**Exhibit 3.4**

**AMENDED AND RESTATED**

**BYLAWS**

**OF**

**BARE ESCENTUALS, INC.**

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**AMENDED AND RESTATED**

**BYLAWS**

**OF**

**BARE ESCENTUALS, INC.**

TABLE OF CONTENTS

 
| ** **                                                                | **Page** |
|---------------------------------------------------------------------------|----------|
|                                                                      |     |
| ARTICLE I  OFFICES                                         | 1        |
| Section 1. REGISTERED  OFFICES                                       | 1        |
| Section 2. OTHER  OFFICES                                            | 1        |
|                                                                      |     |
| ARTICLE II  MEETINGS  OF STOCKHOLDERS                      | 1        |
| Section 1. PLACE OF  MEETINGS                                        | 1        |
| Section 2. ANNUAL  MEETING OF STOCKHOLDERS                           | 1        |
| Section 3. QUORUM;  ADJOURNED MEETINGS AND NOTICE THEREOF            | 1        |
| Section 4. VOTING                                                    | 2        |
| Section 5. PROXIES                                                   | 2        |
| Section 6. SPECIAL  MEETINGS                                         | 2        |
| Section 7. NOTICE OF  STOCKHOLDERS’ MEETINGS                    | 3        |
| Section 8. FIXING DATE  FOR DETERMINATION OF STOCKHOLDERS OF RECORD  | 3        |
| Section 9. NOTICE OF  STOCKHOLDER BUSINESS AND NOMINATIONS           | 4        |
| Section 10.  MAINTENANCE AND INSPECTION OF STOCKHOLDER LIST          | 8        |
| Section 11.  STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING | 8        |
|                                                                      |     |
| ARTICLE III  DIRECTORS                                     | 8        |
| Section 1. THE NUMBER  OF DIRECTORS                                  | 8        |
| Section 2. VACANCIES                                                 | 9        |
| Section 3. POWERS                                                    | 9        |
| Section 4. PLACE OF  DIRECTORS’ MEETINGS                        | 9        |
| Section 5. REGULAR  MEETINGS                                         | 9        |
| Section 6. SPECIAL  MEETINGS                                         | 10       |
| Section 7. QUORUM                                                    | 10       |
| Section 8. ACTION  WITHOUT MEETING                                   | 10       |
| Section 9. TELEPHONIC  MEETINGS                                      | 10       |
| Section 10. COMMITTEES  OF DIRECTORS                                 | 10       |
| Section 11. MINUTES OF  COMMITTEE MEETINGS                           | 11       |
| Section 12.  COMPENSATION OF DIRECTORS                               | 11       |
|                                                                      |     |
| ARTICLE IV  OFFICERS                                       | 12       |

 

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| Section 1. OFFICERS                                            | 12     |
|---------------------------------------------------------------------|--------|
| Section 2. ELECTION OF  OFFICERS                               | 12     |
| Section 3. SUBORDINATE  OFFICERS                               | 12     |
| Section 4.  COMPENSATION OF OFFICERS                           | 12     |
| Section 5. TERM OF  OFFICE; REMOVAL AND VACANCIES              | 12     |
| Section 6. POWERS AND  DUTIES OF OFFICERS                      | 12     |
|                                                                |   |
| ARTICLE V  INDEMNIFICATION  OF EMPLOYEES AND AGENTS  | 13     |
|                                                                |   |
| ARTICLE VI  CERTIFICATES  OF STOCK                   | 14     |
| Section 1.  CERTIFICATES                                       | 14     |
| Section 2. SIGNATURES  ON CERTIFICATES                         | 14     |
| Section 3. STATEMENT  OF STOCK RIGHTS, PREFERENCES, PRIVILEGES | 14     |
| Section 4. LOST  CERTIFICATES                                  | 14     |
| Section 6. TRANSFERS  OF STOCK                                 | 15     |
| Section 7. REGISTERED  STOCKHOLDERS                            | 15     |
|                                                                |   |
| ARTICLE VII  GENERAL  PROVISIONS                     | 15     |
| Section 1. CHECKS                                              | 15     |
| Section 2. FISCAL YEAR                                         | 15     |
| Section 3. CORPORATE  SEAL                                     | 15     |
| Section 4. MANNER OF  GIVING NOTICE                            | 15     |
| Section 5. WAIVER OF  NOTICE                                   | 16     |
|                                                                |   |
| ARTICLE VIII  AMENDMENTS                             | 16     |

 

 

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**AMENDED AND RESTATED**

**BYLAWS**

**OF**

**BARE ESCENTUALS, INC.**

ARTICLE I

OFFICES

Section 1. REGISTERED OFFICES. The registeredoffice shall be in the City of Wilmington, County of New Castle, State ofDelaware.

