**Exhibit 3.9****AMENDED AND RESTATED****BYLAWS OF****VANDA PHARMACEUTICALS INC.****A DELAWARE CORPORATION**
 

 
**TABLE OF CONTENTS**           **Page**        ARTICLE I OFFICE AND RECORDS  1   Section 1.1  Delaware Office  1   Section 1.2  Other Offices  1   Section 1.3  Books and Records  1        ARTICLE II STOCKHOLDERS  1   Section 2.1  Annual Meeting  1   Section 2.2  Special Meeting  1   Section 2.3  Place of Meeting  1   Section 2.4  Notice of Meeting  1   Section 2.5  Quorum and Adjournment  2   Section 2.6  Proxies  2   Section 2.7  Notice of Stockholder Business and Nominations  2   Section 2.8  Procedure for Election of Directors  4   Section 2.9  Inspectors of Elections  4   Section 2.10  Conduct of Meetings  5   Section 2.11  No Consent of Stockholders in Lieu of Meeting  5        ARTICLE III BOARD OF DIRECTORS  5   Section 3.1  General Powers  5   Section 3.2  Number, Tenure and Qualifications  6   Section 3.3  Regular Meetings  6   Section 3.4  Special Meetings  6   Section 3.5  Action by Unanimous Consent of Directors  6   Section 3.6  Notice  6   Section 3.7  Conference Telephone Meetings  6   Section 3.8  Quorum  7   Section 3.9  Vacancies  7   Section 3.10  Committee  7   Section 3.11  Removal  7        ARTICLE IV OFFICERS  8   Section 4.1  Elected Officers  8   Section 4.2  Election and Term of Office  8   Section 4.3  Chairman of the Board  8   Section 4.4  Chief Executive Officer and President  8   Section 4.5  Secretary  8   Section 4.6  Treasurer  9   Section 4.7  Removal  9   Section 4.8  Vacancies  9 
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           **Page**        ARTICLE V STOCK CERTIFICATES AND TRANSFERS  9   Section 5.1  Stock Certificates and Transfers  9        ARTICLE VI INDEMNIFICATION  10   Section 6.1  Right to Indemnification  10   Section 6.2  Right to Advancement of Expenses  10   Section 6.3  Right of Indemnitee to Bring Suit  10   Section 6.4  Non-Exclusivity of Rights  11   Section 6.5  Insurance  11   Section 6.6  Amendment of Rights  11        ARTICLE VII MISCELLANEOUS PROVISIONS  12   Section 7.1  Fiscal Year  12   Section 7.2  Dividends  12   Section 7.3  Seal  12   Section 7.4  Waiver of Notice  12   Section 7.5  Audits  12   Section 7.6  Resignations  12   Section 7.7  Contracts  12   Section 7.8  Proxies  13        ARTICLE VIII AMENDMENTS  13   Section 8.1  Amendments  13 
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ARTICLE IOFFICES AND RECORDS          Section 1.1 Delaware Office. The registered office of the Corporation in the State ofDelaware shall be located in the City of Wilmington, County of New Castle.          Section 1.2 Other Offices. The Corporation may have such other offices, either withinor without the State of Delaware, as the Board of Directors may designate or as the business of theCorporation may from time to time require.          Section 1.3 Books and Records. The books and records of the Corporation may be keptat the Corporation’s headquarters in Rockville, Maryland or at such other locations outside theState of Delaware as may from time to time be designated by the Board of Directors.ARTICLE IISTOCKHOLDERS          Section 2.1 Annual Meeting. The annual meeting of the stockholders of the Corporationshall be held at such date, place and/or time as may be fixed by resolution of the Board ofDirectors.          Section 2.2 Special Meeting. Special meetings of stockholders of the Corporation maybe called only by the Chairman of the Board or the Chief Executive Officer or by the Board ofDirectors acting pursuant to a resolution adopted by a majority of the Whole Board. For purposesof these Amended and Restated Bylaws, the term “Whole Board” shall mean the total number ofauthorized directors whether or not there exist any vacancies in previously authorizeddirectorships.          Section 2.3 Place of Meeting. The Board of Directors may designate the place ofmeeting for any meeting of the stockholders. If no designation is made by the Board of Directors,the place of meeting shall be the principal office of the Corporation.          Section 2.4 Notice of Meeting. Except as otherwise required by law, written, printedor electronic notice stating the place, day and hour of the meeting and the purposes for which themeeting is called shall be prepared and delivered by the Corporation not less than ten (10) daysnor more than sixty (60) days before the date of the meeting, either personally, by mail, or in thecase of stockholders who have consented to such delivery, by electronic transmission (as such termis defined in the Delaware General Corporation Law), to each stockholder of record entitled to voteat such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the U.S.mail with postage thereon prepaid, addressed to the stockholder at his address as it appears on thestock transfer books of the Corporation. Notice given by electronic transmission shall beeffective (A) if by facsimile,when faxed to a number where the stockholder has consented to receive notice; (B) if byelectronic mail, when mailed electronically to an electronic mail address at which the stockholderhas consented to receive such notice; (C) if by posting on an electronic network together with aseparate notice of such posting, upon the later to occur of (1) the posting or (2) the giving ofseparate notice of the posting; or (D) if by
