exv4w2






EXHIBIT 4.2




AMENDED AND RESTATED BYLAWS OF




LENDER PROCESSING SERVICES, INC.




AS
ADOPTED ON MAY 29TH, 2008




ARTICLE I




OFFICES




          Section 1.1. Registered Office. The registered office of Lender Processing Services, Inc.
(the “Corporation”) shall be in the City of Wilmington, County of New Castle, State of
Delaware and the name and address of its registered agent is “The Corporation Trust Company,” 1209
Orange Street, Wilmington, Delaware, 19801.



          Section 1.2. Other Offices. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors of the Corporation (the
“Board of Directors”) may from time to time determine.



ARTICLE II




MEETINGS OF STOCKHOLDERS




          Section 2.1. Place of Meetings. Meetings of the stockholders for the election of directors
or for any other purpose shall be held at such time and place, either within or without the State
of Delaware, as shall be designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.



          Section 2.2. Annual Meetings and Special Meetings. (a) The annual meetings of stockholders
(the “Annual Meeting”) shall be held on such date and at such time as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders, subject to the provisions of the Amended and Restated Certificate of
Incorporation of the Corporation (the “Certificate of Incorporation”), shall elect by a
plurality vote a Board of Directors, and transact such other business as may properly be brought
before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not less than ten days
nor more than sixty days before the date of the meeting.



          (b) Unless otherwise prescribed by law or by the Certificate of Incorporation, Special
Meetings of Stockholders (“Special Meetings”), for any purpose or purposes, may be called
by the majority vote of the Board of Directors or by the Chairman of the Board of Directors or the
Chief Executive Officer. Special Meetings may not be called by any other person or persons.
Written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called shall be given not less than



 









 







ten days nor more than sixty days before the date of the meeting to each stockholder entitled
to vote at such meeting.



          Section 2.3. Notice of Stockholder Business and Nominations.



          (a) Annual Meetings. (1) Nominations of persons for election to the Board of Directors and
the proposal of other business to be considered by the stockholders may be made at an Annual
Meeting (i) pursuant to the Corporation’s notice of meeting (or any supplement thereto) given by or
at the direction of the Board of Directors (or any duly authorized committee thereof), (ii)
otherwise by or at the direction of the Board of Directors (or any duly authorized committee
thereof) or (iii) by any stockholder of the Corporation who (A) is a stockholder of record on the
date of the giving of the notice provided for in this Section 2.3 and on the date of the Annual
Meeting, (B) is entitled to vote at the Annual Meeting and (C) complies with the notice procedures
set forth in this Section 2.3 as to such business or nomination; clause (iii) shall be the
exclusive means for a stockholder to make nominations or submit other business (other than matters
properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and included in the Corporation’s notice of the meeting) before an Annual
Meeting.



               (2) In addition to any other applicable requirements, for any nominations or any other
business to be properly brought before an Annual Meeting by a stockholder pursuant to Section
2.3(a)(1)(iii), such stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation and such other business must otherwise be a proper matter for
stockholder action. To be timely, a stockholder’s notice to the Secretary must be delivered to or
mailed and received at the principal executive offices of the Corporation not earlier than the
close of business on the 120th day and not later than the close of business on the 90th day prior
to the first anniversary of the preceding year’s Annual Meeting; provided, however,
that in the event that the Annual Meeting is called for a date that is not within 30 days before or
after the anniversary date of the immediately preceding Annual Meeting, notice by the stockholder
in order to be timely must be so received not earlier than the close of business on the 120th day
prior to the date of such Annual Meeting and not later than the close of business on the later of
the 90th day prior to the date of such Annual Meeting or, if the first public disclosure of the
date of such Annual Meeting is less than 100 days prior to the date of such Annual Meeting, the
10th day following the day on which public disclosure of the date of such Annual Meeting was first
made. In no event shall any adjournment or postponement of an Annual Meeting or the announcement
thereof commence a new time period for the giving of a stockholder’s notice as described above. To
be in proper written form, a stockholder’s notice to the Secretary must: (a) set forth, as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder and of such beneficial owner, if any,
(ii) (A) the class or series and number of shares of capital stock of the Corporation which are
directly or indirectly owned beneficially and of record by such stockholder and such beneficial
owner, (B) any option, warrant, convertible security, stock appreciation right, or similar right
with an exercise or conversion privilege or a settlement payment or mechanism at a price related to
any class or series of shares of the Corporation or with a value derived in whole or in part from
the value of any class or series of shares of the Corporation, whether or not such instrument or
right shall be subject to settlement in the



