Exhibit 10.5


 


AMENDED
AND RESTATED BYLAWS


 


OF


 


HELIO
Inc.


 


(a
Delaware corporation)


 


 


November    , 2007


 

















 


Table
of Contents


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE
  I  OFFICES

  	
  1

  
	
   

  	
   

  
	
  ARTICLE
  II  STOCKHOLDERS’ MEETINGS

  	
  1

  
	
   

  	
   

  
	
  2.1.  Places of Meetings

  	
  1

  
	
  2.2.  Annual Meetings

  	
  1

  
	
  2.3.  Special Meetings

  	
  2

  
	
  2.4.  Voting

  	
  2

  
	
  2.5.  Quorum

  	
  2

  
	
  2.6.  List of Stockholders

  	
  2

  
	
  2.7.  Action Without Meeting

  	
  2

  
	
  2.8.  Notice by Electronic Transmission

  	
  3

  
	
  2.9.  Business Considered by Stockholders at
  Annual Meetings

  	
  3

  
	
  2.10.  Business Considered by Stockholders at
  Special Meetings

  	
  4

  
	
   

  	
   

  
	
  ARTICLE
  III  BOARD OF DIRECTORS

  	
  4

  
	
   

  	
   

  
	
  3.1.  Powers

  	
  4

  
	
  3.2.  Election of Directors

  	
  5

  
	
  3.3.  Compensation

  	
  5

  
	
  3.4.  Meetings and Quorum

  	
  5

  
	
  3.5.  Committees

  	
  6

  
	
  3.6.  Chairman of the Board

  	
  6

  
	
  3.7.  Meetings via Remote Communications

  	
  6

  
	
  3.8.  Action Without Meeting

  	
  6

  
	
   

  	
   

  
	
  ARTICLE
  IV  OFFICERS

  	
  6

  
	
   

  	
   

  
	
  4.1.  Titles and Election

  	
  6

  
	
  4.2.  Duties

  	
  7

  
	
  4.3.  Delegation of Authority

  	
  8

  
	
  4.4.  Compensation

  	
  8

  
	
   

  	
   

  
	
  ARTICLE
  V  RESIGNATIONS, VACANCIES AND REMOVALS

  	
  8

  
	
   

  	
   

  
	
  5.1.  Resignations

  	
  8

  
	
  5.2.  Vacancies

  	
  9

  
	
  5.3.  Removals

  	
  9

  
	
   

  	
   

  
	
  ARTICLE
  VI  CAPITAL STOCK

  	
  9

  
	
   

  	
   

  
	
  6.1.  Certificates of Stock

  	
  9

  



 


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  6.2.  Transfer of Stock

  	
  9

  
	
  6.3.  Record Dates

  	
  10

  
	
  6.4.  Lost Certificates

  	
  10

  
	
   

  	
   

  
	
  ARTICLE
  VII  FISCAL YEAR, BANK DEPOSITS,
  CHECKS, ETC.

  	
  10

  
	
   

  	
   

  
	
  7.1.  Fiscal Year

  	
  10

  
	
  7.2.  Bank Deposit, Checks, Etc

  	
  10

  
	
   

  	
   

  
	
  ARTICLE
  VIII  BOOKS AND RECORDS

  	
  10

  
	
   

  	
   

  
	
  8.1.  Place of Keeping Books

  	
  10

  
	
  8.2.  Examination of Books

  	
  11

  
	
   

  	
   

  
	
  ARTICLE
  IX  NOTICES AND WAIVERS

  	
  11

  
	
   

  	
   

  
	
  9.1.  Requirements of Notice

  	
  11

  
	
  9.2.  Waivers

  	
  11

  
	
   

  	
   

  
	
  ARTICLE
  X  SEAL

  	
  11

  
	
   

  	
   

  
	
  ARTICLE
  XI  POWERS OF ATTORNEY

  	
  11

  
	
   

  	
   

  
	
  ARTICLE
  XII  INDEMNIFICATION

  	
  12

  
	
   

  	
   

  
	
  12.1.  Indemnification

  	
  12

  
	
  12.2.  Prepayment of Expenses

  	
  12

  
	
  12.3.  Insurance, Contracts and Funding

  	
  12

  
	
  12.4.  Indemnification Not Exclusive Right;
  Beneficiaries of Rights

  	
  13

  
	
  12.5.  Advancement of Expenses; Procedures;
  Presumptions and Effect of Certain Proceedings; Remedies

  	
  13

  
	
  12.6.  Severability

  	
  17

  
	
  12.7.  Indemnification of Employees Serving as
  Directors

  	
  17

  
	
  12.8.  Indemnification of Employees and Agents

  	
  17

  
	
   

  	
   

  
	
  ARTICLE
  XIII  AMENDMENTS

  	
  18

  



 


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AMENDED
AND RESTATED BYLAWS

of

HELIO, INC.


 


HELIO, Inc. hereby
certifies as follows:


 


1.             The original Bylaws
of HELIO, Inc. (formerly known as SK-EarthLink Management Corp.) were adopted
on March 24, 2005;


 


2.             The directors and holders
of all of the issued and outstanding shares of capital stock of HELIO, Inc.
entitled to vote on these Amended and Restated Bylaws, by unanimous written
consent in lieu of a meeting, adopted resolutions consenting to and approving these
Amended and Restated Bylaws;


 


4.             These Amended and
Restated Bylaws, having been adopted in accordance with the applicable
provisions of Section 109 of the General Corporation Law of Delaware and
Section 6.7 of HELIO, Inc.’s Amended and restated Certificate of Incorporation,
restates, integrates, supplements and further amends the original Bylaws; and


 


5.             The text of the Bylaws
of HELIO, Inc. is amended and restated in its entirety to read as follows:


 


ARTICLE I   OFFICES


 


SK-EarthLink Management Corp. (the “Corporation”)
shall at all times maintain a registered office in the State of Delaware and a
registered agent at that address but may have other offices located in or
outside of the State of Delaware as the Board of Directors may from time to
time determine.


