**Exhibit 3.2**
AMENDED AND RESTATED BY-LAWS
OF
BLACKBOARD INC.
 

 

TABLE OF CONTENTS             **Page**ARTICLE I           STOCKHOLDERS 1  1.1 Place of Meetings  1  1.2 Annual Meeting  1  1.3 Special Meetings  1  1.4 Notice of Meetings  1  1.5 Voting List  1  1.6 Quorum  2  1.7 Adjournments  2  1.8 Voting and Proxies  2  1.9 Action at Meeting  2  1.10 Nomination of Directors.  3  1.11 Notice of Business at Annual Meetings.  5  1.12 Conduct of Meetings.  6  1.13 No Action by Consent in Lieu of a Meeting  8         ARTICLE II          DIRECTORS  8  2.1 General Powers  8  2.2 Number, Election and Qualification  8  2.3 Classes of Directors  8  2.4 Terms of Office  8  2.5 Quorum  8  2.6 Action at Meeting  8  2.7 Removal  8  2.8 Vacancies  9  2.9 Resignation  9  2.10 Regular Meetings  9  2.11 Special Meetings  9  2.12 Notice of Special Meetings  9  2.13 Meetings by Conference Communications Equipment  9  2.14 Action by Consent  9  2.15 Committees  10  2.16 Compensation of Directors  10         ARTICLE III         OFFICERS  10  3.1 Titles  10  3.2 Election  10  3.3 Qualification  10  3.4 Tenure  10  3.5 Resignation and Removal  11  3.6 Vacancies  11  3.7 Chairman of the Board  11  3.8 President; Chief Executive Officer  11  3.9 Vice Presidents  11 
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         3.10 Secretary and Assistant Secretaries  12  3.11 Treasurer and Assistant Treasurers  12  3.12 Salaries  12         ARTICLE IV         CAPITAL STOCK  12  4.1 Issuance of Stock  12  4.2 Certificates of Stock  13  4.3 Transfers  13  4.4 Lost, Stolen or Destroyed Certificates  13  4.5 Record Date  13         ARTICLE V          GENERAL PROVISIONS  14  5.1 Fiscal Year  14  5.2 Corporate Seal  14  5.3 Waiver of Notice  14  5.4 Voting of Securities  14  5.5 Evidence of Authority  14  5.6 Certificate of Incorporation  15  5.7 Severability  15  5.8 Pronouns  15         ARTICLE VI         AMENDMENTS  15 
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**ARTICLE I**
**STOCKHOLDERS**
     1.1Place of Meetings. All meetings of stockholders shall be held at suchplace as may be designated from time to time by the Board of Directors, theChairman of the Board, the Chief Executive Officer or the President or, if notso designated, at the principal office of the corporation.
     1.2Annual Meeting. The annual meeting of stockholders for the electionof directors and for the transaction of such other business as may properly bebrought before the meeting shall be held on a date and at a time designated bythe Board of Directors, the Chairman of the Board, the Chief Executive Officeror the President (which date shall not be a legal holiday in the place wherethe meeting is to be held). If no annual meeting is held in accordance withthe foregoing provisions, a special meeting may be held in lieu of the annualmeeting, and any action taken at that special meeting shall have the sameeffect as if it had been taken at the annual meeting, and in such case allreferences in these By-laws to the annual meeting of the stockholders shall bedeemed to refer to such special meeting.
     1.3Special Meetings. Special meetings of stockholders for any purpose orpurposes may be called at any time by the Board of Directors, the Chairman ofthe Board, the Chief Executive Officer or the President, but such specialmeetings may not be called by any other person or persons. Business transactedat any special meeting of stockholders shall be limited to matters relating tothe purpose or purposes stated in the notice of meeting.
     1.4Notice of Meetings. Except as otherwise provided by law, notice ofeach meeting of stockholders, whether annual or special, shall be given notless than 10 nor more than 60 days before the date of the meeting to eachstockholder entitled to vote at such meeting. Without limiting the manner bywhich notice otherwise may be given to stockholders, any notice shall beeffective if given by a form of electronic transmission consented to (in amanner consistent with the General Corporation Law of the State of Delaware) bythe stockholder to whom the notice is given. The notices of all meetings shallstate the place, date and time of the meeting and the means of remotecommunications, if any, by which stockholders and proxyholders may be deemed tobe present in person and vote at such meeting. The notice of a special meetingshall state, in addition, the purpose or purposes for which the meeting iscalled. If notice is given by mail, such notice shall be deemed given whendeposited in the United States mail, postage prepaid, directed to thestockholder at such stockholder’s address as it appears on the records of thecorporation. If notice is given by electronic transmission, such notice shallbe deemed given at the time specified in Section 232 of the General CorporationLaw of the State of Delaware.
     1.5Voting List. The Secretary shall prepare, at least 10 days beforeevery meeting of stockholders, a complete list of the stockholders entitled tovote at the meeting, arranged in alphabetical order, and showing the address ofeach stockholder and the number of shares registered in the name of eachstockholder. Such list shall be open to the examination of any stockholder,for any purpose germane to the meeting, for a period of at least 10 days priorto the meeting: (a) on a reasonably accessible electronic network, providedthat the information required to gain access to such list is provided withnotice of the meeting, or (b) 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 meetingduring the whole time thereof, and may be inspected by any stockholder who ispresent.