2









 







underlying class or series of capital stock of the Corporation or otherwise (a “Derivative
Instrument”) directly or indirectly owned beneficially by such stockholder and any other direct
or indirect opportunity of such stockholder to profit or share in any profit derived from an
increase or decrease in the value of shares of the Corporation, (C) any proxy, contract,
arrangement, understanding or relationship pursuant to which such stockholder has a right to vote
any shares of any security of the Corporation, (D) any short interest in any security of the
Corporation (for purposes of this Section 2.3(a), a person shall be deemed to have a short interest
in a security if such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share in any profit
derived from any decrease in the value of the subject security), (E) any rights to dividends on the
shares of the Corporation owned beneficially by such stockholder that are separated or separable
from the underlying shares of the Corporation, (F) any proportionate interest in shares of the
Corporation or Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner and (G) any performance-related fees (other than an
asset-based fee) that such stockholder is entitled to based on any increase or decrease in the
value of shares of the Corporation or Derivative Instruments, if any, as of the date of such
notice, including without limitation any such interests held by members of such stockholder’s
immediate family sharing the same household (which information shall be supplemented by such
stockholder and beneficial owner, if any, not later than 10 days after the record date for the
meeting to disclose such ownership as of the record date), and (iii) any other information relating
to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for, as
applicable, the proposal and/or for the election of directors in a contested election pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; (b) if the
notice relates to any business other than a nomination of a director or directors that the
stockholder proposes to bring before the Annual Meeting, set forth (i) a brief description of the
business desired to be brought before the Annual Meeting, the reasons for conducting such business
at the Annual Meeting and any material interest of such stockholder and beneficial owner, if any,
in such business and (ii) a description of all agreements, arrangements and understandings between
such stockholder and beneficial owner, if any, and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder; (c) set forth, as to
each person, if any, whom the stockholder proposes to nominate for election or reelection to the
Board of Directors (i) all information relating to such person that would be required to be
disclosed in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors in a contested election pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder (including such person’s
written consent to being named in the proxy statement as a nominee and to serving as a director if
elected) and (ii) a description of all direct and indirect compensation and other material monetary
agreements, arrangements and understandings and any other material relationships between or among
such stockholder and beneficial owner, if any, and their respective affiliates and associates, or
others acting in concert therewith, on the one hand, and each proposed nominee, and his or her
respective affiliates and associates, or others acting in concert therewith, on the other hand,
including, without limitation, all information that would be required to be disclosed pursuant to
Item 404 of Regulation S-K if the stockholder making the nomination and any beneficial owner on
whose behalf the nomination is made, if any, or any affiliate or associate thereof or person



3









 







acting in concert therewith, were the “registrant” for purposes of Item 404 of Regulation S-K
and the nominee were a director or executive officer of such registrant; (d) with respect to each
nominee for election or reelection to the Board of Directors, include a completed and signed
questionnaire, representation and agreement required by Section 3.1(b); and (e) represent that such
stockholder intends to appear in person or by proxy at the Annual Meeting to bring such business or
nomination(s) before the meeting. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine the eligibility of
such proposed nominee to serve as an independent director of the Corporation or that could be
material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such
nominee.



               (3) Notwithstanding anything in the second sentence of Section 2.3(a)(2) to the contrary, in
the event that the number of directors to be elected to the Board of Directors is increased and
there is no public announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 days prior to the first
anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this By-Law
shall also be considered timely, but only with respect to nominees for any new positions created by
such increase, if it shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the day on which such
public announcement is first made by the Corporation. The foregoing provisions shall not be
construed to limit the sole power of the Board of Directors to fill vacancies, however occurring,
on the Board of Directors as and to the extent set forth in Section 3.2.



