Exhibit 4.2


 


AMENDED AND RESTATED

BY-LAWS


 


OF


 


CF INDUSTRIES HOLDINGS, INC.


 


A Delaware Corporation


 


Effective August 10, 2005


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I OFFICES

  	
   

  
	
   

  	
  Section
  1.

  	
  Registered
  Office

  	
   

  
	
   

  	
  Section
  2.

  	
  Other
  Offices

  	
   

  
	
  ARTICLE II MEETINGS OF STOCKHOLDERS

  	
   

  
	
   

  	
  Section 1.

  	
  Place of Meetings

  	
   

  
	
   

  	
  Section 2.

  	
  Annual Meetings

  	
   

  
	
   

  	
  Section 3.

  	
  Special Meetings

  	
   

  
	
   

  	
  Section 4.

  	
  Nature of Business at
  Meetings of Stockholders

  	
   

  
	
   

  	
  Section 5.

  	
  Nomination of Directors

  	
   

  
	
   

  	
  Section 6.

  	
  Notice

  	
   

  
	
   

  	
  Section 7.

  	
  Adjournments

  	
   

  
	
   

  	
  Section 8.

  	
  Quorum

  	
   

  
	
   

  	
  Section 9.

  	
  Voting

  	
   

  
	
   

  	
  Section 10.

  	
  Proxies

  	
   

  
	
   

  	
  Section 11.

  	
  List of Stockholders
  Entitled to Vote

  	
   

  
	
   

  	
  Section 12.

  	
  Record Date

  	
   

  
	
   

  	
  Section 13.

  	
  Stock Ledger

  	
   

  
	
   

  	
  Section 14.

  	
  Conduct of Meetings

  	
   

  
	
   

  	
  Section 15.

  	
  Inspectors of Election

  	
   

  
	
  ARTICLE III DIRECTORS

  	
   

  
	
   

  	
  Section 1.

  	
  Number and Election of
  Directors

  	
   

  
	
   

  	
  Section 2.

  	
  Vacancies

  	
   

  
	
   

  	
  Section 3.

  	
  Duties and Powers

  	
   

  
	
   

  	
  Section 4.

  	
  Meetings

  	
   

  
	
   

  	
  Section 5.

  	
  Organization

  	
   

  
	
   

  	
  Section 6.

  	
  Resignations and Removals of
  Directors

  	
   

  
	
   

  	
  Section 7.

  	
  Quorum

  	
   

  
	
   

  	
  Section 8.

  	
  Actions of the Board by
  Written Consent

  	
   

  
	
   

  	
  Section 9.

  	
  Meetings by Means of
  Conference Telephone

  	
   

  
	
   

  	
  Section 10.

  	
  Committees

  	
   

  
	
   

  	
  Section 11.

  	
  Compensation

  	
   

  
	
   

  	
  Section 12.

  	
  Interested Directors

  	
   

  
	
  ARTICLE IV OFFICERS

  	
   

  
	
   

  	
  Section 1.

  	
  General

  	
   

  
	
   

  	
  Section 2.

  	
  Election

  	
   

  
	
   

  	
  Section 3.

  	
  Voting
  Securities Owned by the Corporation

  	
   

  
	
   

  	
  Section 4.

  	
  Chairman of
  the Board of Directors

  	
   

  
	
   

  	
  Section 5.

  	
  President

  	
   

  



 


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  Section 6.

  	
  Chief
  Financial Officer

  	
   

  
	
   

  	
  Section 7.

  	
  Vice Presidents

  	
   

  
	
   

  	
  Section 8.

  	
  Secretary

  	
   

  
	
   

  	
  Section 9.

  	
  Treasurer

  	
   

  
	
   

  	
  Section 10.

  	
  Assistant
  Secretaries

  	
   

  
	
   

  	
  Section 11.

  	
  Assistant
  Treasurers

  	
   

  
	
   

  	
  Section 12.

  	
  Other Officers

  	
   

  
	
  ARTICLE V STOCK

  	
   

  
	
   

  	
  Section 1.

  	
  Form of
  Certificates

  	
   

  
	
   

  	
  Section 2.

  	
  Signatures

  	
   

  
	
   

  	
  Section 3.

  	
  Lost Certificates

  	
   

  
	
   

  	
  Section 4.

  	
  Transfers

  	
   

  
	
   

  	
  Section 5.

  	
  Dividend Record
  Date

  	
   

  
	
   

  	
  Section 6.

  	
  Record Owners

  	
   

  
	
   

  	
  Section 7.

  	
  Transfer
  and Registry Agents

  	
   

  
	
  ARTICLE VI NOTICES

  	
   

  
	
   

  	
  Section 1.

  	
  Notices

  	
   

  
	
   

  	
  Section 2.