Section 2. OTHER OFFICES. The corporation may alsohave offices at such other places both within and without the State of Delawareas the Board of Directors (the “***Board***”) may from time to time determine or thebusiness of the corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 1. PLACE OF MEETINGS. Meetings ofstockholders shall be held at any place within or outside the State of Delawaredesignated by the Board. In the absence of any such designation, stockholders’meetings shall be held at the principal executive office of the corporation.

Section 2. ANNUAL MEETING OF STOCKHOLDERS. Theannual meeting of stockholders shall be held each year on a date and a timedesignated by the Board. At each annual meeting directors shall be elected andany other proper business may be transacted.

Section 3. QUORUM; ADJOURNED MEETINGS AND NOTICETHEREOF. A majority of the stock issued and outstanding and entitled to vote atany meeting of stockholders, the holders of which are present in person orrepresented by proxy, shall constitute a quorum for the transaction of businessexcept as otherwise provided by law, by the Certificate of Incorporation, or bythese Bylaws. A quorum, once established, shall not be broken by the withdrawalof enough votes to leave less than a quorum and the votes present may continueto transact business until adjournment. If,

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however,such quorum shall not be present or represented at any meeting of thestockholders, a majority of the voting stock represented in person or by proxy may adjournthe meeting from time to time, without notice other than announcement at themeeting, until a quorum shall be present or represented. At such adjournedmeeting at which a quorum shall be present or represented, any business may betransacted which might have been transacted at the meeting as originallynotified. If the adjournment is for more than thirty days, or if after theadjournment a new record date is fixed for the adjourned meeting, a notice ofthe adjourned meeting shall be given to each stockholder of record entitled tovote thereat.

Section 4. VOTING. When a quorum is present atany meeting, in all matters other than the election of directors, the vote ofthe holders of a majority of the stock having voting power present in person orrepresented by proxy and entitled to vote on a particular question shall decidesuch question brought before such meeting, unless the question is one uponwhich by express provision of the statutes, the Certificate of Incorporation,or these Bylaws, a different vote is required in which case such express provisionshall govern and control the decision of such question. Directors shall beelected by a plurality of the votes of the stock present in person orrepresented by proxy at the meeting and entitled to vote on the election ofdirectors.

Section 5. PROXIES. At each meeting of thestockholders, each stockholder having the right to vote may vote in personor may authorize another person or persons to act for him or her by proxyappointed by an instrument in writing subscribed by such stockholder andbearing a date not more than three years prior to said meeting, unless saidinstrument provides for a longer period. All proxies must be filed with theSecretary of the corporation at the beginning of each meeting in order to becounted in any vote at the meeting. Each stockholder shall have one vote foreach share of stock having voting power, registered in his name on the books ofthe corporation on the record date set by the Board as provided in Article II,Section 8 hereof.

Section 6. SPECIAL MEETINGS. Special meetings ofthe stockholders, for any purpose, or purposes, unless otherwise prescribed bystatute or by the Certificate of Incorporation, may be called by

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theChairman of the Board or the Chief Executive Officer and shall be called by theChief Executive Officer or the Secretary at the request in writing of amajority of the members of the Board. Business transacted at any specialmeeting of stockholders shall be limited to the purposes stated in the notice.

Section 7. NOTICE OF STOCKHOLDERS’ MEETINGS. Wheneverstockholders are required or permitted to take any action at a meeting, awritten notice of the meeting shall be given which notice shall state theplace, date and hour of the meeting, and, in the case of a special meeting, thepurpose or purposes for which the meeting is called. The written notice of anymeeting shall be given to each stockholder entitled to vote at such meeting notless than ten nor more than sixty days before the date of the meeting. Ifmailed, notice is given when deposited in the United States mail, postageprepaid, directed to the stockholder at his address as it appears on therecords of the corporation.