          (b) Special Meetings. Only such business shall be conducted at a Special Meeting as shall
have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a Special Meeting at which
directors are to be elected pursuant to the Corporation’s notice of meeting (a) by or at the
direction of the Board of Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the Corporation who (i) is a
stockholder of record on the date of the giving of the notice provided for in this Section 2.3 and
on the date of the Special Meeting, (ii) is entitled to vote at such Special Meeting and (iii)
complies with the notice procedures set forth in this Section 2.3 as to such nomination. In the
event the Corporation calls a Special Meeting for the purpose of electing one or more directors to
the Board of Directors, any such stockholder may nominate a person or persons (as the case may be)
for election to such position(s) as specified in the Corporation’s notice of meeting, if the
stockholder’s notice required by Section 2.3(a)(2) with respect to any nomination (including the
completed questionnaire, representation and agreement required by Section 3.1(b)) shall be
delivered to the Secretary at the principal executive offices of the Corporation not earlier than
the close of business on the 120th day prior to the date of such Special Meeting and not later than
the close of business on the later of the 90th day prior to the date of such Special Meeting or, if
the first public disclosure of the date of such Special Meeting is less than 100 days prior to the
date of such Special Meeting, the 10th day following the day on which public disclosure is first
made of the date of the Special Meeting and of the nominees proposed by the Board of Directors to
be elected at such meeting. In no event shall any



4









 







adjournment or postponement of a Special Meeting or the announcement thereof commence a new
time period for the giving of a stockholder’s notice as described above.



          (c) General. (1) Except as may be otherwise provided in the Certificate of Incorporation with
respect to the rights of holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances, only such persons who are nominated in
accordance with the procedures set forth in this Section 2.3 shall be eligible to serve as
directors and only such business shall be conducted at an Annual Meeting or a Special Meeting, as
the case may be, as shall have been brought before such meeting in accordance with the procedures
set forth in this Section 2.3. Except as otherwise provided by law, the Certificate of
Incorporation or these Bylaws, the Chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before the meeting was made
or proposed, as the case may be, in accordance with the procedures set forth in this Section 2.3
and, if any proposed nomination or business is not in compliance with this Section 2.3, to declare
that such defective proposal or nomination shall be disregarded.



               (2) For purposes of this Section 2.3, “public disclosure” shall mean disclosure in a press
release reported by a national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and
the rules and regulations promulgated thereunder.



               (3) Notwithstanding the foregoing provisions of this Section 2.3, a stockholder shall also
comply with all applicable requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.3; provided,
however, that any references in these Bylaws to the Exchange Act or the rules promulgated
thereunder are not intended to and shall not limit the requirements applicable to nominations or
proposals as to any other business to be considered pursuant to this Section 2.3. Nothing in this
Section 2.3 shall be deemed to affect any rights (i) of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of preferred stock of the Corporation if and to the extent
provided for under law, the Certificate of Incorporation or these Bylaws.



          Section 2.4. Quorum. Except as otherwise required by law, these Amended and Restated Bylaws
(these “Bylaws”) or by the Certificate of Incorporation, holders of a majority of the
capital stock issued and entitled to vote thereat present in person or represented by proxy shall
constitute a quorum at all meetings of the stockholders for the transaction of business. If,
however, such quorum shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by proxy, shall have power
to adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall
be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at the meeting.



          Section 2.5. Voting. Unless otherwise required by law, the Certificate of Incorporation or
these Bylaws, any question brought before any meeting of stockholders shall be



5









 







decided by the vote of the holders of a majority of the stock represented and entitled to vote
thereat. Such votes may be cast in person or by proxy but no proxy shall be voted on or after
three years from its date, unless such proxy provides for a longer period. The Board of Directors,
in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his
discretion, may require that any votes cast at such meeting shall be cast by written ballot.