 


ARTICLE II   STOCKHOLDERS’
MEETINGS


 


2.1.          Places of Meetings.  All meetings of stockholders shall be held at
such place or places in or outside of the State of Delaware as the Board of
Directors may from time to time determine or as may be designated in the notice
of meeting or waiver of notice thereof.


 


2.2.          Annual Meetings.  The annual meeting of stockholders for the
election of directors and the transaction of such other business as may
properly come before the meeting shall be held on the first Tuesday in May or
such other date within five (5) months after the end of each fiscal year of the
Corporation and at such time as may be designated from time to time by the
Board of Directors.  If the annual
meeting is not held as specified in the preceding sentence, it may be held as
soon thereafter as convenient and shall be called the annual meeting. 
Unless otherwise provided by law, the Corporation’s certification of
incorporation (as amended or restated from time to time, the “Certificate of
Incorporation”) or these Bylaws, written notice of the time and place of the
annual meeting shall be given by mail to each stockholder entitled to vote
thereat at the address of such stockholder as it appears on the records of the
Corporation, or by electronic transmission as provided in Section 2.8 of these
Bylaws, not less than ten (10) nor 


 

















 


more than sixty (60)
days prior to the scheduled date thereof, unless such notice is waived as
provided in Article IX of these Bylaws.


 


2.3.          Special Meetings.  Special meetings of stockholders may be
called at any time by the Chairman of the Board of Directors or a majority of
the Board of Directors.  Unless otherwise
provided by law, the Certificate of Incorporation or these Bylaws, written
notice of the time, place and specific purposes of such meeting shall be given
by mail to each stockholder entitled to vote thereat at the address of such
stockholder as it appears on the records of the Corporation, or by electronic
transmission as provided in Section 2.8 of these Bylaws, not less than ten (10)
nor more than sixty (60) days prior to the scheduled date thereof, unless such
notice is waived as provided in Article IX of these Bylaws.


 


2.4.          Voting.  At all meetings of stockholders, each
stockholder entitled to vote on the record date, as determined under Article
VI, Section 6.3 of these Bylaws or, if not so determined, as prescribed under
the General Corporation Law of the State of Delaware (as amended from time to
time, the “DGCL”), shall be entitled to one vote for each share of stock
standing of record in the name of such stockholder, subject to the Certificate
of Incorporation, including any restrictions or qualifications set forth therein.


 


2.5.          Quorum.  At any meeting of stockholders, a majority of
the number of shares of stock outstanding and entitled to vote thereat (or a
majority of the number of shares of stock entitled to vote as a class or
series) present in person or by proxy, shall constitute a quorum, but a smaller
interest may adjourn any meeting from time to time, and the meeting may be held
as adjourned without further notice, subject to such limitations as may be
imposed under the DGCL, and provided further that once a quorum is
established at a meeting as set forth hereunder, the quorum may not otherwise
be eliminated during such meeting.  When
a quorum is present at any meeting, a majority of the number of shares of stock
entitled to vote present thereat shall decide any question brought before such
meeting unless the question is one upon which a different vote is required by
the DGCL, the Certificate of Incorporation or these Bylaws, in which case such
express provision shall govern.


 


2.6.          List of Stockholders.  At least ten (10) days before every meeting,
a complete list of the stockholders entitled to vote at the meeting, arranged
in alphabetical order and showing the address of and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
or the transfer agent in charge of the stock ledger of the Corporation.  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 (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of meeting or (ii) during ordinary business hours at the
principal place of business of the Corporation. 
The list shall also be open to examination at the meeting as required by
applicable law.  The stock ledger shall
represent conclusive evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.


 


2.7.          Action Without Meeting.  Unless otherwise restricted by the
Certificate of Incorporation, action required to be taken or which may be taken
at any annual meeting or special meeting of stockholders may be taken without a
meeting, without prior notice and 


 


2

















 


without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by all the holders of outstanding stock entitled to vote on such action,
and shall be delivered in the manner specified by law or by the Certificate of
Incorporation.


 


2.8.          Notice by Electronic
Transmission.  Without limiting the manner by which notice
otherwise may be given effectively to stockholders pursuant to the DGCL, the
Certificate of Incorporation or these Bylaws, any notice to stockholders given
by the Corporation under any provision of the DGCL, the Certificate of
Incorporation or these Bylaws shall be effective if given by a form of
electronic transmission consented to by the stockholder to whom the notice is
given.  Any such consent shall be
revocable by the stockholder by written notice to the Corporation.  Any such consent shall be deemed revoked if:


 


(i)            the
Corporation is unable to deliver by electronic transmission two (2) consecutive
notices given by the Corporation in accordance with such consent; and


 


(ii)           such
inability becomes known to the Secretary or an Assistant Secretary of the
Corporation or to the transfer agent of the Corporation, or other person
responsible for the giving of notice;


 


provided,
however, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.


 


Any notice given pursuant to the preceding paragraph
shall be deemed given:


 


(i)            if by facsimile
telecommunication, when directed to a number at which the stockholder has
consented to receive notice;


 


(ii)           if by electronic mail,
when directed to an electronic mail address at which the stockholder has
consented to receive notice;


 


(iii)          if by a posting on an electronic
network together with separate notice to the stockholder of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and


 


(iv)          if by any other form of
electronic transmission, when directed to the stockholder.


 


An affidavit of the Secretary or an Assistant
Secretary of the Corporation or of the transfer agent of the Corporation, or
other agent of the Corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated therein.


