Exhibit 4.2


 


AMENDED
AND RESTATED


 


BYLAWS


 


OF


 


CROCS, INC.


 


Incorporated under
the Laws of the State of Delaware


 


As
of February 13, 2006


 

















 


ARTICLE
I

OFFICES


 


SECTION 1.1 Principal Delaware Office. The registered
office of the Corporation in the State of Delaware shall be in the City of
Wilmington, County of New Castle.


 


SECTION 1.2 Other Offices. The Corporation may also
have offices in such other places, either within or without the State of
Delaware, as the Board of Directors from time to time may designate or the
business of the Corporation may from time to time require.


 


ARTICLE
II

STOCKHOLDERS


 


SECTION 2.1 Meetings of Stockholders.


 


(a)           Annual
Meetings. The annual meeting of the stockholders of the Corporation
shall be held on such date and at such time as may be fixed by resolution of
the Board of Directors. At the annual meeting stockholders shall elect
directors and transact such other business as properly may be brought before
the meeting.


 


(b)           Special
Meetings. Special meetings of the stockholders may be called only by
the Chairman of the Board or the Board of Directors pursuant to a resolution
approved by a majority of the total number of directors which the Corporation
would have if there were no vacancies (the “Whole Board”).


 


(c)           Place
of Meetings. Meetings of the stockholders shall be held at such
place, either within or without the State of Delaware, as the Board of
Directors shall determine. The Board of Directors may, at its sole discretion,
determine that the meeting shall not be held at any place, but may instead be
held solely by means of remote communication as provided under the Delaware
General Corporation Law (the “DGCL”).


 


(d)           Notice
of Meeting. Written notice, stating the place, day and hour of the
meeting shall be delivered by the Corporation not less than ten (10) days
nor more than sixty (60) days before the date of the meeting to each
stockholder of record entitled to vote at such meeting. Notice of a special
meeting shall also state the purpose or purposes for which the meeting has been
called. Without limiting the manner by which notice may otherwise be given,
notice may be given by a form of electronic transmission that satisfies the
requirements of the DGCL and has been consented to by the stockholder to whom
notice is given. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, addressed to
the stockholder at his or her address as it appears in the Corporation’s
records. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance
with Article VIII of these Bylaws. Any previously scheduled meeting of the
stockholders may be postponed, and any special meeting of the stockholders may
be cancelled, by resolution of the Board of Directors upon public notice given
prior to the date previously scheduled for such meeting of stockholders. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation’s notice of
meeting (or any supplement thereto).


 


(e)           Chairman
of Stockholder’s Meeting. The Chairman of the Board, or in the
Chairman’s absence, a Vice Chairman, or in the absence of any Vice Chairman, the
Chief Executive Officer, or in the absence of the Chief Executive Officer, the
Executive Vice President, or in the absence of the Executive Vice President, a
chairman chosen by a majority of the directors present, shall act as chairman
of the meetings of the stockholders.


 


SECTION 2.2 Quorum of Stockholders; Adjournment; Required Vote.


 


(a)           Quorum
of Stockholders; Adjournment. Except as otherwise provided by law,
by the Restated Certificate of Incorporation (the “Certificate of Incorporation”)
or by these Bylaws, the holders of a majority of the voting power of the
outstanding shares of the Corporation entitled to vote generally in the
election of directors (the “Voting Stock”), present in person or represented by
proxy, shall


 

















 


constitute a quorum at a
meeting of the stockholders, except that when specified business is to be voted
on by a class or series of stock voting as a class, the holders of a majority
of the shares of such class or series shall constitute a quorum of such class
or series for the transaction of such business. The chairman of the meeting or
a majority of the shares so represented may adjourn the meeting from time to
time, whether or not there is such a quorum. No notice of the time and place of
adjourned meetings need be given, except that notice of the adjourned meeting
shall be required 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.
The stockholders present at a duly called meeting at which a quorum is present
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.


 


(b)           Required
Vote. The affirmative vote of a majority of the voting power of the
shares present in person or represented by proxy at the meeting and entitled to
vote on the matter shall be the act of the stockholders, except as otherwise
provided by express provision of law, the Certificate of Incorporation or these
Bylaws requiring a larger or different vote, in which case such express
provision shall govern and control the decision of such matter.


 


SECTION 2.3 Voting by Stockholders; Procedures for Election of
Directors.