          Section 2.6. No Consent of Stockholders in Lieu of Meeting. Any action required or permitted
to be taken at any annual or special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as provided in these Bylaws,
and may not be taken by a written consent of the stockholders pursuant to the General Corporation
Law of the State of Delaware (the “DGCL”).



          Section 2.7. List of Stockholders Entitled to Vote. The officer of the Corporation who has
charge of the stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order, and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be inspected by any
stockholder of the Corporation who is present.



          Section 2.8. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger, the list required by Section 2.7
hereof or the books of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.



ARTICLE III




DIRECTORS




          Section 3.1. (a) Number and Election of Directors. Subject to the rights, if any, of
holders of preferred stock of the Corporation to elect directors of the Corporation, the Board of
Directors shall consist of not less than one nor more than fourteen members, divided into three
classes, with the exact number of directors to be determined from time to time exclusively by
resolution duly adopted by the Board of Directors. Directors shall be elected by a plurality of
the votes cast at the Annual Meeting, and, unless otherwise provided by the Certificate of
Incorporation, each director so elected shall hold office until the Annual Meeting for the year in
which his term expires and until his successor is duly elected and qualified, or until his earlier
death, resignation, retirement, disqualification or removal. Any director may resign at any time
effective upon giving written notice to the Corporation, unless the notice specifies a later time
for the effectiveness of such resignation. Directors need not be stockholders.



6









 





          (b) Submission of Questionnaire, Representation and Agreement. To be eligible to be a nominee
for election or reelection as a director of the Corporation, a person must deliver (in accordance
with the time periods prescribed for delivery of notice under Section 2.3) to the Secretary at the
principal executive offices of the Corporation a written questionnaire with respect to the
background and qualification of such person and the background of any other person or entity on
whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary
upon written request) and a written representation and agreement (in the form provided by the
Secretary upon written request) that such person (A) is not and will not become a party to (1) any
agreement, arrangement or understanding with, and has not given any commitment or assurance to, any
person or entity as to how such person, if elected as a director of the Corporation, will act or
vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the
Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability
to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under
applicable law, (B) is not and will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with service or action as a
director that has not been disclosed therein, and (C) in such person’s individual capacity and on
behalf of any person or entity on whose behalf the nomination is being made, would be in
compliance, if elected as a director of the Corporation, and will comply with all applicable
publicly disclosed corporate governance, conflict of interest, confidentiality and stock ownership
and trading policies and guidelines of the Corporation.



          Section 3.2. Vacancies. To the extent permitted by law, any vacancy on the Board of
Directors, however created, may be filled only by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director. Any director elected to fill a newly
created directorship resulting from an increase in any class of directors shall hold office for a
term that shall coincide with the remaining term off the other directors of that class. Any
director elected to fill a vacancy not resulting from an increase in the number of directors shall
have the same term as the remaining term of his predecessor.



          Section 3.3. Duties and Powers. The business of the Corporation shall be managed by or under
the direction of the Board of Directors which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or
by these Bylaws directed or required to be exercised or done by the stockholders.



          Section 3.4. Meetings. The Board of Directors may hold meetings, both regular and special,
either within or without the State of Delaware. Regular meetings of the Board of Directors may be
held without notice at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by the Chief
Executive Officer, the Chairman, if there is one, the President, or any directors. Notice thereof
stating the place, date and hour of the meeting shall be given to each director either by mail not
less than forty-eight hours before the date of the meeting, by telephone or facsimile on
twenty-four hours’ notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.



7









 





          Section 3.5. Quorum. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority
of the entire Board of Directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.



          Section 3.6. Actions of Board. Unless otherwise provided by the Certificate of Incorporation
or these Bylaws, any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all the members of the
Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or committee.



          Section 3.7. Meetings by Means of Conference Telephone. Unless otherwise provided by the
Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation,
or any committee designated by the Board of Directors, may participate in a meeting of the Board of
Directors or such committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this Section 3.7 shall constitute presence in person at such meeting.



