**Exhibit3.2**

 

 

 

**NETSPEND HOLDINGS, INC.**

 

**Incorporated under the laws**

 

**of the State of Delaware**

 

**AMENDED AND RESTATED**

 

**BY-LAWS**

 

 

 

 

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**AMENDED AND RESTATED BYLAWS**

 

**of**

 

**NETSPEND HOLDINGS, INC.**

 

**(hereinafter called the “Corporation”)**

 

**ARTICLE I**

**OFFICES**

 

Section 1.1             *Registered Office*.* *The registered office of theCorporation required by the General Corporation Law of the State of Delaware orany successor statute (the “DGCL”) to be maintained in the State of Delawareshall be the registered office named in the Certificate of Incorporation of theCorporation, as it may be amended or restated in accordance with the DGCL fromtime to time (the “Certificate of Incorporation”), or such other office as maybe designated from time to time by the Board of Directors of the Corporation(the “Board of Directors”).  Should theCorporation maintain a principal office within the State of Delaware, suchregistered office need not be identical to such principal office of theCorporation.

 

Section 1.2             *Other Offices*.* *The Corporation may also haveoffices at such other places both within and without the State of Delaware asthe Board of Directors may determine from time to time or as the business ofthe Corporation may require.

 

**ARTICLE II**

**MEETINGS OFSTOCKHOLDERS**

 

Section 2.1             *Place of Meetings*.  Meetings of the stockholders for the electionof directors or for any other purpose shall be held at such place, eitherwithin or without the State of Delaware, as shall be designated from time totime by the Board of Directors. Subject to applicable law, the Board ofDirectors may elect to postpone any previously scheduled meeting ofstockholders.

 

Section 2.2             *Annual Meeting*.  An annual meeting of the stockholders, forthe election of directors and for the transaction of such other business as maybe properly brought before the meeting, shall be held at such place, on suchdate, and at such time as the Board of Directors shall fix and set forth in thenotice of the meeting.  At the annualmeeting of the stockholders, only such business shall be conducted as shallhave been properly brought before the annual meeting as set forth in Section 2.8and Section 3.5 hereof.  Failure tohold the annual meeting at the designated time or otherwise shall not affectotherwise valid corporate acts or work a forfeiture or dissolution of theCorporation.

 

Section 2.3             *Special Meetings*.* *Except as otherwise required bylaw, or by or pursuant to the Certificate of Incorporation, special meetings ofthe stockholders for any purpose or purposes may be called at any time only (i) bythe Chairman of the Board of Directors, if there is one, (ii) by the ChiefExecutive Officer, if there is one or (iii) by the Board of Directors,and no such special meeting may be called by any other person or persons.  Any suchspecial meeting shall be held at such place, on such date, and at such time asthe Chairman of the Board of 

 

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Directors, Chief Executive Officer or the Board ofDirectors, as applicable, shall fix and set forth in the notice of themeeting.  Business transacted atspecial meetings of stockholders shall be confined to the purpose or purposesstated in the notice of meeting.

 

Section 2.4             *Notice of Meeting*.* *Written notice of all stockholdermeetings stating the place, day and hour of the meeting and, in the case of aspecial meeting, the purpose or purposes for which the meeting is called, shallbe delivered in accordance with Section 7.3 not less than ten nor morethan 60 days before the date of the meeting, by or at the direction of theChairman of the Board of Directors, Chief Executive Officer or Secretary of theCorporation or the person or persons calling such meeting, to each stockholderentitled to vote at such meeting; *provided*, *however*, where any other minimum or maximum notice periodfor any action to be taken at such meeting is required under the DGCL, thensuch other minimum or maximum notice period shall control.  Notice of any meeting of stockholders of theCorporation need not be given to any stockholder of the Corporation (a) ifwaived by him in writing in accordance with Section 7.3 hereof or (b) towhom (i) notice of two consecutive annual meetings, and all notices of anyspecial meetings to such person during the period between such two consecutiveannual meetings, or (ii) all, and at least two, payments (if sent byfirst-class mail) of dividends or interest on securities during a 12-monthperiod, in either case (i) or (ii) above, have been mailed addressedto such person at such person’s address as shown on the records of theCorporation and have been returned undeliverable; *provided,however,* that the exception in (b)(i) shall not be applicableto any notice returned as undeliverable if the notice was given by electronictransmission.  If any person to whomnotice need not be given in accordance with clause (b) of the immediatelypreceding sentence shall deliver to the Corporation a written notice settingforth such person’s then current address, the requirement that notice be givento such person shall be reinstated. Attendance at a meeting of the stockholders of the Corporation shallconstitute a waiver of notice of such meeting, except when a stockholder of theCorporation attends a meeting for the express purpose of objecting (and soexpresses such objection at the beginning of the meeting) to the transaction ofany business on the ground that the meeting is not lawfully called or convened.

 

Section 2.5             *Registered Holders of Shares; Closing of Share Transfer Records; RecordDate*.

 

(a)           Registered Holders as Owners.* *The Corporation mayregard the person in whose name any shares issued by the Corporation areregistered in the stock transfer records of the Corporation at any particulartime (including, without limitation, as of a record date fixed pursuant toparagraph (b) of this Section 2.5) as the owner of those shares atthat time for purposes of voting those shares, receiving distributions thereonor notices in respect thereof, transferring those shares, exercising rights ofdissent with respect to those shares, entering into agreements with respect tothose shares, or giving proxies with respect to those shares, and shall not bebound to recognize any equitable or other claim or interest in such share orshares on the part of any other person, whether or not it shall have express orother notice thereof, except as otherwise required by law; and neither theCorporation nor any of its officers, directors, employees or agents shall beliable for regarding that person as the owner of those shares at that time forthose purposes, regardless of whether that person possesses a certificate forthose shares.

 

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(b)           Record Date.* *In order that the Corporation maydetermine the stockholders entitled to notice of or to vote at any meeting ofstockholders or any adjournment thereof, or to receive payment of any dividendor other distribution or allotment of rights or to exercise any rights ofchange, conversion or exchange of stock or for any other purpose, the Board ofDirectors may fix in advance a date as the record date for any suchdetermination of stockholders, such date in any case to be not more than 60days and, in the case of a meeting of stockholders, not less than ten days,prior to the date on which the particular action requiring such determinationof stockholders is to be taken.

 

If the Board of Directors does not fix a record date forany meeting of the stockholders, the record date for determining stockholdersentitled to notice of or to vote at such meeting shall be at the close ofbusiness on the day next preceding the day on which notice is given or, ifnotice is waived in accordance with Section 7.3 of these Bylaws, at theclose of business on the day next preceding the day on which the meeting isheld.  If the Board of Directors does notfix a record date for determining stockholders entitled to receive payment ofany dividend or other distribution or allotment of rights or to exercise anyrights of change, conversion or exchange of stock or for any other purpose, therecord date shall be at the close of business on the day on which the Board ofDirectors adopts a resolution relating thereto.

 

A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply toany adjournment or postponement of the meeting; *provided,however*, that the Board of Directors may fix a new record date forthe adjourned or postponed meeting.

 

(c)           Stockholder Lists.  A complete list of the stockholders entitledto vote at stockholders’ meetings (arranged in alphabetical order and showingthe address of each stockholder and the number of shares registered in the nameof each stockholder) shall be prepared by the Secretary and filed at least tendays prior to each meeting, either at a place specified in the notice of suchmeeting within the city or town where such meeting is to be held, or if no suchplace is specified, at the place where such meeting is to be held. Such listshall be open to the examination of any stockholder for any purpose germane tothe meeting, and shall be produced and kept at the time and place of suchmeeting during the whole time thereof, and subject to the inspection of anystockholder who may be present. The original or duplicate stock ledger shall bethe only evidence as to who are stockholders entitled to inspect such list.

 

Section 2.6             *Quorum of Stockholders*.  Unless otherwise required by law or theCertificate of Incorporation, the presence in person or by proxy of the holdersof shares of capital stock entitled to cast a majority of the votes which couldbe cast at such meeting by the holders of all outstanding shares of capitalstock entitled to vote at such meeting shall constitute a quorum at allmeetings of the stockholders for the transaction of business.  “Broker non-votes” shall be consideredpresent at the meeting with respect to the determination of a quorum but shallnot be considered as votes cast with respect to matters as to which noauthority is granted.  A quorum, onceestablished, shall not be broken by the withdrawal of enough votes to leaveless than a quorum.  If, however, suchquorum shall not be present or represented at any meeting of the stockholders,the chairman of the meeting or the stockholders to vote thereat, present inperson or represented by proxy, shall, by the vote of holders of stockrepresenting a majority of the voting power of all shares present at themeeting, have the power to adjourn the meeting from time to time in the mannerprovided in Section 2.7 until a quorum shall be present orrepresented.  

 

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Where a separate vote by a class or classes or series isrequired, a majority of the voting power of the shares of such class or classesor series present in person or represented by proxy shall constitute a quorumentitled to take action with respect to that vote on that matter.

 

Section 2.7             *Adjournment*.* *Unless otherwise provided by theCertificate of Incorporation or these Bylaws, any meeting of the stockholdersmay be adjourned from time to time, without notice other than by announcementat the meeting at which such adjournment is taken, and at any such adjournedmeeting at which a quorum shall be present any action may be taken that couldhave been taken at the meeting originally called; *provided,however*, that if the adjournment is for more than 30 days, or ifafter the adjournment a new record date is fixed for the adjourned meeting, anotice of the adjourned meeting shall be given to each stockholder of recordentitled to vote at the adjourned meeting.

 

Section 2.8             *Voting by Stockholders*.