 


(a)           Voting
by Stockholders. Each stockholder of record entitled to vote at any
meeting may do so in person or by proxy appointed by instrument in writing or
in such other manner prescribed by the DGCL, subscribed by such stockholder or
his or her duly authorized attorney in fact.


 


(b)           Procedure
for Election of Directors. Election of directors at all meetings of
the stockholders at which directors are to be elected shall be by ballot, and,
subject to the rights of the holders of any series of Preferred Stock to elect
directors under specified circumstances, a plurality of the votes cast thereat
shall elect directors.


 


SECTION 2.4 Notice of Stockholder Business and Nominations.


 


(a)           Annual
Meetings of Stockholders. (1)  Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (A) pursuant to the Corporation’s notice of meeting,
(B) by or at the direction of the Board of Directors, or (C) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Bylaw, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this Bylaw.


 


(2)           For nominations or other business to
be properly brought before an annual meeting by a stockholder pursuant to
clause (C) of paragraph (a)(1) of this Bylaw, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation and such other business must otherwise be a proper matter
for stockholder action. To be timely, a stockholder’s notice shall be delivered
to the Secretary at the principal executive offices of the Corporation not
later than the close of business on the 90th day nor earlier than the close of
business on the 120th day prior to the first anniversary of the preceding year’s
annual meeting; provided, however, that in the event that the date
of the annual meeting is more than thirty (30) days before or more than
sixty (60) days after such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than the close of business on the
120th day prior to such annual meeting and not later than the close of business
on the later of the 90th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made by the Corporation. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder’s notice as described above. Such stockholder’s notice shall set
forth (A) as to each person whom the stockholder proposes to nominate for
election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to


 


2

















 


Regulation 14A under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
Rule 14a-11 thereunder (including such person’s written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected); (B) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation’s books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are
owned beneficially and of record by such stockholder and such beneficial owner.


 


(3)           Notwithstanding anything in the
second sentence of paragraph (a)(2) of this Bylaw to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of
the increased Board of Directors at least one hundred (100) days prior to
the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice required by this Bylaw shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the
day on which such public announcement is first made by the Corporation.


 


(b)           Special
Meetings of Stockholders. The business to be transacted at any
special meeting shall be limited to the purposes stated in the notice of such
meetings. Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation’s notice of meeting (1) by or at the direction
of the Board of Directors or (2) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time of giving of
notice provided for in this Bylaw, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Bylaw. In the
event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be), for election
to such position(s) as specified in the Corporation’s notice of meeting, if the
stockholder’s notice required by paragraph (a)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 120th day prior to
such special meeting and not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder’s
notice as described above.


 


(c)           General.
(1)  Only such persons who are nominated in accordance with the procedures
set forth in this Bylaw shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Bylaw. Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Bylaw and, if any proposed nomination or business
is not in compliance with this Bylaw, to declare that such defective proposal
or nomination shall be disregarded.


 


(2)           For purposes of this Bylaw, “public
announcement” shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in
a


 


3

















 


document publicly filed
by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.


 


(3)           Notwithstanding the foregoing
provisions of this Bylaw, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Bylaw. Nothing in this Bylaw shall be
deemed to affect any rights (A) of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to Rule 14a-8
under the Exchange Act or (B) of the holders of any series of Preferred
Stock to elect directors under specified circumstances.


 


SECTION 2.5 Inspectors of Elections; Opening and Closing the
Polls. The Board of Directors by resolution shall appoint one or
more inspectors, which inspector or inspectors may include individuals who
serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives, to act at the meetings of
stockholders and make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who fails to act.
If no inspector or alternate has been appointed to act or is able to act at a meeting
of stockholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by law.


 


The chairman of the
meeting shall fix and announce at the meeting the date and time of the opening
and the closing of the polls for each matter upon which the stockholders will
vote at the meeting.


 


SECTION 2.6 No Stockholder Action by Written Consent.
Any action required or permitted to be taken by stockholders may be effected
only at a duly called annual or special meeting of stockholders and may not be
effected by a written consent or consents by stockholders in lieu of such a
meeting of stockholders.


 


ARTICLE
III

BOARD OF DIRECTORS


 


SECTION 3.1 General Powers. The business and affairs
of the Corporation shall be managed under the direction of the Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon them, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws required to be exercised or
done by the stockholders.