Section 8. FIXING DATE FOR DETERMINATION OFSTOCKHOLDERS OF RECORD. In order that the corporation may determine thestockholders entitled to notice of, or to vote at, any meeting of stockholdersor any adjournment thereof, or entitled to receive payment of any dividend orother distribution or allotment of any rights, or entitled to exercise anyrights in respect of any change, conversion or exchange of stock or for thepurpose of any other lawful action, the Board may fix a record date, whichrecord date shall not precede the date upon which the resolution fixing therecord date is adopted by the Board, and which record date:  (a) in the case of determination ofstockholders entitled to vote at any meeting of stockholders or adjournmentthereof, shall, unless otherwise required by law, not be more than sixty norless than ten days before the date of such meeting; and (b) in the case ofany other action, shall not be more than sixty days prior to such other action.If no record date is fixed:  (i) therecord date for determining stockholders entitled to notice of or to vote at ameeting of stockholders shall be at the close of business on the day nextpreceding the day on which notice is given, or, if notice is waived, at theclose of business on the day next preceding the day on which the meeting isheld; and (ii) the record date for determining stockholders for any otherpurpose shall be at the close of business on the day on which the Board adoptsthe resolution relating thereto. A determination of

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stockholdersof record entitled to notice of, or to vote at, a meeting of stockholders shallapply to any adjournment of the meeting; provided, however, that the Board may fixa new record date for the adjourned meeting.

Section 9. NOTICE OF STOCKHOLDER BUSINESS ANDNOMINATIONS.

(a)           Nominationsof persons for election to the Board of the corporation and the proposal ofbusiness to be considered by the stockholders may be made at an annualmeeting of stockholders (i) pursuant to the corporation’s notice ofmeeting (or any supplement thereto), (ii) by or at the direction of theBoard or (iii) by any stockholder of the corporation who was a stockholderof record at the time notice provided for in this Section 9 is given tothe Secretary of the corporation, who is entitled to vote at the meeting andwho complies with the notice procedures in this Section 9.

(b)           Fornominations or other business to be properly brought before an annual meetingby a stockholder pursuant to clause (iii) of paragraph (a) of this Section 9,the stockholder must have given timely notice thereof in writing to theSecretary of the corporation and any such proposed business other than thenominations of persons for election to the Board must constitute a propermatter for stockholder action. To be timely, a stockholder’s notice shall bedelivered to the Secretary at the principal executive offices of thecorporation not later than the close of business on the ninetieth day norearlier than the close of business on the one hundred twentieth day prior tothe first anniversary of the preceding year’s annual meeting; provided,however, that in the event that the date of the annual meeting is more thanthirty days before or more than sixty days after such anniversary date, noticeby the stockholder to be timely must be so delivered not earlier than the closeof business on the one hundred twentieth day prior to such annual meeting andnot later than the close of business on the later of the ninetieth day prior tosuch annual meeting or the tenth day following the earlier of (i) the dayon which notice of the meeting was mailed or (ii) the date publicannouncement of the date of such meeting is first made by the corporation. Inno event shall the public announcement of an adjournment or postponement of anannual meeting commence a new time period (or extend any time period) for the