  	
  Waivers of Notice

  	
   

  
	
  ARTICLE VII
  GENERAL PROVISIONS

  	
   

  
	
   

  	
  Section 1.

  	
  Dividends

  	
   

  
	
   

  	
  Section 2.

  	
  Disbursements

  	
   

  
	
   

  	
  Section 3.

  	
  Fiscal Year

  	
   

  
	
   

  	
  Section 4.

  	
  Corporate Seal

  	
   

  
	
  ARTICLE VIII
  INDEMNIFICATION

  	
   

  
	
   

  	
  Section 1.

  	
  Power to
  Indemnify in Actions, Suits or Proceedings other than those by or in the Right
  of the Corporation

  	
   

  
	
   

  	
  Section 2.

  	
  Power to
  Indemnify in Actions, Suits or Proceedings by or in the Right of the
  Corporation

  	
   

  
	
   

  	
  Section 3.

  	
  Authorization
  of Indemnification

  	
   

  
	
   

  	
  Section 4.

  	
  Good Faith Defined

  	
   

  
	
   

  	
  Section 5.

  	
  Indemnification
  by a Court

  	
   

  
	
   

  	
  Section 6.

  	
  Expenses Payable
  in Advance

  	
   

  
	
   

  	
  Section 7.

  	
  Nonexclusivity
  of Indemnification and Advancement of Expenses

  	
   

  
	
   

  	
  Section 8.

  	
  Insurance

  	
   

  
	
   

  	
  Section 9.

  	
  Certain Definitions

  	
   

  
	
   

  	
  Section 10.

  	
  Survival of
  Indemnification and Advancement of Expenses

  	
   

  
	
   

  	
  Section 11.

  	
  Limitation
  on Indemnification

  	
   

  
	
   

  	
  Section 12.

  	
  Indemnification
  of Employees and Agents

  	
   

  
	
  ARTICLE IX AMENDMENTS

  	
   

  
	
   

  	
  Section 1.

  	
  Amendments

  	
   

  
	
   

  	
  Section 2.

  	
  Entire Board
  of Directors

  	
   

  



 


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BY-LAWS




OF




CF INDUSTRIES HOLDINGS, INC.




(hereinafter called the “Corporation”)


 


ARTICLE I



OFFICES


 


Section 1.               Registered Office.  The
registered office of the Corporation shall be in the City of Wilmington, County
of New Castle, State of Delaware.


 


Section 2.               Other Offices.  The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors may from time to time determine.


 


ARTICLE
II



MEETINGS OF STOCKHOLDERS


 


Section 1.               Place of Meetings. 
Meetings of the stockholders for the election of directors or for any
other purpose shall be held at such time and place, either within or without
the State of Delaware, as shall be designated from time to time by the Board of
Directors.


 


Section 2.               Annual Meetings.  The
Annual Meeting of Stockholders for the election of directors shall be held on
such date and at such time as shall be designated from time to time by the
Board of Directors.  Any other proper
business may be transacted at the Annual Meeting of Stockholders.


 





















 


Section 3.               Special Meetings. 
Unless otherwise required by law, Special Meetings of Stockholders, for
any purpose or purposes, may be called by either (i) the Chairman of the Board
of Directors, if there be one, (ii) the President or (iii) the Board of
Directors.  The ability of the
stockholders to call a Special Meeting of Stockholders is hereby specifically
denied.  At a Special Meeting of
Stockholders, only such business shall be conducted as shall be specified in
the notice of meeting (or any supplement thereto).


 


Section
4.               Nature of Business at Meetings of
Stockholders.  No business may be transacted at an Annual
Meeting of Stockholders, other than business that is either (a) specified in
the notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the Annual Meeting by or at the direction of
the Board of Directors (or any duly authorized committee thereof), or (c) otherwise
properly brought before the Annual Meeting by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 4 and on the record date for the
determination of stockholders entitled to notice of and to vote at such Annual
Meeting and (ii) who complies with the notice procedures set forth in this
Section 4.


 


In addition to any other
applicable requirements, for business to be properly brought before an Annual
Meeting by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.


 


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To be timely, a stockholder’s
notice to the Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than ninety (90) days
nor more than one hundred twenty (120) days prior to the anniversary date of
the immediately preceding Annual Meeting of Stockholders; provided, however,
that in the event that the Annual Meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the Annual Meeting was mailed or such public disclosure of the date
of the Annual Meeting was made, whichever first occurs.


 


To be in proper written
form, a stockholder’s notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the Annual Meeting (i) a brief
description of the business desired to be brought before the Annual Meeting and
the reasons for conducting such business at the Annual Meeting, (ii) the name
and record address of such stockholder, (iii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such business
and (v) a representation that such stockholder intends to appear in person or
by proxy at the Annual Meeting to bring such business before the meeting.