 

(a)           Voting on Matters Other than the Election of Directors.* *Withrespect to any matters as to which no other voting requirement is specified bythe DGCL, the Certificate of Incorporation or these Bylaws, the affirmativevote required for stockholder action shall be that of a majority of the sharespresent in person or represented by proxy and entitled to vote on thematter.  Broker non-votes shall not beconsidered as shares present and entitled to vote as to matters with respect towhich no authority has been granted.  Inthe case of a matter submitted for a vote of the stockholders as to which astockholder approval requirement is applicable under the stockholder approval policyof any stock exchange or quotation system on which the capital stock of theCorporation is traded or quoted, the requirements of Rule 16b-3 under theSecurities Exchange Act of 1934, as amended (the “Exchange Act”), or anyprovision of the Internal Revenue Code, in each case for which no higher votingrequirement is specified by the DGCL, the Certificate of Incorporation or theseBylaws, the vote required for approval shall be the requisite vote specified insuch stockholder approval policy, Rule 16b-3 or Internal Revenue Codeprovision, as the case may be (or the highest such requirement if more than oneis applicable).  For the approval orratification of the appointment of independent public accountants (if submittedfor a vote of the stockholders), the vote required for approval shall be amajority of the votes cast on the matter. For this purpose, abstentions shall not be considered as votes cast.

 

(b)           Voting in the Election of Directors.* *Unless otherwiseprovided in the DGCL or the Certificate of Incorporation, directors shall beelected by a plurality of the votes cast by the holders of outstanding sharesof capital stock of the Corporation entitled to vote in the election ofdirectors at a meeting of stockholders at which a quorum is present.

 

(c)           Stockholder Proposals (Other than Director Nominations).* *Atan annual meeting of stockholders of the Corporation, only such business shallbe conducted, and only such proposals shall be acted upon, as shall have beenproperly brought before such annual meeting. To be properly brought before an annual meeting, business or proposals(other than any nomination of directors of the Corporation, which is governedby Section 3.5 hereof) must (i) be specified in the notice relatingto the meeting (or any supplement thereto) given by or at the direction of theBoard of Directors in accordance with Section 2.4 hereof, (ii) otherwisebe properly brought before the annual meeting by or at the direction of theBoard of Directors or 

 

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(iii) be properly brought before the meeting by astockholder of the Corporation who (A) is a stockholder of record at thetime of the giving of such stockholder’s notice provided for in this Section 2.8and on the record date for the determination of stockholders entitled to voteat such annual meeting, (B) shall be entitled to vote at the annualmeeting and (C) complies with the requirements of this Section 2.8,and otherwise be proper subjects for stockholder action and be properly introducedat the annual meeting.  Clause (iii) ofthe immediately preceding sentence shall be the exclusive means for astockholder to submit business or proposals (other than matters properlybrought under Rule 14a-8 or Rule 14a-11 under the Exchange Act andincluded in the notice relating to the meeting (or any supplement thereto)given by or at the direction of the Board of Directors in accordance with Section 2.4hereof) for consideration at an annual meeting of stockholders of theCorporation.

 

For a proposal to be properly brought before anannual meeting by a stockholder of the Corporation pursuant to theseprovisions, in addition to any other applicable requirements, such stockholdermust have given timely advance notice thereof in writing to the Secretary ofthe Corporation.  To be timely, suchstockholder’s notice must be delivered to, or mailed and received at, theprincipal executive offices of the Corporation not earlier than the close ofbusiness on the 120th day and not later than the close of business on the 90thday prior to the first anniversary of the annual meeting date of theimmediately preceding annual meeting; *provided, however*,that if the scheduled annual meeting date is called for a date that is notwithin 30 days before or after such anniversary date, notice by suchstockholder, to be timely, must be so delivered or received not earlier thanthe close of business on the 120th day and not later than the close of businesson the later of the 90th day prior to the date of such annual meeting or, ifless than 100 days’ prior notice or public disclosure of the scheduled meetingdate is given or made, the 10th day following the earlier of the day on whichthe notice of such meeting was mailed to stockholders of the Corporation or theday on which such public disclosure was made. For purposes of this Section 2.8(c) and Section 3.5(a),the first anniversary of the annual meeting date of the 2010 annual meeting shall bedeemed to be June 15, 2011.  In noevent shall any adjournment, postponement or deferral of an annual meeting orthe announcement thereof commence a new time period for the giving of a timelynotice as described above.

 

Any such stockholder’s notice to the Secretary ofthe Corporation shall set forth as to each matter such stockholder proposes tobring before the annual meeting (i) a description of the proposal desiredto be brought before the annual meeting and the reasons for conducting suchbusiness at the annual meeting, together with the text of the proposal orbusiness (including the text of any resolutions proposed for consideration), (ii) asto such stockholder proposing such business and the beneficial owner, if any,on whose behalf the proposal is made, (A) the name and address of suchstockholder, as they appear on the Corporation’s books, and of such beneficialowner, if any, and the name and address of any other stockholders known by suchstockholder to be supporting such business or proposal, (B)(1) the classor series and number of shares of capital stock of the Corporation which are,directly or indirectly, owned beneficially and of record by such stockholderand such beneficial owner, (2) any option, warrant, convertible security,stock appreciation right or similar right with an exercise or conversionprivilege or a settlement payment or mechanism at a price related to any classor series of shares of capital stock of the Corporation or with a value derivedin whole or in part from the price, value or volatility of any class or seriesof shares of capital stock of the Corporation or any derivative or syntheticarrangement having characteristics of a long position in any class or series 

 

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of shares of capital stock of the Corporation, whetheror not such instrument or right shall be subject to settlement in theunderlying class or series of capital stock of the Corporation or otherwise (a “DerivativeInstrument”) directly or indirectly owned beneficially by such stockholder andby such beneficial owner and any other direct or indirect opportunity to profitor share in any profit derived from any increase or decrease in the value ofshares of capital stock of the Corporation, (3) any proxy, contract,arrangement, understanding or relationship the effect or intent of which is toincrease or decrease the voting power of such stockholder or beneficial ownerwith respect to any shares of any security of the Corporation, (4) anypledge by such stockholder or beneficial owner of any security of theCorporation or any short interest of such stockholder or beneficial owner inany security of the Corporation (for purposes of this Section 2.8(c) andSection 3.5, a person shall be deemed to have a short interest in asecurity if such person directly or indirectly, through any contract,arrangement, understanding, relationship or otherwise, has the opportunity toprofit or share in any profit derived from any decrease in the value of thesubject security), (5) any rights to dividends on the shares of capitalstock of the Corporation owned beneficially by such stockholder and by suchbeneficial owner that are separated or separable from the underlying shares ofcapital stock of the Corporation, (6) any proportionate interest in sharesof capital stock of the Corporation or Derivative Instruments held, directly orindirectly, by a general or limited partnership in which such stockholder orbeneficial owner is a general partner or, directly or indirectly, beneficiallyowns an interest in a general partner and (7) any performance-related fees(other than an asset-based fee) that such stockholder or beneficial owner isentitled to based on any increase or decrease in the value of shares of capitalstock of the Corporation or Derivative Instruments, if any, as of the date ofsuch notice, including, without limitation, for purposes of clauses (B)(1) through(B)(7) above, any of the foregoing held by members of such stockholder’sor beneficial owner’s immediate family sharing the same household (whichinformation shall be supplemented by such stockholder and beneficial owner, ifany, not later than 10 days after the record date for the meeting to disclosesuch ownership as of the record date), and (C) any other informationrelating to such stockholder and beneficial owner, if any, that would be requiredto be disclosed in a proxy statement or other filing required to be made inconnection with solicitations of proxies for the proposal, or would otherwisebe required, in each case pursuant to Section 14 of the Exchange Act andthe rules and regulations promulgated thereunder; (iii) any materialinterest of such stockholder and beneficial owner, if any, in such business orproposal, (iv) a representation that such stockholder intends to appear inperson or by proxy at the annual meeting to bring such business before themeeting and (v) a description of all agreements, arrangements andunderstandings between such stockholder and beneficial owner, if any, and anyother person or persons (including their names) in connection with suchbusiness or proposal by such stockholder.

 

A stockholder providing notice of businessproposed to be brought before an annual meeting shall further update andsupplement such notice, if necessary, so that the information provided orrequired to be provided in such notice pursuant to this Section 2.8(c) shallbe true and correct as of the record date for the meeting and as of the datethat is ten business days prior to the meeting or any adjournment orpostponement thereof, and such update and supplement shall be delivered to, ormailed and received at, the principal executive offices of the Corporation notlater than five business days after the record date for the meeting (in thecase of the update and supplement required to be made as of the record date),and not later than eight business days prior to the date for the meeting, ifpracticable (or, if not practicable, on the first practicable date prior to thedate for the meeting) or any adjournment or postponement thereof (in the caseof the 

 

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update and supplement required to be made as of tenbusiness days prior to the meeting or any adjournment or postponementthereof).  In addition, a stockholderproviding notice of business proposed to be brought before an annual meeting shallupdate and supplement such notice, and deliver such update and supplement tothe principal executive offices of the Corporation, promptly following theoccurrence of any event that materially changes the information provided orrequired to be provided in such notice pursuant to this Section 2.8(c).

 

The Chairman of the Board or, if he is notpresiding, the presiding officer of the meeting of stockholders of theCorporation shall determine whether the requirements of this Section 2.8have been met with respect to any stockholder proposal.  If the Chairman of the Board or the presidingofficer determines that any stockholder proposal was not made in accordancewith the terms of this Section 2.8, he shall so declare at the meeting andany such proposal shall not be acted upon at the meeting.