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givingof a stockholder’s notice as described above. Such stockholder’s notice shallset forth: (A) as to each person whom the stockholder proposes to nominatefor election or re-election as a director all information relating to suchperson that is required to be disclosed in solicitations of proxies forelection of directors in an election contest, or is otherwise required, in eachcase pursuant to Regulation 14A under the Securities Exchange Act of 1934, asamended (the “***ExchangeAct***”), and Rule 14a-101 thereunder (including such person’swritten consent to being named in the proxy statement as a nominee and toserving as a director if elected); (B) as to any other business that thestockholder proposes to bring before the meeting, a brief description of thebusiness desired to be brought before the meeting, the text of the proposal orbusiness (including the text of any resolutions proposed for consideration and,in the event that such business includes a proposal to amend the Bylaws, thelanguage of the proposed amendment), the reasons for conducting such businessat the meeting and any material interest in such business of such stockholderand the beneficial owner, if any, on whose behalf the nomination or proposal ismade; and (C) as to the stockholder giving the notice and the beneficialowner, if any, on whose behalf the nomination or proposal is made (I) the nameand address of such stockholder and of such beneficial owner, as they appear onthe corporation’s books, (II) the class and number of shares of capitalstock of the corporation which are owned beneficially and of record by suchstockholder and such beneficial owner, (III) a representation that thestockholder is a holder of record of stock of the corporation entitled to voteat such meeting and intends to appear in person or by proxy at the meeting topropose such business or nomination and (IV) a representation whether thestockholder or the beneficial owner, if any, intends or is part of a groupwhich intends (y) to deliver a proxy statement and/or form of proxy toholders of at least the percentage of the corporation’s outstanding capitalstock required to approve or adopt the proposal or elect the nominee and/or (z)otherwise to solicit proxies from stockholders in support of such proposal ornomination. The foregoing notice requirements shall be deemed satisfied by astockholder if the stockholder has notified the corporation of his or herintention to present a proposal at an annual meeting in compliance with Rule 14a-8(or any successor thereof) promulgated under the

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ExchangeAct and such stockholder’s proposal has been included in a proxy statement thathas been prepared by the corporation to solicit proxies for such annual meeting.The corporation may require any proposed nominee to furnish such otherinformation as it may reasonably require to determine the eligibility ofsuch proposed nominee to serve as a director of the corporation.

(c)           Only such business shall be conductedat a special meeting of stockholders as shall have been brought before themeeting pursuant to the corporation’s notice of meeting. Nominations of personsfor election to the Board may be made at a special meeting of stockholdersat which directors are to be elected pursuant to the corporation’s notice ofmeeting (i) by or at the direction of the Board or (ii) provided thatthe Board has determined that directors shall be elected at such meeting, byany stockholder of the corporation who is a stockholder of record at the timethe notice provided for in this Section 9 is delivered to the Secretary ofthe corporation, who is entitled to vote at the meeting and who complies withthe notice procedures set forth in this Section 9. In the event thecorporation calls a special meeting of stockholders for the purpose of electingone or more directors to the Board, any such stockholder entitled to vote insuch election of directors may nominate a person or persons (as the case may be)for election to such position(s) as specified in the corporation’s notice ofmeeting, if the stockholder’s notice required by paragraph (b) of this Section 9shall be delivered to the Secretary at the principal executive offices of thecorporation not earlier than the close of business on the one hundred twentiethday prior to such special meeting and not later than the close of business onthe later of (i) the ninetieth day prior to such special meeting or (ii) thetenth day following the day on which public announcement is first made of thedate of the special meeting and of the nominees proposed by the Board to beelected at such meeting. In no event shall the public announcement of anadjournment or postponement of a special meeting commence a new time period (orextend any time period) for the giving of a stockholder’s notice as describedabove.

(d)           (i)            Onlysuch persons who are nominated in accordance with the procedures set forth inthis Section 9 shall be eligible to be elected at an annual or specialmeeting of

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stockholders of the corporation to serve asdirectors, and only such business shall be conducted at a meeting of stockholdersas shall have been brought before the meeting in accordance with the proceduresset forth in this Section 9.  Exceptas otherwise provided by law, the chairman of the meeting shall have the powerand duty (A) to determine whether a nomination or any business proposed tobe brought before the meeting was made or proposed, as the case may be, inaccordance with the procedures set forth in this Section 9 (includingwhether the stockholder or beneficial owner, if any, on whose behalf thenomination or proposal is made solicited (or is part of a group whichsolicited) or did not so solicit, as the case may be, proxies in supportof such stockholder’s nominee or proposal in compliance with such stockholder’srepresentation as required by paragraph (b) of this Section 9) and (B) ifany proposed nomination or business was not made or proposed in compliance withthis Section 9, to declare that such nomination shall be disregarded orthat such proposed business shall not be transacted. Notwithstanding theforegoing provisions of this Section 9, if the stockholder (or a qualifiedrepresentative of the stockholder) does not appear at the annual or specialmeeting of stockholders of the corporation to present a nomination or business,such nomination shall be disregarded and such proposed business shall not betransacted, notwithstanding that proxies in respect of such vote may havebeen received by the corporation.