          Section 3.8. Committees. The Board of Directors may, by resolution passed by a majority of
the entire Board of Directors, designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or disqualified member
at any meeting of any such committee. In the absence or disqualification of a member of a
committee, and in the absence of a designation by the Board of Directors of an alternate member to
replace the absent or disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the place of any absent
or disqualified member. Any committee, to the extent allowed by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation. Each committee
shall keep regular minutes and report to the Board of Directors when required.



          Section 3.9. Audit Committee. The Board of Directors, by resolution adopted by a majority of
the whole Board of Directors, may designate three or more directors to constitute an Audit
Committee, to serve as such until the next annual meeting of the Board of Directors or until their
respective successors are designated. The audit committee will carry out its responsibilities as
set forth in an audit committee charter to be adopted by the Board of Directors.



          Section 3.10. Compensation. At the discretion of the Board of Directors, the directors may
be paid their expenses, if any, of attendance at each meeting of the Board of



8









 







Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. At the discretion of the
Board of Directors, members of special or standing committees may be allowed like compensation for
attending committee meetings.



          Section 3.11. Interested Directors. No contract or transaction between the Corporation and
one or more of its directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if: (a) the material facts as to his or
their relationship or interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or committee in good faith
authorizes the contract or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (b) the material facts
as to his or their relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction
is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of
Directors, a committee thereof or the stockholders. Common or interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.



          Section 3.12. Entire Board of Directors. As used in these Bylaws generally, the term “entire
Board of Directors” means the total number of directors which the Corporation would have if there
were no vacancies.



ARTICLE IV




OFFICERS




          Section 4.1. General. The officers of the Corporation shall be chosen by the Board of
Directors and shall include a Chief Executive Officer, a President and a Secretary. The Board of
Directors, in its discretion, may also appoint a Chairman of the Board of Directors (who must be a
director), Chief Financial Officer, Assistant Chief Financial Officers, Controller, Treasurer,
Assistant Treasurers and one or more Vice Presidents, Assistant Secretaries, and other officers,
who shall have such authority and perform such duties as may be prescribed in such appointment.
Any number of offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors,
need such officers be directors of the Corporation.



          Section 4.2. Election. The Board of Directors at its first meeting held after each Annual
Meeting of Stockholders shall elect the officers of the Corporation who shall hold their



9









 







offices for such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the Corporation shall
hold office until their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of
the Corporation shall be filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.



          Section 4.3. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the Chief Executive
Officer, the President or any Vice President and any such officer may, in the name of and on behalf
of the Corporation, take all such action as any such officer may deem advisable to vote in person
or by proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.



          Section 4.4. Duties of Officers. The duties of the officers of the Corporation shall be as
follows:



          (a) Chief Executive Officer. The Chief Executive Officer shall, subject to the control of the
Board of Directors, have general executive charge, management and control of the properties,
business and operations of the Corporation with all such powers as may be reasonably incident to
such responsibilities; and the Chief Executive Officer may agree upon and execute all leases,
contracts, evidences of indebtedness and other obligations in the name of the Corporation and may
sign all certificates for shares of capital stock of the Corporation. In the absence or disability
of the Chairman of the Board of Directors, or if there is none, the Chief Executive Officer shall
preside at all meetings of the stockholders and the Board of Directors. The Chief Executive
Officer shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him by these Bylaws or by the Board of Directors.



          (b) Chairman of the Board of Directors. The Chairman of the Board of Directors, if there is
one, shall preside at all meetings of the stockholders and of the Board of Directors. Except where
by law the signature of the Chief Executive Officer or the President is required, the Chairman of
the Board of Directors shall possess the same power as the Chief Executive Officer or the President
to sign all contracts, certificates and other instruments of the Corporation which may be
authorized by the Board of Directors. During the absence or disability of the Chief Executive
Officer or the President, the Chairman of the Board of Directors shall exercise all the powers and
discharge all the duties of the Chief Executive Officer or the President. The Chairman of the
Board of Directors shall also perform such other duties and may exercise such other powers as from
time to time may be assigned to him by these Bylaws or by the Board of Directors.