     1.6Quorum. Except as otherwise provided by law, the Certificate ofIncorporation or these By-laws, the holders of a majority of the shares of thecapital stock of the corporation issued and outstanding and entitled to vote atthe meeting, present in person, present by means of remote communication in amanner, if any, authorized by the Board of Directors in its sole discretion, orrepresented by proxy, shall constitute a quorum for the transaction ofbusiness. A quorum, once established at a meeting, shall not be broken by thewithdrawal of enough votes to leave less than a quorum.
     1.7Adjournments. Any meeting of stockholders may be adjourned from timeto time to any other time and to any other place at which a meeting ofstockholders may be held under these By-laws by the stockholders present orrepresented at the meeting and entitled to vote, although less than a quorum,or, if no stockholder is present, by any officer entitled to preside at or toact as secretary of such meeting. It shall not be necessary to notify anystockholder of any adjournment of less than 30 days if the time and place ofthe adjourned meeting, and the means of remote communication, if any, by whichstockholders and proxyholders may be deemed to be present in person and vote atsuch adjourned meeting, are announced at the meeting at which adjournment istaken, unless after the adjournment a new record date is fixed for theadjourned meeting. At the adjourned meeting, the corporation may transact anybusiness which might have been transacted at the original meeting.
     1.8Voting and Proxies. Each stockholder shall have one vote for eachshare of stock entitled to vote held of record by such stockholder and aproportionate vote for each fractional share so held, unless otherwise providedby law or the Certificate of Incorporation. Each stockholder of recordentitled to vote at a meeting of stockholders may vote in person (including bymeans of remote communications, if any, by which stockholders may be deemed tobe present in person and vote at such meeting) or may authorize another personor persons to vote for such stockholder by a proxy executed or transmitted in amanner permitted by the General Corporation Law of the State of Delaware by thestockholder or such stockholder’s authorized agent and delivered (including byelectronic transmission) to the Secretary of the corporation. No such proxyshall be voted upon after three years from the date of its execution, unlessthe proxy expressly provides for a longer period.
     1.9Action at Meeting. When a quorum is present at any meeting, anymatter other than the election of directors to be voted upon by thestockholders at such meeting shall be decided by the affirmative vote of theholders of shares of stock having a majority of the votes cast by the holdersof all of the shares of stock present or represented and voting on such matter(or if there are two or more classes of stock entitled to vote as separateclasses, then in the case of each such class, the holders of a majority of thestock of that class present or represented and voting on such matter), exceptwhen a different vote is required by law, the Certificate of Incorporation orthese By-laws. When a quorum is present at any meeting, any election bystockholders of directors shall be determined by a plurality of the votes castby the stockholders entitled to vote on the election.
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     1.10Nomination of Directors.
             (a) Except for (i) any directors entitled to be elected by the holders ofpreferred stock, (ii) any directors elected in accordance with Section 2.9hereof by the Board of Directors to fill a vacancy or newly-createddirectorships or (iii) as otherwise required by applicable law or stock marketregulation, only persons who are nominated in accordance with the procedures inthis Section 1.10 shall be eligible for election as directors. Nomination forelection to the Board of Directors at a meeting of stockholders may be made (A)by or at the direction of the Board of Directors or (B) by any stockholder ofthe corporation who (x) complies with the notice procedures set forth inSection 1.10(b) and (y) is a stockholder of record on the date of the giving ofsuch notice and on the record date for the determination of stockholdersentitled to vote at such meeting.
             (b) (i) To be timely, a stockholder’s notice must be received in writingby the Secretary at the principal executive offices of the corporation asfollows: (A) in the case of an election of directors at an annual meeting ofstockholders, not less than 90 days nor more than 120 days prior to the firstanniversary of the preceding year’s annual meeting; provided, however, that (1)in the case of the annual meeting of stockholders of the corporation to be heldin 2005 or (2) in the event that the date of the annual meeting in any otheryear is advanced by more than 20 days, or delayed by more than 60 days, fromthe first anniversary of the preceding year’s annual meeting, a stockholder’snotice must be so received not earlier than the 120th day prior to such annualmeeting and not later than the close of business on the later of (x) the 90thday prior to such annual meeting and (y) the tenth day following the day onwhich notice of the date of such annual meeting was mailed or public disclosureof the date of such annual meeting was made, whichever first occurs; or (B) inthe case of an election of directors at a special meeting of stockholders,provided that the Board of Directors has determined that directors shall beelected at such meeting, not earlier than the 120th day prior to such specialmeeting and not later than the close of business on the later of (1) the 90thday prior to such special meeting and (2) the tenth day following the day onwhich notice of the date of such special meeting was mailed or publicdisclosure of the date of such special meeting was made, whichever firstoccurs. In no event shall the adjournment or postponement of an annual meeting(or the public announcement thereof) commence a new time (or extend any timeperiod) for the giving of a stockholder’s notice.