(ii)           For purposes of this Section 9, “publicannouncement” shall include disclosure in a press release reported byPRNewswire, Business Wire, the Dow Jones News Service, Associated Press orcomparable national news service or in a document publicly filed by thecorporation with the Securities and Exchange Commission pursuant to Section 13,14 or 15(d) of the Exchange Act.

(iii)          Notwithstandingthe foregoing provisions of this Section 9, a stockholder shall alsocomply with all applicable requirements of the Exchange Act and the rules andregulations promulgated thereunder with respect to the matters set forth inthis Section 9. Nothing in this Section 9 shall be deemed to affectany rights (A) of stockholders to request inclusion of proposals in the

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corporation’sproxy statement pursuant to Rule 14a-8 under the Exchange Act or (B) ofthe holders of any series of preferred stock of the corporation to electdirectors pursuant to any applicable provisions of the Certificate ofIncorporation.

Section 10. MAINTENANCE AND INSPECTION OFSTOCKHOLDER LIST. The officer who has charge of the stock ledger of thecorporation shall prepare and make, at least ten days before every meeting ofstockholders, a complete list of the stockholders entitled to vote at themeeting, arranged in alphabetical order, and showing the address of eachstockholder 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 purposegermane to the meeting, during ordinary business hours, for a period of atleast ten days prior to the meeting, either at a place within the city wherethe meeting is to be held, which place shall be specified in the notice of themeeting, or, if not so specified, at the place where the meeting is to be held.The list shall also be produced and kept at the time and place of the meetingduring the whole time thereof, and may be inspected by any stockholder whois present.

Section 11. STOCKHOLDER ACTION BY WRITTEN CONSENTWITHOUT A MEETING. Unless otherwise provided in the Certificate ofIncorporation, any action required to be taken at any annual or special meetingof stockholders of the corporation, or any action which may be taken atany annual or special meeting of such stockholders, may not be takenwithout a meeting.

ARTICLE III

DIRECTORS

Section 1. THE NUMBER OF DIRECTORS. The number ofdirectors which shall constitute the whole Board shall be not less than threenor more than fifteen. The actual number of directors shall be fixed from timeto time solely by resolution adopted by the affirmative vote of a majority ofthe directors. The directors need not be stockholders. The directors shall beelected at the annual meeting of the stockholders, except as provided in Section 2of this Article, and each director elected shall hold office until hissuccessor is elected and qualified; provided, however, that unless otherwiserestricted by the

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Certificateof Incorporation or by law, any director or the entire Board may beremoved, for cause, from the Board at any meeting of stockholders by not lessthan 662/3% of the outstanding stock of the Corporation.

Section 2. VACANCIES. Vacancies on the Board byreason of death, resignation, retirement, disqualification, removal fromoffice, or otherwise, and newly created directorships resulting from anyincrease in the authorized number of directors may be filled by a vote ofthe majority of the directors then in office, although less than a quorum, orby a sole remaining director. The directors so chosen shall hold office untilthe next election of directors for the class to which such director hasbeen elected and until their successors are duly elected and shall qualify,unless sooner displaced. If there are no directors in office, then an electionof directors may be held in the manner provided by statute. If, at thetime of filling any vacancy or any newly created directorship, the directorsthen in office shall constitute less than a majority of the whole Board (asconstituted immediately prior to any such increase), the Court of Chancery may,upon application of any stockholder or stockholders holding at least tenpercent of the total number of the shares at the time outstanding having theright to vote for such directors, summarily order an election to be held tofill any such vacancies or newly created directorships, or to replace thedirectors chosen by the directors then in office.

Section 3. POWERS. The property and business ofthe corporation shall be managed by or under the direction of its Board. Inaddition to the powers and authorities by these Bylaws expressly conferred uponthem, the Board may exercise all such powers of the corporation and do allsuch lawful acts and things as are not by statute, by the Certificate ofIncorporation or by these Bylaws directed or required to be exercised or doneby the stockholders.