 


No business shall be
conducted at the Annual Meeting of Stockholders except business brought before
the Annual Meeting in accordance with the procedures set


 


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forth in this Section 4; provided, however, that, once business has
been properly brought before the Annual Meeting in accordance with such
procedures, nothing in this Section 4 shall be deemed to preclude discussion by
any stockholder of any such business.  If
the chairman of an Annual Meeting determines that business was not properly
brought before the Annual Meeting in accordance with the foregoing procedures,
the chairman shall declare to the meeting that the business was not properly
brought before the meeting and such business shall not be transacted.  No business shall be conducted at a special
meeting of stockholders except for such business as shall have been brought
before the meeting pursuant to the Corporation’s notice of meeting.


 


Section
5.               Nomination of Directors.  Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the
right of holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances.  Nominations of persons for election to the
Board of Directors may be made at any Annual Meeting of Stockholders, or at any
Special Meeting of Stockholders called for the purpose of electing directors,
(a) by or at the direction of the Board of Directors (or any duly authorized
committee thereof) or (b) by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the notice provided for in
this Section 5 and on the record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies with the notice
procedures set forth in this Section 5.


 


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In addition to any other
applicable requirements, for a nomination to be made by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.


 


To be timely, a stockholder’s
notice to the Secretary must be delivered to or mailed and received at the
principal executive offices of the Corporation (a) in the case of an Annual
Meeting, not less than ninety (90) days nor more than one hundred twenty (120)
days prior to the anniversary date of the immediately preceding Annual Meeting
of Stockholders; provided, however, that in the event that the
Annual Meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the tenth (10th)
day following the day on which such notice of the date of the Annual Meeting
was mailed or such public disclosure of the date of the Annual Meeting was
made, whichever first occurs; and (b) in the case of a Special Meeting of
Stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the Special Meeting was mailed or public disclosure of the date of
the Special Meeting was made, whichever first occurs.


 


To be in proper written
form, a stockholder’s notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for election as a director (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class or series and
number of shares of capital stock of the Corporation which are owned
beneficially or of record by


 


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the person and (iv) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), and the rules and regulations promulgated
thereunder; and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of record
by such stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder intends
to appear in person or by proxy at the meeting to nominate the persons named in
its notice and (v) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder.  Such
notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.


 


No person shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 5.  If the chairman of the meeting determines
that a nomination was not made in accordance with the foregoing procedures, the
chairman shall declare to the meeting that the nomination was defective and
such defective nomination shall be disregarded.


 


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Section 6.               Notice.  Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which shall state the place, date and hour of the
meeting and, in the case of a Special Meeting, the purpose or purposes for
which the meeting is called.  Unless
otherwise required by law, written notice of any meeting shall be given not
less than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to notice of and to vote at such meeting.


 


Section 7.               Adjournments.  Any
meeting of the stockholders may be adjourned from time to time to reconvene at
the same or some other place, and notice need not be given of any such adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken.  At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting.  If
the adjournment is for more than thirty (30) days, or if after the adjournment
a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting in accordance with the requirements of Section 6 hereof shall be given
to each stockholder of record entitled to notice of and to vote at the meeting.


 


Section 8.               Quorum.  Unless otherwise required by
applicable law or the Certificate of Incorporation, the holders of a majority
of the Corporation’s capital stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction of business.  A quorum, once established, shall not be
broken by the withdrawal of enough votes to leave less than a quorum.  If, however, such quorum shall not be present



 


7





















 


or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from
time to time, in the manner provided in Section 7 hereof, until a quorum shall
be present or represented.


 


Section 9.               Voting.  Unless otherwise required by
law, the Certificate of Incorporation or these By-Laws, any question brought
before any meeting of the stockholders, other than the election of directors,
shall be decided by the vote of the holders of a majority of the total number
of votes of the Corporation’s capital stock represented and entitled to vote
thereat, voting as a single class. 
Unless otherwise provided in the Certificate of Incorporation, and
subject to Section 12 of this Article II, each stockholder represented at a
meeting of the stockholders shall be entitled to cast one (1) vote for each
share of the capital stock entitled to vote thereat held by such
stockholder.  Such votes may be cast in
person or by proxy as provided in Section 10 of this Article II.  The Board of Directors, in its discretion, or
the officer of the Corporation presiding at a meeting of the stockholders, in
such officer’s discretion, may require that any votes cast at such meeting
shall be cast by written ballot.


 


Section 10.             Proxies.  Each stockholder entitled to
vote at a meeting of the stockholders may authorize another person or persons to
act for such stockholder as proxy, but no such proxy shall be voted upon after
three years from its date, unless such proxy provides for a longer period.  Without limiting the manner in which a
stockholder may authorize another person or persons to act for such stockholder
as proxy, the following shall constitute a valid means by which a stockholder
may grant such authority:


 


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(i)          A stockholder may execute a writing authorizing another person or
persons to act for such stockholder as proxy. 
Execution may be accomplished by the stockholder or such stockholder’s
authorized officer, director, employee or agent signing such writing or causing
such person’s signature to be affixed to such writing by any reasonable means,
including, but not limited to, by facsimile signature.