     (ii) The stockholder’s notice to the Secretary shall set forth: (A) as toeach proposed nominee (1) such person’s name, age, business address and, ifknown, residence address, (2) such person’s principal occupation or employment,(3) the class and number of shares of stock of the corporation which arebeneficially owned by such person, and (4) any other information concerningsuch person that must be disclosed as to nominees in proxy solicitationspursuant to Regulation 14A under the Securities Exchange Act of 1934, asamended (the “Exchange Act”); (B) as to the stockholder giving the notice (1)such stockholder’s name and address, as they appear on the corporation’s books,(2) the class and number of shares of stock of the corporation which are owned,beneficially and of record, by such stockholder, (3) a description of allarrangements or understandings between such stockholder and each proposednominee and any other person or persons (including their names) pursuant towhich the nomination(s) are to be made by such stockholder, (4) arepresentation that such stockholder intends to appear in person or by proxy atthe meeting to nominate the person(s) named in its notice and (5) arepresentation
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whether the stockholder intends or is part of a group which intends (x) todeliver a proxy statement and/or form of proxy to holders of at least thepercentage of the corporation’s outstanding capital stock required to elect thenominee and/or (y) otherwise to solicit proxies from stockholders in support ofsuch nomination; and (z) as to the beneficial owner, if any, on whose behalfthe nomination is being made (aa) such beneficial owner’s name and address,(bb) the class and number of shares of stock of the corporation which arebeneficially owned by such beneficial owner, (cc) a description of allarrangements or understandings between such beneficial owner and each proposednominee and any other person or persons (including their names) pursuant towhich the nomination(s) are to be made and (dd) a representation whether thebeneficial owner intends or is part of a group which intends (xx) to deliver aproxy statement and/or form of proxy to holders of at least the percentage ofthe corporation’s outstanding capital stock requirement to elect the nomineeand/or (yy) otherwise to solicit proxies from stockholders in support of suchnomination. In addition, to be effective, the stockholder’s notice must beaccompanied by the written consent of the proposed nominee to serve as adirector if elected. The corporation may require any proposed nominee tofurnish such other information as may reasonably be required to determine theeligibility of such proposed nominee to serve as a director of the corporation.A stockholder shall not have complied with this Section 1.10(b) if thestockholder (or beneficial owner, if any, on whose behalf the nomination ismade) solicits or does not solicit, as the case may be, proxies in support ofsuch stockholder’s nominee in contravention of the representations with respectthereto required by this Section 1.10.
             (c) The chairman of any meeting shall, if the facts warrant, have thepower and duty to determine that a nomination was not made in accordance withthe provisions of this Section 1.10 (including whether the stockholder orbeneficial owner, if any, on whose behalf the nomination is made solicited (oris part of a group which solicited) or did not so solicit, as the case may be,proxies in support of such stockholder’s nominee in compliance with therepresentations with respect thereto required by this Section 1.10), and if thechairman should so determine, the chairman shall so declare to the meeting andsuch nomination shall be disregarded.
             (d) Except as otherwise required by law, nothing in this Section 1.10shall obligate the corporation or the Board of Directors to include in anyproxy statement or other stockholder communication distributed on behalf of thecorporation or the Board of Directors information with respect to any nomineefor director submitted by a stockholder.
             (e) Notwithstanding the foregoing provisions of this Section 1.10, if thestockholder (or a qualified representative of the stockholder) does not appearat the annual or special meeting of stockholders of the corporation to presenta nomination, such nomination shall be disregarded, notwithstanding thatproxies in respect of such vote may have been received by the corporation. Forpurposes of this Section 1.10, to be considered a qualified representative ofthe stockholder, a person must be authorized by a writing executed by suchstockholder or an electronic transmission delivered by such stockholder to actfor such stockholder as proxy at the meeting of stockholders, and such personmust produce such writing or electronic transmission, or a reliablereproduction of the writing or electronic transmission, at the meeting ofstockholders.
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             (f) For purposes of this Section 1.10, “public disclosure” shall includedisclosure in a press release reported by the Dow Jones New Service, AssociatedPress or comparable national news service or in a document publicly filed bythe corporation with the Securities and Exchange Commission pursuant to Section13, 14 or 15(d) of the Exchange Act.
     1.11Notice of Business at Annual Meetings.
             (a) At any annual meeting of the stockholders, only such business shall beconducted as shall have been properly brought before the meeting. To beproperly brought before an annual meeting, business must be (i) specified inthe notice of meeting (or any supplement thereto) given by or at the directionof the Board of Directors, (ii) otherwise properly brought before the meetingby or at the direction of the Board of Directors, or (iii) properly broughtbefore the meeting by a stockholder. For business to be properly broughtbefore an annual meeting by a stockholder, (i) if such business relates to thenomination of a person for election as a director of the corporation, theprocedures in Section 1.10 must be complied with and (ii) if such businessrelates to any other matter, the business must constitute a proper matter forstockholder action and the stockholder must (x) have given timely noticethereof in writing to the Secretary in accordance with the procedures set forthin Section 1.11(b) and (y) be a stockholder of record on the date of the givingof such notice and on the record date for the determination of stockholdersentitled to vote at such annual meeting.
