SECTION 2.03 Notice of Stockholder Business and Nominations.          (A) Annual Meetings of Stockholders.          (1) Nominations of persons for election to the Board of Directors and the proposal ofother business to be considered by the stockholders may be made at an annual meeting ofstockholders only (a) as provided in any stockholders agreement entered into by the Corporation andany stockholder or stockholders prior to the Effective Time (as defined in the Certificate ofIncorporation), as amended from time to time (each, a “Stockholders Agreement”), (b)pursuant to the Corporation’s notice of meeting (or any supplement thereto) delivered pursuant toSection 2.04 of these By-laws, (c) by or at the direction of the Chairman of the Board of Directorsor the Board of Directors or any committee thereof or (d) by any stockholder of the Corporation whois entitled to vote at the meeting, who, subject to paragraph (C)(4) of this Section 2.03, compliedwith the notice procedures set forth in paragraphs (A)(2) and (A)(3) of this Section 2.03 and whowas a stockholder of record at the time such notice is delivered to the Secretary of theCorporation and on the record date.          (2) For nominations or other business to be properly brought before an annual meeting by astockholder pursuant to clause (d) of paragraph (A)(1) of this Section 2.03, the stockholder musthave given timely notice thereof in writing to the Secretary of the Corporation, and, in the caseof business other than nominations of persons for election to the Board of Directors, such otherbusiness must constitute a proper matter for stockholder action. To be timely, a stockholder’snotice shall be delivered to the Secretary of the Corporation at the principal executive offices ofthe Corporation not less than ninety (90) days nor more than one hundred and twenty (120) daysprior to the first anniversary of the preceding year’s annual meeting; *provided, however*, that inthe event that the date of the annual meeting is changed by more than thirty (30) days from theanniversary date of the previous year’s meeting, notice by the stockholder to be timely must be sodelivered not earlier than one hundred and twenty (120) days prior to such annual meeting and notlater than the close of business on the later of the ninetieth (90th) day prior to such annualmeeting or the tenth (10th) day following the day on which public announcement of the date of suchmeeting is first made. Public announcement of an adjournment or postponement of an annual meetingshall not commence a new time period (or extend any time period) for the giving of a stockholder’snotice. Notwithstanding anything in this Section 2.03(A)(2) to the contrary, if the number ofdirectors to be elected to the Board of Directors of the Corporation at an annual meeting isincreased and there is no public announcement by the Corporation naming all of the nominees fordirector or specifying the size of the increased board of directors at least one hundred (100)calendar days prior to the first anniversary of the prior year’s annual meeting of stockholders,then a stockholder’s notice required by this Section shall be considered timely, but only withrespect to nominees for any new positions created by such increase, if it is received by theSecretary of the Corporation not later than the close of business on the tenth (10th) calendar dayfollowing the day on which such public announcement is first made by the Corporation.          (3) Stockholder notice as set forth in paragraph (A)(2) of this Section 2.03 shall setforth (a) as to each person whom the stockholder proposes to nominate for election or re-electionas a director (x) the name, age, business address and residence address of the person, (y) theprincipal occupation or employment of the person and (z) all information relating to such
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person that is required to be disclosed in solicitations of proxies for election of directorsin an election contest, or is otherwise required, in each case pursuant to Section 14(a) of theSecurities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules andregulations promulgated thereunder, including such person’s original signed 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 text of the proposal or business(including the text of any resolutions proposed for consideration and, in the event that suchbusiness includes a proposal to amend the By-laws of the Corporation, the text of the proposedamendment), the reasons for conducting such business at the meeting and any material interest insuch business of such stockholder, the beneficial owner, if any, on whose behalf the proposal ismade, and any other persons that have otherwise formed a group with such stockholder or any suchbeneficial owner with regard to the stock of the Corporation; (c) as to the stockholder giving thenotice and the beneficial owner, if any, on whose behalf the nomination or proposal is made and anyother persons that have otherwise formed a group with such stockholder or any such beneficial ownerwith regard to the stock of the Corporation (i) the name and address of such stockholder, as theyappear on the Corporation’s books and records, and of such beneficial owner and group member, (ii)the class or series and number of shares of capital stock of the Corporation which are ownedbeneficially and of record by such stockholder and such beneficial owner and such group member,(iii) a representation that the stockholder is a holder of record of stock of the Corporationentitled to vote at such meeting and intends to appear in person or by proxy at the meeting topropose such business or nomination and shall at such time continue to be the holder of record ofsuch shares, (iv) a representation whether the stockholder or the beneficial owner or group member,if any, intends or is part of a group which intends (x) to deliver a proxy statement and/or form ofproxy to holders of at least the percentage of the Corporation’s outstanding capital stock requiredto approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies orvotes from stockholders in support of such proposal or nomination, and (v) any other informationrequired to be disclosed in a proxy statement or other filings required to be made in connectionwith solicitations of proxies for, as applicable, the proposal and/or for the election of directorsin an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and therules and regulations promulgated thereunder; (d) a description of any agreement, arrangement orunderstanding with respect to the nomination or proposal and/or the voting of shares of any classor series of stock of the Corporation between or among the stockholder giving the notice, thebeneficial owner, if any, on whose behalf the nomination or proposal is made and any other personsthat have otherwise formed a group with such stockholder or any such beneficial owner with regardto the stock of the Corporation, any of their respective affiliates or associates and/or any othersacting in concert with any of the foregoing (collectively, “proponent persons”); and (e) adescription of any agreement, arrangement or understanding (including without limitation anycontract to purchase or sell, acquisition or grant of any option, right or warrant to purchase orsell, swap or other instrument) to which any proponent person is a party, the intent or effect ofwhich may be (i) to transfer to or from any proponent person, in whole or in part, any of theeconomic consequences of ownership of any security of the Corporation, (ii) to increase or decreasethe voting power of any proponent person with respect to shares of any class or series of stock ofthe Corporation and/or (iii) to provide any proponent person, directly or indirectly, with theopportunity to profit or share in any profit derived from, or to otherwise benefit economicallyfrom, or increase or
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decrease its exposure to, any increase or decrease in the value of any security of theCorporation. A stockholder providing notice of a proposed nomination for election to the Board ofDirectors or other business proposed to be brought before a meeting (whether given pursuant to thisparagraph (A)(3) or paragraph (B) of this Section 2.03 of the By-laws) shall update and supplementsuch notice from time to time to the extent necessary so that the information provided or requiredto be provided in such notice shall be true and correct as of the record date for the meeting andas of the date that is fifteen (15) days prior to the meeting or any adjournment or postponementthereof; such update and supplement shall be delivered in writing to the Secretary of theCorporation at the principal executive offices of the Corporation not later than five (5) daysafter the record date for the meeting (in the case of any update and supplement required to be madeas of the record date), and not later than ten (10) days prior to the date for the meeting or anyadjournment or postponement thereof (in the case of any update and supplement required to be madeas of fifteen (15) days prior to the meeting or any adjournment or postponement thereof). TheCorporation may require any proposed nominee to furnish such other information as it may reasonablyrequire to determine the eligibility of such proposed nominee to serve as a director of theCorporation.          (B) Special Meetings of Stockholders. Only such business shall be conducted at aspecial meeting of stockholders as shall have been brought before the meeting pursuant to theCorporation’s notice of meeting. Nominations of persons for election to the Board of Directors maybe made at a special meeting of stockholders at which directors are to be elected pursuant to theCorporation’s notice of meeting (1) as provided in any Stockholders Agreement, (2) by or at thedirection of the Board of Directors or any committee thereof or (3) provided that the Board ofDirectors has determined that directors shall be elected at such meeting, by any stockholder of theCorporation who is entitled to vote at the meeting, who (subject to paragraph (C)(4) of thisSection 2.03) complies with the notice procedures set forth in this Section 2.03 and who is astockholder of record at the time such notice is delivered to the Secretary of the Corporation andon the record date. In the event the Corporation calls a special meeting of stockholders for thepurpose of electing one or more directors to the Board of Directors, any stockholder entitled tovote in such election of directors who (subject to paragraph (C)(4) of this Section 2.03) complieswith the notice procedures set forth in this Section 2.03 and who is a stockholder of record at thetime such notice is delivered to the Secretary of the Corporation and on the record date, maynominate a person or persons (as the case may be) for election to such position(s) as specified inthe Corporation’s notice of meeting if the stockholder’s notice as required by paragraph (A)(2) ofthis Section 2.03 shall be delivered to the Secretary at the principal executive offices of theCorporation not earlier than the close of business on the one hundred twentieth (120th)day prior to such special meeting and not later than the close of business on the later of theninetieth (90th) day prior to such special meeting or the tenth (10th) 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 event shallthe public announcement of an adjournment or postponement of a special meeting commence a new timeperiod (or extend any time period) for the giving of a stockholder’s notice as described above.          (C) General. (1) Except as provided in paragraph (C)(4) of this Section 2.03,only such persons who are nominated in accordance with the procedures set forth in this Section2.03 or any Stockholders Agreement shall be eligible for election to serve as directors and only
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such business shall be conducted at a meeting of stockholders as shall have been broughtbefore the meeting in accordance with the procedures set forth in this Section. Except asotherwise provided by law, the Certificate of Incorporation or these By-laws, the chairman of themeeting shall have the power and duty to determine whether a nomination or any business proposed tobe brought before the meeting was made or proposed, as the case may be, in accordance with theprocedures set forth in these By-laws and, if any proposed nomination or business is not incompliance with these By-laws, to declare that such defective proposal or nomination shall bedisregarded. The chairman of the meeting of stockholders shall, if the facts warrant, determineand declare to the meeting that any purported nomination or business was not properly broughtbefore the meeting in accordance with the provisions of these By-laws, and if he or she should sodetermine, the chairman shall so declare to the meeting, and any such purported nomination orbusiness not properly brought before the meeting shall not be transacted. Notwithstanding theforegoing provisions of this Section 2.03, unless otherwise required by law, if the stockholder (ora qualified representative of the stockholder) does not appear at the annual or special meeting ofstockholders of the Corporation to present a nomination or business, such potential nominationshall be disregarded and such proposed business shall not be transacted, notwithstanding thatproxies in respect of such vote may have been received by the Corporation. For purposes of thisSection 2.03, to be considered a qualified representative of the stockholder, a person must be aduly authorized officer, manager or partner of such stockholder or must be authorized by a writingexecuted by such stockholder or an electronic transmission delivered by such stockholder to act forsuch stockholder in such capacity at the meeting of stockholders and such person must produce suchwriting or electronic transmission, or a reliable reproduction of the writing or electronictransmission, at the meeting of stockholders.          (2) Whenever used in these By-laws, “public announcement” shall mean disclosure (a) in apress release released by the Corporation, provided such press release is released by theCorporation following its customary procedures, is reported by the Dow Jones News Service,Associated Press or comparable national news service, or is generally available on internet newssites, or (b) in a document publicly filed by the Corporation with the Securities and ExchangeCommission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulationspromulgated thereunder.          (3) In addition to the foregoing provisions of this Section 2.03, a stockholder shall alsocomply with all applicable requirements of the Exchange Act and the rules and regulationspromulgated thereunder with respect to the matters set forth in this Section 2.03; *provided,however*, that, to the fullest extent permitted by law, any references in these By-laws to theExchange Act or the rules and regulations promulgated thereunder are not intended to and shall notlimit any requirements applicable to nominations or proposals as to any other business to beconsidered pursuant to these By-laws (including paragraphs (A)(1)(d) and (B) of this Section 2.03),and compliance with paragraphs (A)(1)(d) and (B) of this Section 2.03 shall be the exclusive meansfor a stockholder to make nominations or submit other business (other than, as provided in the lastsentence of this paragraph (C)(3), matters properly brought under and in compliance with Rule 14a-8of the Exchange Act as amended from time to time). Nothing in these By-laws shall be deemed toaffect any rights (a) of stockholders to request inclusion of proposals in the Corporation’s proxystatement pursuant to Rule 14a-8 under the Exchange Act, or (b) of the holders of any class orseries of stock having a preference over the Common Stock as to dividends or upon liquidation toelect directors under specified circumstances.
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          (4) Notwithstanding anything to the contrary contained in this Section 2.03, for as longas any Stockholders Agreement remains in effect that expressly provides the stockholder(s) partythereto with rights relating to representation on the Board of Directors, no stockholder thensubject to such Stockholders Agreement shall be subject to the notice procedures set forth inparagraphs (A)(2), (A)(3) or (B) of this Section 2.03 to nominate any person for election to theBoard of Directors or to propose any business to be considered by the stockholders at an annual orspecial meeting of stockholders.          SECTION 2.04 Notice of Meetings. Whenever stockholders are required or permittedto take any action at a meeting, a timely notice in writing or by electronic transmission, in themanner provided in Section 232 of the DGCL, of the meeting, which shall state the place, if any,date and time of the meeting, the means of remote communications, if any, by which stockholders andproxyholders may be deemed to be present in person and vote at such meeting, the record date fordetermining the stockholders entitled to vote at the meeting, if such date is different from therecord date for determining stockholders entitled to notice of the meeting, and, in the case of aspecial meeting, the purposes for which the meeting is called, shall be mailed to or transmittedelectronically by the Secretary of the Corporation to each stockholder of record entitled to votethereat as of the record date for determining the stockholders entitled to notice of the meeting.Unless otherwise provided by law, the Certificate of Incorporation or these By-laws, the notice ofany meeting shall be given not less than ten (10) nor more than sixty (60) days before the date ofthe meeting.          SECTION 2.05 Quorum. Unless otherwise required by law or the Certificate ofIncorporation, the holders of a majority of the voting power of the issued and outstanding sharesof stock of the Corporation entitled to vote thereat, present in person or represented by proxy,shall constitute a quorum for the transaction of business at all meetings of stockholders. When aquorum is once present to organize a meeting, the quorum is not broken by the subsequent withdrawalof any stockholders. When a specified item of business requires a vote by a class or series ofstock of the Corporation (if the Corporation shall then have outstanding shares of more than oneclass or series of stock of the Corporation) voting as a class or series, the holders of a majorityof the voting power of the shares of such class or series shall constitute a quorum (as to suchclass or series) for the transaction of such item of business.          SECTION 2.06 Voting. At all meetings of the stockholders, each stockholder shallbe entitled to vote, in person or by proxy, the shares of voting stock owned by such stockholder ofrecord on the record date for determining the stockholders entitled to vote at the meeting. When aquorum is present or represented at any meeting, the vote of the holders of a majority of thevoting power of the shares of stock present in person or represented by proxy and entitled to votethereon shall decide any question brought before such meeting, unless the question is one uponwhich, by express provision of applicable law, of the rules or regulations of any stock exchangeapplicable to the Corporation, of any regulation applicable to the Corporation or its securities,of the Certificate of Incorporation or of these By-laws, a different vote is required, in whichcase such express provision shall govern and control the decision of such question.Notwithstanding the foregoing sentence and subject to the Certificate of Incorporation, allelections of directors shall be determined by a plurality of the votes cast in respect of theshares present in person or represented by proxy at the meeting and entitled to vote on theelection of directors.