 

For purposes of this Section 2.8 and Section 3.5,“public disclosure” shall mean disclosure in a press release issued by theCorporation or in a document publicly filed or furnished by the Corporationwith the Securities and Exchange Commission pursuant to Section 13, 14 or15(d) of the Exchange Act and the rules and regulations promulgatedthereunder.

 

At a special meeting of stockholders of theCorporation, only such business shall be conducted, and only such proposalsshall be acted upon, as shall have been properly brought before such specialmeeting.  To be properly brought beforesuch a special meeting, business or proposals (other than any nomination ofdirectors of the Corporation, which is governed by Section 3.5 hereof)must (i) be specified in the notice relating to the meeting (or anysupplement thereto) given by or at the direction of the Board of Directors inaccordance with Section 2.3 and Section 2.4 hereof or (ii) constitutematters incident to the conduct of the meeting as the Chairman of the Board orthe presiding officer of the meeting shall determine to be appropriate.  Stockholders shall not be permitted topropose business to be brought before a special meeting of the stockholders.

 

This Section 2.8 is expressly intended toapply to any business proposed to be brought before an annual or specialmeeting of stockholders.  In addition tothe foregoing provisions of this Section 2.8, a stockholder of theCorporation shall also comply with all applicable requirements of the ExchangeAct and the rules and regulations thereunder with respect to the mattersset forth in this Section 2.8.  Nothing in thisSection 2.8 shall be deemed to affect any rights (i) of stockholdersto request inclusion of proposals in the Corporation’s proxy statement pursuantto Rule 14a-8 under the Exchange Act, (ii) of stockholders to requestinclusion of nominees in the Corporation’s proxy statement pursuant to Rule 14a-11under the Exchange Act or (iii) of the holders of any series of preferredstock if and to the extent provided for under law, the Certificate ofIncorporation or these Bylaws.

 

Section 2.9             *Proxies*.* *Each stockholder entitled to voteat a meeting of stockholders may authorize another person or persons to act forhim by proxy.  Such authorization must bein writing and executed by the stockholder or his or her authorized officer,director, employee or agent.  Any copy,facsimile telecommunication or other reliable reproduction of the writing ortransmission created pursuant to this paragraph may be substituted or used inlieu of the original writing or transmission for any and all purposes for whichthe original writing or transmission 

 

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couldbe used, provided that such copy, facsimile telecommunication or otherreproduction shall be a complete reproduction of the entire original writing ortransmission.  No proxy authorized hereby shall be voted or acted upon more than threeyears from its date, unless the proxy provides for a longer period.  Proxies for use at any meeting ofstockholders shall be filed with the Secretary, or such other officer as theBoard of Directors may from time to time determine by resolution, before or atthe time of the meeting.  All proxiesshall be received and taken charge of and all ballots shall be received andcanvassed by the secretary of the meeting who shall decide all questionsrelating to the qualification of voters, the validity of the proxies and theacceptance or rejection of votes, unless an inspector or inspectors shall havebeen appointed by the chairman of the meeting, in which event such inspector orinspectors shall decide all such questions.

 

Section 2.10           *Approval or Ratification of Acts or Contracts by Stockholders*. * *TheBoard of Directors in its discretion may submit any act or contract forapproval or ratification at any annual meeting of the stockholders, or at anyspecial meeting of the stockholders called for the purpose of considering anysuch act or contract, and any act or contract that shall be approved or beratified by the vote of the stockholders holding a majority of the issued andoutstanding shares of stock of the Corporation entitled to vote and present inperson or by proxy at such meeting (*provided* that aquorum is present) shall be as valid and as binding upon the Corporation andupon all the stockholders as if it has been approved or ratified by everystockholder of the Corporation.

 

Section 2.11           *Organization*.  The Chairman of the Board or, in his or herabsence, such person as the Board of Directors may have designated or, in theabsence of such person, the Chief Executive Officer of the Corporation or, inhis or her absence, such person as may be chosen by the holders of a majorityof the voting power of the shares entitled to vote who are present, in personor by proxy, shall call to order any meeting of the stockholders and act aschairman of the meeting.  In the absenceof the Secretary or an Assistant Secretary of the Corporation, the secretary ofthe meeting shall be such person as the chairman of the meeting appoints.

 

Section 2.12           *Conductof Meetings*.  The Boardof Directors of the Corporation may adopt by resolution such rules andregulations for the conduct of the meetings of the stockholders as it shalldeem appropriate.  Except to the extentinconsistent with such rules and regulations as adopted by the Board ofDirectors, the chairman of any meeting of the stockholders shall have the rightand authority to prescribe such rules, regulations and procedures and to do allsuch acts as, in the judgment of such chairman, are appropriate for the properconduct of the meeting.  Such rules,regulations or procedures, whether adopted by the Board of Directors orprescribed by the chairman of the meeting, may include, without limitation, thefollowing: (i) the establishment of an agenda or order of business for themeeting; (ii) the determination of when the polls shall open and close forany given matter to be voted on at the meeting; (iii) rules andprocedures for maintaining order at the meeting and the safety of thosepresent; (iv) limitations on attendance at or participation in the meetingto stockholders of record of the corporation, their duly authorized andconstituted proxies or such other persons as the chairman of the meeting shalldetermine; (v) restrictions on entry to the meeting after the time fixedfor the commencement thereof; (vi) limitations on the time allotted toquestions or comments by participants; and (vii) policies and procedureswith respect to the adjournment of such meeting.  Unless and to the extent determined by theBoard of Directors or the chairman of the meeting, 

 

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meetingsof stockholders shall not be required to be held in accordance with rules ofparliamentary procedure.

 

**ARTICLE III**

**DIRECTORS**

 

Section 3.1             *Duties and Powers*.* *The business and affairs of theCorporation shall be managed by or under the direction of the Board ofDirectors. In addition to the authority and powers conferred upon the Board ofDirectors by the DGCL or by the provisions of the Certificate of Incorporation,the Board of Directors is authorized and empowered to exercise all such powersand do all such acts and things as may be exercised or done by the Corporation,subject to the provisions of the DGCL, the Certificate of Incorporation andthese Bylaws.

 

Except as otherwise provided by the Certificateof Incorporation or these Bylaws or to the extent prohibited by Delaware law,the Board of Directors shall have the right (which, to the extent exercised,shall be exclusive) to establish the rights, powers, duties, rules andprocedures that (i) from time to time shall govern the Board of Directors,including, without limiting the generality of the foregoing, the vote requiredfor any action by the Board of Directors and (ii) from time to time shallaffect the directors’ power to manage the business and affairs of theCorporation.  No Bylaw of the Corporationshall be adopted by the stockholders of the Corporation that shall impair orimpede the implementation of this Section 3.1.

 

Section 3.2             *Number of Directors*.  The Board of Directors shallconsist of one or more members.  Theinitial number of directors shall be seven, and thereafter, the number of directors shall be such number asis from time to time determined in the manner provided in the Certificate ofIncorporation.

 

Section 3.3             *Election;Vacancies*.  The directors shall be divided, with respectto the time for which they severally hold office, into classes as provided inthe Certificate of Incorporation, and vacancies occurring in the Board and anynewly created directorships resulting from any increase in the authorizednumber of directors shall be filled, as provided in the Certificate ofIncorporation.

 

Section 3.4             *Qualifications*.* *Directors need not be residents ofthe State of Delaware or stockholders of the Corporation.

 

Section 3.5             *Nomination of Directors*.

 

(a)           Subject to such rights of holders of shares of one or more outstandingseries of preferred stock of the Corporation to elect one or more directors ofthe Corporation under circumstances as shall be provided by or pursuant to theCertificate of Incorporation, only persons who are nominated in accordance withthe procedures set forth in this Section 3.5 shall be eligible forelection as, and to serve as, directors of the Corporation.  Nominations of persons for election to theBoard of Directors may be made only at a meeting of the stockholders of theCorporation at which directors of the Corporation are to be elected (i) byor at the direction of the Board of Directors or (ii) (if, but onlyif, the Board of Directors has determined that directors shall be elected atsuch meeting) by any stockholder of theCorporation who is a stockholder of record at the time of the giving of suchstockholder’s notice provided for in this Section 3.5 and

 

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on the record date for the determination of stockholdersentitled to vote at such meeting, who shall be entitled to vote at such meetingin the election of directors of the Corporation and who complies with therequirements of this Section 3.5.  Clause (ii) ofthe immediately preceding sentence shall be the exclusive means for astockholder to make any nomination of a person or persons for election as adirector of the Corporation at an annual meeting or special meeting (other thannominations properly brought under Rule 14a-11 under the Exchange Act andincluded in the notice relating to the meeting (or any supplement thereto)given by or at the direction of the Board of Directors in accordance with Section 2.4hereof).  Any such nomination by astockholder of the Corporation shall be preceded by timely advance notice inwriting to the Secretary of the Corporation.