10









 





          (c) President. The President shall, subject to the control of the Board of Directors, the
Chief Executive Officer, and, if there is one, the Chairman of the Board of Directors, have general
supervision of the business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. He shall execute all bonds, mortgages, contracts and
other instruments of the Corporation requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and except that the other
officers of the Corporation may sign and execute documents when so authorized by these Bylaws, the
Board of Directors, the Chief Executive Officer, the Chairman of the Board of Directors or the
President. In the absence or disability of the Chief Executive Officer and the Chairman of the
Board of Directors, or if there is none, the President shall preside at all meetings of the
stockholders and the Board of Directors. The President shall also perform such other duties and
may exercise such other powers as from time to time may be assigned to him by these Bylaws or by
the Board of Directors.



          (d) Secretary. The Secretary shall attend all meetings of the Board of Directors and all
meetings of stockholders and record all the proceedings thereat in a book or books to be kept for
that purpose; the Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors, the Chief Executive Officer or the President, under
whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and special meetings of the Board of Directors,
and if there is no Assistant Secretary, then either the Board of Directors, the Chief Executive
Officer or the President may choose another officer to cause such notice to be given. The
Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there is one, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by the signature of the Secretary or by the signature of
any such Assistant Secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his signature. The
Secretary shall see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the case may be.



          (e) Assistant Secretaries. Except as may be otherwise provided in these Bylaws, Assistant
Secretaries, if there are any, shall perform such duties and have such powers as from time to time
may be assigned to them by the Board of Directors, the Chief Executive Officer, the President, any
Vice President, if there is one, or the Secretary, and in the absence of the Secretary or in the
event of his disability or refusal to act, shall perform the duties of the Secretary, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.



          (f) Chief Financial Officer. The Chief Financial Officer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation
as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer, the Chairman of the Board, the



11









 







President and the Board of Directors, at its regular meetings or when the Board of Directors
so requires, an account of all transactions as Chief Financial Officer and of the financial
condition of the Corporation. The Chief Financial Officer shall perform such other duties as may
from time to time be prescribed by the Board of Directors, the Chief Executive Officer, the
Chairman of the Board or the President.



          (g) Assistant Chief Financial Officer. The Assistant Chief Financial Officer, or if there is
more than one, the Assistant Chief Financial Officers, in the order determined by the Board of
Directors (or if there is no such determination, then in the order of their election), shall, in
the absence of the Chief Financial Officer or in the event of the Chief Financial Officer’s
inability or refusal to act, perform the duties and exercise the powers of the Chief Financial
Officer and shall perform such other duties and have such other powers as may from time to time be
prescribed by the Board of Directors, the Chief Executive Officer, the Chairman of the Board, the
President or the Chief Financial Officer.



          (h) Controller. The Board of Directors may elect a Controller who shall be responsible for
all accounting and auditing functions of the Corporation and who shall perform such other duties as
may from time to time be required of him by the Board of Directors.



          (i) Treasurer. The Treasurer, if there is one, shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chief
Executive Officer, the President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.



          (j) Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board of Directors, the
Chief Executive Officer, the President, any Vice President, or the Treasurer, if there is one, and
in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform
the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all
the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer
shall give the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the duties of his office and
for the restoration to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.



12









 





          (k) Vice Presidents. At the request of the President or in his absence or in the event of his
inability or refusal to act (and if there is no Chief Executive Officer or Chairman of the Board of
Directors), the Vice President or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors) shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon the President.
Each Vice President shall perform such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there is no Chief Executive Officer, no Chairman of
the Board of Directors and no Vice President, the Board of Directors shall designate the officer of
the Corporation who, in the absence of the President or in the event of the inability or refusal of
the President to act, shall perform the duties of the President, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the President.