 


SECTION 3.2 Number, Tenure and Qualifications. Subject
to the rights of the holders of any series of Preferred Stock to elect
directors under specified circumstances, the number of directors of the
Corporation shall be fixed, and may be increased or decreased from time to
time, exclusively by resolution approved by the affirmative vote of a majority
of the Whole Board. The directors, other than those who may be elected by the
holders of any outstanding series of Preferred Stock as set forth in the
Certificate of Incorporation, shall be divided into three classes, as nearly
equal in number as possible and designated Class I, Class II and
Class III. Class I shall be initially elected for a term expiring at
the annual meeting of stockholders to be held in 2006, Class II shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 2007, and Class III shall be initially elected for a term
expiring at the annual meeting of stockholders to be held in 2008. Members of
each class shall hold office until their successors are elected and qualified.
At each succeeding annual meeting of the stockholders of the Corporation, the
successors of the class of directors whose term expires at that meeting shall
be elected for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election. In case of any increase or
decrease, from time to time, in the number of directors, other than those who
may be elected by the holders of any


 


4

















 


outstanding series of
Preferred Stock as set forth in the Certificate of Incorporation, the number of
directors in each class shall be apportioned as nearly equal as possible.


 


SECTION 3.3 Regular Meetings. A regular meeting of the
Board of Directors may be held without other notice than this Bylaw immediately
after, and at the same place as, the Annual Meeting of Stockholders. The Board
of Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.


 


SECTION 3.4 Special Meetings. Special meetings of the
Board of Directors may be called at the request of the Chairman of the Board,
the Chief Executive Officer or a majority of the Board of Directors then in
office. The person or persons authorized to call special meetings of the Board
of Directors may fix the place and time of the meetings. Notice of any special
meeting shall be given to each director and shall state the time and place for
the special meeting.


 


SECTION 3.5 Notice. If notice of a Board of Directors’
meeting is required to be given, notice of shall be given to each director at
his or her business or residence in writing by hand delivery, first-class or
overnight mail or courier service, electronic transmission (including, without
limitation, via facsimile transmission or electronic mail), or orally by
telephone. If mailed by first-class mail, such notice shall be deemed
adequately delivered when deposited in the United States mails so addressed,
with postage thereon prepaid, no later than the third business day preceding
the date of such meeting. If by overnight mail or courier service, such notice
shall be deemed adequately delivered when the notice is delivered to the
overnight mail or courier service company at least twenty-four (24) hours
before such meeting. If by electronic transmission, such notice shall be deemed
adequately delivered when the notice is transmitted at least twelve
(12) hours before such meeting. If by telephone or by hand delivery, the
notice shall be given at least twelve (12) hours prior to the time set for
the meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these Bylaws, as provided
under Article IX of these Bylaws. A meeting may be held at any time without
notice if all the directors are present or if those not present waive notice of
the meeting in accordance with Article VIII of these Bylaws.


 


SECTION 3.6 Quorum. Subject to Section 3.10 of
these Bylaws, a whole number of directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of business, but if
at any meeting of the Board of Directors there shall be less than a quorum
present, a majority of the directors present may adjourn the meeting from time
to time without further notice. The act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors. The directors present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
directors to leave less than a quorum.


 


SECTION 3.7 Use of Communications Equipment. Directors
may participate in a meeting of the Board of Directors or any committee thereof
by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.


 


SECTION 3.8 Action by Consent of Board of Directors. 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
members of the Board 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 or committee.


 


SECTION 3.9 Removal. Subject to the rights of the
holders of any series of Preferred Stock with respect to such series of
Preferred Stock, 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 a


 


5

















 


majority of the voting
power of all of the then-outstanding shares of Voting Stock, voting together as
a single class.


 


SECTION 3.10 Vacancies. Subject to applicable law and
the rights of the holders of any series of Preferred Stock with respect to such
series of Preferred Stock, and unless the Board of Directors otherwise
determines, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of
directors, may be filled only by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the Board of Directors, or by
the sole remaining director, and directors so chosen shall hold office for a
term expiring at the annual meeting of stockholders at which the term of office
of the class to which they have been elected expires and until such director’s
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the Whole Board shall shorten the term of
any incumbent director.