Section 4. PLACE OF DIRECTORS’ MEETINGS. Thedirectors may hold their meetings, have one or more offices, and keep thebooks of the corporation outside of the State of Delaware.

Section 5. REGULAR MEETINGS. Regular meetings ofthe Board may be held without notice at such time and place as shall fromtime to time be determined by the Board.

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Section 6. SPECIAL MEETINGS. Special meetings ofthe Board may be called by the Chairman of the Board or the ChiefExecutive Officer on forty-eight hours’ notice to each director, either personallyor by mail, electronic or facsimile transmission or by telegram; specialmeetings shall be called by the Chief Executive Officer or the Secretary inlike manner and on like notice on the written request of two directors, unlessthe Board consists of only one director, in which case special meetings shallbe called by the Chief Executive Officer or Secretary in like manner or on likenotice on the written request of the sole director.

Section 7. QUORUM. At all meetings of the Board amajority of the authorized number of directors shall be necessary andsufficient to constitute a quorum for the transaction of business, and the voteof a majority of the directors present at any meeting at which there is aquorum, shall be the act of the Board, except as may be otherwisespecifically provided by statute, by the Certificate of Incorporation or bythese Bylaws. If a quorum shall not be present at any meeting of the Board, thedirectors present thereat may adjourn the meeting from time to time,without notice other than announcement at the meeting, until a quorum shall bepresent. If only one director is authorized, such sole director shallconstitute a quorum.

Section 8. ACTION WITHOUT MEETING. Unlessotherwise restricted by the Certificate of Incorporation or these Bylaws, anyaction required or permitted to be taken at any meeting of the Board or of anycommittee thereof may be taken without a meeting, if all members of theBoard or committee, as the case may be, consent thereto in writing, or byelectronic transmission and the writing or writings or electronic transmissionor transmissions are filed with the minutes of proceedings of the Board orcommittee.

Section 9. TELEPHONIC MEETINGS. Unless otherwiserestricted by the Certificate of Incorporation or these Bylaws, members of theBoard, or any committee designated by the Board, may participate in ameeting of the Board, or any committee, by means of conference telephone orsimilar communications equipment by means of which all persons participating inthe meeting can hear each other, and such participation in a meeting shallconstitute presence in person at such meeting.

Section 10. COMMITTEES OF DIRECTORS. The Boardmay, by resolution passed by a majority of the whole Board, designate one ormore committees, each such committee to consist of one or

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moreof the directors of the corporation. The Board may designate one or moredirectors as alternate members of any committee, who may replace anyabsent or disqualified member at any meeting of the committee. In the absenceor disqualification of a member of a committee, the member or members thereofpresent at any meeting and not disqualified from voting, whether or not he, sheor they constitute a quorum, may unanimously appoint another member of theBoard to act at the meeting in the place of any such absent or disqualifiedmember. Any such committee, to the extent provided in the resolution of theBoard, shall have and may exercise all the powers and authority of theBoard in the management of the business and affairs of the corporation, and may authorizethe seal of the corporation to be affixed to all papers which may requireit; but no such committee shall have the power or authority in reference toamending the Certificate of Incorporation, adopting an agreement of merger orconsolidation, recommending to the stockholders the sale, lease or exchange ofall or substantially all of the corporation’s property and assets, recommendingto the stockholders a dissolution of the corporation or a revocation of a dissolution,or amending the Bylaws of the corporation; and, unless the resolution or theCertificate of Incorporation expressly so provide, no such committee shall havethe power or authority to declare a dividend or to authorize the issuance ofstock.

Section 11. MINUTES OF COMMITTEE MEETINGS. Eachcommittee shall keep regular minutes of its meetings and report the same to theBoard when required.

Section 12. COMPENSATION OF DIRECTORS. Unlessotherwise restricted by the Certificate of Incorporation or these Bylaws, theBoard shall have the authority to fix the compensation of directors. Thedirectors may be paid their expenses, if any, of attendance at eachmeeting of the Board and may be paid a fixed sum for attendance at eachmeeting of the Board or a stated salary as director. No such payment shallpreclude any director from serving the corporation in any other capacity andreceiving compensation therefor. Members of special or standing committees may beallowed like compensation for attending committee meetings.