 


(ii)         A stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the transmission of a
telegram or cablegram to the person who will be the holder of the proxy or to a
proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
telegram or cablegram, provided that any such telegram or cablegram must either
set forth or be submitted with information from which it can be determined that
the telegram or cablegram was authorized by the stockholder.  If it is determined that such telegrams or
cablegrams are valid, the inspectors or, if there are no inspectors, such other
persons making that determination shall specify the information on which they
relied.


 


Any copy, facsimile
telecommunication or other reliable reproduction of the writing, telegram or
cablegram authorizing another person or persons to act as proxy for a
stockholder may be substituted or used in lieu of the original writing,
telegram or cablegram for any and all purposes for which the original writing,
telegram or cablegram


 


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could be used; provided,
however, that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing, telegram or
cablegram.


 


Section
11.             List of Stockholders Entitled to Vote.  The
officer of the Corporation who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of the stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder.  Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting (i) either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held or (ii) during
ordinary business hours, at the principal place of business of the
Corporation.  The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.


 


Section 12.             Record Date.  In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of the stockholders or any adjournment thereof, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting.  If no
record date is fixed by the


 


10





















 


Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of the stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held.  A determination of stockholders of
record entitled to notice of or to vote at a meeting of the stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.


 


Section 13.             Stock Ledger.  The
stock ledger of the Corporation shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by Section
11 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of the stockholders.


 


Section
14.             Conduct of Meetings.  The
Board of Directors of the Corporation may adopt by resolution such rules and
regulations for the conduct of any meeting of the stockholders as it shall deem
appropriate.  Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of the stockholders shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting.  Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following:  (i) the establishment of an
agenda or order of business for the meeting; (ii) the determination of when the
polls shall open and close for any given matter to be voted on at the meeting;


 


11





















 


(iii) rules and procedures
for maintaining order at the meeting and the safety of those present; (iv)
limitations on attendance at or participation in the meeting to stockholders of
record of the Corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (vi) limitations on the time allotted to questions or comments by
participants.


 


Section
15.             Inspectors of Election.  In
advance of any meeting of the stockholders, the Board of Directors, by
resolution, the Chairman, if there be one, or the President shall appoint one
or more inspectors to act at the meeting and make a written report
thereof.  One or more other persons may
be designated as alternate inspectors to replace any inspector who fails to
act.  If no inspector or alternate is
able to act at a meeting of the stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting.  Unless otherwise required by applicable law,
inspectors may be officers, employees or agents of the Corporation.  Each inspector, before entering upon the
discharge of the duties of inspector, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of such inspector’s ability.  The
inspector shall have the duties prescribed by law and shall take charge of the
polls and, when the vote is completed, shall make a certificate of the result
of the vote taken and of such other facts as may be required by applicable law.


 


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ARTICLE III



DIRECTORS


 


Section
1.               Number and Election of Directors.  The
directors shall be divided into three classes, designated Class I, Class II and
Class III.  Each class shall consist, as
nearly as may be possible, of one-third of the total number of directors
constituting the entire Board of Directors. 
The initial division of the Board of Directors into classes shall be
made by the decision of the affirmative vote of a majority of the entire Board
of Directors.  The term of the initial
Class I directors shall terminate on the date of the 2006 Annual Meeting; the
term of the initial Class II directors shall terminate on the date of the 2007
Annual Meeting; and the term of the initial Class III directors shall terminate
on the date of the 2008 Annual Meeting or, in each case, upon such director’s
earlier death, resignation or removal. 
At each succeeding Annual Meeting of Stockholders beginning in 2006,
successors to the class of directors whose term expires at that Annual Meeting
shall be elected for a three-year term and until their successors are duly
elected and qualified.  If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, and any additional director of any class elected to fill a vacancy
resulting from an increase in such class or from the removal from office,
death, disability, resignation or disqualification of a director or other cause
shall hold office for a term that shall coincide with the remaining term of
that class, but in no case will a decrease in the number of directors have the
effect of removing or shortening the term of any incumbent director.  Except as provided in Section 2 of this
Article III,


 


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directors shall be elected
by a plurality of the votes cast at each Annual Meeting of Stockholders and
each director so elected shall hold office until such director’s term expires
and until such director’s successor is duly elected and qualified, or until
such director’s earlier death, resignation or removal.  Directors need not be stockholders.