 


2.9.          Business Considered by
Stockholders at Annual Meetings.  The proposal of
business to be considered by stockholders may be made at an annual meeting by
the Board of Directors or a committee appointed by the Board of Directors, or
by any stockholder of record entitled to vote generally at such meeting;
provided, however, that any stockholder of record entitled to vote generally at
such meeting may bring such proposed business before all the stockholders for
consideration at the annual meeting only if such proposed business constitutes
a proper matter for stockholder action, and if written notice of such
stockholder’s intent to bring 


 


3

















 


such proposed
business before all the stockholders for consideration at the annual meeting
has been given, either by personal delivery or by the United States mail,
postage prepaid, to the Secretary of the Corporation not later than ninety (90)
days in advance of the annual meeting of stockholders.  Each such notice shall set forth:


 


(i)            the
name and address of the stockholder of record who intends to bring such
proposed business before all the stockholders for consideration at the annual
meeting;


 


(ii)           a
representation that the stockholder is a holder of record of shares of the
Corporation entitled to vote at the annual meeting and intends to appear in
person or by proxy at the annual meeting to bring such proposed business before
all the stockholders for consideration;


 


(iii)          a brief description of the proposed business
to be brought before all the stockholders for consideration at the annual
meeting;


 


(iv)          the
text of the proposed business to be brought before all the stockholders for
consideration at the annual meeting (including but not limited to the text of
any resolutions to be brought before all the stockholders for consideration at
the annual meeting, or the language of any proposed amendments to the Bylaws of
the Corporation);


 


(v)           a
description of any material interest that the stockholder of record has in the
proposed business being brought before all the stockholders for consideration
at the annual meeting; and


 


(vi)          a
brief statement of the reason or reasons why such stockholder of record intends
to bring such proposed business before all the stockholders for consideration
at the annual meeting.


 


The Chairman of the meeting may refuse to allow both
consideration of such proposed business and/or a stockholder vote on such
proposed business if it was not brought in compliance with the foregoing
procedure.


 


If the corporation is a publicly-traded company, the
foregoing notice requirements shall be deemed satisfied by a stockholder of
record if the stockholder has notified the Corporation of his, her or its intention
to present a proposal at an annual meeting in compliance with Rule 14a-8 (or
any successor thereof) of the Securities Exchange Act of 1934, as amended, and
such stockholder’s proposal has been included in a proxy statement that has
been prepared by the Corporation to solicit proxies for such annual meeting.


 


2.10.        Business Considered by
Stockholders at Special Meetings.  The only business
conducted at a special meeting of stockholders shall be that business brought
before the meeting pursuant to the Corporation’s notice of meeting given in
accordance with these Bylaws.


 


ARTICLE III  BOARD OF DIRECTORS


 


3.1.          Powers.  The business and affairs of the Corporation
shall be carried on, by or under the direction of the Board of Directors, which
shall have all the powers authorized by the 


 


4

















 


DGCL, subject to
such limitations as may be provided by the Certificate of Incorporation or
these Bylaws.


 


3.2.          Election of Directors.  Directors shall be elected as generally
described in the Certificate of Incorporation at each annual meeting of
stockholders.  Each director so elected
to serve until the election and qualification of his or her successor or until
his or her earlier death, resignation, retirement, disqualification or removal
from office.  Directors need not be
stockholders, nor need they be residents of the State of Delaware.


 


3.3.          Compensation.  The Board of Directors, or a committee
thereof, may from time to time by resolution authorize the payment of fees or
other compensation to the directors for services as such to the Corporation,
including, but not limited to, fees for serving as members of the Board of
Directors or any committee thereof and for attendance at meetings of the Board
of Directors or any committee thereof, and may determine the amount of such
fees and compensation.  Directors shall
in any event be paid their reasonable travel and other expenses for attendance
at all meetings of the Board or committees thereof.  Nothing herein contained shall be construed
to preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor in amounts authorized or otherwise approved
from time to time by the Board of Directors or any committee thereof.


 


3.4.          Meetings and Quorum.  Meetings of the Board of Directors may be
held either in or outside of the State of Delaware.  A quorum shall be as defined in the
Certificate of Incorporation.


 


Meetings other than regular meetings may be called at
any time by the Chief Executive Officer or the Chairman of the Board of
Directors and must be called by the Chief Executive Officer upon the request
twenty-five percent (25%) or more of the members of the Board of Directors.


 


Notice of each meeting, other than a regular meeting
(unless required by the Board of Directors), shall be given to each director by
mailing the same to each director at his or her business address at least eight
days before the meeting or by delivering the same to him personally or by
telephone, telegraph, telecopier or other electronic transmission at least five
days before the meeting.  Notice by mail
shall be deemed to be given at the earlier of (a) receipt thereof, (b) one day
after it is deposited with an overnight courier of national reputation with
overnight service postage affixed thereon or (c) five days after it is
deposited in the United States mail with first-class postage affixed
thereon.  Notice to directors given by
telegraph, telecopier or other electronic transmission to the address, number,
email account or other reference supplied for the purpose of receiving such
communications shall be deemed given upon the earlier of (i) the actual
confirmation of such receipt by the director or (ii) the date and time the
Corporation receives confirmation that the notice was successfully sent by the
applicable means.  Personal and
telephonic notice shall be deemed given at such a time as such notice is
actually provided to the director.


 


Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board of Directors.


 


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Notice of any meeting shall state the time and place
of such meeting, but need not state the purposes thereof unless otherwise
required by the DGCL, the Certificate of Incorporation, the Bylaws or by the
order of the Board of Directors.


 


3.5.          Committees.  The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, provide for committees
of two or more directors and shall elect the members thereof to serve at the
pleasure of the Board of Directors and may designate one of such members to act
as chairperson thereof.  The Board of
Directors may at any time change the membership of any committee, fill
vacancies in it, designate alternate members to replace any absent or
disqualified members at any meeting of such committee or dissolve it.


 


Each committee may determine its rules of procedure
and the notice to be given of its meetings (although in the absence of any
special notice procedure, the notice provisions of Section 3.4 hereof
shall govern), and it may appoint such other committees and assistants as it
shall from time to time deem necessary. 
A majority of the members of the each committee shall constitute a
quorum.


 


3.6.          Chairman
of the Board.  For so long as SK
Telecom Co. Ltd. (or a wholly-owned subsidiary thereof) holds a share of Class
B Common Stock of the Corporation, SK Telecom Co. Ltd. (or its wholly-owned
subsidiary) shall have the right to name the Chairman of the Board.  Otherwise, the Board of Directors may, at any
time, by resolution passed by a majority of the entire Board of Directors elect
a director to serve as the Chairman of the Board of Directors.  The Chairman of the Board of Directors shall
serve in such capacity until the next annual meeting of the Board of Directors
or until his successor is elected.  The
Chairman of the Board of Directors, when present, shall preside at all meetings
of the stockholders and of the Board of Directors and shall have such powers
and duties as may be conferred upon him by the Board of Directors.