             (b) To be timely, a stockholder’s notice must be received in writing bythe Secretary at the principal executive offices of the corporation not lessthan 90 days nor more than 120 days prior to the first anniversary of thepreceding year’s annual meeting; provided, however, that (i) in the case of theannual meeting of stockholders of the corporation to be held in 2005 or (ii) inthe event that the date of the annual meeting in any other year is advanced bymore than 20 days, or delayed by more than 60 days, from the first anniversaryof the preceding year’s annual meeting, a stockholder’s notice must be soreceived not earlier than the 120th day prior to such annual meeting and notlater than the close of business on the later of (A) the 90th day prior to suchannual meeting and (B) the tenth day following the day on which notice of thedate of such annual meeting was mailed or public disclosure of the date of suchannual meeting was made, whichever first occurs. In no event shall theadjournment or postponement of an annual meeting (or the public announcementthereof) commence a new time (or extend any time period) for the giving of astockholder’s notice.
     The stockholder’s notice to the Secretary shall set forth as to eachmatter the stockholder proposes to bring before the annual meeting (i) a briefdescription of the business desired to be brought before the annual meeting,the text of the proposal or business (including the text of any resolutionsproposed for consideration and, in the event that such business includes aproposal to amend the By-laws, the language of the proposed amendment), and thereasons for conducting such business at the annual meeting, (ii) the name andaddress, as they appear on the corporation’s books, of the stockholderproposing such business, and the name and address of the beneficial owner, ifany, on whose behalf the proposal is made, (iii) the class and number of sharesof stock of the corporation which are owned, of record and beneficially, by thestockholder and beneficial owner, if any, (iv) a description of allarrangements or understandings between such stockholder or such beneficialowner, if any, and any other person or persons (including their names) inconnection with the proposal of such business by such stockholder and
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any material interest of the stockholder or such beneficial owner, if any,in such business, (v) a representation that such stockholder intends to appearin person or by proxy at the annual meeting to bring such business before themeeting and (vi) a representation whether the stockholder or the beneficialowner, if any, intends or is part of a group which intends (a) to deliver aproxy statement and/or form of proxy to holders of at least the percentage ofthe corporation’s outstanding capital stock required to approve or adopt theproposal and/or (b) otherwise to solicit proxies from stockholders in supportof such proposal. Notwithstanding anything in these By-laws to the contrary,no business shall be conducted at any annual meeting of stockholders except inaccordance with the procedures set forth in this Section 1.11; provided thatany stockholder proposal which complies with Rule 14a-8 of the proxy rules (orany successor provision) promulgated under the Securities Exchange Act of 1934,as amended, and is to be included in the corporation’s proxy statement for anannual meeting of stockholders shall be deemed to comply with the requirementsof this Section 1.11. A stockholder shall not have complied with this Section1.11(b) if the stockholder (or beneficial owner, if any, on whose behalf thenomination is made) solicits or does not solicit, as the case may be, proxiesin support of such stockholder’s proposal in contravention of therepresentations with respect thereto required by this Section 1.11.
             (c) The chairman of any meeting shall, if the facts warrant, have thepower and duty to determine that business was not properly brought before themeeting in accordance with the provisions of this Section 1.11 (includingwhether the stockholder or beneficial owner, if any, on whose behalf theproposal is made solicited (or is part of a group which solicited) or did notso solicit, as the case may be, proxies in support of such stockholder’sproposal in compliance with the representation with respect thereto required bythis Section 1.11), and if the chairman should so determine, the chairman shallso declare to the meeting and such business shall not be brought before themeeting.
             (d) Notwithstanding the foregoing provisions of this Section 1.11, if thestockholder (or a qualified representative of the stockholder) does not appearat the annual meeting of stockholders of the corporation to present business,such business shall not be transacted, notwithstanding that proxies in respectof such vote may have been received by the corporation. For purposes of thisSection 1.11, to be considered a qualified representative of the stockholder, aperson must be authorized by a writing executed by such stockholder or anelectronic transmission delivered by such stockholder to act for suchstockholder as a proxy at the meeting of stockholders, and such person mustproduce such writing or electronic transmission, or a reliable reproduction ofthe writing or electronic transmission, at the meeting of stockholders.
             (e) For purposes of this Section 1.11, “public disclosure” shall includedisclosure in a press release reported by the Dow Jones New Service, AssociatedPress or comparable national news service or in a document publicly filed bythe corporation with the Securities and Exchange Commission pursuant to Section13, 14 or 15(d) of the Exchange Act.
     1.12Conduct of Meetings.
             (a) Meetings of stockholders shall be presided over by the Chairman of theBoard, if any, or in the Chairman’s absence by the Vice Chairman of the Board,if any, or in the
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Vice Chairman’s absence by the Chief Executive Officer, or in the ChiefExecutive Officer’s absence, by the President, or in the President’s absence bya Vice President, or in the absence of all of the foregoing persons by achairman designated by the Board of Directors, or in the absence of suchdesignation by a chairman chosen by vote of the stockholders at the meeting.The Secretary shall act as secretary of the meeting, but in the Secretary’sabsence the chairman of the meeting may appoint any person to act as secretaryof the meeting.