 


Section 2.               Vacancies.  Any vacancy on the Board of
Directors that results from an increase in the number of directors may only be
filled by a majority of the Board of Directors then in office, provided that a
quorum is present, and any other vacancy occurring on the Board of Directors
may only be filled by a majority of the Board of Directors then in office, even
if less than a quorum, or by a sole remaining director.  Any director of any class elected to fill a
vacancy resulting from an increase in the number of directors of such class
shall hold office for a term that shall coincide with the remaining term of
that class.  Any director elected to fill
a vacancy not resulting from an increase in the number of directors shall have
the same remaining term as that of his or her predecessor.


 


Section 3.               Duties and Powers.  The
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these By-Laws required to be exercised
or done by the stockholders.


 


Section 4.               Meetings.  The Board of Directors may
hold meetings, both regular and special, either within or without the State of
Delaware.  Regular meetings of the Board
of Directors may be held without notice at such time and at such place as may


 


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from time to time be
determined by the Board of Directors. 
Special meetings of the Board of Directors may be called by the
Chairman, if there be one, or the President. 
Notice thereof stating the place, date and hour of the meeting shall be
given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone, telegram or electronic means on
twenty-four (24) hours’ notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.


 


Section 5.               Organization.  At
each meeting of the Board of Directors, the Chairman of the Board of Directors
or, in the Chairman’s absence or if there be none, a director chosen by a
majority of the directors present, shall act as chairman.  The Secretary of the Corporation shall act as
secretary at each meeting of the Board of Directors.  In case the Secretary shall be absent from
any meeting of the Board of Directors, an Assistant Secretary shall perform the
duties of secretary at such meeting; and in the absence from any such meeting
of the Secretary and all the Assistant Secretaries, the chairman of the meeting
may appoint any person to act as secretary of the meeting.


 


Section
6.               Resignations and Removals of Directors.  Any
director of the Corporation may resign at any time, by giving notice in writing
or by electronic transmission to the Chairman of the Board of Directors, if
there be one, the President or the Secretary of the Corporation.  Such resignation shall take effect at the
time therein specified or, if no time is specified, immediately; and, unless
otherwise specified in such notice, the acceptance of such resignation shall
not be necessary to make it effective.


 


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Except as otherwise required
by applicable law and subject to the rights, if any, of the holders of shares of
preferred stock then outstanding, any director or the entire Board of Directors
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of at least two-thirds of the voting power of
the Corporation’s then issued and outstanding capital stock entitled to vote
generally at an election of directors of the Corporation.


 


Section 7.               Quorum.  Except as otherwise required
by law or the Certificate of Incorporation, at all meetings of the Board of
Directors, a majority of the entire Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors.  If a quorum
shall not be present at any meeting of the Board of Directors, the directors
present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting of the time and place of the adjourned
meeting, until a quorum shall be present.


 


Section
8.               Actions of the Board by Written Consent. 
Unless otherwise provided in the Certificate of Incorporation or these
By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting,
if all the members of the Board of Directors or committee, as the case may be,
consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board of Directors or committee.  Such filing


 


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shall be in paper form if
the minutes are maintained in paper form and shall be in electronic form if the
minutes are maintained in electronic form.


 


Section
9.               Meetings by Means of Conference Telephone. 
Unless otherwise provided in the Certificate of Incorporation or these
By-Laws, members of the Board of Directors of the Corporation, or any committee
thereof, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 9 shall constitute
presence in person at such meeting.


 


Section 10.             Committees.  The Board of Directors may
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation.  The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of any such committee.  In the absence or
disqualification of a member of a committee, and in the absence of a
designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any absent or disqualified
member.  Any committee, to the extent
permitted by law and provided in the resolution establishing such committee,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may


 


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authorize the seal of the
Corporation to be affixed to all papers which may require it.  Each committee shall keep regular minutes and
report to the Board of Directors when required.


 


Section 11.             Compensation.  The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary for service as director,
payable in cash or securities.  No such
payment shall preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor. 
Members of special or standing committees may be allowed like
compensation for service as committee members.


 


Section
12.             Interested Directors.  No
contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its
directors or officers are directors or officers or have a financial interest,
shall be void or voidable solely for this reason, or solely because the
director or officer is present at or participates in the meeting of the Board
of Directors or committee thereof which authorizes the contract or transaction,
or solely because any such director’s or officer’s vote is counted for such
purpose if: (i) the material facts as to the director’s or officer’s
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less


 


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than a quorum; or (ii) the material facts as to the
director’s or officer’s relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof or the stockholders.  Common or interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.


 


ARTICLE IV



OFFICERS


 


Section 1.                                            General.  The officers of the Corporation shall be
chosen by the Board of Directors and shall be a President, a Chief Executive
Officer, a Chief Financial Officer, a Secretary and a Treasurer.  The Board of Directors, in its discretion,
also may choose a Chairman of the Board of Directors (who must be a director)
and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers
and other officers.  Any number of
offices may be held by the same person, unless otherwise prohibited by law, the
Certificate of Incorporation or these By-Laws.  The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers be directors of the Corporation.