 


3.7.          Meetings via Remote
Communications.  Any one or more members of the Board of
Directors or any committee thereof may participate in a meeting by means of a
conference telephone call or other communication equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.


 


3.8.          Action Without Meeting.  Unless otherwise restricted 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 any committee thereof
may be taken without a meeting if all members of the Board of Directors or such
committee, as the case may be, consent thereto in writing including by
electronic transmission, and the writing or writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the Board of
Directors or such committee.  The filing
of such minutes shall be in paper form if the minutes are maintained in paper
form and shall be in electronic form if the minutes are maintained in
electronic form.


 


ARTICLE IV  OFFICERS


 


4.1.          Titles and Election.  The officers of the Corporation shall be the
Chief Executive Officer and the Secretary, each of whom shall initially be
elected as soon as convenient by the Board of Directors as described in these
Bylaws and as otherwise described in the Certificate of 


 


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Incorporation.  The officers of the Corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal.  Any officer
elected or appointed by the Board of Directors may be removed at any time, with
or without cause, as provided in the Certificate of Incorporation, or, not
applicable, by the affirmative vote of a majority of the Board of
Directors.  Any person may hold more than
one office if the duties can be adequately performed by the same person and to
the extent permitted by the DGCL.


 


Subject to the Certificate of Incorporation, the Board
of Directors, in its discretion, may also at any time elect or appoint one or
more Senior or Executive Vice Presidents, one or more Vice Presidents, a Chief
Operating Officer, a Chief Financial Officer, a Treasurer and one or more
Assistant Secretaries and Assistant Treasurers and such other officers as it
may deem advisable, each of whom shall hold office at the pleasure of the Board
of Directors, except as may otherwise be approved by the Board of Directors, or
until his or her earlier death, resignation, retirement, removal or other
termination of employment, and shall have such authority and shall perform such
duties as may be prescribed or determined from time to time by the Board of
Directors or in case of officers, if not prescribed or determined by the Board
of Directors, as the Chief Executive Officer or the then senior executive
officer may prescribe or determine.  The
Board of Directors may require any officer or other employee or agent to give
bond for the faithful performance of his or her duties in such form and with
such sureties as the Board may require.


 


4.2.          Duties.  Subject to such limitations and other
conditions as the Board of Directors may from time to time prescribe or
determine, the following officers shall have the following powers and duties:


 


(a)           Chief Executive Officer.  The Chief Executive Officer shall be charged
with general supervision of the management, business, affairs and policy of the
Corporation, shall be the senior executive of the Corporation, shall report
directly to the Board of Directors and shall have such other powers and perform
such other duties as the Board of Directors may prescribe from time to
time.  The Chief Executive Officer shall
(in the absence of the Chairman of the Board of Directors) preside at all
meetings of the stockholders and, if he is a director, of the Board of
Directors.


 


(b)           Vice Presidents.  The Vice President or Vice Presidents shall
perform such duties as may be assigned to them from time to time by the Board
of Directors or by the Chief Executive Officer if the Board of Directors does
not do so.  In the absence or disability
of the Chief Executive Officer, the Executive Vice Presidents in order of
seniority, or if none, the Senior Vice Presidents in order of seniority, or if
none, the Vice Presidents in order of seniority, may, unless otherwise
determined by the Board of Directors, exercise the powers and perform the
duties pertaining to the office of Chief Executive Officer, except that if one
or more Vice Presidents has been elected or appointed, the person holding such
office in order of seniority shall exercise the powers and perform the duties
of the office of Chief Executive Officer.


 


(c)           Secretary.  The Secretary or in his or her absence an
Assistant Secretary shall keep the minutes of all meetings of stockholders and
of the Board of Directors and any committee thereof, give and serve all
notices, attend to such correspondence as may be assigned to him or her, keep
in safe custody the seal of the Corporation, and affix such seal to all such 


 


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instruments properly
executed as may require it, shall perform all of the duties commonly incident
to his or her office and shall have such other duties and powers as may be
prescribed or determined from time to time by the Board of Directors or by the
Chief Executive Officer if the Board of Directors does not do so.


 


(d)           Treasurer.  The Treasurer or in his or her absence an
Assistant Treasurer, subject to the order of the Board of Directors, shall have
the care and custody of the monies, funds, securities, valuable papers and
related documents of the Corporation (other than his or her own bond, if any,
which shall be in the custody of the Chief Executive Officer), and shall have,
under the supervision of the Board of Directors, all the powers and duties
commonly incident to his or her office. 
He or she shall deposit all funds of the Corporation in such bank or
banks, trust company or trust companies, or with such firm or firms doing a
banking business as may be designated by the Board of Directors or by the Chief
Executive Officer if the Board of Directors does not do so.  He or she may endorse for deposit or
collection all checks, notes and similar instruments payable to the Corporation
or to its order.  He or she shall keep
accurate books of account of the Corporation’s transactions, which shall be the
property of the Corporation, and together with all of the property of the
Corporation in his or her possession, shall be subject at all times to the
inspection and control of the Board of Directors.  The Treasurer shall be subject in every way
to the order of the Board of Directors, and shall render to the Board of
Directors and/or the Chief Executive Officer of the Corporation, whenever they
may require it, an account of all his or her transactions and of the financial
condition of the Corporation.  In
addition to the foregoing, the Treasurer shall have such duties as may be
prescribed or determined from time to time by the Board of Directors or by the
Chief Executive Officer if the Board of Directors does not do so.


 


(e)           Assistant Secretaries and Treasurers. Assistants to the Secretaries
and Treasurers may be appointed by the Chief Executive Officer or elected by
the Board of Directors and shall perform such duties and have such powers as
shall be delegated to them by the Chief Executive Officer or the Board of
Directors.


 


4.3.          Delegation of Authority.  The Board of Directors may at any time
delegate the powers and duties of any officer for the time being to any other
officer, director or employee.


 


4.4.          Compensation.  The compensation of the officers of the
Corporation shall be fixed by the Board of Directors or a committee thereof,
and the fact that any officer is a director shall not preclude such officer
from receiving compensation or from voting upon the resolution providing the
same.


