of Directors, its independent legal counsel, and its stockholders) to havemade a determination prior to the commencement of such action that indemnification of the claimantis proper in the circumstances because he or she has met the applicable standard of conduct setforth in Section 6.1 of these Bylaws, nor the fact that there has been an actual determination bythe Corporation (including its Board of Directors, its independent legal counsel, and itsstockholders) that the claimant has not met such applicable standard of conduct, shall be a defenseto such action or create a presumption that the claimant has not met the applicable standard ofconduct.
 
18

 
Section 6.6 Survival; Preservation of Other Rights. The foregoing indemnificationprovisions shall be deemed to be a contract between the Corporation and each Director or officerwho serves in any such capacity at any time while these provisions are in effect and anyrepeal or modification thereof shall not affect any right or obligation then existing with respectto any state of facts then or previously existing or any action, suit or proceeding previously orthereafter brought or threatened based in whole or in part upon any such state of facts. Such a“contract right” may not be modified retroactively without the consent of such Director or officer.The indemnification and the advancement and payment of expenses provided by this Article VIshall not be deemed exclusive of any other rights to which those indemnified may be entitled underany Bylaw, common or statutory law, provision of the Restated Certificate of Incorporation,agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in hisor her official capacity and as to action in another capacity while holding such office, and shallcontinue as to a person who has ceased to be a Director or officer and shall inure to the benefitof the heirs, executors and administrators of such a person.Section 6.7 Insurance. The Corporation shall purchase and maintain insurance, at itsexpense, to protect the Corporation and any person who is or was or has agreed to become a Directoror officer, or is or was serving at the request of the Corporation as a Director, officer, partner,venturer, proprietor, trustee, employee, agent or similar functionary of another foreign ordomestic corporation, limited liability company, partnership, joint venture, sole proprietorship,trust, employee benefit plan or other enterprise against any expense, liability, or loss assertedagainst him or her or incurred by him or her or on his or her behalf in any such capacity, orarising out of his or her status as such, whether or not the Corporation would have the power toindemnify him or her against such liability under the provisions of this Article, provided thatsuch insurance is available on acceptable terms, which determination shall be made by a vote of amajority of the entire Board of Directors.Section 6.8 Severability. If this Article VI or any portion hereof shall beinvalidated on any ground by any court of competent jurisdiction, then the Corporation shallnevertheless indemnify and hold harmless each Director or officer or any other person indemnifiedpursuant to this Article VI as to costs, charges and expenses (including reasonable attorneys’fees), judgments, fines and amounts paid in settlement with respect to any action, suit orproceeding, whether civil, criminal, administrative or investigative to the full extent permittedby any applicable portion of this Article VI that shall not have been invalidated and to thefullest extent permitted by applicable law.Section 6.9 Limitation on Liability. No Director or officer shall be personallyliable, as such, for any action taken or omitted from being taken unless: (i) such Director orofficer breached or failed to perform the duties of his office and (ii) the breach or failure toperform constituted recklessness, self-dealing or willful misconduct. The foregoing shall notapply to any responsibility or liability under a criminal statute or liability for the payment oftaxes under Federal, state or local law.
 
19

 
Section 6.10 Appearance as a Witness. Notwithstanding any other provision of thisArticle VI, the Corporation shall pay or reimburse expenses incurred by a Director or officer inconnection with his appearance as a witness or other participation in a Proceeding at a timewhen he is not a named defendant or respondent in the Proceeding.Section 6.11 Indemnification of Employees and Agents. The Corporation, by adoption ofa resolution of the Board of Directors, may indemnify and advance expenses to an employee or agentof the Corporation to the same extent and subject to the same conditions under which it mayindemnify and advance expenses to Directors and officers under this Article VI; and, theCorporation may indemnify and advance expenses to persons who are not or were not Directors,officers, employees or agents of the Corporation but who are or were serving at the request of theCorporation as director, officer, partner, venturer, proprietor, trustee, employee, agent orsimilar functionary of another foreign or domestic corporation, limited liability company,partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterpriseagainst any liability asserted against him or her and incurred by him or her in such a capacity orarising out of his or her status as such a person to the same extent that it may indemnify andadvance expenses to Directors and officers of the Corporation under this Article VI.ARTICLE VIIOFFICESSection 7.1 Registered Office and Agent. The registered agent and office of theCorporation in the State of Delaware shall be the Corporation Trust Company, located at 1209 OrangeStreet in the City of Wilmington, County of New Castle (19801) or such other agent and office(which need not be a place of business of the Corporation) as the Board of Directors may designatefrom time to time in the manner provided by law.Section 7.2 Other Offices. The Corporation may maintain offices or places of businessat such other locations within or without the State of Delaware as the Board of Directors may fromtime to time determine or as the business of the Corporation may require.ARTICLE VIIIGENERAL PROVISIONSSection 8.1 Dividends. Subject to any applicable provisions of law and the RestatedCertificate of Incorporation, dividends upon the shares of the Corporation may be declared by theBoard of Directors at any regular or special meeting of the Board of Directors and any suchdividend may be paid in cash, property or shares of the Corporation’s capital stock.Section 8.2 Reserves. There may be set aside out of any funds of the Corporationavailable for dividends such sum or sums as the Board of Directors from time to time, in itsabsolute discretion, thinks proper as a reserve or reserves to meet contingencies, or forequalizing dividends, or for repairing or maintaining any property of the Corporation or for suchother purpose as the Board of Directors shall think conducive to the interest of the Corporation,and the Board of Directors may similarly modify or abolish any such reserve.
 