 


Section 2.                                            Election.  The Board of Directors, at its first meeting
held after each Annual Meeting of Stockholders, shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform


 


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such duties as shall be determined from time to time
by the Board of Directors; and each officer of the Corporation shall hold
office until such officer’s successor is elected and qualified, or until such
officer’s earlier death, resignation or removal.  Any officer elected by the Board of Directors
may be removed at any time by the Board of Directors.  Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.


 


Section 3.                                            Voting
Securities Owned by the Corporation. 
Powers of attorney, proxies, waivers of notice of meeting, consents and
other instruments relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation by the President or
any Vice President or any other officer authorized to do so by the Board of
Directors and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities and at any such meeting shall
possess and may exercise any and all rights and power incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present.  The
Board of Directors may, by resolution, from time to time confer like powers
upon any other person or persons.


 


Section 4.                                            Chairman
of the Board of Directors.  The
Chairman of the Board of Directors, if there be one, shall preside at all
meetings of the stockholders and of the Board of Directors.  Except where by law the signature of the
President is required, the Chairman of the Board of Directors shall possess the
same power as the President to


 


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sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board of Directors.  During the absence or disability of the
President, the Chairman of the Board of Directors shall exercise all the powers
and discharge all the duties of the President. 
The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as may from time to time be assigned
by these By-Laws or by the Board of Directors.


 


Section 5.                                            President.  The President shall, subject to the control
of the Board of Directors and, if there be one, the Chairman of the Board of
Directors, have general supervision of the business of the Corporation and
shall see that all orders and resolutions of the Board of Directors are carried
into effect.  The President shall be the
Chief Executive Officer of the Corporation, unless the Board of Directors
designates the Chairman as the Chief Executive Officer.  The President shall execute all bonds,
mortgages, contracts and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or permitted by law to
be otherwise signed and executed and except that the other officers of the
Corporation may sign and execute documents when so authorized by these By-Laws,
the Board of Directors or the President. 
In the absence or disability of the Chairman of the Board of Directors,
or if there be none, the President shall preside at all meetings of the
stockholders and, provided the President is also a director, the Board of
Directors.  The President shall also
perform such other duties and may exercise such other powers as may from time
to time be assigned to such officer by these By-Laws or by the Board of
Directors.


 


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Section 6.                                            Chief
Financial Officer.  The Chief
Financial Officer, if there be one, shall, subject to the control of the Board
of Directors, the Chairman of the Board of Directors, if there be one, and the
President have the responsibility for the financial affairs of the Corporation
and shall exercise supervisory responsibility for the performance of the duties
of the Treasurer and the controller, if any, of the Corporation.  The Chief Financial Officer shall also
perform such other duties and may exercise such other powers as may from time
to time be assigned to such officer by these By-Laws or by the Board of
Directors.


 


Section 7.                                            Vice
Presidents.  At the request of the
President or in the President’s absence or in the event of the President’s
inability or refusal to act (and if there be no Chairman of the Board of
Directors), the Vice President, or the Vice Presidents if there are more than
one (in the order designated by the Board of Directors), shall perform the
duties of the President, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the President.  Each Vice President shall perform such other
duties and have such other powers as the Board of Directors from time to time
may prescribe.  If there be no Chairman
of the Board of Directors and no Vice President, the Board of Directors shall
designate the officer of the Corporation who, in the absence of the President
or in the event of the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President.


 


Section 8.                                            Secretary.  The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and record all the
proceedings


 


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


 


Section 9.                                            Treasurer.  The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors.  The Treasurer shall


 


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disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all transactions as Treasurer and of the financial condition of the
Corporation.  If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of the Treasurer and for
the restoration to the Corporation, in case of the Treasurer’s death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Treasurer’s possession or
under the Treasurer’s control belonging to the Corporation.


 


Section 10.                                      Assistant
Secretaries.  Assistant Secretaries,
if there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of the Secretary’s inability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Secretary.


 


Section 11.                                      Assistant
Treasurers.  Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President, any Vice
President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of the Treasurer’s inability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have


 


24





















 


all the powers of and be subject to all the
restrictions upon the Treasurer.  If
required by the Board of Directors, an Assistant Treasurer shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of the office of Assistant Treasurer and for the restoration to the
Corporation, in case of the Assistant Treasurer’s death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in the Assistant Treasurer’s possession or
under the Assistant Treasurer’s control belonging to the Corporation.