 


ARTICLE V   RESIGNATIONS, VACANCIES AND REMOVALS


 


5.1.          Resignations.  Any director or officer may resign at any
time by giving written notice or by sending an electronic transmission thereof
to the Board of Directors, the Chairman of the Board of Directors, the Chief Executive
Officer or the Secretary.  Any such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof; and unless otherwise specified therein or
in these Bylaws, the acceptance of any resignation shall not be necessary to
make it effective.


 


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5.2.          Vacancies.


 


(a)           Directors.  Any vacancy in the Board of Directors caused
by reason of death, disqualification, incapacity, resignation, removal,
increase in the authorized number of directors or otherwise, shall be filled in
the manner provided in the Certificate of Incorporation.


 


(b)           Officers.  The Board of Directors may at any time or
from time to time fill any vacancy among the officers of the Corporation in the
manner provided in the Certificate of Incorporation.


 


5.3.          Removals.


 


(a)           Directors.  Except as may otherwise be provided by the
DGCL or the Certificate of Incorporation, any director or the entire Board of
Directors may be removed, with or without cause, by the affirmative vote of the
holders of a majority of all outstanding shares entitled to be voted at an
election of directors.


 


(b)           Officers.  Subject to the provisions of any validly
existing agreement, the Board of Directors may at any meeting remove from
office any officer, with or without cause, and may appoint a successor.


 


ARTICLE VI  CAPITAL STOCK


 


6.1.          Certificates of Stock.  Every stockholder shall be entitled to a
certificate or certificates for shares of the capital stock of the Corporation
in such form as may be prescribed or authorized by the Board of Directors, duly
numbered and setting forth the number and kind of shares represented
thereby.  Such certificates shall be signed by the Chairman of the Board,
the Chief Executive Officer or a Vice President and by the Treasurer or an
Assistant Treasurer or by the Secretary or an Assistant Secretary.  Any or
all of such signatures may be in facsimile.


 


In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed on a certificate has
ceased to be such officer, transfer agent or registrar before the certificate
has been issued, such certificate may nevertheless be issued and delivered by
the Corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.


 


6.2.          Transfer of Stock.  Shares of the capital stock of the
Corporation shall be transferable only upon the books of the Corporation upon
the surrender of the certificate or certificates properly assigned and endorsed
for transfer.  If the Corporation has a
transfer agent or registrar acting on its behalf, the signature of any officer
or representative thereof may be in facsimile.


 


The Board of Directors may appoint a transfer agent
and one or more co-transfer agents and a registrar and one or more co-registrars
and may make or authorize such agents to make all such rules and regulations
deemed expedient concerning the issue, transfer and registration of shares of
stock.


 


9

















 


6.3.          Record Dates.  For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend, or to
express consent to corporate action in writing without a meeting, or in order
to make a determination of stockholders for any other proper purposes, the
Corporation’s stock transfer books shall not be closed, but a record date shall
be set by the Board of Directors and, upon that date, the Corporation or its
transfer agent shall take a record of the stockholders without actually closing
the stock transfer books.  Such record
date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and such record date: (1) in the
case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law,
not be more than sixty (60) nor less than ten (10) days before the date of such
meeting; (2) in the case of determination of stockholders entitled to express
consent to corporate action in writing without a meeting, shall not be more
than ten (10) days from the date upon which the resolution fixing the record
date is adopted by the Board of Directors; and (3) in the case of any other
action, shall not be more than sixty (60) days prior to such other action.


 


If no such record date is fixed by the Board, the
record date shall be that prescribed by the DGCL.


 


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,
in their discretion, fix a new record date for the adjourned meeting.


 


6.4.          Lost Certificates.  In case of loss or mutilation or destruction
of a stock certificate, a duplicate certificate may be issued upon such terms
as may be determined or authorized by the Board of Directors, or by the Chief
Executive Officer or Secretary if the Board of Directors does not do so.


 


ARTICLE VII  FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.


 


7.1.          Fiscal Year.  The fiscal year of the Corporation shall be
the calendar year, unless otherwise fixed by resolution of the Board of
Directors.


 


7.2.          Bank Deposit, Checks, Etc.  The funds of the Corporation shall be
deposited in the name of the Corporation or of any division thereof in such
banks or trust companies in the United States or elsewhere as may be designated
from time to time by the Board of Directors or by such officer or officers as
the Board of Directors may authorize to make such designations.


 


All checks, drafts or other orders for the withdrawal
of funds from any bank account shall be signed by such person or persons as may
be designated from time to time by the Board of Directors.  The signatures on checks, drafts or other
orders for the withdrawal of funds may be in facsimile if authorized in the
designation.


 


ARTICLE VIII       BOOKS AND RECORDS


 


8.1.          Place of Keeping Books.  The books and records of the Corporation may
be kept within or outside of the State of Delaware and may be kept in paper
form or by means of any 


 


10

















 


information storage
device that can be converted into clearly legible paper form within a
reasonable period of time.


 


8.2.          Examination of Books.  Except as may otherwise be provided by the
DGCL, the Certificate of Incorporation or these Bylaws, the Board of Directors
shall have the power to determine from time to time whether and to what extent
and at what times and places and under what conditions any of the accounts,
records and books of the Corporation (converted into paper form as necessary)
are to be open to the inspection of any stockholder.  No stockholder shall have any right to
inspect any account or book or document of the Corporation except as prescribed
by law or authorized by express resolution of the stockholders or of the Board
of Directors.


 


ARTICLE IX  NOTICES AND WAIVERS


 


9.1.          Requirements of Notice.  Whenever notice is required to be given by
statute, the Certificate of Incorporation or these Bylaws, except as otherwise
provided in Section 3.4 hereof, it shall not mean personal notice unless so
specified, but such notice may be given (i) in writing by depositing the same
in a post office, letter box or mail chute postage prepaid and addressed to the
person to whom such notice is directed at the address of such person on the
records of the Corporation, and such notice shall be deemed given at the time
when the same shall be thus mailed or (ii) if applicable, as provided in
Section 2.8 hereof.