          (l) Other Officers. Such other officers as the Board of Directors may choose shall perform
such duties and have such powers as from time to time may be assigned to them by the Board of
Directors. The Board of Directors may delegate to any other officer of the Corporation the power
to choose such other officers and to prescribe their respective duties and powers.



ARTICLE V




CAPITAL STOCK




          Section 5.1. Form of Certificates. Every holder of stock in the Corporation shall be
entitled to have a certificate or certificates duly numbered, certifying the number and class of
shares in the Corporation owned by him, in such form as may be prescribed by the Board of
Directors. Each such certificate shall be signed in the name of the Corporation by the Chief
Executive Officer, the Chairman of the Board, the President or a Vice President, and by the
Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.



          Section 5.2. Signatures. Where a certificate is countersigned by (a) a transfer agent other
than the Corporation or its employee, or (b) a registrar other than the Corporation or its
employee, any other signature on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.



          Section 5.3. Lost Certificates. The Board of Directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate the Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or
to give the Corporation a bond in such sum as it may direct as indemnity against any



13









 







claim that may be made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.



          Section 5.4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the
Corporation only by the person named in the certificate or by his attorney lawfully constituted in
writing and upon the surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.



          Section 5.5. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty days nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. A determination of stockholders of record entitled to 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 the
adjourned meeting.



          Section 5.6. Beneficial Owners. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and to hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by law.



ARTICLE VI




NOTICES




          Section 6.1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws to be given to any director, member of a committee or stockholder,
such notice may be given by mail, addressed to such director, member of a committee or stockholder,
at his address as it appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be deposited in the United
States mail. Written notice may also be given personally or transmitted via facsimile.



          Section 6.2. Waivers of Notice. Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws to be given to any director, member of a committee or stockholder, a
waiver thereof in writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent thereto.



14









 





ARTICLE VII




GENERAL PROVISIONS




          Section 7.1. Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting, and may be paid in cash, in property, or in shares of the
capital stock. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any
proper purpose, and the Board of Directors may modify or abolish any such reserve.



          Section 7.2. Disbursements. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.



          Section 7.3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of
the Board of Directors.



          Section 7.4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words “Corporate Seal, Delaware.” The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.



ARTICLE VIII




INDEMNIFICATION




          Section 8.1. Power to Indemnify in Actions, Suits or Proceedings Other Than Those by or in
the Right of the Corporation. Subject to Section 8.3 hereof, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the fact that he is or
was a director or officer of the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the



15









 







Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.



          Section 8.2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 8.3 hereof, the Corporation shall indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact
that he is or was a director or officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the Corporation unless and only to the extent
that the Court of Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for
such expenses which the Court of Chancery or such other court shall deem proper.



          Section 8.3. Authorization of Indemnification. Any indemnification under this Article VIII
(unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the present or former director or officer is
proper in the circumstances because he has met the applicable standard of conduct set forth in
Section 8.1 or Section 8.2 hereof, as the case may be. Such determination shall be made, with
respect to a person who is a director or officer at the time of such determination, (a) by a
majority vote of the directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (b) by a committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (c) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (d) by the stockholders.
Such determination shall be made, with respect to former directors and officers, by any person or
persons having the authority to act on the matter on behalf of the Corporation. To the extent,
however, that a director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding described above or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case.



          Section 8.4. Good Faith Defined. For purposes of any determination under Section 8.1 or 8.2
hereof, a person shall be deemed to have acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal
action or proceeding, to have had no reasonable cause to believe his conduct was unlawful, if his
action is based on the records or books of account of the Corporation or another enterprise, or on
information supplied to him by the officers of the Corporation or another enterprise in the course
of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on
information or records given or reports made to



16









 







the Corporation or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or another enterprise.
The term “another enterprise” as used in this Section 8.4 shall mean any other corporation
or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such
person is or was serving at the request of the Corporation as a director, officer, employee or
agent. The provisions of this Section 8.4 shall not be deemed to be exclusive or to limit in any
way the circumstances in which a person may be deemed to have met the applicable standard of
conduct set forth in Section 8.1 or 8.2 hereof, as the case may be.