 


SECTION 3.11 Committees. The Board of Directors may, by
resolution adopted by a majority of the Whole Board, designate one or more
committees, each of which shall consist of one or more directors. 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
the committee. In the absence or disqualification of any member of such committee
or committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member.


 


Any committee shall, to
the extent provided in a resolution of the Board of Directors and subject to
the limitations contained in the DGCL, have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation. Each committee shall keep such records and report
to the Board of Directors in such manner as the Board of Directors may from
time to time determine. Except as the Board of Directors may otherwise
determine, any committee may make rules for the conduct of its business. Unless
otherwise provided in a resolution of the Board of Directors or in rules
adopted by the committee, each committee shall conduct its business as nearly
as possible in the same manner as provided in these Bylaws for the Board of
Directors.


 


The Board of Directors
shall have power at any time to fill vacancies in, to change the membership of,
or to dissolve any such committee. The term of office of the members of each
committee shall be as fixed from time to time by the Board of Directors; provided, however,
that any committee member who ceases to be a member of the Board of Directors
shall automatically cease to be a committee member.


 


Nothing herein shall be
deemed to prevent the Board of Directors from appointing one or more committees
consisting in whole or in part of persons who are not directors of the
Corporation; provided, however, that no such committee shall have
or may exercise any authority of the Board of Directors.


 


ARTICLE
IV

BOOKS AND RECORDS


 


The Board of Directors
shall cause to be kept a record containing the minutes of the proceedings of
the meetings of the Board of Directors and of the stockholders, appropriate
stock books and registers and such books of records and accounts as may be
necessary for the proper conduct of the business of the Corporation. Unless
otherwise required by the laws of Delaware, the books and records of the
Corporation may be kept at the principal office of the Corporation, or at any other
place or places inside or outside the State of Delaware, as the Board of
Directors from time to time may designate.


 


6

















 


ARTICLE
V

OFFICERS


 


SECTION 5.1 Officers; Election or Appointment. The
Board of Directors shall take such action as may be necessary from time to time
to ensure that the Corporation has such officers as are necessary, under
Section 6.1 of these Bylaws and the DGCL as currently in effect or as the
same may hereafter be amended, to enable it to sign stock certificates. In
addition, the Board of Directors at any time and from time to time may elect
(a) one or more Chairmen of the Board and/or one or more Vice Chairmen of
the Board from among its members, (b) one or more Chief Executive Officers,
one or more Presidents and/or one or more Chief Operating Officers,
(c) one or more Vice Presidents or Executive Vice Presidents, one or more
Treasurers and/or one or more Secretaries and/or (d) one or more other
officers, in each case if and to the extent the Board of Directors deems
desirable. The Board of Directors may give any officer such further
designations or alternate titles as it considers desirable. In addition, the
Board of Directors at any time and from time to time may authorize the Chairman
of the Board or the Chief Executive Officer of the Corporation to appoint one
or more officers of the kind described in clauses (c) and (d) above.
Any number of offices may be held by the same person and directors may hold any
office unless the Certificate of Incorporation or these Bylaws otherwise
provide.


 


SECTION 5.2 Term of Office; Resignation; Removal; Vacancies.
Unless otherwise provided in the resolution of the Board of Directors electing
or authorizing the appointment of any officer, each officer shall hold office
until his or her successor is elected or appointed and qualified or until his
or her earlier resignation or removal. Any officer may resign at any time upon
written notice to the Board of Directors or to such person or persons as the Board
of Directors may designate. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. The Board of Directors may
remove any officer with or without cause at any time. The Chairman of the Board
or the Chief Executive Officer authorized by the Board of Directors to appoint
a person to hold an office of the Corporation may also remove such person from
such office with or without cause at any time, unless otherwise provided in the
resolution of the Board providing such authorization. Any such removal shall be
without prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election or appointment of an officer shall not of itself
create contractual rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors at any regular or special meeting or by the Chairman of the
Board or the Chief Executive Officer authorized by the Board of Directors to
appoint a person to hold such office.


 


SECTION 5.3 Powers and Duties. The officers of the
Corporation shall have such powers and duties in the management of the
Corporation as shall be stated in these Bylaws or in a resolution of the Board
of Directors which is not inconsistent with these Bylaws and, to the extent not
so stated, as generally pertain to their respective offices, subject to the
control of the Board of Directors. A Secretary or such other officer appointed
to do so by the Board of Directors shall have the duty to record the
proceedings of the meetings of the stockholders, the Board of Directors and any
committees in a book to be kept for that purpose.