 


9.2.          Waivers.  Any stockholder, director or officer may, in
writing or by electronic transmission, at any time waive any notice or other
formality required by law, the Certificate of Incorporation or these
Bylaws.  Such waiver of notice, whether
given before or after any meeting or action, shall be deemed equivalent to
notice.  Presence of a stockholder either
in person or by proxy at any meeting of stockholders and presence of any
director at any meeting of the Board of Directors shall constitute a waiver of
such notice as may be required by law, the Certificate of Incorporation or
these Bylaws, unless such presence is solely for the purpose of objecting to
the lack of notice and such objection is stated at the commencement of the
meeting.


 


ARTICLE X   SEAL


 


The corporate seal of the Corporation shall be in such
form as the Board of Directors shall determine from time to time and may
consist of a facsimile thereof or the word “SEAL” enclosed in parentheses or
brackets.  The corporate seal of the
Corporation shall not be necessary to validate or authenticate any instrument
duly executed by the Corporation or to render any such instrument enforceable
against the Corporation.


 


ARTICLE XI  POWERS OF ATTORNEY


 


The Board of Directors may authorize one or more of
the officers of the Corporation to execute powers of attorney delegating to
named representatives or agents power to represent or act on behalf of the
Corporation, with or without the power of substitution.


 


In the absence of any action by the Board of
Directors, any officer of the Corporation may execute, for and on behalf of the
Corporation, waivers of notice of meetings of stockholders 


 


11

















 


and proxies, or may vote shares directly, for such
meetings of any company in which the Corporation may hold voting securities.


 


ARTICLE XII  INDEMNIFICATION


 


12.1.        Indemnification.  The Corporation, to
the fullest extent permitted or required by the DGCL or other applicable law,
as the same exists or may hereafter be amended, shall indemnify and hold
harmless any person who is or was a director or officer of the Corporation and
who is or was involved in any manner (including, without limitation, as a party
or a witness) or is threatened to be made so involved in any threatened,
pending or completed investigation, claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative (including, without
limitation, any action, suit or proceedings by or in the right of the
Corporation to procure a judgment in its favor) (a “Proceeding”) by reason of
the fact that such person is or was a director or officer of the Corporation,
or, while a director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other entity or enterprise (including, without limitation, any employee benefit
plan) (a “Covered Entity”) against all liability and loss suffered and expenses
(including attorneys’ fees), actually and reasonably incurred by such person in
connection with such Proceeding; provided, however, that the foregoing shall
not apply (i) to a director or officer of the Corporation with respect to a
Proceeding that was commenced by such director or officer unless the proceeding
was commenced after either (x) the Indemnitee has obtained the approval thereof
by the Board, or (y) a Change in Control (as hereinafter defined in Section
12.5(e) has occurred), or (ii) under circumstances in which such
indemnification is prohibited by the DGCL or other applicable law. Any director
or officer of the Corporation entitled to indemnification as provided in this
Section 12.1 is hereinafter called an “Indemnitee”. Any right of an Indemnitee
to indemnification under this Article XII shall be a contract right.


 


12.2.        Prepayment of Expenses.  The Corporation, to
the fullest extent permitted or required by the DGCL or other applicable law,
shall pay the expenses incurred by an Indemnitee in connection with a
Proceeding, consistent with the provisions of the DGCL or other applicable law,
as the same exists or may hereafter be amended, and the other provisions of
this Article XII, provided, however, that, to the extent required by law, such
payment of expenses in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Indemnitee to repay all
amounts advanced if it should be ultimately determined that Indemnitee is not
entitled to be indemnified under this Article XII or otherwise.


 


12.3.        Insurance, Contracts and Funding.  The Corporation may purchase and maintain
insurance to protect itself and any director, officer, employee or agent of the
Corporation or of any Covered Entity against any expenses, judgments, fines and
amounts paid in settlement as specified in Section 12.1 or incurred by any such
director, officer, employee or agent in connection with any Proceeding referred
to in such Section, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the DGCL.
The Corporation may enter into contracts with any director, officer, employee or
agent of the Corporation or of any Covered Entity providing indemnification and
advancement of expenses and may create a trust fund, grant a security interest
or use other means (including, without limitation, a letter of credit) to
ensure the payment of such amounts as may be necessary 


 


12

















 


to effect
indemnification as provided or authorized in this Article XII, by statute, by
agreement or otherwise.


 


12.4.        Indemnification Not Exclusive Right; Beneficiaries of Rights.  The rights conferred on any Indemnitee by
this Article XII shall not be exclusive of any other rights to which an
Indemnitee may otherwise be entitled or provided under any statute, provision
of the certificate of incorporation or these bylaws, agreement, vote of
stockholders or Disinterested Directors (as hereinafter defined in Section
12.5(e)) or otherwise, and the provisions of this Article XII shall inure to
the benefit of the heirs and legal representatives of any Indemnitee under this
Article XII and shall be applicable to Proceedings commenced or continuing
after the adoption of this Article XII, whether arising from acts or omissions
occurring before or after such adoption.


 


12.5.        Advancement of Expenses; Procedures; Presumptions and Effect
of Certain Proceedings; Remedies.  In furtherance, but
not in limitation, of the foregoing provisions of this Article XII, the
following procedures, presumptions and remedies shall apply with respect to
advancement of expenses and the right to indemnification under this Article
XII:


 


(a)           Advancement of Expenses. All reasonable expenses
(including attorneys’ fees) incurred by or on behalf of the Indemnitee in
connection with any Proceeding shall be advanced to the Indemnitee by the
Corporation within 20 days after the receipt by the Corporation of a statement
or statements from the Indemnitee requesting such advance or advances from time
to time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the expenses incurred by the
Indemnitee and, shall include or be accompanied by an undertaking by or on
behalf of the Indemnitee to repay the amounts advanced if ultimately it should
be determined that the Indemnitee is not entitled to be indemnified against
such expenses pursuant to this Article XII. 
Notwithstanding the foregoing, unless a Change in Control has occurred,
the Corporation may refrain from, or suspend, payment of expenses in advance if
at any time before the making of the determination described in subparagraph
(b)(ii) of this Section 12.5, the Board or Independent Counsel (as hereinafter
defined in Section 12.5(e)), find by a preponderance of the evidence then
available that the Indemnitee has not met the required standards of conduct as
specified in the DGCL.