 

To be timely with respect to an annual meeting,such stockholder’s notice must be delivered to, or mailed and received at, theprincipal executive offices of the Corporation not earlier than the close ofbusiness on the 120th day and not later than the close of business on the 90thday prior to the first anniversary of the annual meeting date of theimmediately preceding annual meeting; *provided, however*,that (1) if the scheduled annual meeting is called for a date that is notwithin 30 days before or after such anniversary date, notice by suchstockholder, to be timely, must be so delivered or received not earlier thanthe close of business on the 120th day and not later than the close of businesson the later of the 90th day prior to the date of such annual meeting or, ifless than 100 days’ prior notice or public disclosure of the scheduled meetingdate is given or made, the 10th day following the earlier of the day on whichthe notice of such meeting was mailed to stockholders of the Corporation or theday on which such public disclosure was made; and (2) if the number ofdirectors to be elected to the Board of Directors at such annual meeting isincreased and there is no prior notice or public disclosure by the Corporationnaming all of the nominees for director or specifying the size of the increasedBoard of Directors at least 100 days prior to such anniversary date, astockholder’s notice required by this Section 3.5(a) shall also beconsidered timely, but only with respect to nominees for any new positionscreated by such increase, if it shall be delivered to the principal executiveoffices of the Corporation not later than the close of business on the 10th dayfollowing the earlier of the day on which the notice of such meeting was mailedto stockholders of the Corporation or the day on which such public disclosurewas made.  To be timely with respect to aspecial meeting, such stockholder’s notice must be delivered to, or mailed andreceived at, the principal executive offices of the Corporation not earlierthan the close of business on the 120th day and not later than the close ofbusiness on the 90th day prior to the scheduled special meeting date; *provided, however*, that if less than 100 days’ prior noticeor public disclosure of the scheduled meeting date is given or made, notice bysuch stockholder, to be timely, must be so delivered or received not later thanthe close of business on the 10th day following the earlier of the day on whichthe notice of such meeting was mailed to stockholders of the Corporation or theday on which such public disclosure was made. In no event shall any adjournment, postponement or deferral of anannual meeting or special meeting or the announcement thereof commence a newtime period for the giving of a stockholder’s notice as described above.

 

Any such stockholder’s notice to the Secretary ofthe Corporation shall set forth (i) as to each person whom such stockholderproposes to nominate for election or re-election as a director of theCorporation, (A) the name, age, business address and residence address ofsuch person, (B) the principal occupation or employment of such person, (C) anyother information relating to such person that would be required to bedisclosed in a proxy statement or other filings required 

 

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to be made in connection with solicitations of proxiesfor election of directors of the Corporation in a contested election, or wouldotherwise be required, in each case pursuant to Section 14 of the ExchangeAct and the rules and regulations promulgated thereunder (including,without limitation, the written consent of such person to having such person’sname placed in nomination at the meeting and to serve as a director of theCorporation if elected), and (D) a description of all direct and indirectcompensation and other material monetary agreements, arrangements andunderstandings during the past three years, and any other materialrelationships, between or among such stockholder giving the notice and thebeneficial owner, if any, on whose behalf the nomination is made, and theirrespective affiliates and associates, or others acting in concert therewith, onthe one hand, and each proposed nominee, and his or her respective affiliatesand associates, or others acting in concert therewith, on the other hand,including, without limitation, all information that would be required to bedisclosed pursuant to Rule 404 promulgated under Regulation S-K if suchstockholder and such beneficial owner, or any affiliate or associate thereof orperson acting in concert therewith, were the “registrant” for purposes of such rule andthe nominee were a director or executive officer of such registrant; and (ii) asto such stockholder giving the notice, the beneficial owner, if any, on whosebehalf the nomination is made and the proposed nominee, (A) the name andaddress of such stockholder, as they appear on the Corporation’s books, and ofsuch beneficial owner, if any, and the name and address of any otherstockholders known by such stockholder to be supporting such nomination, (B) (1) theclass or series and number of shares of capital stock of the Corporation whichare, directly or indirectly, owned beneficially and of record by suchstockholder, such beneficial owner and such nominee, (2) any DerivativeInstrument directly or indirectly owned beneficially by such stockholder, suchbeneficial owner and such nominee and any other direct or indirect opportunityto profit or share in any profit derived from any increase or decrease in thevalue of shares of capital stock of the Corporation, (3) any proxy,contract, arrangement, understanding or relationship the effect or intent ofwhich is to increase or decrease the voting power of such stockholder,beneficial owner or nominee with respect to any shares of any security of theCorporation, (4) any pledge by such stockholder, beneficial owner ornominee of any security of the Corporation or any short interest of suchstockholder, beneficial owner or nominee in any security of the Corporation, (5) anyrights to dividends on the shares of capital stock of the Corporation ownedbeneficially by such stockholder, beneficial owner and nominee that areseparated or separable from the underlying shares of capital stock of theCorporation, (6) any proportionate interest in shares of capital stock ofthe Corporation or Derivative Instruments held, directly or indirectly, by ageneral or limited partnership in which such stockholder, beneficial owner ornominee is a general partner or, directly or indirectly, beneficially owns aninterest in a general partner and (7) any performance-related fees (otherthan an asset-based fee) that such stockholder, beneficial owner or nominee isentitled to based on any increase or decrease in the value of shares of capitalstock of the Corporation or Derivative Instruments, if any, as of the date ofsuch notice, including, without limitation, for purposes of clauses (B)(1) through(B)(7) above, any of the foregoing held by members of such stockholder’s,beneficial owner’s or nominee’s immediate family sharing the same household(which information shall be supplemented by such stockholder, beneficial owner,if any, and nominee not later than 10 days after the record date for themeeting to disclose such ownership as of the record date), (C) arepresentation that such stockholder intends to appear in person or by proxy atthe meeting to nominate the persons named in its notice and (D) adescription of all agreements, arrangements and understandings between suchstockholder and beneficial owner, if any, and each proposed nominee and anyother person or persons (including 

 

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their names) pursuant to which the nomination(s) areto be made by such stockholder, (E) any other information relating to suchstockholder, beneficial owner, if any, and nominee that would be required to bedisclosed in a proxy statement or other filing required to be made inconnection with solicitations of proxies for election of directors of theCorporation in a contested election, or would otherwise be required, in eachcase pursuant to Section 14 of the Exchange Act and the rules andregulations promulgated thereunder.  Anysuch stockholder’s notice to the Secretary of the Corporation shall alsoinclude or be accompanied by, with respect to each nominee for election orreelection to the Board of Directors, a completed and signed questionnaire,representation and agreement required by Section 3.5(b).  The Corporation may requireany proposed nominee to furnish such other information as may reasonably berequired by the Corporation to determine the eligibility of such proposednominee to serve as an independent director of the Corporation or that could bematerial to a reasonable stockholder’s understanding of the independence, orlack thereof, of such nominee.

 

Astockholder providing notice of any nomination proposed to be made at a meetingshall further update and supplement such notice, if necessary, so that theinformation provided or required to be provided in such notice pursuant to thisSection 3.5(a) shall be true and correct as of the record date forthe meeting and as of the date that is ten business days prior to the meetingor any adjournment or postponement thereof, and such update and supplementshall be delivered to, or mailed andreceived at, the principal executive offices of the Corporation notlater than five business days after the record date for the meeting (in thecase of the update and supplement required to be made as of the record date),and not later than eight business days prior to the date for the meeting, ifpracticable (or, if not practicable, on the first practicable date prior to thedate for the meeting) or any adjournment or postponement thereof (in the caseof the update and supplement required to be made as of ten business days priorto the meeting or any adjournment or postponement thereof).  In addition,a stockholder providing notice of any nomination proposed to be made ata meeting shall update and supplement suchnotice, and deliver such update and supplement to the principal executiveoffices of the Corporation, promptly following the occurrence of any event thatmaterially changes the information provided or required to be provided in suchnotice pursuant to this Section 3.5(a).

 

Nothing in this Section 3.5 shall be deemed to affect any rights (i) ofstockholders to request inclusion of nominees in the Corporation’s proxystatement pursuant to Rule 14a-11 under the Exchange Act or (ii) ofthe holders of any series of preferred stock if and to the extent provided forunder law, the Certificate of Incorporation or these Bylaws.

 

(b)           To be eligible to be a nominee for election or reelection as a directorof the Corporation (or, in the case of a nomination brought under Rule 14a-11of the Exchange Act, to serve as a director of the Corporation), a person mustdeliver (in accordance with the time periods prescribed for delivery of noticeunder Section 3.5(a) or, in the case of a nomination brought under Rule 14a-11of the Exchange Act, prior to the time such person is to begin service as adirector) to the Secretary at the principal executive offices of theCorporation a written questionnaire with respect to the background andqualification of such person and the background of any other person or entityon whose behalf the nomination is being made (which questionnaire shall be inthe form provided by the Secretary upon written request) and a writtenrepresentation and agreement (in the form provided by the Secretary uponwritten request) that such person (A) is not and will not become a partyto (1) any agreement, arrangement or 

 

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understanding with, and has not given any commitment orassurance to, any person or entity as to how such person, if elected as adirector of the Corporation, will act or vote on any issue or question (a “VotingCommitment”) that has not been disclosed to the Corporation or (2) anyVoting Commitment that could limit or interfere with such person’s ability tocomply, if elected as a director of the Corporation, with such person’sfiduciary duties under applicable law, (B) is not and will not become aparty to any agreement, arrangement or understanding with any person or entityother than the Corporation with respect to any direct or indirect compensation,reimbursement or indemnification in connection with service or action as a directorthat has not been disclosed therein and (C) in such person’s individualcapacity and on behalf of any person or entity on whose behalf the nominationis being made, would be in compliance, if elected as a director of theCorporation, and will comply with all applicable publicly disclosed corporategovernance, conflict of interest, confidentiality and stock ownership andtrading policies and guidelines of the Corporation.

 

(c)           The Chairman of the Board or, if he is not presiding, the presidingofficer of the meeting of stockholders of the Corporation shall determinewhether the requirements of this Section 3.5 have been met with respect toany nomination or intended nomination. If the Chairman of the Board or the presiding officer determines thatany nomination was not made in accordance with the requirements of this Section 3.5,he shall so declare at the meeting and the defective nomination shall bedisregarded.  In addition to theforegoing provisions of this Section 3.5, a stockholder of the Corporationshall also comply with all applicable requirements of the Exchange Act and the rules andregulations thereunder with respect to the matters set forth in this Section 3.5.