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          SECTION 2.07 Chairman of Meetings. The Chairman of the Board of Directors, if oneis elected, or, in his or her absence or disability, the President of the Corporation, shall serveas chairman of and preside at all meetings of the stockholders.          SECTION 2.08 Secretary of Meetings. The Secretary of the Corporation shall act asSecretary at all meetings of the stockholders. In the absence or disability of the Secretary, theChairman of the Board of Directors or the President shall appoint a person to act as secretary atsuch meetings.          SECTION 2.09 Consent of Stockholders in Lieu of Meeting. Except as otherwiseprovided in the Certificate of Incorporation, any action required to be taken at any annual orspecial meeting of stockholders of the Corporation, or any action which may be taken at any annualor special meeting of the stockholders, must be effected at a duly called annual or special meetingof such holders and may not be effected by any consent in writing by the stockholders; *provided,however*, that any action required or permitted to be taken by the holders of Preferred Stock,voting separately as a series or separately as a class with one or more other such series, may betaken without a meeting, without prior notice and without a vote, to the extent expressly permittedby the certificate of designation of the Preferred Stock. Delivery made to the Corporation’sregistered office shall be made by hand or by certified or registered mail, return receiptrequested.          SECTION 2.10 Adjournment. At any meeting of stockholders of the Corporation, ifless than a quorum is present in person or by proxy, the person presiding at the meeting orstockholders holding a majority in voting power of the shares of stock of the Corporation presentin person or by proxy and entitled to vote thereat shall have the power to adjourn the meeting fromtime to time without notice other than announcement at the meeting until a quorum is present. Anybusiness may be transacted at the adjourned meeting that might have been transacted at the meetingoriginally noticed. If the adjournment is for more than thirty (30) days, a notice of theadjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Ifafter the adjournment a new record date for determination of stockholders entitled to vote is fixedfor the adjourned meeting, the Board of Directors shall fix the record date for determiningstockholders entitled to notice of such adjourned meeting in accordance with Section 5.05(a) ofthese By-laws and shall give notice of the adjourned meeting to each stockholder of record as ofthe record date so fixed for notice of such adjourned meeting.          SECTION 2.11 Remote Communication. If authorized by the Board of Directors in itssole discretion, and subject to such guidelines and procedures as the Board of Directors may adopt,stockholders and proxy holders not physically present at a meeting of stockholders may, by means ofremote communication:          (a) participate in a meeting of stockholders; and          (b) be deemed present in person and vote at a meeting of stockholders whether suchmeeting is to be held at a designated place or solely by means of remote communication,*provided,*that
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          (i) the Corporation shall implement reasonable measures to verify that each persondeemed present and permitted to vote at the meeting by means of remote communication is astockholder or proxyholder;          (ii) the Corporation shall implement reasonable measures to provide suchstockholders and proxyholders a reasonable opportunity to participate in the meeting and tovote on matters submitted to the stockholders, including an opportunity to read or hear theproceedings of the meeting substantially concurrently with such proceedings; and          (iii) if any stockholder or proxyholder votes or takes other action at the meetingby means of remote communication, a record of such vote or other action shall be maintainedby the Corporation.**ARTICLE III****Board of Directors**          SECTION 3.01 Powers. The business and affairs of the Corporation shall be managedby or under the direction of its Board of Directors.          SECTION 3.02 Number and Term. Subject to the Certificate of Incorporation, thenumber of directors shall be fixed by resolution of the Board of Directors. The Board of Directorsshall be elected by the stockholders at their annual meeting, and the term of each elected directorshall be as set forth in the Certificate of Incorporation. Directors need not be stockholders.          SECTION 3.03 Chairman. The Chairman of the Board of Directors shall be a memberof the Board of Directors and shall preside at all meetings of the Board of Directors and of thestockholders. In addition, the Chairman of the Board of Directors, if any, shall have such powersand perform such other duties as from time to time may be assigned to him or her by the Board ofDirectors.          SECTION 3.04 Resignations. Any director may resign at any time upon notice givenin writing or by electronic transmission. The resignation shall take effect at the time specifiedtherein, and if no time is specified, at the time of its receipt by the President or Secretary ofthe Corporation. The acceptance of a resignation shall not be necessary to make it effectiveunless otherwise expressly provided in the resignation.          SECTION 3.05 Removal. Directors of the Corporation may be removed only asprovided in the Certificate of Incorporation.          SECTION 3.06 Vacancies and Newly Created Directorships. Except as otherwiseprovided by law or the Certificate of Incorporation, and subject to the rights to fill suchvacancies granted under any Stockholders Agreement, vacancies occurring in any directorship andnewly created directorship resulting from any increase in the number of directors shall be filledonly by a majority vote of the remaining directors then in office, although less than a quorum, orby a sole remaining director. Any director so chosen shall hold office
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until the next election of the class for which such director shall have been chosen and untilhis or her successor shall be elected and qualified, or until his or her earlier death,resignation, retirement, disqualification or removal.          SECTION 3.07 Meetings. Regular meetings of the Board of Directors may be held atsuch places and times as may be determined from time to time by the Board of Directors or as may bespecified in a notice of meeting. Special meetings of the Board of Directors may be called by thePresident of the Corporation, and shall be called by the President or the Secretary of theCorporation if directed by the Chairman of the Board of Directors or by any three (3) directors.Notice need not be given of regular meetings of the Board of Directors. At least twenty four (24)hours before each special meeting of the Board of Directors, either written notice, notice byelectronic transmission or oral (either in person or by telephone) notice of the time, date andplace of the meeting and the purpose or purposes for which the meeting is called shall be given toeach director.          SECTION 3.08 Quorum, Voting and Adjournment. A majority of the total number ofdirectors or of a committee thereof shall constitute a quorum for the transaction of business bythe Board of Directors or, as applicable, such committee thereof. Except as otherwise provided bylaw, the Certificate of Incorporation or these By-laws, the act of a majority of the directorspresent at a meeting at which a quorum is present shall be the act of the Board of Directors or, asapplicable, a committee thereof. In the absence of a quorum, a majority of the directors presentthereat may adjourn such meeting to another time and place. Notice of such adjourned meeting neednot be given if the time and place of such adjourned meeting are announced at the meeting soadjourned.          SECTION 3.09 Committees. The Board of Directors may designate one or morecommittees, including but not limited to an Executive Committee, an Audit Committee, a Nominatingand Corporate Governance Committee and a Compensation Committee, each such committee to consist ofone or more of the directors of the Corporation. Any director may belong to any number ofcommittees of the Board of Directors. The Board of Directors may designate one or more directorsas alternate members of any committee to replace any absent or disqualified member at any meetingof the committee. Any committee, to the extent provided in the resolution of the Board ofDirectors establishing such committee, shall have and may exercise all the powers and authority ofthe Board of Directors in the management of the business and affairs of the Corporation, and mayauthorize the corporate seal of the Corporation to be affixed to all papers which may require it;but no committee shall have the power or authority in reference to the following matters: (a)approving or adopting, or recommending to the stockholders, any action or matter (other than theelection or removal of directors) expressly required by the DGCL to be submitted to stockholdersfor approval or (b) adopting, amending or repealing any by-law of the Corporation. All committeesof the Board of Directors shall keep minutes of their meetings and shall report their proceedingsto the Board of Directors when requested or required by the Board of Directors.          SECTION 3.10 Action Without a Meeting. Unless otherwise restricted by theCertificate of Incorporation, any action required or permitted to be taken at any meeting of theBoard of Directors or of any committee thereof may be taken without a meeting if all members of theBoard of Directors or such committee, as the case may be, consent thereto in