             (b) The Board of Directors may adopt by resolution such rules, regulationsand procedures for the conduct of any meeting of stockholders of thecorporation as it shall deem appropriate including, without limitation, suchguidelines and procedures as it may deem appropriate regarding theparticipation by means of remote communication of stockholders and proxyholdersnot physically present at a meeting. Except to the extent inconsistent withsuch rules, regulations and procedures as adopted by the Board of Directors,the chairman of any meeting of stockholders shall have the right and authorityto 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 themeeting. Such rules, regulations or procedures, whether adopted by the Boardof Directors or prescribed by the chairman of the meeting, may include, withoutlimitation, the following: (i) the establishment of an agenda or order ofbusiness for the meeting; (ii) rules and procedures for maintaining order atthe meeting and the safety of those present; (iii) limitations on attendance ator participation in the meeting to stockholders of record of the corporation,their duly authorized and constituted proxies or such other persons as shall bedetermined; (iv) restrictions on entry to the meeting after the time fixed forthe commencement thereof; and (v) limitations on the time allotted to questionsor comments by participants. Unless and to the extent determined by the Boardof Directors or the chairman of the meeting, meetings of stockholders shall notbe required to be held in accordance with the rules of parliamentary procedure.
             (c) The chairman of the meeting shall announce at the meeting when thepolls for each matter to be voted upon at the meeting will be opened andclosed. If no announcement is made, the polls shall be deemed to have openedwhen the meeting is convened and closed upon the final adjournment of themeeting. After the polls close, no ballots, proxies or votes or anyrevocations or changes thereto may be accepted.
             (d) In advance of any meeting of stockholders, the Board of Directors, theChairman of the Board, the Chief Executive Officer or the President shallappoint one or more inspectors or election to act at the meeting and make awritten report thereof. One or more other persons may be designated asalternate inspectors to replace any inspector who fails to act. If noinspector or alternate is present, ready and willing to act at a meeting ofstockholders, the chairman of the meeting shall appoint one or more inspectorsto act at the meeting. Unless otherwise required by law, inspectors may beofficers, employees or agents of the corporation. Each inspector, beforeentering upon the discharge of such inspector’s duties, shall take and sign anoath faithfully to execute the duties of inspector with strict impartiality andaccording to the best of such inspector’s ability. The inspector shall havethe duties prescribed by law and shall take charge of the polls and, when thevote is completed, shall make a certificate of the result of the vote taken andof such other facts as may be required by law.
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     1.13No Action by Consent in Lieu of a Meeting. Stockholders of thecorporation may not take any action by written consent in lieu of a meeting.
**ARTICLE II**
**DIRECTORS**
     2.1General Powers. The business and affairs of the corporation shall bemanaged by or under the direction of a Board of Directors, who may exercise allof the powers of the corporation except as otherwise provided by law or theCertificate of Incorporation.
     2.2Number, Election and Qualification. Subject to the rights of holdersof any series of Preferred Stock to elect directors, the number of directors ofthe Corporation shall be established by the Board of Directors. Election ofdirectors need not be by written ballot. Directors need not be stockholders ofthe corporation.
     2.3Classes of Directors. Subject to the rights of holders of any seriesof Preferred Stock to elect directors, the Board of Directors shall be and isdivided into three classes: Class I, Class II and Class III. The allocationof directors among classes shall be determined by resolution of the Board ofDirectors.
     2.4Terms of Office. Subject to the rights of holders of any series ofPreferred Stock to elect directors, each director shall serve for a term endingon the date of the third annual meeting following the annual meeting at whichsuch director was elected; provided, that each director initially appointed toClass I shall serve for a term expiring at the corporation’s annual meeting ofstockholders held in 2005; each director initially appointed to Class II shallserve for a term expiring at the corporation’s annual meeting of stockholdersheld in 2006; and each director initially appointed to Class III shall servefor a term expiring at the corporation’s annual meeting of stockholders held in2007; providedfurther, that the term of each director shall continue until theelection and qualification of a successor and be subject to such director’searlier death, resignation or removal.
     2.5Quorum. The greater of (a) a majority of the directors at any time inoffice and (b) one-third of the number of directors fixed by the Board ofDirectors shall constitute a quorum. If at any meeting of the Board ofDirectors there shall be less than such a quorum, a majority of the directorspresent may adjourn the meeting from time to time without further notice otherthan announcement at the meeting, until a quorum shall be present.
     2.6Action at Meeting. Every act or decision done or made by a majorityof the directors present at a meeting duly held at which a quorum is presentshall be regarded as the act of the Board of Directors unless a greater numberis required by law or by the Certificate of Incorporation.
     2.7Removal. Subject to the rights of holders of any series of PreferredStock, directors of the corporation may be removed only for cause and only bythe affirmative vote of the holders of at least 75% of the votes which all thestockholders would be entitled to cast in any annual election of directors orclass of directors.
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     2.8Vacancies. Subject to the rights of holders of any series ofPreferred Stock, any vacancy or newly-created directorships on the Board ofDirectors, however occurring, shall be filled only by vote of a majority of thedirectors then in office, although less than a quorum, or by a sole remainingdirector and shall not be filled by the stockholders. A director elected tofill a vacancy shall hold office until the next election of the class for whichsuch director shall have been chosen, subject to the election and qualificationof a successor and to such director’s earlier death, resignation or removal.
     2.9Resignation. Any director may resign by delivering a resignation inwriting or by electronic transmission to the corporation at its principaloffice or to the Chairman of the Board, the Chief Executive Officer, thePresident or the Secretary. Such resignation shall be effective upon receiptunless it is specified to be effective at some later time or upon the happeningof some later event.