 


(b)           Procedure for Determination of
Entitlement to Indemnification.


 


(i)            To obtain
indemnification under this Article XII, an Indemnitee shall submit to the
Secretary a written request, including such documentation and information as is
reasonably available to the Indemnitee describing such indemnification claim or
loss as resulted from final disposition of the Proceeding and reasonably
necessary to determine whether and to what extent the Indemnitee is entitled to
indemnification (the “Supporting Documentation”). The Secretary shall, promptly
upon receipt of such a request for indemnification, advise the Board of
Directors in writing that the Indemnitee has requested indemnification.


 


(ii)           The Indemnitee’s
entitlement to indemnification under this Article XII shall be determined in
one of the following ways: (A) by a majority vote of the Disinterested
Directors (as hereinafter defined in Section 12.5(e)), whether or 


 


13

















 


not they constitute a quorum of the Board of
Directors, or by a committee of Disinterested Directors designated by a
majority vote of the Disinterested Directors; (B) by a written opinion of
Independent Counsel (as hereinafter defined in Section 12.5(e)) if (x) a Change
in Control shall have occurred and the Indemnitee so requests, or (y) there are
no Disinterested Directors or a majority of such Disinterested Directors so
directs; or (C) as provided in Section 12.5(c).


 


(iii)          In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 12.5(b)(ii), a majority of the Disinterested
Directors shall select the Independent Counsel, but only an Independent Counsel
to which the Indemnitee does not reasonably object; provided, however, that if
a Change in Control shall have occurred, the Indemnitee shall select such
Independent Counsel, but only an Independent Counsel to which a majority of the
Board does not reasonably object.


 


(c)           Presumptions and Effect of
Certain Proceedings.  Except as otherwise expressly provided in
this Article XII, the Indemnitee shall be presumed to be entitled to
indemnification under this Article XII upon submission of a request for
indemnification together with the Supporting Documentation in accordance with
Section 12.5(b)(i), and thereafter the Corporation shall have the burden of
proof to overcome that presumption in reaching a contrary determination. In any
event, if the person or persons empowered under Section 12.5(b) to determine entitlement
to indemnification shall not have been appointed or shall not have made a
determination within 45 days after receipt by the Corporation of the request
therefor, together with the Supporting Documentation, the Indemnitee shall be
deemed to be, and shall be, entitled to indemnification unless such
indemnification is prohibited by law. The termination of any Proceeding
described in Section 1 of this Article XII, or of any claim, issue or matter
therein, 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 Indemnitee did not meet the required standards of conduct as specified in
the DGCL.


 


(d)           Remedies of Indemnitee.


 


(i)            In the event that a
determination is made pursuant to Section 12.5(b) that the Indemnitee is not
entitled to indemnification under this Article XII, (A) the Indemnitee shall be
entitled to seek an adjudication of entitlement to such indemnification either,
at the Indemnitee’s sole option, in (x) the Chancery Court of the State of
Delaware or any other court of competent jurisdiction or (y) an arbitration to
be conducted by a single arbitrator pursuant to the rules of the American
Arbitration Association; (B) any such judicial proceeding or arbitration shall
be de novo and the Indemnitee shall not be prejudiced by reason of such adverse
determination; and (C) in any such judicial proceeding or arbitration, the
Corporation shall have the burden of proving by a preponderance of evidence
that the Indemnitee is not entitled to indemnification under this Article XII.


 


(ii)           If a determination
shall have been made or deemed to have been made, pursuant to Section 12.5(b)
or (c), that the Indemnitee is entitled to indemnification, the Corporation
shall be obligated to pay the amounts 


 


14

















 


constituting such indemnification within five
business days after such determination has been made or deemed to have been
made.  The Corporation shall be
conclusively bound by such determination or deemed determination unless (A) the
Indemnitee misrepresented or failed to disclose in the request for
indemnification or in the Supporting Documentation a material fact that if not
misrepresented or failed to be disclosed would have established that the
Indemnitee has not met the required standards of conduct as specified by the
DGCL or (B) such indemnification is prohibited by law. In the event that (X)
advancement of expenses is not timely made pursuant to Section 12.5(a) or (Y)
payment of indemnification is not made within five business days after a
determination of entitlement to indemnification has been made or deemed to have
been made pursuant to Section 12.5(b) or (c), the Indemnitee shall be entitled
to seek judicial enforcement of the Corporation’s obligation to pay to the
Indemnitee such advancement of expenses or indemnification.


 


(iii)          The Corporation shall be
precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 12.5(d) that the procedures and presumptions of this
Article XII are not valid, binding and enforceable and shall stipulate in any
such court or before any such arbitrator that the Corporation is bound by all
the provisions of this Article XII.


 


(iv)          In the event that the
Indemnitee, pursuant to this Section 12.5(d), seeks a judicial adjudication of
or an award in arbitration to enforce rights under, or to recover damages for
breach of, this Article XII, the Indemnitee shall be entitled to recover from
the Corporation, and shall be indemnified by the Corporation against, any
expenses actually and reasonably incurred by the Indemnitee if the Indemnitee
prevails in such judicial adjudication or arbitration. If it shall be
determined in such judicial adjudication or arbitration that the Indemnitee is
entitled to receive part but not all of the indemnification or advancement of
expenses sought, the expenses incurred by the Indemnitee in connection with
such judicial adjudication or arbitration shall be prorated accordingly.


 


(e)           Definitions.  For purposes of this Article XII:


 


(i)            “Authorized Officer”
means any one of the Chief Executive Officer, the President, or any Executive
Vice President.