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writing or by electronic transmission. Such writing or writings or electronic transmission ortransmissions shall be filed in the minutes of proceedings of the Board of Directors. Such filingsshall be in paper form if the minutes are maintained in paper form or shall be in electronic formif the minutes are maintained in electronic form.          SECTION 3.11 Remote Meeting. Unless otherwise restricted by the Certificate ofIncorporation, members of the Board of Directors, or any committee thereof, may participate in ameeting by means of conference telephone or other communications equipment by means of which allpersons participating in the meeting can hear each other. Participation in a meeting by means ofconference telephone or other such communications equipment shall constitute presence in person atsuch meeting.**ARTICLE IV****Officers**          SECTION 4.01 Number. The officers of the Corporation shall include a Presidentand a Secretary, each of whom shall be elected by the Board of Directors and shall hold office forsuch term as shall be determined by the Board of Directors and until his or her successor iselected and qualified or until his or her earlier death, resignation, retirement, disqualificationor removal. In addition, the Board of Directors may elect one or more other officers from time totime including one or more Vice Presidents, including one or more Executive Vice Presidents, aTreasurer and one or more Assistant Treasurers and one or more Assistant Secretaries, each of whomshall hold office for such term and shall exercise such powers and perform such duties as shall bedetermined from time to time by the Board of Directors. The initial officers shall be elected atthe first meeting of the Board of Directors and, thereafter, at the annual meeting of the Board ofDirectors and/or at such other times as may be determined from time to time by the Board ofDirectors. Any number of offices may be held by the same person.          SECTION 4.02 Other Officers and Agents. The Board of Directors may elect suchother officers and agents as it deems advisable, each of whom shall hold office for such term andshall exercise and perform such powers and duties as shall be determined from time to time by theBoard of Directors.          SECTION 4.03 President. The President shall exercise such duties as customarilypertain to the office of President and shall have general and active management of the property,business and affairs of the Corporation, subject to the supervision and control of the Board ofDirectors. In addition, the President shall have such further powers and perform such other dutiesas from time to time are assigned to him or her by the Board of Directors or these By-laws.          In the absence, disability or refusal of the Chairman of the Board of Directors, if any, toact, or if there is no Chairman of the Board of Directors, the President shall preside at allmeetings of the stockholders and an individual designated by a majority of the Board of Directorsshall preside at all meetings of the Board of Directors. Except as the Board of Directors mayotherwise determine, the President shall have the authority to execute bonds,
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mortgages and other contracts on behalf of the Corporation, and to cause the corporate seal tobe affixed to any instrument requiring it and, when so affixed, the corporate seal shall beattested by the signature of the Secretary or an Assistant Secretary or the Treasurer or anAssistant Treasurer.          SECTION 4.04 Vice Presidents. Each Vice President, if any are elected, shall havesuch powers and shall perform such duties as from time to time are assigned to him or her by thePresident or the Board of Directors.          SECTION 4.05 Treasurer. The Treasurer, if any, shall have custody of thecorporate funds, securities, evidences of indebtedness and other valuables of the Corporation andshall keep full and accurate accounts of receipts and disbursements in books belonging to theCorporation. He or she shall deposit all moneys and other valuables in the name and to the creditof the Corporation in such depositories as may be designated by the Board of Directors. TheTreasurer shall disburse the funds of the Corporation, taking proper vouchers therefor. He or sheshall render to the President and the Board of Directors, upon the request of either, a report ofthe financial condition of the Corporation. If required by the Board of Directors, the Treasurershall give the Corporation a bond for the faithful discharge of his or her duties in such amountand with such surety as the Board of Directors shall prescribe. In addition, the Treasurer, ifany, shall have such further powers and perform such other duties as from time to time are assignedto him or her by the Board of Directors.          SECTION 4.06 Secretary. The Secretary shall: (a) cause minutes of all meetingsof the stockholders and directors to be recorded and kept; (b) cause all notices required by theseBy-laws or otherwise to be given properly; (c) see that the minute books, stock books, and othernonfinancial books, records and papers of the Corporation are kept properly; and (d) cause allreports, statements, returns, certificates and other documents to be prepared and filed when and asrequired. In addition, the Secretary shall have such further powers and perform such other dutiesas from time to time are assigned to him or her by the Board of Directors.          SECTION 4.07 Assistant Treasurers and Assistant Secretaries. Each AssistantTreasurer and each Assistant Secretary, if any are elected, shall be vested with all the powers andshall perform all the duties of the Treasurer and Secretary, respectively, in the absence ordisability of such officer, unless or until the Board of Directors shall otherwise determine. Inaddition, each Assistant Treasurer and Assistant Secretary, if any, shall have such further powersand shall perform such other duties as from time to time are assigned to him or her by the Board ofDirectors.          SECTION 4.08 Corporate Funds and Checks. The funds of the Corporation shall bekept in such depositories as shall from time to time be prescribed by the Board of Directors. Allchecks or other orders for the payment of money shall be signed by the President or the Secretaryor such other person or agent as may from time to time be authorized and with suchcountersignature, if any, as may be required by the Board of Directors.          SECTION 4.09 Contracts and Other Documents. The President and the Secretary, orsuch other officer or officers as may from time to time be authorized by the Board
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of Directors orany committee thereof given specific authority in the premises by the Board ofDirectors, shall have power to sign and execute on behalf of the Corporation deeds,conveyances and contracts, and any and all other documents requiring execution by the Corporation.          SECTION 4.10 Ownership of Stock of Another Corporation. Unless otherwise directedby the Board of Directors, the President or the Secretary, or such other officer or agent as shallbe authorized by the Board of Directors, shall have the power and authority, on behalf of theCorporation, to attend and to vote at any meeting of equityholders of any entity in which theCorporation holds securities or equity interests and may exercise, on behalf of the Corporation,any and all of the rights and powers incident to the ownership of such securities or equityinterests at any such meeting, including the authority to execute and deliver proxies and consentson behalf of the Corporation.          SECTION 4.11 Delegation of Duties. In the absence, disability or refusal of anyofficer to exercise and perform his or her duties, the Board of Directors may delegate to anotherofficer such powers or duties.          SECTION 4.12 Resignation and Removal. Any officer of the Corporation may beremoved from office for or without cause at any time by the Board of Directors. Any officer mayresign at any time upon notice given in writing or by electronic transmission. The resignationshall take effect at the time specified therein, and if no time is specified, at the time of itsreceipt by the President or Secretary of the Corporation. The acceptance of a resignation shallnot be necessary to make it effective unless otherwise expressly provided in the resignation.          