 

Section 3.6            *Meetings*.  The Board of Directors mayhold meetings, both regular and special, either within or without the State ofDelaware.  Regular meetings of the Boardof Directors may be held without notice at such time and at such place as mayfrom time to time be determined by the Board of Directors.  Special meetings of the Board of Directorsmay be called by the Chairman of the Board, if there be one, the ChiefExecutive Officer, or such number of directors constituting more than one-thirdof the directors then in office. Notice thereof stating the place, date andhour of the meeting shall be given to each director either by mail not lessthan forty-eight (48) hours before the time of the meeting, by telephone,telegram, facsimile transmission or other electronic transmission not less thantwenty-four (24) hours before the time of the meeting, or on such shorternotice as the person or persons calling such meeting may deem necessary orappropriate in the circumstances.  Notice of any meeting need not be given to anydirector if waived by him in writing, or if he shall be present at suchmeeting.  Attendance at a meeting of theBoard of Directors shall constitute presence in person at and waiver of noticeof such meeting, except where a person attends the meeting for the expresspurpose of objecting (and so expresses such objection at the beginning of themeeting) to the transaction of any business on the ground that the meeting isnot lawfully called or convened.

 

Section 3.7            *Quorum of and Action by Directors*.* *Unless a greaternumber is required by law or the Certificate of Incorporation, a majority ofthe directors in office shall constitute a quorum of the Board of Directors forthe transaction of business; but a majority of the directors present at anymeeting, whether there is a quorum or otherwise, may adjourn the meeting fromday to day until a quorum is present. Except as otherwise provided by law, the Certificate of 

 

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Incorporation or these Bylaws, the vote of a majority ofthe directors present at any meeting at which a quorum is present shallconstitute the action of the Board of Directors.

 

Section 3.8            *Board and Committee Action by Unanimous Written Consent in Lieu ofMeeting*.* *Unless otherwise restricted by theCertificate of Incorporation or these Bylaws, any action required or permittedto be taken at a meeting of the Board of Directors or any committee thereof maybe taken without a meeting if a consent in writing, setting forth the action sotaken, is signed by all the members of the Board of Directors or such committee,as the case may be, and is filed with the Secretary of the Corporation.  For purposes of this Section 3.8,electronic mail may constitute written consent.

 

Section 3.9            *Board and Committee Conference Telephone Meetings*.* *Unlessotherwise restricted by the Certificate of Incorporation or these Bylaws,members of the Board of Directors, or members of any committee designated bythe Board of Directors, may participate in and hold a meeting of such Board ofDirectors or committee by means of conference telephone or similarcommunications equipment by means of which all persons participating in themeeting can speak to and hear each other, and attendance at a meeting pursuantto this Section 3.9 shall constitute presence in person at such meeting,except where a person attends the meeting for the express purpose of objecting(and so expresses such objection at the beginning of the meeting) to thetransaction of any business on the ground that the meeting is not lawfullycalled or convened.

 

Section 3.10          *Organization*. The Chairman of the Board,or, in such person’s absence, by the Chief Executive Officer, or, in suchperson’s absence, by a chairman chosen by the Board of Directors at the meeting shall call toorder any meeting of the Board of Directors and act as chairman of the meeting. The Secretary shall act as secretary of themeeting, but, in such person’s absence, the chairman of the meeting may appointany person to act as secretary of the meeting.

 

Section 3.11          *Compensation*.* *Directors will receive such compensationfor their services, including without limitation their services as members ofcommittees of the Board of Directors, as may be fixed by resolution of theBoard of Directors and shall be reimbursed for their actual expenses ofattendance, if any, for each regular or special meeting of the Board ofDirectors or any committee; *provided**that* nothing contained herein shall be construed to precludeany director from serving the Corporation in any other capacity and receivingcompensation therefor.

 

Section 3.12          *Removal*.* *A director of theCorporation may be removed from office in the manner provided for in theCertificate of Incorporation.

 

Section 3.13          *Committees of the Board of Directors*.

 

(a)           The Board of Directors may designate from among its members one or morecommittees, each of which shall be comprised of one or more of its members, andmay designate one or more of its members as alternate members of any committee,who may, subject to any limitations by the Board of Directors, replace absent ordisqualified members at any meeting of that committee.  Any such committee, to the extent provided insuch resolution or in the Certificate of Incorporation or these Bylaws, shallhave and may exercise all of the authority 

 

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of the Board of Directors to the extent permitted by theDGCL.  Any such committee may authorizethe seal of the Corporation to be affixed to all papers which may requireit.  In addition to the above, suchcommittee or committees shall have such other powers and limitations ofauthority as may be determined from time to time by resolution adopted by theBoard of Directors.

 

(b)           The Board of Directors shall have the power at any time to change themembership of any such committee and to fill vacancies in it.  A majority of the number of members of anysuch committee shall constitute a quorum for the transaction of business unlessa greater number is required by a resolution adopted by the Board of Directors.  The act of the majority of the members of acommittee present at any meeting at which a quorum is present shall be the actof such committee, unless the act of a greater number is required by aresolution adopted by the Board of Directors. Each such committee may elect a chairman (unless the Board of Directorsappoints a chairman) and may appoint such subcommittees and assistants as itmay deem necessary.  Except as otherwiseprovided by the Board of Directors, meetings of any committee shall beconducted in accordance with Sections 3.6, 3.7, 3.8, 3.9, 3.10 and 7.3hereof.  Election or appointment of amember of a committee shall not of itself create contract rights.

 

(c)           Any action taken by any committee of the Board of Directors shallpromptly be recorded in the minutes and filed with the Secretary of theCorporation.

 

Section 3.14          *Ratification*.  Any transaction questionedin any stockholders’ derivative proceeding on the ground of lack of authority,defective or irregular execution, adverse interest of director, officer orstockholder, non-disclosure, miscomputation, or the application of improperprinciples or practices of accounting may be ratified before or after judgmentby the Board of Directors or, if less than a quorum of directors is qualified,by a committee of qualified directors or by the stockholders; and, if soratified, shall have the same force and effect as if the questioned transactionhad been originally duly authorized, and said ratification shall be bindingupon the Corporation and its stockholders and shall constitute a bar to anyclaim or execution of any judgment in respect of such questioned transaction.

 

**ARTICLE IV**

**OFFICERS**

 

Section 4.1            *Designation*.* *The officers of the Corporationshall be elected or appointed by the Board of Directors and shall consist of aChief Executive Officer, a President, a Chief Financial Officer, a Secretary, aTreasurer and such Executive, Senior or other Vice Presidents, AssistantSecretaries and other officers as may be elected or appointed by the Board ofDirectors.  Any number of offices may beheld by the same person, *provided that*no person holding more than one office may sign, in more than one capacity, anycertificate or other instrument required by law to be signed by twoofficers.  The Board of Directors mayalso elect or appoint from among the directors a person to act as Chairman ofthe Board who shall not be deemed to be an officer of the Corporation unless heor she has otherwise been elected or appointed as such.

 

Section 4.2            *Powers and Duties*.  The officers of the Corporation shall havesuch powers and duties as generally pertain to their offices, except asmodified herein or by the Board of Directors, as well as such powers and dutiesas from time to time may be conferred by the 

 

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Board of Directors. The Chairman of the Board shall have such duties as may be assigned tohim by the Board of Directors and shall, subject to Section 2.11 and Section 3.10,preside at meetings of the Board of Directors and at meetings of thestockholders.  The Chief ExecutiveOfficer shall have general supervision over the business, affairs and propertyof the Corporation.

 

Section 4.3            *Vacancies*.  Whenever any vacancies shall occur in anyoffice by death, resignation, increase in the number of offices of theCorporation, or otherwise, the same shall be filled by the Board of Directors,and the officer so elected shall hold office until such officer’s successor iselected or appointed or until his earlier death, resignation or removal.

 

Section 4.4            *Removal*.* *Any officer or agent elected orappointed by the Board of Directors may be removed by the Board of Directorswith or without cause at any time.  Suchremoval shall be without prejudice to the contract, common law, and statutoryrights, if any, of the person so removed. Election or appointment of an officer or agent shall not of itselfcreate contract rights.

 

Section 4.5            *Action with Respect to Securities of Other Corporations*.  Unless otherwise directed by theBoard of Directors, the Chairman of the Board, the Chief Executive Officer, thePresident, the Chief Financial Officer, any Vice President and the Treasurer ofthe Corporation shall each have power to vote and otherwise act on behalf ofthe Corporation, in person or by proxy, at any meeting of security holders ofor with respect to any action of security holders of any other corporation inwhich this Corporation may hold securities and otherwise to exercise any andall rights and powers which this Corporation may possess by reason of itsownership of securities in such other corporation.

 

**ARTICLE V**

**CAPITALSTOCK**

 

Section 5.1            *Issuance and Consideration*.  Subject to any applicable requirements oflaw, the Certificate of Incorporation or these Bylaws, the Board of Directorsmay direct the Corporation to issue the number of shares of each class orseries of stock authorized by the Certificate of Incorporation. The Board ofDirectors may authorize shares to be issued for any valid consideration. Beforethe Corporation issues shares, the Board of Directors shall determine that theconsideration received or to be received for shares to be issued is adequate.That determination by the Board of Directors is conclusive insofar as theadequacy of consideration for the issuance of shares relates to whether theshares are validly issued, fully paid, and nonassessable. Subject to anyapplicable requirements of law, the Certificate of Incorporation or theseBylaws, the Board of Directors, or any committee authorized by the Board ofDirectors, shall determine the terms upon which the rights, options, orwarrants for the purchase of shares or other securities of the Corporation areissued by the Corporation and the terms, including the consideration, for whichthe shares or other securities are to be issued.