 


Section 12.                                      Other
Officers.  Such other officers as the
Board of Directors may choose shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors.  The Board of Directors may delegate to any
other officer of the Corporation the power to choose such other Vice
Presidents, Assistant Secretaries, Assistant Treasurers and other officers and
to prescribe their respective duties and powers in accordance with these
By-laws.


 


ARTICLE V



STOCK


 


Section 1.                                            Form
of Certificates.  Every holder of
stock in the Corporation shall be entitled to have a certificate signed by, or
in the name of the Corporation (i) by the Chairman of the Board of Directors,
if there be one, or the President or a Vice President and (ii) by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such stockholder in the
Corporation.


 


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Section 2.                                            Signatures.  Any or all of the signatures on a certificate
may be a facsimile.  In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.


 


Section 3.                                            Lost
Certificates.  The Board of Directors
may direct a new certificate to be issued in place of any certificate
theretofore issued by the Corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed.  When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or such owner’s legal representative, to advertise the
same in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation on account of the alleged loss, theft
or destruction of such certificate or the issuance of such new certificate.


 


Section 4.                                            Transfers.  Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these
By-Laws.  Transfers of stock shall be
made on the books of the Corporation only by the person named in the
certificate or by such person’s attorney lawfully constituted in writing and
upon the surrender of the certificate therefor, properly endorsed for transfer
and payment of all necessary transfer


 


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taxes; provided, however, that such surrender and
endorsement or payment of taxes shall not be required in any case in which the
officers of the Corporation shall determine to waive such requirement.  Every certificate exchanged, returned or
surrendered to the Corporation shall be marked “Cancelled,” with the date of
cancellation, by the Secretary or Assistant Secretary of the Corporation or the
transfer agent thereof.  No transfer of
stock shall be valid as against the Corporation for any purpose until it shall
have been entered in the stock records of the Corporation by an entry showing
from and to whom transferred.


 


Section 5.                                            Dividend
Record Date.  In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall
be not more than sixty (60) days prior to such action.  If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.


 


Section 6.                                            Record
Owners.  The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to
hold liable for calls and assessments a person registered on its books as the
owner of shares, and shall not be bound to


 


27





















 


recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise required by
law.


 


Section 7.                                            Transfer
and Registry Agents.  The Corporation
may from time to time maintain one or more transfer offices or agencies and
registry offices or agencies at such place or places as may be determined from
time to time by the Board of Directors.


 


ARTICLE VI



NOTICES


 


Section 1.                                            Notices.  Whenever written notice is required by law,
the Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person’s address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail.  Written notice may also be given personally
or by telegram, telex, cable or, where permitted herein, by means of electronic
transmission.


 


Section 2.                                            Waivers
of Notice.  Whenever any notice is
required by applicable law, the Certificate of Incorporation or these By-Laws,
to be given to any director, member of a committee or stockholder, a waiver
thereof in writing, signed by the person or persons entitled to notice, or,
where permitted herein, a waiver by electronic transmission by the person or
persons entitled to notice, whether before or after the time


 


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stated therein, shall be deemed equivalent
thereto.  Attendance of a person at a
meeting, present in person or represented by proxy, shall constitute a waiver
of notice of such meeting, except where the person attends the meeting for the
express purpose of objecting at the beginning of the meeting to the transaction
of any business because the meeting is not lawfully called or convened.  Neither the business to be transacted at, nor
the purpose of, any Annual or Special Meeting of Stockholders or any regular or
special meeting of the directors or members of a committee of directors need be
specified in any written waiver of notice unless so required by law, the
Certificate of Incorporation or these By-Laws.


 


ARTICLE VII



GENERAL PROVISIONS


 


Section 1.                                            Dividends.  Dividends upon the capital stock of the
Corporation, subject to the requirements of the DGCL and the provisions of the
Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting of the Board of Directors (or any action by
written consent in lieu thereof in accordance with Section 8 of Article III
hereof), and may be paid in cash, in property, or in shares of the
Corporation’s capital stock.  Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for purchasing any of the shares of capital
stock, warrants, rights, options, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation, or for equalizing


 


29





















 


dividends, or for repairing or maintaining any
property of the Corporation, or for any proper purpose, and the Board of
Directors may modify or abolish any such reserve.


 


Section 2.                                            Disbursements.  All checks or demands for money and notes of
the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.


 


Section 3.                                            Fiscal
Year.  The fiscal year of the
Corporation shall be fixed by resolution of the Board of Directors.


 


Section 4.                                            Corporate
Seal.  The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words “Corporate Seal, Delaware”. 
The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.


 


ARTICLE VIII



INDEMNIFICATION


 


Section 1.                                            Power
to Indemnify in Actions, Suits or Proceedings other than those by or in the
Right of the Corporation.  Subject to
Section 3 of this Article VIII, the Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Corporation), by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’


 


30





















 


fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person’s conduct was unlawful.  The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such person’s conduct was unlawful.