SECTION 4.13 Vacancies. The Board of Directors shall have power to fill vacanciesoccurring in any office.**ARTICLE V****Stock**          SECTION 5.01 Certificates of Stock. The shares of stock of the Corporation shallbe represented by certificates, provided that the Board of Directors may provide by resolution orresolutions that some or all of any or all classes or series of the Corporation’s stock shall beuncertificated shares. Any such resolution shall not apply to shares represented by a certificateuntil such certificate is surrendered to the Corporation. Every holder of stock in the Corporationrepresented by certificates shall be entitled to have a certificate signed by, or in the name ofthe Corporation by, the Chairman of the Board of Directors, or the Vice Chairman of the Board ofDirectors or the President or a Vice President and by the Treasurer or an Assistant Treasurer orthe Secretary or an Assistant Secretary, certifying the number and class of shares of stock in theCorporation owned by such holder. Any or all of the signatures on the certificate may be afacsimile. The Board of Directors shall have the power to appoint one or more transfer agentsand/or registrars for the transfer or registration of certificates of stock of any class, and mayrequire stock certificates to be countersigned or registered by one or more of such transfer agentsand/or registrars.          SECTION 5.02 Transfer of Shares. Shares of stock of the Corporation shall betransferable upon its books by the holders thereof, in person or by their duly authorized
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attorneys or legal representatives, upon surrender to the Corporation by delivery thereof to theperson in charge of the stock and transfer books and ledgers. Certificates representing suchshares, if any, shall be cancelled and new certificates, if the shares are to be certificated,shall thereupon be issued. A record shall be made of each transfer. Whenever any transfer ofshares shall be made for collateral security, and not absolutely, it shall be so expressed in theentry of the transfer if, when the certificates are presented, both the transferor and transfereerequest the Corporation to do so. The Board of Directors shall have power and authority to makesuch rules and regulations as it may deem necessary or proper concerning the issue, transfer andregistration of certificates for shares of stock of the Corporation.          SECTION 5.03 Lost, Stolen, Destroyed or Mutilated Certificates. A new certificateof stock may be issued in the place of any certificate previously issued by the Corporation allegedto have been lost, stolen or destroyed, and the Board of Directors may, in its discretion, requirethe owner of such lost, stolen or destroyed certificate, or his or her legal representative, togive the Corporation a bond, in such sum as the Board of Directors may direct, and/or to indemnifythe Corporation against any claims that may be made against it in connection therewith. A newcertificate of stock may be issued in the place of any certificate previously issued by theCorporation that has become mutilated upon the surrender by such owner of such mutilatedcertificate.          SECTION 5.04 List of Stockholders Entitled To Vote. The officer who has charge ofthe stock ledger shall prepare and make, at least ten (10) days before every meeting ofstockholders, a complete list of the stockholders entitled to vote at the meeting(*provided, however*, if the record date for determining the stockholders entitled to voteis less than ten (10) days before the date of the meeting, the list shall reflect the stockholdersentitled to vote as of the tenth (10th) day before the meeting date), arranged inalphabetical order, and showing the address of each stockholder and the number of shares registeredin the name of each stockholder. Such list shall be open to the examination of any stockholder,for any purpose germane to the meeting, at least ten (10) days prior to the meeting (a) on areasonably accessible electronic network; *provided*that the information required to gain access tosuch list is provided with the notice of meeting or (b) during ordinary business hours at theprincipal place of business of the Corporation. If the meeting is to be held at a physicallocation, then a list of stockholders entitled to vote at the meeting shall be produced and kept atthe time and place of the meeting during the whole time thereof and may be examined by anystockholder who is present. If the meeting is to be held solely by means of remote communication,then the list shall also be open to the examination of any stockholder during the whole time of themeeting on a reasonably accessible electronic network, and the information required to access suchlist shall be provided with the notice of the meeting. Except as otherwise provided bylaw, the stock ledger shall be the only evidence as to who are the stockholders entitled to examinethe list of stockholders required by this Section 5.04 or to vote in person or by proxy at anymeeting of stockholders.          SECTION 5.05 Fixing Date for Determination of Stockholders of Record.          (A) In order that the Corporation may determine the stockholders entitled to notice of anymeeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date,which record date shall not precede the date upon which the resolution fixing the record date isadopted by the Board of Directors, and which record date shall, unless
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otherwise required by law,not be more than sixty (60) nor less than ten (10) days before the dateof such meeting. If the Board of Directors so fixes a date, such date shall also be therecord date for determining the stockholders entitled to vote at such meeting unless the Board ofDirectors, at the time it fixes such record date, determines that a later date on or before thedate of the meeting shall be the date for making such determination. If no record date is fixed bythe Board of Directors, the record date for determining stockholders entitled to notice of or tovote at a meeting of stockholders shall be at the close of business on the day next preceding theday on which notice is given, or, if notice is waived, at the close of business on the day nextpreceding the day on which the meeting is held. A determination of stockholders of record entitledto notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;*provided, however*, that the Board of Directors may fix a new record date for determination ofstockholders entitled to vote at the adjourned meeting, and in such case shall also fix as therecord date for determination of stockholders entitled to notice of such adjourned meeting the sameor an earlier date as that fixed for determination of stockholders entitled to vote in accordanceherewith at the adjourned meeting.          (B) In order that the Corporation may determine the stockholders entitled to receivepayment of any dividend or other distribution or allotment of any rights, or entitled to exerciseany rights in respect of any change, conversion or exchange of stock or for the purpose of anyother lawful action, the Board of Directors may fix a record date, which shall not be more thansixty (60) days prior to such other action. If no such record date is fixed, the record date fordetermining stockholders for any such purpose shall be at the close of business on the day on whichthe Board of Directors adopts the resolution relating thereto.          (C) Under circumstances, if any, in which stockholders are permitted to act by writtenconsent without a meeting in accordance with the Certificate of Incorporation and these By-laws,and unless otherwise restricted by the Certificate of Incorporation and/or these By-laws, in orderthat the Corporation may determine the stockholders entitled to express consent to corporate actionin writing without a meeting, 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 by the Board ofDirectors, and which record date shall not be more than ten (10) days after the date upon which theresolution fixing the record date is adopted by the Board of Directors. Under circumstances, ifany, in which stockholders are permitted to act by written consent without a meeting in accordancewith the Certificate of Incorporation and these By-laws, if no record date for determiningstockholders entitled to express consent to corporate action in writing without a meeting is fixedby the Board of Directors, (i) when no prior action of the Board of Directors is required by law,the record date for such purpose shall be the first date on which a signed written consent settingforth the action taken or proposed to be taken is delivered to the Corporation in accordance withapplicable law, and (ii) if prior action by the Board of Directors is required by law, the recorddate for such purpose shall be at the close of business on the day on which the Board of Directorsadopts the resolution taking such prior action.          SECTION 5.06 Registered Stockholders. Prior to the surrender to the Corporationof the certificate or certificates for a share or shares of stock with a request to record thetransfer of such share or shares, the Corporation may treat the registered owner as the personentitled to receive dividends, to vote, to receive notifications and otherwise to exercise all therights and powers of an owner. To the fullest extent permitted by law, the Corporation shall not