     2.10Regular Meetings. Regular meetings of the Board of Directors may beheld without notice at such time and place as shall be determined from time totime by the Board of Directors; provided that any director who is absent whensuch a determination is made shall be given notice of the determination. Aregular meeting of the Board of Directors may be held without noticeimmediately after and at the same place as the annual meeting of stockholders.
     2.11Special Meetings. Special meetings of the Board of Directors may beheld at any time and place designated in a call by the Chairman of the Board,the Chief Executive Officer, the President, two or more directors, or by onedirector in the event that there is only a single director in office.
     2.12Notice of Special Meetings. Notice of any special meeting ofdirectors shall be given to each director by the Secretary or by the officer orone of the directors calling the meeting. Notice shall be duly given to eachdirector (a) in person or by telephone at least 24 hours in advance of themeeting, (b) by sending written notice via reputable overnight courier,telecopy or electronic mail, or delivering written notice by hand, to suchdirector’s last known business, home or electronic mail address at least 48hours in advance of the meeting, or (c) by sending written notice viafirst-class mail to such director’s last known business or home address atleast 72 hours in advance of the meeting. A notice or waiver of notice of ameeting of the Board of Directors need not specify the purposes of the meeting.
     2.13Meetings by Conference Communications Equipment. Directors mayparticipate in meetings of the Board of Directors or any committee thereof bymeans of conference telephone or other communications equipment by means ofwhich all persons participating in the meeting can hear each other, andparticipation by such means shall constitute presence in person at suchmeeting.
     2.14Action by Consent. Any action required or permitted to be taken atany meeting of the Board of Directors or of any committee thereof may be takenwithout a meeting, if all members of the Board of Directors or committee, asthe case may be, consent to the action in writing or by electronictransmission, and the written consents or electronic transmissions are filedwith the minutes of proceedings of the Board of Directors or committee.
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     2.15Committees. The Board of Directors may designate one or morecommittees, each committee to consist of one or more of the directors of thecorporation. The Board of Directors may designate one or more directors asalternate members of any committee, who may replace any absent or disqualifiedmember at any meeting of the committee. In the absence or disqualification ofa member of a committee, the member or members of the committee present at anymeeting and not disqualified from voting, whether or not such member or membersconstitute a quorum, may unanimously appoint another member of the Board ofDirectors 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 of Directors and subject to the provisions of law, shall have and mayexercise all the powers and authority of the Board of Directors in themanagement of the business and affairs of the corporation and may authorize theseal of the corporation to be affixed to all papers which may require it. Eachsuch committee shall keep minutes and make such reports as the Board ofDirectors may from time to time request. Except as the Board of Directors mayotherwise determine, any committee may make rules for the conduct of itsbusiness, but unless otherwise provided by the directors or in such rules, itsbusiness shall be conducted as nearly as possible in the same manner as isprovided in these By-laws for the Board of Directors.
     2.16Compensation of Directors. Directors may be paid such compensationfor their services and such reimbursement for expenses of attendance atmeetings as the Board of Directors may from time to time determine. No suchpayment shall preclude any director from serving the Corporation or any of itsparent or subsidiary entities in any other capacity and receiving compensationfor such service.
**ARTICLE III**
**OFFICERS**
     3.1Titles. The officers of the corporation shall consist of a ChiefExecutive Officer, a President, a Secretary, a Treasurer and such otherofficers with such other titles as the Board of Directors shall determine,including a Chairman of the Board and one or more Vice Presidents, AssistantTreasurers and Assistant Secretaries. The Board of Directors may appoint suchother officers as it may deem appropriate.
     3.2Election. The Chief Executive Officer, President, Treasurer andSecretary shall be elected annually by the Board of Directors at its firstmeeting following the annual meeting of stockholders. Other officers may beappointed by the Board of Directors at such meeting or at any other meeting.
     3.3Qualification. No officer need be a stockholder. Any two or moreoffices may be held by the same person.
     3.4Tenure. Except as otherwise provided by law, by the Certificate ofIncorporation or by these By-laws, each officer shall hold office until suchofficer’s successor is elected and qualified, unless a different term isspecified in the resolution electing or appointing such officer, or until suchofficer’s earlier death, resignation or removal.
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     3.5Resignation and Removal. Any officer may resign by delivering awritten resignation to the corporation at its principal office or to the ChiefExecutive Officer, the President or the Secretary. Such resignation shall beeffective upon receipt unless it is specified to be effective at some latertime or upon the happening of some later event.
Any officer may be removed at any time, with or without cause, by vote of amajority of the directors then in office.
Except as the Board of Directors may otherwise determine, no officer whoresigns or is removed shall have any right to any compensation as an officerfor any period following such officer’s resignation or removal, or any right todamages on account of such removal, whether such officer’s compensation be bythe month or by the year or otherwise, unless such compensation is expresslyprovided for in a duly authorized written agreement with the corporation.
     3.6Vacancies. The Board of Directors may fill any vacancy occurring inany office for any reason and may, in its discretion, leave unfilled for suchperiod as it may determine any offices other than those of Chief ExecutiveOfficer, President, Treasurer and Secretary. Each such successor shall holdoffice for the unexpired term of such officer’s predecessor and until asuccessor is elected and qualified, or until such officer’s earlier death,resignation or removal.