 

Section 5.2            *Shares of Stock*.* *The capital stock of theCorporation shall be represented by certificated or uncertificated shares, asdetermined by the Board of Directors. Certificates representing such certificated shares shall be signed bythe Chairman of the Board, the Chief Executive Officer, the President or a VicePresident and either the Treasurer or an Assistant Treasurer of theCorporation, or the Secretary or an Assistant Secretary of the Corporation, and

 

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may bear the seal of the Corporation or a facsimilethereof.  The signatures of such personsupon a certificate may be facsimiles. The stock record books and the blank stock certificate books shall bekept by the Secretary of the Corporation, or at the office of such transferagent or transfer agents as the Board of Directors may from time to time byresolution determine.  In case any personwho has signed or whose facsimile signature has been placed upon suchcertificate shall have ceased to be Chairman of the Board or shall have ceasedto be an officer before such certificate is issued, it may be issued by theCorporation with the same effect as if such person were such officer at thedate of its issuance.

 

Section 5.3            *RegisteredStockholders*.* *The Corporation shall be entitled to recognize the exclusive right of aperson registered on its books as the owner of shares to receive dividends andto vote as such owner and to hold liable for calls and assessments a personregistered on its books as the owner of shares and shall not be bound torecognize any equitable or other claim to or interest in such share or shareson the part of any other person, whether or not it shall have express or othernotice thereof, except as otherwise provided by the laws of Delaware.

 

Section 5.4            *Transfer of Shares*.* *The shares of stockof the Corporation shall be transferable only on the stock transfer books ofthe Corporation by the holders thereof in person or by their duly authorizedattorneys or legal representatives and, in the case of shares represented by acertificate, the certificate being surrendered for cancellation. Until andunless the Board of Directors appoints some other person, firm or corporationas its transfer agent (and upon the revocation of any such appointment,thereafter until a new appointment is similarly made), the Secretary of theCorporation shall be the transfer agent of the Corporation without thenecessity of any formal action of the Board of Directors, and the Secretary, orany person designated by him, shall perform all of the duties thereof.

 

Section 5.5            *Regulations Regarding Certificates*.* *The Board ofDirectors shall have the power and authority to make all such rules andregulations as they may deem expedient concerning the issue, transfer andregistration or the replacement of certificates for shares of capital stock ofthe Corporation.

 

Section 5.6            *Lost or Destroyed Certificates*.* *The Chief ExecutiveOfficer, the President or any Vice President may determine the conditions uponwhich a new certificate of stock may be issued in place of a certificate whichis alleged to have been lost, stolen or destroyed; and may, in its discretion,require the owner of such certificate or his legal representative to give bond,with sufficient surety, to indemnify the Corporation and each transfer agentand registrar against any and all losses or claims that may arise by reason ofthe issue of a new certificate in the place of the one so lost, stolen ordestroyed.

 

Section 5.7            *Dividends*.  Dividends upon the capital stock of theCorporation, subject to the provisions of the Certificate of Incorporation, maybe declared by the Board of Directors at any regular or special meeting,pursuant to law.  Dividends may be paidin cash, in property, in shares of the capital stock of the Corporation or outof any other assets of the Corporation legally available therefor, subject tothe provisions of the Certificate of Incorporation and applicable law.  Before payment of any dividend, there may beset aside out of any funds of the Corporation available for dividends such sumor sums as the Board of Directors from time to time, in its absolutediscretion, deem proper as a reserve or reserves to meet contingencies, or forequalizing

 

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dividends, or for repairing or maintaining any propertyof the Corporation, or for such other purposes as the Board of Directors shallthink conducive to the interest of the Corporation, and the Board of Directorsmay modify or abolish any such reserve in the manner in which it was created.

** **

**ARTICLE VI**

**INDEMNIFICATION**

 

Section 6.1            *General*.* *The Corporation shall, to thefullest extent permitted by applicable law in effect on the date ofeffectiveness of these Bylaws, and to such greater extent as applicable law maythereafter permit, indemnify and hold Indemnitee harmless from and against anyand all losses, liabilities, costs, claims, damages and, subject to Section 6.2,Expenses (as this and all other capitalized words used in this Article VInot previously defined in these Bylaws are defined in Section 6.15hereof), arising out of any event or occurrence related to the fact thatIndemnitee is or was a director or an officer of the Corporation or is or wasserving in another Corporate Status.

 

Section 6.2            *Expenses*.* *If Indemnitee is, by reason of hisCorporate Status, a party to and is successful, on the merits or otherwise, inany Proceeding, he shall be indemnified against all Expenses actually andreasonably incurred by him or on his behalf in connection therewith.  If Indemnitee is not wholly successful insuch Proceeding but is successful, on the merits or otherwise, as to any Matterin such Proceeding, the Corporation shall indemnify Indemnitee against allExpenses actually and reasonably incurred by him or on his behalf relating tosuch Matter.  To the extent that theIndemnitee is, by reason of his Corporate Status, a witness in any Proceeding,he shall be indemnified against all Expenses actually and reasonably incurredby him or on his behalf in connection therewith.

 

Section 6.3            *Advances*.* *In the event of any threatened orpending Proceeding in which Indemnitee is a party or is involved and that maygive rise to a right of indemnification under this Article VI, followingwritten request to the Corporation by Indemnitee, the Corporation shallpromptly pay to Indemnitee amounts to cover Expenses reasonably incurred byIndemnitee in connection with such Proceeding in advance of its finaldisposition upon the receipt by the Corporation of (i) a written undertakingexecuted by or on behalf of Indemnitee providing that Indemnitee will repay theadvance if it shall ultimately be determined that Indemnitee is not entitled tobe indemnified by the Corporation as provided in this Article VI and (ii) reasonablysatisfactory evidence as to the amount of such Expenses.

 

Section 6.4            *Request for Indemnification*.* *To obtainindemnification, Indemnitee shall submit to the Secretary of theCorporation a written claim or request. Such written claim or request shall contain sufficient information toreasonably inform the Corporation about the nature and extent of theindemnification or advance sought by Indemnitee.  The Secretary of the Corporation shallpromptly advise the Board of Directors of such request.

 

Section 6.5            *Determination of Entitlement; No Change of Control*.* *Ifthere has been no Change of Control at the time the request for indemnificationis submitted, Indemnitee’s entitlement to indemnification shall bedetermined in accordance with Section 145(d) of the DGCL.  If entitlement to indemnification is to bedetermined by Independent Counsel, the 

 

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Corporation shall furnish notice to Indemnitee withinten days after receipt of the request for indemnification notice specifying theidentity and address of Independent Counsel. The Indemnitee may, within 14 days after receipt of such written notice,deliver to the Corporation a written objection to such selection.  Such objection may be asserted only on the groundthat the Independent Counsel so selected does not meet the requirements ofIndependent Counsel and the objection shall set forth with particularity thefactual basis for such assertion.  Ifthere is an objection to the selection of Independent Counsel, either theCorporation or Indemnitee may petition the Court for a determination that theobjection is without a reasonable basis or for the appointment of IndependentCounsel selected by the Court.

 

Section 6.6            *Determination of Entitlement; Change of Control*.* *Ifthere has been a Change of Control at the time the request for indemnificationis submitted, Indemnitee’s entitlement to indemnification shall bedetermined in a written opinion by Independent Counsel selected byIndemnitee.  Indemnitee shall give theCorporation written notice advising of the identity and address of theIndependent Counsel so selected.  TheCorporation may, within 14 days after receipt of such written notice ofselection, deliver to the Indemnitee a written objection to such selection.  Indemnitee may, within 14 days after thereceipt of such objection from the Corporation, submit the name of anotherIndependent Counsel and the Corporation may, within seven days after receipt ofsuch written notice, deliver to the Indemnitee a written objection to suchselection.  Any objections referred to inthis Section 6.6 may be asserted only on the ground that the IndependentCounsel so selected does not meet the requirements of Independent Counsel andsuch objection shall set forth with particularity the factual basis for suchassertion.  Indemnitee may petition theCourt for a determination that the Corporation’s objection to the first orsecond selection of Independent Counsel is without a reasonable basis or forthe appointment as Independent Counsel selected by the Court.

 

Section 6.7            *Procedures of Independent Counsel*.* *If a Change ofControl shall have occurred before the request for indemnification is sent byIndemnitee, Indemnitee shall be presumed (except as otherwise expresslyprovided in this Article VI) to be entitled to indemnification uponsubmission of a request for indemnification in accordance with Section 6.4hereof, and thereafter the Corporation shall have the burden of proof toovercome the presumption in reaching a determination contrary to thepresumption.  The presumption shall beused by Independent Counsel as a basis for a determination of entitlement toindemnification unless the Corporation provides information sufficient to overcomesuch presumption by clear and convincing evidence or the investigation, reviewand analysis of Independent Counsel convinces him by clear and convincingevidence that the presumption should not apply.