 


Section 2.                                            Power
to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation.  Subject to Section 3 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director or officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests


 


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of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.


 


Section 3.                                            Authorization
of Indemnification.  Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director or officer
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in Section 1 or Section 2 of this Article VIII,
as the case may be.  Such determination
shall be made, with respect to a person who is a director or officer at the
time of such determination, (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) by a committee of such directors designated by a majority vote of such
directors, even though less than a quorum, or (iii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion or (iv) by the stockholders. 
Such determination shall be made, with respect to former directors and
officers, by any person or persons having the authority to act on the matter on
behalf of the Corporation.  To the
extent, however, that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding


 


32





















 


described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection therewith,
without the necessity of authorization in the specific case.


 


Section 4.                                            Good
Faith Defined.  For purposes of any
determination under Section 3 of this Article VIII, a person shall be deemed to
have acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation, or, with respect to
any criminal action or proceeding, to have had no reasonable cause to believe
such person’s conduct was unlawful, if such person’s action is based on the
records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise.  The provisions of this Section 4 shall not be
deemed to be exclusive or to limit in any way the circumstances in which a person
may be deemed to have met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be.


 


Section 5.                                            Indemnification
by a Court.  Notwithstanding any
contrary determination in the specific case under Section 3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may


 


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apply to the Court of Chancery of the State of
Delaware or any other court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible under Section 1 or
Section 2 of this Article VIII.  The
basis of such indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may be.  Neither a contrary determination in the
specific case under Section 3 of this Article VIII nor the absence of any
determination thereunder shall be a defense to such application or create a
presumption that the director or officer seeking indemnification has not met
any applicable standard of conduct.  Notice
of any application for indemnification pursuant to this Section 5 shall be
given to the Corporation promptly upon the filing of such application.  If successful, in whole or in part, the
director or officer seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.


 


Section 6.                                            Expenses
Payable in Advance.  Expenses
(including attorneys’ fees) incurred by a director or officer in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation as authorized in this Article VIII. 
Such expenses (including attorneys’ fees)


 


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incurred by former directors and officers or other
employees and agents may be so paid upon such terms and conditions, if any, as
the Corporation deems appropriate.


 


Section 7.                                            Nonexclusivity
of Indemnification and Advancement of Expenses.  The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation,
these By-Laws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person’s official capacity and as to
action in another capacity while holding such office, it being the policy of
the Corporation that indemnification of the persons specified in Section 1 and
Section 2 of this Article VIII shall be made to the fullest extent permitted by
law.  The provisions of this Article VIII
shall not be deemed to preclude the indemnification of any person who is not
specified in Section 1 or Section 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the provisions of
the DGCL, or otherwise.


 


Section 8.                                            Insurance.  The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person’s status as such, whether
or not the Corporation would have the power or the obligation to indemnify such
person against such liability under the provisions of this Article VIII.


 


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Section 9.                                            Certain
Definitions.  For purposes of this
Article VIII, references to “the Corporation” shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer
of such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position
under the provisions of this Article VIII with respect to the resulting or
surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.  The term “another enterprise” as used in this
Article VIII shall mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise of which such person
is or was serving at the request of the Corporation as a director, officer,
employee or agent.  For purposes of this
Article VIII, references to “fines” shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to “serving
at the request of the Corporation” shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director or officer with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of
the participants and


 


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beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article VIII.


 


Section 10.                                      Survival
of Indemnification and Advancement of Expenses.  The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and administrators of such a person.


 


Section 11.                                      Limitation
on Indemnification.  Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 5 of
this Article VIII), the Corporation shall not be obligated to indemnify any
director or officer (or his or her heirs, executors or personal or legal
representatives) or advance expenses in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.


 


Section 12.                                      Indemnification
of Employees and Agents.  The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.


 


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ARTICLE IX



AMENDMENTS


 


Section 1.                                            Amendments.  In furtherance and not in limitation of the
powers conferred upon it by the laws of the State of Delaware, the Board of
Directors shall have the power to adopt, amend, alter or repeal the
Corporation’s By-Laws.  The affirmative
vote of at least a majority of the entire Board of Directors shall be required
to adopt, amend, alter, change or repeal the Corporation’s By-Laws.  The Corporation’s By-Laws also may be
adopted, amended, altered, changed or repealed by the affirmative vote of the
holders of at least two-thirds of the voting power of the Corporation’s then
issued and outstanding capital stock entitled to vote generally at an election
of directors of the Corporation.


 


Section 2.                                            Entire
Board of Directors.  As used in this
Article IX and in these By-Laws generally, the term “entire Board of Directors”
means the total number of directors which the Corporation would have if there
were no vacancies.


 


* * *


 


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