     3.7Chairman of the Board. The Board of Directors may appoint from itsmembers a Chairman of the Board, who need not be an employee or officer of thecorporation. If the Board of Directors appoints a Chairman of the Board, suchChairman shall perform such duties and possess such powers as are assigned bythe Board of Directors and, if the Chairman of the Board is also designated asthe corporation’s Chief Executive Officer, shall have the powers and duties ofthe Chief Executive Officer prescribed in Section 3.8 of these By-laws. Unlessotherwise provided by the Board of Directors, the Chairman of the Board shallpreside at all meetings of the Board of Directors and stockholders.
     3.8President; Chief Executive Officer. Unless the Board of Directors hasdesignated the Chairman of the Board or another person as the corporation’sChief Executive Officer, the President shall be the Chief Executive Officer ofthe corporation. The Chief Executive Officer shall have general charge andsupervision of the business of the Corporation subject to the direction of theBoard of Directors. The President shall perform such other duties and shallhave such other powers as the Board of Directors or the Chief Executive Officer(if the President is not the Chief Executive Officer) may from time to timeprescribe. In the event of the absence, inability or refusal to act of theChief Executive Officer or the President (if the President is not the ChiefExecutive Officer), the Vice President (or if there shall be more than one, theVice Presidents in the order determined by the Board of Directors) shallperform the duties of the Chief Executive Officer and when so performing suchduties shall have all the powers of and be subject to all the restrictions uponthe Chief Executive Officer.
     3.9Vice Presidents. Any Vice President shall perform such duties andpossess such powers as the Board of Directors or the Chief Executive Officermay from time to time prescribe. The Board of Directors may assign to any VicePresident the title of Executive Vice President, Senior Vice President or anyother title selected by the Board of Directors.
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     3.10Secretary and Assistant Secretaries. The Secretary shall performsuch duties and shall have such powers as the Board of Directors or the ChiefExecutive Officer may from time to time prescribe. In addition, the Secretaryshall perform such duties and have such powers as are incident to the office ofthe secretary, including without limitation the duty and power to give noticesof all meetings of stockholders and special meetings of the Board of Directors,to attend all meetings of stockholders and the Board of Directors and keep arecord of the proceedings, to maintain a stock ledger and prepare lists ofstockholders and their addresses as required, to be custodian of corporaterecords and the corporate seal and to affix and attest to the same ondocuments.
     Any Assistant Secretary shall perform such duties and possess such powersas the Board of Directors, the Chief Executive Officer or the Secretary mayfrom time to time prescribe. In the event of the absence or inability to actof the Secretary, the Assistant Secretary (or if there shall be more than one,the Assistant Secretaries in the order determined by the Board of Directors)shall perform the duties and exercise the powers of the Secretary.
     In the absence of the Secretary or any Assistant Secretary at any meetingof stockholders or directors, the chairman of the meeting shall designate atemporary secretary to keep a record of the meeting.
     3.11Treasurer and Assistant Treasurers. The Treasurer shall perform suchduties and shall have such powers as may from time to time be assigned by theBoard of Directors or the Chief Executive Officer. In addition, the Treasurershall perform such duties and have such powers as are incident to the office oftreasurer, including without limitation the duty and power to keep and beresponsible for all funds and securities of the corporation, to deposit fundsof the corporation in depositories selected in accordance with these By-laws,to disburse such funds as ordered by the Board of Directors, to make properaccounts of such funds, and to render as required by the Board of Directorsstatements of all such transactions and of the financial condition of thecorporation.
     The Assistant Treasurers shall perform such duties and possess such powersas the Board of Directors, the Chief Executive Officer or the Treasurer mayfrom time to time prescribe. In the event of the absence, inability or refusalto act of the Treasurer, the Assistant Treasurer (or if there shall be morethan one, the Assistant Treasurers in the order determined by the Board ofDirectors) shall perform the duties and exercise the powers of the Treasurer.
     3.12Salaries. Officers of the corporation shall be entitled to suchsalaries, compensation or reimbursement as shall be fixed or allowed from timeto time by the Board of Directors.
**ARTICLE IV**
**CAPITAL STOCK**
     4.1Issuance of Stock. Subject to the provisions of the Certificate ofIncorporation, the whole or any part of any unissued balance of the authorizedcapital stock of the corporation or the whole or any part of any shares of theauthorized capital stock of the corporation held in
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the corporation’s treasury may be issued, sold, transferred or otherwisedisposed of by vote of the Board of Directors in such manner, for such lawfulconsideration and on such terms as the Board of Directors may determine.
     4.2Certificates of Stock. Every holder of stock of the corporation shallbe entitled to have a certificate, in such form as may be prescribed by law andby the Board of Directors, certifying the number and class of shares owned bysuch holder in the corporation. Each such certificate shall be signed by, orin the name of the corporation by, the Chairman or Vice Chairman, if any, ofthe Board of Directors, or the President or a Vice President, and the Treasureror an Assistant Treasurer, or the Secretary or an Assistant Secretary of thecorporation. Any or all of the signatures on the certificate may be afacsimile.