 


ARTICLE
VI

STOCK CERTIFICATES


 


SECTION 6.1 Stock Certificates. The Board of Directors
may authorize the issuance of stock either in certificated or in uncertificated
form. If shares are issued in uncertificated form, each stockholder shall be
entitled upon written request to a stock certificate or certificates duly
numbered, certifying the number and class of shares in the Corporation owned by
him and otherwise as specified in this Section 6.1. Each certificate for
shares of stock shall be in such form as may be prescribed by the Board of
Directors and shall be signed in the name of the Corporation by (a) the
Chairman of the


 


7

















 


Board, the Chief
Executive Officer or a Vice President, and (b) by the Secretary or an
Assistant Secretary or the Treasurer or an Assistant Treasurer. 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 he or she were such officer, transfer
agent or registrar at the date of issue. Each certificate will include any
legends required by law or deemed necessary or advisable by the Board.


 


SECTION 6.2 Lost Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer of the Corporation
may in its or his or her discretion require.


 


SECTION 6.3 Transfers of Stock. The shares of the
stock of the Corporation shall be transferable on the books of the Corporation
by the holder thereof in a person or by his or her attorney upon surrender for
cancellation of a certificate or certificates for at least the same number of
shares, or other evidence of ownership if no certificates shall have been
issued, with an assignment and power of transfer endorsed thereon or attached
thereto, duly executed, and with such proof of the validity and authenticity of
the signature as the Corporation or its agents may reasonably require.


 


ARTICLE
VII

DEPOSITARIES AND CHECKS


 


Depositaries of the funds
of the Corporation shall be designated by the Board of Directors; and all
checks on such funds shall be signed by such officers or other employees of the
Corporation as the Board of Directors from time to time may designate.


 


ARTICLE
VIII

WAIVER OF NOTICE


 


Any notice of a meeting
required to be given by law, by the Certificate of Incorporation, or by these
Bylaws may be waived by the person entitled thereto, either before or after the
time of such meeting stated in such notice. Neither the business to be
transacted at, nor the purpose of, any annual or special meeting of the
stockholders or the Board of Directors or committee thereof need be specified
in any waiver of notice of such meeting.


 


ARTICLE
IX

AMENDMENT


 


These Bylaws may be
altered, amended, or repealed at any meeting of the Board of Directors or of
the stockholders, provided notice of the proposed change was given in the
notice of the meeting; provided, however, that, in the case of any
alteration, amendment or repeal by the Board of Directors, the affirmative vote
of a majority of the Whole Board shall be required to alter, amend or repeal
any provision of these Bylaws; and provided
further, that, in addition to any vote of the holders of any class
or series of stock of the Corporation required by law or by the Certificate of
Incorporation, in the case of any alteration, amendment or repeal by the
stockholders of any of the provisions of these Bylaws, the affirmative vote of
the holders of not less than 662/3% of the voting power
of all of the then-outstanding shares of Voting Stock, considered for purposes
of this Article IX as a single class, shall be required to alter, amend or
repeal any such provision.


 


8

















 


ARTICLE
X

INDEMNIFICATION AND INSURANCE


 


SECTION 10.1 Right to Indemnification. Each person who
was or is made a party or is threatened to be made a party to or is involved in
any action, suit, claim or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a “proceeding”), by reason of the fact that he or
she or a person of whom he or she is the legal representative is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans maintained or
sponsored by the Corporation, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent or in
any other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including attorneys’ fees, judgments, fines,
Employee Retirement Income Security Act of 1974 excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators; provided, however,
that except as provided in Section 10.4 of this Article X, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors.


 


SECTION 10.2 Advancement of Expenses. The right to
indemnification conferred in this Article X shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such
advances to be paid by the Corporation within twenty (20) days after
receipt by the Corporation of a written statement or statements from the
claimant requesting such advance or advances; provided,
however, that if the DGCL
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article X
or otherwise.