 

Except in the event that the determination ofentitlement to indemnification is to be made by Independent Counsel, if theperson or persons empowered under Section 6.5 or 6.6 hereof to determineentitlement to indemnification shall not have made and furnished to Indemniteein writing a determination within 60 days after receipt by the Corporation ofthe request therefor, the requisite determination of entitlement toindemnification shall be deemed to have been made and Indemnitee shall beentitled to such indemnification unless Indemnitee knowingly misrepresented amaterial fact in connection with the request for indemnification or suchindemnification is prohibited by applicable law.  The termination of any Proceeding or of anyMatter therein, by judgment, order, settlement or conviction, or upon a plea of*nolo contendere* or its equivalent, shallnot (except as otherwise expressly provided in this Article VI) of itself 

 

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adversely affect the right of Indemnitee toindemnification or create a presumption that Indemnitee did not act in goodfaith and in a manner that he reasonably believed to be in or not opposed tothe best interests of the Corporation, or with respect to any criminalProceeding, that Indemnitee had reasonable cause to believe that his conductwas unlawful.  A person who acted in goodfaith and in a manner he reasonably believed to be in the interest of theparticipants and beneficiaries of an employee benefit plan of the Corporationshall be deemed to have acted in a manner not opposed to the best interests ofthe Corporation.

 

For purposes of any determination hereunder, aperson shall be deemed to have acted in good faith and in a manner hereasonably believed to be in or not opposed to the best interests of theCorporation, or, with respect to any criminal Proceeding, to have had noreasonable cause to believe his conduct was unlawful, if his action is based onthe records or books of account of the Corporation or another enterprise or oninformation, opinions, reports or statements presented to him or to theCorporation by any of the Corporation’s officers, employees or directors, or byany other person as to matters the person reasonably believes are in such otherperson’s professional or expert competence and who has been selected withreasonable care by or on behalf of the Corporation or another enterprise in thecourse of their duties or on the advice of legal counsel for the Corporation oranother enterprise or on information or records given or reports made to theCorporation or another enterprise by an independent certified public accountantor by an appraiser or other expert selected with reasonable care by theCorporation or another enterprise.  Theterm “another enterprise” as used in this Section shall mean any othercorporation or any partnership, limited liability company, association, jointventure, trust, employee benefit plan or other enterprise for which such personis or was serving at the request of the Corporation as a director, officer,employee or agent.  The provisions ofthis paragraph shall not be deemed to be exclusive or to limit in any way thecircumstances in which an Indemnitee may be deemed to have met the applicablestandards of conduct for determining entitlement to rights under this Article.

 

Section 6.8            *Independent Counsel Expenses*.* *The Corporationshall pay any and all reasonable fees and expenses of Independent Counselincurred acting pursuant to this Article VI and in any Proceeding to whichit is a party or witness in respect of its investigation and written report andshall pay all reasonable fees and expenses incident to the procedures in whichsuch Independent Counsel was selected or appointed.  No Independent Counsel may serve if a timelyobjection has been made to his selection until a court has determined that suchobjection is without a reasonable basis.

 

Section 6.9            *Adjudication*.* *In the event that (i) adetermination is made pursuant to Section 6.5 or 6.6 hereof thatIndemnitee is not entitled to indemnification under this Article VI; (ii) advancementof Expenses is not timely made pursuant to Section 6.3 hereof; (iii) IndependentCounsel has not made and delivered a written opinion determining the requestfor indemnification (a) within 90 days after being appointed by the Court,(b) within 90 days after objections to his selection have been overruledby the Court or (c) within 90 days after the time for the Corporation orIndemnitee to object to his selection; or (iv) payment of indemnificationis not made within five days after a determination of entitlement toindemnification has been made or is deemed to have been made pursuant to Section 6.5,6.6 or 6.7 hereof, Indemnitee shall be entitled to an adjudication by theCourt of his entitlement to such indemnification or advancement ofExpenses.  In the event that adetermination shall have been made that 

 

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Indemnitee is not entitled to indemnification, anyjudicial proceeding or arbitration commenced pursuant to this Section 6.9shall be conducted in all respects as a *de novo* trialon the merits and Indemnitee shall not be prejudiced by reason of that adversedetermination.  If a Change of Controlshall have occurred, in any judicial proceeding commenced pursuant to this Section 6.9,the Corporation shall have the burden of proving that Indemnitee is notentitled to indemnification or advancement of Expenses, as the case maybe.  If a determination shall have beenmade or is deemed to have been made that Indemnitee is entitled toindemnification, the Corporation shall be bound by such determination in anyjudicial proceeding commenced pursuant to this Section 6.9, or otherwise,unless Indemnitee knowingly misrepresented a material fact in connection withthe request for indemnification, or such indemnification is prohibited by law.

 

The Corporation shall be precluded from assertingin any judicial proceeding commenced pursuant to this Section 6.9 that theprocedures and presumptions of this Article VI are not valid, binding andenforceable.  If Indemnitee, pursuant tothis Section 6.9, seeks a judicial adjudication to enforce his rightsunder, or to recover damages for breach of, this Article VI, and if heprevails therein, then Indemnitee shall be entitled to recover from theCorporation, and shall be indemnified by the Corporation against, any and allExpenses actually and reasonably incurred by him in such judicialadjudication.  If it shall be determinedin such judicial adjudication that Indemnitee is entitled to receive part butnot all of the indemnification or advancement of Expenses sought, then theExpenses incurred by Indemnitee in connection with such judicial adjudicationor arbitration shall be prorated.

 

Section 6.10          *Participation by the Corporation*.* *With respect to anyProceeding: (a) the Corporation will be entitled to participate therein atits own expense; (b) except as otherwise provided below, to the extentthat it may wish, the Corporation (jointly with any other indemnifying partysimilarly notified) will be entitled to assume the defense thereof, withcounsel reasonably satisfactory to Indemnitee; and (c) the Corporationshall not be liable to indemnify Indemnitee under this Article VI for anyamounts paid in settlement of any action or claim effected without its writtenconsent, which consent shall not be unreasonably withheld.  After receipt of notice from the Corporationto Indemnitee of the Corporation’s election to assume the defense thereof, theCorporation will not be liable to Indemnitee under this Article VI for anylegal or other expenses subsequently incurred by Indemnitee in connection withthe defense thereof other than as otherwise provided below.  Indemnitee shall have the right to employ hisown counsel in such action, suit, proceeding or investigation but the fees andexpenses of such counsel incurred after notice from the Corporation of itsassumption of the defense thereof shall be at the expense of Indemnitee unlessthe employment of counsel by Indemnitee has been authorized by the Corporation,or Indemnitee shall have reasonably concluded that there is a conflict ofinterest between the Corporation and Indemnitee in the conduct of the defenseof such action, or the Corporation shall not in fact have employed counsel toassume the defense of such action, in each of which cases the fees and expensesof counsel employed by Indemnitee shall be subject to indemnification pursuantto the terms of this Article VI. The Corporation shall not be entitled to assume the defense of anyProceeding brought in the name of or on behalf of the Corporation or as towhich Indemnitee shall have reasonably concluded that there is a conflict ofinterest between the Corporation and Indemnitee in the conduct of the defenseof such action.  The Corporation shallnot settle any action or claim in any 

 

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manner which would impose any limitation orun-indemnified penalty on Indemnitee without Indemnitee’s written consent,which consent shall not be unreasonably withheld.

 

Section 6.11          *Nonexclusivity of Rights*.* *The rights ofindemnification and advancement of Expenses as provided by this Article VIshall not be deemed exclusive of any other rights to which Indemnitee may atany time be entitled to under applicable law, the Certificate of Incorporation,the Bylaws, any agreement, a vote of stockholders or a resolution of directors,or otherwise.  The rights toindemnification and advancement of Expenses provided by, or granted pursuantto, this Article VI shall be deemed vested at the time a person becomes adirector or officer of the Corporation and no subsequent amendment, alterationor repeal of this Article VI or any other provision of the Certificate ofIncorporation or the Bylaws shall adversely affect the rights of any personthat is or was a director or officer with respect to events, actions orcircumstances occurring, in whole or in part, prior to such amendment,alteration or repeal.  The provisions ofthis Article VI shall continue as to an Indemnitee whose Corporate Statushas ceased for any reason and shall inure to the benefit of his or its heirs,executors, administrators, successors or assigns.  Neither the provisions of this Article VInor those of any agreement to which the Corporation is a party shall be deemedto preclude the indemnification of any person who is not specified in this Article VIas having the right to receive indemnification or is not a party to any suchagreement, but whom the Corporation has the power or obligation to indemnifyunder the provisions of the DGCL.

 

Section 6.12          *Insurance and Subrogation*.* *The Corporationshall not be liable under this Article VI to make any payment of amountsotherwise indemnifiable hereunder if, but only to the extent that, Indemniteehas otherwise actually received such payment under any insurance policy,contract, agreement or otherwise.

 

In the event of any payment hereunder, theCorporation shall be subrogated to the extent of such payment to all the rightsof recovery of Indemnitee, who shall execute all papers required and take allaction reasonably requested by the Corporation to secure such rights, includingexecution of such documents as are necessary to enable the Corporation to bringsuit to enforce such rights.

 

Section 6.13          *Severability*.* *If any provision or provisions ofthis Article VI shall be held to be invalid, illegal or unenforceable forany reason whatsoever, the validity, legality and enforceability of theremaining provisions shall not in any way be affected or impaired thereby; and,to the fullest extent possible, the provisions of this Article VI shall beconstrued so as to give effect to the intent manifested by the provision heldinvalid, illegal or unenforceable.

 

Section 6.14          *Certain Actions Where Indemnification Is Not Provided*.* *Notwithstandingany other provision of this Article VI, no person shall be entitled toindemnification or advancement of Expenses under this Article VI withrespect to any Proceeding, or any Matter therein, brought or made by suchperson against the Corporation.