 


(ii)           “Change in Control”
means the occurrence of any of the following: 
(i)(a) the Corporation consolidates with, or merges with or into,
another Person, (b) there is a merger, reorganization, consolidation, share
exchange or other transaction involving the Voting Stock of the Corporation,
(c) the Corporation sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of the assets of the Corporation to any
Person, (d) any Person consolidates with, or merges with or into, the
Corporation, or (e) any similar event where with respect to each of the events
described in (a) through (e) the outstanding Voting Stock of the Corporation is
converted into or exchanged for 


 


15

















 


cash, securities or other property, except
that none of the foregoing events will constitute a Change in Control where the
outstanding Voting Stock of the Corporation is converted into or exchanged for
Voting Stock of the surviving or transferee Person and the beneficial owners of
the Voting Stock of the Corporation immediately before such event own, directly
or indirectly, Voting Stock representing more than 50 percent of the aggregate
voting power of the Voting Stock of the surviving or transferee Person
immediately after such event; (ii) any transaction that results in any Person,
other than a trustee or other fiduciary holding securities under an employee
benefit plan of the Corporation, beneficially owning Voting Stock of the
Corporation representing, directly or indirectly, more than 50 percent of the
aggregate voting power of the Voting Stock of the Corporation; (iii) the
approval by the holders of the Voting Stock of the Corporation of any plan or
proposal for liquidation or dissolution of the Corporation; (iv) a majority of
the Directors on the Board are not Incumbent Directors; or (v) the consummation
of any other transaction that a majority of the Board of Directors, in its sole
and absolute discretion, determines constitutes a Change in Control.


 


(iii)          “Disinterested Director”
means a director of the Corporation who is not or was not a party to the
Proceeding in respect of which indemnification is sought by the Indemnitee.


 


(iv)          “Incumbent Directors”
means the individuals who, as of the date of adoption of these Bylaws, are
directors of the Corporation and any individual becoming a Director subsequent
to such date whose election, nomination for election by the Corporation’s
stockholders or appointment was approved by a majority of the Incumbent
Directors.


 


(v)           “Independent Counsel,”
with respect to a claim for indemnification as to any particular Proceeding,
means a law firm or a member of a law firm that neither presently is, nor in
the past five years has been, retained to represent: (x) the Corporation (other
than in a similar role with respect to others determinations of eligibility for
indemnification) or the Indemnitee in any matter material to either such party
or (y) any other party to the Proceeding giving rise to a claim for
indemnification under this Article XII. 
Notwithstanding the foregoing, the term “Independent Counsel” shall not
include any person who, under the applicable standards of professional conduct
then prevailing under the law of the State of Delaware, would have a conflict
of interest in representing either the Corporation or the Indemnitee in an
action to determine the Indemnitee’s rights under this Article XII.


 


(vi)          “Person” means any individual, corporation, partnership, limited
liability company, joint venture, incorporated or unincorporated association,
joint-stock company, trust, unincorporated organization or government or other
agency or political subdivision thereof or any other entity of any kind.


 


16

















 


(vii)         “Voting Stock” means with
respect to any specified Person any class or classes of stock of the specified
Person pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the Board of
Directors, managers or trustees of the specified Person.


 


12.6.        Severability.  If any provision or
provisions of this Article XII shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Article XII (including,
without limitation, all portions of any paragraph of this Article XII
containing any such provision held to be invalid, illegal or unenforceable,
that are not themselves invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Article XII (including, without limitation, all portions of
any paragraph of this Article XII containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
enforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.


 


12.7.        Indemnification of Employees Serving as Directors.  The Corporation, to the fullest extent
provided in this Article XII with respect to the indemnification of directors
and officers of the Corporation, shall indemnify any person who is or was an
employee of the Corporation and who is or was involved in any manner
(including, without limitation, as a party or a witness) or is threatened to be
made so involved in any threatened, pending or completed Proceeding by reason
of the fact that such employee is or was serving (a) as a director of a
corporation in which the Corporation had at the time of such service, directly
or indirectly, a 50% or greater equity interest (a “Subsidiary Director”) or
(b) at the written request of an Authorized Officer, as a director of another
corporation in which the Corporation had at the time of such service, directly
or indirectly, a less than 50% equity interest (or no equity interest at all)
or in a capacity equivalent to that of a director for any partnership, joint
venture, trust or other enterprise (including, without limitation, any employee
benefit plan) in which the Corporation has an interest (a “Requested Employee”),
against all liability and loss suffered and expenses (including attorneys’
fees), actually and reasonably incurred by such Subsidiary Director or
Requested Employee in connection with such Proceeding. The Corporation may also
advance expenses incurred by any such Subsidiary Director or Requested Employee
in connection with any such Proceeding, consistent with the provisions of this
Article XII with respect to the advancement of expenses of directors and
officers of the Corporation.


 


12.8.        Indemnification of Employees and Agents.  Notwithstanding any other provision or
provisions of this Article XII, the Corporation, may indemnify any person other
than a director or officer of the Corporation, a Subsidiary Director or a
Requested Employee, who is or was an employee or agent of the Corporation and
who is or was involved in any manner (including, without limitation, as a party
or a witness) or is threatened to be made so involved in any threatened,
pending or completed Proceeding by reason of the fact that such person is or
was a director, officer, employee or agent of the Corporation or of a Covered
Entity against all liability and loss suffered and expenses (including
attorneys’ fees), actually and reasonably incurred by such person in connection
with such Proceeding. The Corporation may also advance expenses incurred by
such employee or agent in connection with any such Proceeding, consistent 


 


17

















 


with the provisions
of this Article XII with respect to the advancement of expenses of directors
and officers of the Corporation.


 


ARTICLE XIII       AMENDMENTS


 


Except as provided otherwise by the laws of the State
of Delaware or the Certificate of Incorporation, these Bylaws may be amended or
repealed either:


 


(a)           At any meeting of stockholders at which a quorum is present
by vote of a majority of the number of shares of stock entitled to vote present
in person or by proxy at such meeting as provided in Article II of these
Bylaws; provided that the notice of such meeting of stockholders or waiver of
notice thereof contains a statement of the substance of the proposed amendment
or repeal; or


 


(b)           At any meeting of the Board of Directors by a majority vote
of the directors then in office, except for the provisions authorizing actions
by more than a majority of the directors in which case such provision may be
amended or repealed by such number of directors as are required at act pursuant
to such provision.


 


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