20

 
Section 8.3 Execution of Instruments. The Chief Executive Officer, any President, anyVice President, the Secretary or the Treasurer may enter into any contract or execute and deliverany instrument in the name and on behalf of the Corporation. The Board of Directors, the ChiefExecutive Officer or the President may authorize any other officer or agent to enter into anycontract or execute and deliver any instrument in the name and on behalf of the Corporation. Anysuch authorization may be general or limited to specific contracts or instruments.Section 8.4 Deposits. Any funds of the Corporation may be deposited from time to timein such banks, trust companies or other depositories as may be determined by the Board ofDirectors, the Chief Executive Officer or any President, or by such officers or agents as may beauthorized by the Board of Directors, the Chief Executive Officer or the President to make suchdetermination.Section 8.5 Checks. All checks or demands for money and notes of the Corporationshall be signed by such officer or officers or such agent or agents of the Corporation, and in suchmanner, as the Board of Directors or the Chief Executive Officer or any President from time to timemay determine.Section 8.6 Sale, Transfer, etc. of Securities. To the extent authorized by the Boardof Directors or by the Chief Executive Officer, any President, any Vice President, the Secretary orthe Treasurer or any other officers designated by the Board of Directors, the Chief ExecutiveOfficer or any President may sell, transfer, endorse, and assign any shares of stock, bonds orother securities owned by or held in the name of the Corporation, and may make, execute and deliverin the name of the Corporation, under its corporate seal, any instruments that may be appropriateto effect any such sale, transfer, endorsement or assignment.Section 8.7 Voting as Stockholder. Unless otherwise determined by resolution of theBoard of Directors, the Chief Executive Officer or any President or any Vice President shall havefull power and authority on behalf of the Corporation to attend any meeting of stockholders of anycorporation in which the Corporation may hold stock and to act, vote (or execute proxies to vote)and exercise in person or by proxy all other rights, powers and privileges incident to theownership of such stock. Such officers acting on behalf of the Corporation shall have full powerand authority to execute any instrument expressing consent to or dissent from any action of anysuch corporation without a meeting. The Board of Directors may by resolution from time to timeconfer such power and authority upon any other person or persons.Section 8.8 Fiscal Year. The fiscal year of the Corporation shall commence on thefirst day of January of each year (except for the Corporation’s first fiscal year which shallcommence on the date of incorporation) and shall terminate in each case on December 31.
 
21

 
Section 8.9 Seal. The seal of the Corporation shall be circular in form, and shallcontain the name of the Corporation, the year of its incorporation and the words “Corporate Seal”and “Delaware.” The form of such seal shall be subject to alteration by the Board ofDirectors. The seal may be used by causing it or a facsimile thereof to be impressed, affixedor reproduced, or may be used in any other lawful manner.Section 8.10 Books and Records; Inspection. Except to the extent otherwise requiredby law, the books and records of the Corporation shall be kept at such place or places within orwithout the State of Delaware as may be determined from time to time by the Board of Directors.ARTICLE IXAMENDMENT OF BYLAWSSection 9.1 Amendment. Subject to any express provision in the Restated Certificateof Incorporation to the contrary, these Bylaws may be amended, altered or repealed:(a) by resolution adopted by a majority of the Board of Directors at any special or regularmeeting of the Board of Directors without the assent or vote of the stockholders of the Corporationif, in the case of such special meeting only, notice of such amendment, alteration or repeal iscontained in the notice or waiver of notice of such meeting; or(b) at any regular or special meeting of the stockholders upon the affirmative vote of notless than two-thirds (662/3%) of the holders of the combined voting power of the outstanding sharesof the Corporation entitled to vote generally in the election of Directors if, in the case of suchspecial meeting only, notice of such amendment, alteration or repeal is contained in the notice orwaiver of notice of such meeting.ARTICLE XCONSTRUCTIONSection 10.1 Construction. In the event of any conflict between the provisions of theseBylaws as in effect from time to time and the provisions of the Restated Certificate ofIncorporation of the Corporation as in effect from time to time, the provisions of such RestatedCertificate of Incorporation shall be controlling.
 
22