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ARTICLE IV

OFFICERS

Section 1. OFFICERS. The officers of thiscorporation shall be chosen by the Board and shall include a Chief ExecutiveOfficer, a President, a Secretary, and a Chief Financial Officer or Treasurer. Thecorporation may also have at the discretion of the Board such otherofficers as are desired, including one or more Vice Presidents, one or moreAssistant Secretaries and Assistant Treasurers, and such other officers as may beappointed in accordance with the provisions of Section 3 hereof. In theevent there are two or more Vice Presidents, then one or more may bedesignated as Executive Vice President, Senior Vice President, or other similaror dissimilar title. At the time of the election of officers, the directors may byresolution determine the order of their rank. Any number of offices may beheld by the same person, unless the Certificate of Incorporation or theseBylaws otherwise provide.

Section 2. ELECTION OF OFFICERS. The Board, atits first meeting after each annual meeting of stockholders, shall choose theofficers of the corporation.

Section 3. SUBORDINATE OFFICERS. The Board may appointsuch other officers as it shall deem necessary who shall hold their offices forsuch terms and shall exercise such powers and perform such duties as shallbe determined from time to time by the Board.

Section 4. COMPENSATION OF OFFICERS. The salariesof all officers of the corporation shall be fixed by the Board.

Section 5. TERM OF OFFICE; REMOVAL AND VACANCIES.The officers of the corporation shall hold office until their successors arechosen and qualify in their stead. Any officer elected or appointed by theBoard may be removed at any time by the affirmative vote of a majority ofthe Board. If the office of any officer or officers becomes vacant for anyreason, the vacancy shall be filled by the Board.

Section 6. POWERS AND DUTIES OF OFFICERS. Theofficers of the corporation shall have such powers and duties in the managementof the corporation as may be prescribed in a

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resolutionby the Board and, to the extent not so provided, as generally pertain to theirrespective offices, subject to the control of the Board.

The Chief Executive Officer shall have the general andactive management of the business, property and affairs of the corporation,subject to the control of the Board, and shall have the powers and perform theduties customarily exercised by the Chief Executive Officer of a businesscorporation, including the authority to sign on behalf of the corporation andthe duty to execute all directions and resolutions of the Board. She shall perform suchother duties as may be specified in these Bylaws or prescribed by the Board.

The President shall have such powers and duties as may bespecified in these Bylaws, prescribed by the Board or delegated by the Chief ExecutiveOfficer. The President shall have the authority to sign on behalf of thecorporation and the duty to execute all directions and resolutions of the Board.In the event of the absence or disability of the Chief Executive Officer, herduties shall be performed and her powers shall be exercised by the President tothe extent designated by the Board.

ARTICLE V

INDEMNIFICATION OF EMPLOYEES AND AGENTS

The corporation may indemnify every person whowas or is a party or is or was threatened to be made a party to any action,suit, or proceeding, whether civil, criminal, administrative or investigative,by reason of the fact that he or she is or was an employee or agent of thecorporation or, while an employee or agent of the corporation, is or wasserving at the request of the corporation as an employee or agent or trustee ofanother corporation, partnership, joint venture, trust, employee benefit planor other enterprise, against expenses (including counsel fees), judgments,fines and amounts paid in settlement actually and reasonably incurred by him orher in connection with such action, suit or proceeding, to the extent permittedby applicable law.

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ARTICLE VI

CERTIFICATES OF STOCK

Section 1. CERTIFICATES. Every holder of stock ofthe corporation shall be entitled to have a certificate signed by, or in thename of the corporation by, the President or a Vice President, and by theSecretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurerof the corporation, certifying the number of shares represented by thecertificate owned by such stockholder in the corporation.

Section 2. SIGNATURES ON CERTIFICATES. Any or allof the signatures on the certificate may be a facsimile. In case anyofficer, transfer agent, or registrar who has signed or whose facsimilesignature has been placed upon a certificate shall have ceased to be suchofficer, transfer agent, or registrar before such certificate is issued, it may beissued by the corporation with the same effect as if he or she were suchofficer, transfer agent, or registrar at the date of issue.