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be bound to recognize any equitable or other claim to or interest in such share or shares onthe part of any other person, whether or not it shall have express or other notice thereof.**ARTICLE VI****Notice and Waiver of Notice**          SECTION 6.01 Notice. If mailed, notice to stockholders shall be deemed given whendeposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s addressas it appears on the records of the Corporation. Without limiting the manner by which noticeotherwise may be given effectively to stockholders, any notice to stockholders may be given byelectronic transmission in the manner provided in Section 232 of the DGCL.          SECTION 6.02 Waiver of Notice. A written waiver of any notice, signed by astockholder or director, or waiver by electronic transmission by such person, whether given beforeor after the time of the event for which notice is to be given, shall be deemed equivalent to thenotice required to be given to such person. Neither the business nor the purpose of any meetingneed be specified in such a waiver. Attendance at any meeting (in person or by remotecommunication) shall constitute waiver of notice except attendance for the express purpose ofobjecting at the beginning of the meeting to the transaction of any business because the meeting isnot lawfully called or convened.**ARTICLE VII****Indemnification**          SECTION 7.01 Indemnification Respecting Third Party Claims.          (A) Indemnification of Directors and Officers. The Corporation, to the fullestextent and in the manner permitted by the laws of the State of Delaware as in effect from time totime, shall indemnify in accordance with the following provisions of this Article VII any person (a“Covered Person”) who was or is made a party to, is threatened to be made a party to or isinvolved in any threatened, pending or completed action, suit or proceeding (including any appealthereof), whether civil, criminal, administrative, regulatory or investigative in nature (otherthan an action by or in the right of the Corporation), by reason of the fact that such CoveredPerson is or was a director or officer of the Corporation, or, at a time when he or she was adirector or officer of the Corporation, is or was serving at the request of, or to represent theinterests of, the Corporation as a director, officer, partner, member, trustee, fiduciary, employeeor agent (a “Subsidiary Officer”) of another corporation, partnership, joint venture,limited liability company, trust, employee benefit plan or other enterprise, including anycharitable or not-for-profit public service organization or trade association (an “RelatedEntity”), against expenses (including attorneys’ fees and disbursements), costs, judgments,fines, penalties and amounts paid in settlement actually and reasonably incurred by such CoveredPerson in connection with such action, suit or proceeding if such Covered Person acted in goodfaith and in a manner such Covered Person reasonably believed to be in or not opposed to the bestinterests of the Corporation, and, with respect to any criminal action or proceeding, had noreasonable cause to believe his or her conduct was unlawful; *provided, however*, that theCorporation shall
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not be obligated to indemnify against any amount paid in settlement unless the Corporation hasconsented to such settlement. The termination of any action, suit or proceeding by judgment, order,settlement or conviction or upon a plea of nolo contendere or its equivalent shall not, of itself,create a presumption that the Covered Person did not act in good faith and in a manner which suchCovered Person reasonably believed to be in or not opposed to the best interests of theCorporation, and, with respect to any criminal action or proceeding, that such Covered Person hadreasonable cause to believe that his or her conduct was unlawful. Notwithstanding anything to thecontrary in the foregoing provisions of this paragraph, a Covered Person shall not be entitled, asa matter of right, to indemnification pursuant to this paragraph against costs or expenses incurredin connection with any action, suit or proceeding commenced by such Covered Person against theCorporation or any Related Entity or any person who is or was a director, officer, partner, member,trustee, fiduciary, employee or agent of the Corporation or a Subsidiary Officer of any RelatedEntity in their capacity as such, but such indemnification may be provided by the Corporation in aspecific case as permitted by Section 7.06 of these By-laws; *provided*that such Covered Personshall, to the fullest extent permitted by law, be entitled to indemnification in connection withany action, suit or proceeding commenced by such Covered Person to enforce his or her rights underthis Article VII.          (B) Indemnification of Employees and Agents. The Corporation may indemnify anyemployee or agent of the Corporation in the manner and to the same or a lesser extent that it shallindemnify a Covered Person under paragraph (A) of this Section 7.01.          SECTION 7.02 Indemnification Respecting Derivative Claims.          (A) Indemnification of Directors and Officers. The Corporation, to the fullestextent and in the manner permitted by the laws of the State of Delaware as in effect from time totime, shall indemnify in accordance with the following provisions of this Article VII any CoveredPerson who was or is made a party to, is threatened to be made a party to or is involved in anythreatened, pending or completed action or suit (including any appeal thereof) brought by or in theright of the Corporation to procure a judgment in its favor by reason of the fact that such CoveredPerson is or was a director or officer of the Corporation, or, at a time when he or she was adirector or officer of the Corporation, is or was serving at the request of, or to represent theinterests of, the Corporation as a Subsidiary Officer of a Related Entity against expenses(including attorneys’ fees and disbursements) and costs actually and reasonably incurred by suchCovered Person in connection with such action or suit if such Covered Person acted in good faithand in a manner such Covered Person reasonably believed to be in or not opposed to the bestinterests of the Corporation, except that no indemnification shall be made in respect of any claim,issue or matter as to which such Covered Person shall have been adjudged to be liable to theCorporation unless, and only to the extent that, the Court of Chancery of the State of Delaware orthe court in which such judgment was rendered shall determine upon application that, despite theadjudication of liability but in view of all the circumstances of the case, such Covered Person isfairly and reasonably entitled to indemnity for such expenses and costs as the Court of Chancery ofthe State of Delaware or such other court shall deem proper. Notwithstanding anything to thecontrary in the foregoing provisions of this paragraph, a Covered Person shall not be entitled, asa matter of right, to indemnification pursuant to this paragraph against costs and expensesincurred in connection with any action or suit brought by or in the right of the Corporationcommenced by such Covered Person, but such indemnification