          Section 8.5. Indemnification by a Court. Notwithstanding any contrary determination made in
any specific case under Section 8.3 hereof, and notwithstanding the absence of any determination
made thereunder, any director or officer may apply to the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction in the State of Delaware for indemnification
to the extent otherwise permissible under Sections 8.l and 8.2 hereof. The basis of such
indemnification by a court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has met the applicable standards of
conduct set forth in Section 8.1 or 8.2 hereof. Neither a contrary determination in the specific
case under Section 8.3 hereof nor the absence of any determination thereunder shall be a defense to
such application or create a presumption that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of any application for indemnification pursuant
to this Section 8.5 shall be given to the Corporation promptly upon the filing of such application.
If successful, in whole or in part, the director or officer seeking indemnification shall also be
entitled to be paid the expense of prosecuting such application.



          Section 8.6. Expenses Payable in Advance. Expenses (including attorneys’ fees) incurred by a
director or officer in defending any civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VIII. Such expenses (including attorneys’ fees)
incurred by former directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the Corporation deems appropriate.



          Section 8.7. Nonexclusivity of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII
shall not be deemed exclusive of any other rights to which any person seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation, these Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such office, it being the
policy of the Corporation that indemnification of the persons specified in Sections 8.1 and 8.2
hereof shall be made to the fullest extent permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not specified in Section
8.1 or 8.2 but whom the Corporation has the power or obligation to indemnify under the provisions
of the DGCL or otherwise.



17









 





          Section 8.8. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer of the Corporation, or is or was a director or officer
of the Corporation serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise against any liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of this Article VIII.



          Section 8.9. Certain Definitions. For purposes of this Article VIII, references to “the
Corporation” shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify its directors or
officers, so that any person who is or was a director or officer of such constituent corporation,
or is or was a director or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the
same position under the provisions of this Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its separate existence
had continued. For purposes of this Article VIII, references to “fines” shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and references to “serving at
the request of the Corporation” shall include any service as a director, officer, employee or agent
of the Corporation which imposes duties on, or involves services by, such director or officer with
respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in
good faith and in a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to
the best interests of the Corporation” as referred to in this Article VIII.



          Section 8.10. Survival of Indemnification and Advancement of Expenses. The indemnification
and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors and administrators of
such a person.



          Section 8.11. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which
shall be governed by Section 8.5 hereof), the Corporation shall not be obligated to indemnify any
director or officer (or his heirs, executors or personal or legal representatives) or advance
expenses in connection with a proceeding (or part thereof) initiated by such person unless such
proceeding (or part thereof) was authorized or consented to by the Board of Directors of the
Corporation.



          Section 8.12. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to indemnification and to
the advancement of expenses to employees and agents of the Corporation similar to those conferred
in this Article VIII to directors and officers of the Corporation.



18









 





ARTICLE IX




AMENDMENTS




          These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be
adopted by the stockholders or by the Board of Directors, provided, however, that
notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice
of such meeting of stockholders or Board of Directors as the case may be. All such amendments must
be approved by either the holders of two-thirds of the votes entitled to be cast, voting as a
single class, by holders of outstanding capital stock which by its terms may vote on all matters
submitted to stockholders of the Corporation generally or by a majority of the Board of Directors
then in office; provided, however, that Section 2.2 (except for Section 2.2(a)),
Section 2.3, Section 3.1 (except for Section 3.1(a)) and this Article IX may be altered, amended or
repealed only with approval of a majority of the Board of Directors then in office and approval of
holders of two-thirds of the votes entitled to be cast, voting as a single class, by holders of
outstanding capital stock which by its terms may vote on all matters submitted to stockholders of
the Corporation generally.



ARTICLE X




CONFLICTS




          If there is a conflict between the provisions of these Bylaws and the provisions of the
Certificate of Incorporation or the mandatory provisions of the DGCL, such provision or provisions
of the Certificate of Incorporation and the DGCL, as the case may be, will be controlling.




19