 


SECTION 10.3 Obtaining Indemnification. To obtain
indemnification under this Article X, a claimant shall submit to the
Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine whether and to what extent the claimant is
entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 10.3, a
determination, if required by applicable law, with respect to the claimant’s
entitlement thereto shall be made as follows: (1) if requested by the
claimant, by Independent Counsel (as hereinafter defined), or (2) if no
request is made by the claimant for a determination by Independent Counsel,
(i) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined), or (ii) if a quorum of
the Board of Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the claimant, or (iii) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request


 


9

















 


of the claimant, the
Independent Counsel shall be selected by the Board of Directors unless there
shall have occurred within two years prior to the date of the commencement
of the action, suit or proceeding for which indemnification is claimed a Change
in Control (as defined below), in which case the Independent Counsel shall be
selected by the claimant unless the claimant shall request that such selection
be made by the Board of Directors. If it is so determined that the claimant is
entitled to indemnification, payment to the claimant shall be made within
thirty (30) days after such determination. If a claimant is successful, in
whole or in part, in any suit brought against the Corporation to recover the
unpaid amount of any written claim to indemnification, the claimant shall be
entitled to be paid also the expense of prosecuting such claim.


 


SECTION 10.4 Right of Claimant to Bring Suit. If a
claim under Section 10.1 of this Article X is not paid in full by the
Corporation within thirty (30) days after a written claim pursuant to
Section 10.3 of this Article X has been received by the Corporation,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in defending any proceeding in advance
of its final disposition where the required undertaking, if any is required,
has been tendered to the Corporation) that the claimant has not met the
standard of conduct which makes it permissible under the DGCL for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, Independent Counsel or
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board of
Directors, Independent Counsel or stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.


 


SECTION 10.5 Corporation’s Obligation to Indemnify. If
a determination shall have been made pursuant to Section 10.3 of this
Article X that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to Section 10.4 of this Article X.


 


SECTION 10.6 Preclusion from Challenging Article X.
The Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to Section 10.4 of this Article X that the
procedures and presumptions of this Article X are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is
bound by all the provisions of this Article X.


 


For purposes of this
Article X:


 


(a)           “Change in Control” shall be deemed
to occur only if a majority of the members of the Board of Directors shall not
be (i) individuals elected as directors of the Corporation for whose
election proxies shall have been solicited by the Board of Directors of the
Corporation or (ii) individuals elected or appointed by the Board of
Directors of the Corporation to fill vacancies on the Board of Directors caused
by death or resignation (but not by removal) or to fill newly created
directorships.


 


(b)           “Disinterested Director” means a
director of the Corporation who is not and was not a party to the matter in
respect of which indemnification is sought by the claimant.


 


(c)           “Independent Counsel” means a law
firm, a member of a law firm, or an independent practitioner, that is
experienced in matters of corporation law and shall include any person who,
under the applicable standards of professional conduct then prevailing, would
not have a conflict of interest in representing either the Corporation or the
claimant in an action to determine the claimant’s rights under this
Article X.


 


10

















 


SECTION 10.7 Non-exclusivity of Rights. The right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in this Article X shall not
be exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or otherwise. No repeal or modification of this
Article X shall in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the Corporation hereunder in respect of
any occurrence or matter arising prior to any such repeal or modification.


 


SECTION 10.8 Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer,
employee or agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the DGCL. To the extent that the
Corporation maintains any policy or policies providing such insurance, each
such director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in Section 10.9 of this
Article X, shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage thereunder for any
such director, officer, employee or agent.


 


SECTION 10.9 Other Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and rights to be paid by the
Corporation the expenses incurred in defending any proceeding in advance of its
final disposition, to any employee or agent or class of employees or agents of
the Corporation (including the heirs, executors, administrators or estate of
each such person) to the fullest extent of the provisions of this Article X
with respect to the indemnification and advancement of expenses of directors
and officers of the Corporation.


 


SECTION 10.10 Validity of Article X. If any
provision or provisions of this Article X shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Article X
(including, without limitation, each portion of any paragraph of this
Article X containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and (b) to the
fullest extent possible, the provisions of this Article X (including,
without limitation, each such portion of any paragraph of this Article X
containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.


 


ARTICLE
XI

MISCELLANEOUS PROVISIONS


 


SECTION 11.1 Fiscal Year. The fiscal year of the
Corporation shall begin on the first (1st) day of January and
end on the thirty-first (31st) day of December of each year.


 


SECTION 11.2 Dividends. The Board of Directors may from
time to time declare, and the Corporation may pay, dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and the
Certificate of Incorporation.


 


11