Section 3. STATEMENT OF STOCK RIGHTS,PREFERENCES, PRIVILEGES. If the corporation shall be authorized to issue morethan one class of stock or more than one series of any class, the powers,designations, preferences and relative, participating, optional or otherspecial rights of each class of stock or series thereof and thequalification, limitations or restrictions of such preferences and/or rightsshall be set forth in full or summarized on the face or back of the certificatewhich the corporation shall issue to represent such class or series ofstock, provided that, except as otherwise provided in section 202 of theGeneral Corporation Law of Delaware, in lieu of the foregoing requirements,there may be set forth on the face or back of the certificate which thecorporation shall issue to represent such class or series of stock, astatement that the corporation will furnish without charge to each stockholderwho so requests the powers, designations, preferences and relative,participating, optional or other special rights of each class of stock or series thereofand the qualifications, limitations or restrictions of such preferences and/orrights.

Section 4. LOST CERTIFICATES. The Board may directa new certificate or certificates to be issued in place of any certificate orcertificates theretofore issued by the corporation alleged to have been lost,stolen or destroyed, upon the making of an affidavit of that fact by the personclaiming the

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certificateof stock to be lost, stolen or destroyed. When authorizing such issue of a newcertificate or certificates, the Board may, in its discretion and as acondition precedent to the issuance thereof, require the owner of such lost,stolen or destroyed certificate or certificates, or his legal representative,to advertise the same in such manner as it shall require and/or to give thecorporation a bond in such sum as it may direct as indemnity against anyclaim that may be made against the corporation with respect to thecertificate alleged to have been lost, stolen or destroyed.

Section 5. TRANSFERS OF STOCK. Upon surrender tothe corporation, or the transfer agent of the corporation, of a certificate forshares duly endorsed or accompanied by proper evidence of succession,assignation or authority to transfer, it shall be the duty of the corporationto issue a new certificate to the person entitled thereto, cancel the oldcertificate and record the transaction upon its books.

Section 6. REGISTERED STOCKHOLDERS. Thecorporation shall be entitled to treat the holder of record of any share orshares of stock as the holder in fact thereof and accordingly shall not bebound to recognize any equitable or other claim or interest in such share onthe part of any other person, whether or not it shall have express orother notice thereof, save as expressly provided by the laws of the State ofDelaware.

ARTICLE VII

GENERAL PROVISIONS

Section 1. CHECKS. All checks or demands formoney and notes of the corporation shall be signed by such officer or officersas the Board may from time to time designate.

Section 2. FISCAL YEAR. The fiscal year of thecorporation shall be fixed by resolution of the Board.

Section 3. CORPORATE SEAL. The corporate sealshall have inscribed thereon the name of the corporation, and shall be in such form asmay be approved from time to time by the Board.

Section 4. MANNER OF GIVING NOTICE. Whenever,under the law, the Certificate of Incorporation or these Bylaws, notice isrequired to be given to any director or stockholder, it shall not

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beconstrued to mean personal notice, but such notice may be given inwriting, by mail, addressed to such director or stockholder, at his address asit appears on the records of the corporation, with postage thereon prepaid, andsuch notice shall be deemed to be given at the time when the same shall bedeposited in the United States mail. Notice to directors may also be givenby electronic or facsimile transmission, telegram, telecopier or any other meansof communication permitted by law.

Section 5. WAIVER OF NOTICE. Whenever any noticeis required to be given under the law or of the Certificate of Incorporation orof these Bylaws, a waiver thereof via electronic or facsimile transmission,mail, telegram, or telecopier in writing, signed by the person or personsentitled to said notice, whether before or after the time stated therein, shallbe deemed equivalent thereto. Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except when the person attends ameeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened. Neither the business to be transacted at nor the purpose of anyregular or special meeting of the stockholders, directors, or members of acommittee of directors need be specified in any written waiver of notice.

ARTICLE VIII

AMENDMENTS

These Bylaws may be altered, amended or repealedor new Bylaws may be adopted by the stockholders or by the Board inaccordance with the terms of the Certificate of Incorporation. If the power toadopt, amend or repeal Bylaws is conferred upon the Board by the Certificate ofIncorporation it shall not divest or limit the power of the stockholders toadopt, amend or repeal Bylaws.

 

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