 

Section 6.15          *Definitions. *For purposes of this Article VI:

 

“Change of Control”means a change in control of the Corporation after the date Indemnitee acquiredhis Corporate Status, which shall be deemed to have occurred in any 

 

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one of the following circumstances occurringafter such date: (i) there shall have occurred an event that is or wouldbe required to be reported with respect to the Corporation in response to Item6(e) of Schedule 14A of Regulation 14A (or in response to any similar itemon any similar schedule or form) promulgated under the Exchange Act, if theCorporation is or were subject to such reporting requirement; (ii) any “person”(as such term is used in Sections 13(d) and 14(d) of the ExchangeAct) shall have become the “beneficial owner” (as defined in Rule 13d-3under the Exchange Act), directly or indirectly, of securities of theCorporation representing 40% or more of the combined voting power of theCorporation’s then outstanding voting securities without prior approval of atleast two-thirds of the members of the Board of Directors in office immediatelyprior to such person’s attaining such percentage interest; (iii) theCorporation is a party to a merger, consolidation, sale of assets or otherreorganization, or a proxy contest, as a consequence of which members of theBoard of Directors in office immediately prior to such transaction or eventconstitute less than a majority of the Board of Directors thereafter; or (iv) duringany period of two consecutive years, individuals who at the beginning of suchperiod constituted the Board of Directors (including, for this purpose, any newdirector whose election or nomination for election by the Corporation’sstockholders was approved by a vote of at least two-thirds of the directorsthen still in office who were directors at the beginning of such period) ceasefor any reason to constitute at least a majority of the Board of Directors.

 

“Corporate Status”describes the status of an individual as a present or former director orofficer of the Corporation, or as a director, officer or other designated legalrepresentative of any other corporation, partnership, limited liabilitycompany, association, joint venture, trust, employee benefit plan or otherenterprise for which an individual is or was serving as a director, officer orother designated legal representative at the request of the Corporation.

 

“Court” means the Courtof Chancery of the State of Delaware or any other court of competentjurisdiction.

 

“Expenses” shallinclude all reasonable attorneys’ fees, retainers, court costs, transcriptcosts, fees of experts, witness fees, travel expenses, duplicating costs,printing and binding costs, telephone charges, postage, delivery service fees,and all other disbursements or expenses of the types customarily incurred inconnection with prosecuting, defending, preparing to prosecute or defend,investigating, or being or preparing to be a witness in a Proceeding.

 

“Indemnitee” includesany person who is, or is threatened to be made, a witness in or a party to anyProceeding by reason of his Corporate Status.

 

“Independent Counsel”means a law firm, or a member of a law firm, that is experienced in matters ofcorporate law and neither presently is, nor in the five years previous to hisselection or appointment has been, retained to represent: (i) theCorporation or Indemnitee in any matter material to either such party or (ii) anyother party to the Proceeding giving rise to a claim for indemnificationhereunder.

 

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“Matter” is a claim, amaterial issue or a substantial request for relief.

 

“Proceeding” includesany action, suit, arbitration, alternate dispute resolution mechanism,investigation, administrative hearing or any other proceeding, whether civil,criminal, administrative or investigative, except one initiated by anIndemnitee pursuant to Section 6.9 hereof to enforce his rights under thisArticle VI.

 

Section 6.16          *Notices*.* *Promptly after receipt byIndemnitee of notice of the commencement of any Proceeding, Indemnitee shall,if he anticipates or contemplates making a claim for indemnification oradvancement of Expenses pursuant to the terms of this Article VI, notifythe Corporation of the commencement of such Proceeding; *provided,however,* that any delay in so notifying the Corporation shall notconstitute a waiver or release by Indemnitee of rights hereunder and that anyomission by Indemnitee to so notify the Corporation shall not relieve theCorporation from any liability that it may have to Indemnitee otherwise thanunder this Article VI.  Anycommunication required or permitted to the Corporation shall be addressed tothe Secretary of the Corporation and any such communication to Indemnitee shallbe addressed to Indemnitee’s address as shown on the Corporation’s recordsunless he specifies otherwise and shall be personally delivered, delivered byU.S. Mail, or delivered by commercial express overnight delivery service.  Any such notice shall be effective uponreceipt.

 

Section 6.17          *Contractual Rights*.* *The right to beindemnified or to the advancement or reimbursement of Expenses (i) is acontract right based upon good and valuable consideration, pursuant to whichIndemnitee may sue as if these provisions were set forth in a separate writtencontract between Indemnitee and the Corporation, (ii) is and is intendedto be retroactive and shall be available as to events occurring prior to theadoption of these provisions and (iii) shall continue after any rescissionor restrictive modification of such provisions as to events occurring priorthereto.

 

Section 6.18          *Savings Clause*.* *If any provision of this Article VIof the Bylaws is determined by a court having jurisdiction over the matter torequire the Corporation to do or refrain from doing any act that is inviolation of applicable law, the court shall be empowered to modify or reformsuch provision so that, as modified or reformed, such provision provides themaximum of indemnification permitted by law and such provision, as so modifiedor reformed, and the balance of this Article VI shall be applied inaccordance with their terms.  Withoutlimiting the generality of the foregoing, if any portion of this Article VIof the Bylaws shall be invalidated on any ground, the Corporation shallnevertheless indemnify an Indemnitee to the full extent permitted by anapplicable portion of this Article VI of the Bylaws that shall not havebeen invalidated and to the full extent permitted by law with respect to thatportion that has been invalidated.

 

Section 6.19          *Successors and Assigns*.* *This Article VIof the Bylaws shall be binding upon the Corporation, its successors andassigns.

 

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**ARTICLE VII**

**MISCELLANEOUSPROVISIONS**

 

Section 7.1            *Bylaw Amendments*.* *The Bylaws of theCorporation may be adopted, amended or repealed in accordance with theCertificate of Incorporation. Where the stockholders have any such rights, suchrights may be exercised at any annual meeting before which such matter has beenproperly brought in accordance with Sections 2.2 and 2.8(c) hereof, or atany special meeting if notice of the proposed amendment is contained in thenotice of said special meeting, by the affirmative vote required under theCertificate of Incorporation.

 

Section 7.2            *Books and Records*.* *The Corporation shall keep booksand records of account and shall keep minutes of the proceedings of itsstockholders, its Board of Directors and each committee of its Board ofDirectors.

 

Section 7.3            *Notice; Waiver*.* *Whenever, under any provisions ofthese Bylaws, notice is required to be given to any stockholder, it may begiven personally, by mail or by a form of electronic transmission consented toby the stockholder to whom the notice is given, to the fullest extent allowedunder the DGCL.  Notice by mail to astockholder shall be deemed to be sufficient if deposited in the United Statesmail, postage prepaid, and addressed to last known post office address of suchstockholder as shown on the stock records of the Corporation.

 

Any notice required to be given to any directoror committee member may be given by any method that creates a record of itscontent that may be retained, retrieved and reviewed by the recipient, exceptthat such notice, other than one which is delivered personally, shall be sentto such address (whether physical, telephonic, electronic or otherwise) as suchdirector shall have specified in writing to the Secretary or, in the absence ofsuch specification, to the last known post office address of such director orcommittee member.

 

All notices given by mail, as above provided,shall be deemed to have been given as at the time of mailing, and all noticesgiven by telephonic, electronic or other similarly instantaneous means shall bedeemed to have been given as of the sending time recorded at the time oftransmission.

 

Whenever any notice is required to be given toany stockholder, director or committee member under the provisions of the DGCLor under the Certificate of Incorporation or these Bylaws, a waiver thereof inwriting signed by the person or persons entitled to such notice, whether beforeor after the time stated therein, shall be equivalent to the giving of suchnotice.  Attendance of a person at ameeting shall constitute a waiver of notice of such meeting, except when theperson attends a meeting for the express purpose of objecting, at the beginningof the meeting, to the transaction of any business because the meeting is notlawfully called or convened.  Neither thebusiness to be transacted at, nor the purpose of, any regular or specialmeeting of the stockholders, directors, or members of a committee of directorsneed be specified in any written waiver of notice unless so required by theCertificate of Incorporation or these Bylaws.

 

Section 7.4            *Resignations*.* *Any director or officer may resignat any time.  Such resignation shall bemade in writing and shall take effect at the time specified therein, or, if notime be specified, at the time of its receipt by the Chief Executive Officer orthe Secretary of the Corporation.  Theacceptance of a resignation shall not be necessary to make it effective, unlessexpressly so provided in the resignation.

 

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Section 7.5            *Seal*.* *The seal of the Corporation, ifany, shall be in such form as the Board of Directors may adopt.

 

Section 7.6            *Fiscal Year*.* *The fiscal year of the Corporationshall end on the 31st day of December of each year or as otherwiseprovided by a resolution adopted by the Board of Directors.

 

Section 7.7            *Facsimile Signatures*.* *In addition to theprovisions for the use of facsimile signatures elsewhere specificallyauthorized in these Bylaws, facsimile signatures of the Chairman of the Board,any other director, or any officer or officers of the Corporation may be usedwhenever and as authorized by the Board of Directors.

 

Section 7.8            *Reliance upon Books, Reports and Records*.* *Each director andeach member of any committee designated by the Board of Directors shall, in theperformance of his duties, be fully protected in relying in good faith upon therecords of the corporation and upon such information, opinions, reports orstatements presented to the Corporation by any of its officers or employees, orcommittees of the Board of Directors, or by any other person as to matters thedirector or member reasonably believes are within such other person’sprofessional or expert competence and who has been selected with reasonablecare by or behalf of the Corporation.

 

As amended and restated on October 22, 2010

 

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