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may be provided by the Corporation in any specific case as permitted by Section 7.06 of theseBy-laws; *provided*that such Covered Person shall, to the fullest extent permitted by law, beentitled to indemnification in connection with any action, suit or proceeding commenced by suchCovered Person to enforce his or her rights under this Article VII.          (B) Indemnification of Employees and Agents. The Corporation may indemnify anyemployee or agent of the Corporation in the manner and to the same or a lesser extent that it shallindemnify any Covered Person under paragraph (A) of this Section 7.02.          SECTION 7.03 Determination of Entitlement to Indemnification. Any indemnificationto be provided under Section 7.01 or 7.02 of these By-laws (unless ordered by a court of competentjurisdiction) shall be made by the Corporation only as authorized in the specific case upon adetermination that indemnification is proper under the circumstances because such Covered Personhas met the applicable standard of conduct set forth in such paragraph. Such determination shallbe made in accordance with any applicable procedures authorized by the Board of Directors and inaccordance with the DGCL. In the event a request for indemnification is made after finaldisposition of the proceeding in question by any Covered Person referred to in paragraph (A) ofSection 7.01 or 7.02 of these By-laws, the Corporation shall use its reasonable efforts to causesuch determination to be made not later than ninety (90) days after such request is made.          SECTION 7.04 Right to Indemnification in Certain Circumstances.          (A) Indemnification Upon Successful Defense. Notwithstanding the other provisionsof this Article VII, to the extent that a director or officer of the Corporation has beensuccessful on the merits or otherwise in defense of any action, suit or proceeding referred to inSection 7.01 or 7.02 of these By-laws, or in defense of any claim, issue or matter therein, or inany action, suit or proceeding brought by the director or officer to enforce rights toindemnification or advancement of expenses and costs granted pursuant to this Article VII, suchCovered Person shall, to the fullest extent permitted by law, be indemnified against expenses(including attorneys’ fees and disbursements) and costs actually and reasonably incurred by suchCovered Person in connection therewith.          (B) Indemnification for Service As a Witness. To the extent any Covered Personwho is or was a director or officer of the Corporation has served or prepared to serve as a witnessin any action, suit or proceeding (whether civil, criminal, administrative, regulatory orinvestigative in nature), including any investigation by any legislative body or any regulatory orself-regulatory body by which the Corporation’s business is regulated, by reason of his or herservice as a director or officer of the Corporation or his or her service as a Subsidiary Officerof a Related Entity at a time when he or she was a director or officer of the Corporation (assumingsuch Covered Person is or was serving at the request of, or to represent the interests of, theCorporation as a Subsidiary Officer of such Related Entity), but excluding service as a witness inan action or suit commenced by such person or to which such person is named a party (unless suchexpenses were incurred with the approval of the Board of Directors, a committee thereof or theChairman, a Vice Chairman, the President or the Chief Executive Officer of the Corporation), theCorporation shall, to the fullest extent permitted by law, indemnify such Covered Person againstout-of-pocket costs and expenses (including attorneys’ fees and
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disbursements) actually and reasonably incurred by such Covered Person in connection therewithand shall use its reasonable efforts to provide such indemnity within forty-five (45) days afterreceipt by the Corporation from such Covered Person of a statement requesting such indemnification,averring such service and reasonably evidencing such expenses and costs; it being understood,however, that the Corporation shall have no obligation under this Article VII to compensate suchCovered Person for such Covered Person’s time or efforts so expended. The Corporation mayindemnify any employee or agent of the Corporation to the same or a lesser extent as it mayindemnify any director or officer of the Corporation pursuant to the foregoing sentence of thisparagraph.          SECTION 7.05 Advances of Expenses.          (A) Advances to Directors and Officers. To the fullest extent not prohibited byapplicable law, expenses and costs incurred by any Covered Person referred to in paragraph (A) ofSection 7.01 or 7.02 of these By-laws in defending a civil, criminal, administrative, regulatory orinvestigative action, suit or proceeding shall be paid by the Corporation in advance of the finaldisposition of such action, suit or proceeding upon receipt of an undertaking in writing by or onbehalf of such Covered Person to repay such amount if it shall ultimately be determined that suchCovered Person is not entitled to be indemnified in respect of such costs and expenses by theCorporation as authorized by this Article VII.          (B) Advances to Employees and Agents. To the fullest extent not prohibited byapplicable law, expenses and costs incurred by any person referred to in paragraph (B) of Section7.01 or 7.02 of these By-laws in defending a civil, criminal, administrative, regulatory orinvestigative action, suit or proceeding may be paid by the Corporation in advance of the finaldisposition of such action, suit or proceeding as authorized by the Board of Directors, a committeethereof or an officer of the Corporation authorized to so act by the Board of Directors, uponreceipt of an undertaking in writing by or on behalf of such person to repay such amount if itshall ultimately be determined that such person is not entitled to be indemnified by theCorporation in respect of such costs and expenses as authorized by this Article VII.          SECTION 7.06 Indemnification Not Exclusive.          (A) The provision of indemnification to or the advancement of expenses and costs to anyCovered Person under this Article VII, or the entitlement of any Covered Person to indemnificationor advancement of expenses and costs under this Article VII, shall not limit or restrict in any waythe power of the Corporation to indemnify or advance expenses and costs to such Covered Person inany other way permitted by law or be deemed exclusive of, or invalidate, any right to which anyCovered Person seeking indemnification or advancement of expenses and costs may be entitled underany law, agreement, vote of stockholders or disinterested directors or otherwise, both as to actionin such Covered Person’s capacity as an officer, director, employee or agent of the Corporation andas to action in any other capacity.          (B) Given that certain jointly indemnifiable claims (as defined below) may arise due tothe service of one or more Covered Persons to or at the request of the Corporation and also one ormore indemnitee-related entities (as defined below), the Corporation shall be fully and primarilyresponsible for the payment to each Covered Person in respect of
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indemnification or advancement of expenses in connection with any such jointly indemnifiableclaims, pursuant to and in accordance with the terms of this Article VII, irrespective of any rightof recovery the Covered Person may have from the indemnitee-related entities. Under nocircumstance shall the Corporation be entitled to any right of subrogation or contribution by theindemnitee-related entities and no right of advancement or recovery the Covered Person may havefrom the indemnitee-related entities shall reduce or otherwise alter the rights of the CoveredPerson or the obligations of the Corporation hereunder. In the event that any of theindemnitee-related entities shall make any payment to the Covered Person in respect ofindemnification or advancement of expenses with respect to any jointly indemnifiable claim, theindemnitee-related entity making such payment shall be subrogated to the extent of such payment toall of the rights of recovery of the Covered Person against the Corporation, and the Covered Personshall execute all papers reasonably required and shall do all things that may be reasonablynecessary to secure such rights, including the execution of such documents as may be necessary toenable the indemnitee-related entities effectively to bring suit to enforce such rights. Each ofthe indemnitee-related entities shall be third-party beneficiaries with respect to this Section7.06(B) of these By-laws, entitled to enforce this Section 7.06(B) of these By-laws.          For purposes of this Section 7.06(B) of these By-laws, the following terms shall have thefollowing meanings:          (1) The term “indemnitee-related entities” means any corporation, limitedliability company, partnership, joint venture, trust, employee benefit plan or other enterprise(other than the Corporation or any other corporation, limited liability company, partnership, jointventure, trust, employee benefit plan or other enterprise for which the Covered Person has agreed,on behalf of the Corporation or at the Corporation’s request, to serve as a director, officer,employee or agent and which service is covered by the indemnity described herein) from whom aCovered Person may be entitled to indemnification or advancement of expenses with respect to which,in whole or in part, the Corporation may also have an indemnification or advancement obligation.          (2) The term “jointly indemnifiable claims” shall be broadly construed and shallinclude, without limitation, any action, suit or proceeding for which the Covered Person shall beentitled to indemnification or advancement of expenses from both the indemnitee-related entitiesand the Corporation pursuant to Delaware law, any agreement or certificate of incorporation,by-laws, partnership agreement, operating agreement, certificate of formation, certificate oflimited partnership or comparable organizational documents of the Corporation or theindemnitee-related entities, as applicable.