     Each certificate for shares of stock which are subject to any restrictionon transfer pursuant to the Certificate of Incorporation, these By-laws,applicable securities laws or any agreement among any number of stockholders oramong such holders and the corporation shall have conspicuously noted on theface or back of the certificate either the full text of the restriction or astatement of the existence of such restriction.
     There shall be set forth on the face or back of each certificaterepresenting shares of such class or series of stock of the corporation astatement that the corporation will furnish without charge to each stockholderwho so requests a copy of the full text of the powers, designations,preferences and relative, participating, optional or other special rights ofeach class of stock or series thereof and the qualifications, limitations orrestrictions of such preferences and/or rights.
     4.3Transfers. Except as otherwise established by rules and regulationsadopted by the Board of Directors, and subject to applicable law, shares ofstock may be transferred on the books of the corporation by the surrender tothe corporation or its transfer agent of the certificate representing suchshares properly endorsed or accompanied by a written assignment or power ofattorney properly executed, and with such proof of authority or theauthenticity of signature as the corporation or its transfer agent mayreasonably require. Except as may be otherwise required by law, by theCertificate of Incorporation or by these By-laws, the corporation shall beentitled to treat the record holder of stock as shown on its books as the ownerof such stock for all purposes, including the payment of dividends and theright to vote with respect to such stock, regardless of any transfer, pledge orother disposition of such stock until the shares have been transferred on thebooks of the corporation in accordance with the requirements of these By-laws.
     4.4Lost, Stolen or Destroyed Certificates. The corporation may issue anew certificate of stock in place of any previously issued certificate allegedto have been lost, stolen or destroyed, upon such terms and conditions as theBoard of Directors may prescribe, including the presentation of reasonableevidence of such loss, theft or destruction and the giving of such indemnityand posting of such bond as the Board of Directors may require for theprotection of the corporation or any transfer agent or registrar.
     4.5Record Date. The Board of Directors may fix in advance a date as arecord date for the determination of the stockholders entitled to notice of orto vote at any meeting of stockholders, or entitled to receive payment of anydividend or other distribution or allotment of
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any rights in respect of any change, conversion or exchange of stock, orfor the purpose of any other lawful action. Such record date shall not be morethan 60 nor less than 10 days before the date of such meeting, nor more than 60days prior to any other action to which such record date relates.
     If no record date is fixed, the record date for determining stockholdersentitled to notice of or to vote at a meeting of stockholders shall be at theclose of business on the day before the day on which notice is given, or, ifnotice is waived, at the close of business on the day before the day on whichthe meeting is held. If no record date is fixed, the record date fordetermining stockholders for any other purpose shall be at the close ofbusiness on the day on which the Board of Directors adopts the resolutionrelating to such purpose.
     A determination of stockholders of record entitled to notice of or to voteat a meeting of stockholders shall apply to any adjournment of the meeting;provided, however, that the Board of Directors may fix a new record date forthe adjourned meeting.
**ARTICLE V**
**GENERAL PROVISIONS**
     5.1Fiscal Year. Except as from time to time otherwise designated by theBoard of Directors, the fiscal year of the corporation shall begin on the firstday of January of each year and end on the last day of December in each year.
     5.2Corporate Seal. The corporate seal shall be in such form as shall beapproved by the Board of Directors.
     5.3Waiver of Notice. Whenever notice is required to be given by law, bythe Certificate of Incorporation or by these By-laws, a written waiver signedby the person entitled to notice, or a waiver by electronic transmission by theperson entitled to notice, whether before, at or after the time stated in suchnotice, shall be deemed equivalent to notice. Attendance of a person at ameeting shall constitute a waiver of notice of such meeting, except when theperson attends a meeting for the express purpose of objecting at the beginningof the meeting, to the transaction of any business because the meeting is notlawfully called or convened.
     5.4Voting of Securities. Except as the Board of Directors may otherwisedesignate, the Chief Executive Officer, the President or the Treasurer maywaive notice of, and act as, or appoint any person or persons to act as, proxyor attorney-in-fact for this corporation (with or without power ofsubstitution) at any meeting of stockholders or securityholders of any otherentity or organization, the securities of which may be held by thiscorporation.
     5.5Evidence of Authority. A certificate by the Secretary, or anAssistant Secretary, or a temporary Secretary, as to any action taken by thestockholders, directors, a committee or any officer or representative of thecorporation shall as to all persons who rely on the certificate in good faithbe conclusive evidence of such action.
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     5.6Certificate of Incorporation. All references in these By-laws to theCertificate of Incorporation shall be deemed to refer to the Certificate ofIncorporation of the corporation, as amended and in effect from time to time.
     5.7Severability. Any determination that any provision of these By-lawsis for any reason inapplicable, illegal or ineffective shall not affect orinvalidate any other provision of these By-laws.
     5.8Pronouns. All pronouns used in these By-laws shall be deemed to referto the masculine, feminine or neuter, singular or plural, as the identity ofthe person or persons may require.
**ARTICLE VI**
**AMENDMENTS**
     These By-laws may be altered, amended or repealed, in whole or in part, ornew By-laws may be adopted by the Board of Directors or by the stockholders asprovided in the Certificate of Incorporation.
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