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          SECTION 7.07 Corporate Obligations; Reliance.          (A) The rights granted pursuant to the provisions of this Article VII shall vest at thetime a person becomes a director or officer of the Corporation and shall be deemed to create abinding contractual obligation on the part of the Corporation to the persons who from time to timeare elected as officers or directors of the Corporation, and such persons in acting in theircapacities as officers or directors of the Corporation or Subsidiary Officers of any Related Entityshall be entitled to rely on such provisions of this Article VII without giving notice thereof tothe Corporation.          (B) Without the consent of any affected Covered Person, the Corporation shall not, inconnection with the settlement or resolution of any claim alleged against it in any action, suit orproceeding, seek or consent to entry of an order that releases, bars or otherwise affects therights of indemnification and advancement of expenses provided in this Article VII.          SECTION 7.08 Amendment or Repeal. Any repeal or modification of the provisions ofthis Article VII shall not adversely affect any right or protection hereunder of any Covered Personin respect of any proceeding (regardless of when such proceeding is first threatened, commenced orcompleted) arising out of, or related to, any act or omissions occurring prior to the time of suchrepeal or modification.          SECTION 7.09 Accrual of Claims; Successors. The indemnification provided orpermitted under the foregoing provisions of this Article VII shall or may, as the case may be,apply in respect of any expense, cost, judgment, fine, penalty or amount paid in settlement,whether or not the claim or cause of action in respect thereof accrued or arose before or after theeffective date of such provisions of this Article VII. The right of any Covered Person who is orwas a director, officer, employee or agent of the Corporation or a Subsidiary Officer toindemnification or advancement of expenses as provided under the foregoing provisions of thisArticle VII shall continue after he or she shall have ceased to be a director, officer, employee,agent or Subsidiary Officer and shall inure to the benefit of the heirs, distributees, executors,administrators and other legal representatives of such Covered Person.          SECTION 7.10 Insurance. The Corporation may purchase and maintain insurance onbehalf of any person who is or was a director, officer, employee or agent of the Corporation, or isor was serving at the request of, or to represent the interests of, the Corporation as a SubsidiaryOfficer of any Related Entity, against any liability asserted against such person and incurred bysuch person in any such capacity, or arising out of such person’s status as such, whether or notthe Corporation would have the power to indemnify such person against such liability under theprovisions of this Article VII or applicable law.          SECTION 7.11 Definitions of Certain Terms. For purposes of this Article VII, (a)references to “the Corporation” shall include, in addition to the resulting corporation, anyconstituent corporation (including any constituent of a constituent) absorbed into the Corporationin a consolidation or merger if such corporation would have been permitted (if its corporateexistence had continued) under applicable law to indemnify its directors, officers, employees oragents, so that any person who is or was a director, officer, employee or agent of such constituentcorporation, or is or was serving at the request, or to represent the interests of,
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such constituent corporation as a Subsidiary Officer of any Related Entity shall stand in thesame position under the provisions of this Article VII with respect to the resulting or survivingcorporation as such person would have with respect to such constituent corporation if its separateexistence had continued; (b) references to “fines” shall include any excise taxes assessed on aperson with respect to an employee benefit plan; (c) references to “serving at the request of theCorporation” shall include any service as a director, officer, partner, member, trustee, fiduciary,employee or agent of the Corporation or as a Subsidiary Officer of any Related Entity which serviceimposes duties on, or involves services by, such director, officer, partner, member, trustee,fiduciary, employee or agent with respect to an employee benefit plan, its participants orbeneficiaries; and (d) a Covered Person who acted in good faith and in a manner such Covered Personreasonably believed to be in the interest of the participants and beneficiaries of an employeebenefit plan shall be deemed to have acted in a manner “not opposed to the best interest of theCorporation” as referred to in this Article VII.**ARTICLE VIII****Miscellaneous**          SECTION 8.01 Electronic Transmission. For purposes of these By-laws, “electronictransmission” means any form of communication, not directly involving the physical transmission ofpaper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof,and that may be directly reproduced in paper form by such a recipient through an automated process.          SECTION 8.02 Corporate Seal. The Board of Directors may provide a suitablecorporate seal, containing the name of the Corporation, which corporate seal shall be in the chargeof the Secretary. If and when so directed by the Board of Directors or a committee thereof,duplicates of the corporate seal may be kept and used by the Treasurer or by an Assistant Secretaryor Assistant Treasurer.          SECTION 8.03 Fiscal Year. The fiscal year of the Corporation shall end onDecember 31 of each year, or such other twelve (12) consecutive months as the Board of Directorsmay designate.          SECTION 8.04 Section Headings. Section headings in these By-laws are forconvenience of reference only and shall not be given any substantive effect in limiting orotherwise construing any provision herein.          SECTION 8.05 Inconsistent Provisions. In the event that any provision of theseBy-laws is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCLor any other applicable law, such provision of these By-laws shall not be given any effect to theextent of such inconsistency but shall otherwise be given full force and effect.
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**ARTICLE IX****Amendments**          SECTION 9.01 Amendments. Subject to the Certificate of Incorporation, theseBy-laws may be amended, added to, rescinded or repealed at any meeting of the Board of Directors orof the stockholders; *provided, however*, that, notwithstanding any other provisions of these By-lawsor any provision of law which might otherwise permit a lesser vote of the stockholders, theaffirmative vote of the holders of at least 75% in voting power of all outstanding shares of stockof the Corporation entitled to vote generally in the election of directors, voting together as asingle class, shall be required in order for the stockholders to alter, amend or repeal anyprovision of the By-laws or to adopt provisions inconsistent therewith.
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