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other form of electronic communication, when directedto the stockholder in the manner consented to by the stockholder. Meetings may be held withoutnotice if all stockholders entitled to vote are present (except as otherwise provided by law), orif notice is waived by those not present. Any previously scheduled meeting of the stockholders maybe postponed and (unless the Corporation’s Restated Certificate of Incorporation (the “Certificateof Incorporation”) otherwise provides) any special meeting of the stockholders may be cancelled, byresolution of the Board of Directors upon public notice given prior to the time previouslyscheduled for such meeting of stockholders.          Section 2.5 Quorum and Adjournment. Except as otherwise provided by law or by theCertificate of Incorporation, the holders of a majority of the voting power of the outstandingshares of the Corporation entitled to vote generally in the election of directors (the “VotingStock”), represented in person or by proxy, shall constitute a quorum at a meeting of stockholders,except that when specified business is to be voted on by a class or series voting separately as aclass or series, the holders of a majority of the voting power of the shares of such class orseries shall constitute a quorum for the transaction of such business for the purposes of takingaction on such business. No notice of the time and place of adjourned meetings need be givenprovided such adjournment is for less than thirty (30) days and further provided that no new recorddate is fixed for the adjourned meeting.          Section 2.6 Proxies. At all meetings of stockholders, a stockholder may vote by proxyexecuted in writing by the stockholder or as may be permitted by law, or by his duly authorizedattorney-in-fact. Such proxy must be filed with the Secretary of the Corporation or hisrepresentative, or otherwise delivered telephonically or electronically as set forth in theapplicable proxy statement, at or before the time of the meeting.          Section 2.7 Notice of Stockholder Business and Nominations.               A. Nominations of persons for election to the Board of Directors and the proposal of businessto be transacted by the stockholders may be made at an annual meeting of stockholders (1) pursuantto the Corporation’s notice with respect to such meeting, (2) by or at the direction of the Boardof Directors or a committee thereof or (3) by any stockholder of record of the Corporation who wasa stockholder of record at the time of the giving of the notice provided for in the followingparagraph, who is entitled to vote at the meeting and who has complied with the notice proceduresset forth in this Section 2.7.               B. For nominations or other business to be properly brought before an annual meeting by astockholder pursuant to paragraph (A)(3) of this Section 2.7, (1) the stockholder must have giventimely notice thereof in writing to the Secretary of the Corporation, (2) such business must be aproper matter for stockholder action under the Delaware General Corporation Law, (3) if thestockholder, or the beneficial owner on whose behalf any suchproposal or nomination is made, has provided the Corporation with a Solicitation Notice, asthat term is defined in subclause (c)(iii) of this paragraph, such stockholder or beneficial ownermust, in the case of a proposal, have delivered prior to the meeting a proxy statement and form ofproxy to holders of at least the percentage of the Corporation’s voting shares required underapplicable law to carry any such proposal, or, in the case of a nomination or nominations, havedelivered prior to the meeting a proxy statement and form of proxy to holders of a percentage of
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the Corporation’s voting shares reasonably believed by such stockholder or beneficial holder to besufficient to elect the nominee or nominees proposed to be nominated by such stockholder, and must,in either case, have included in such materials the Solicitation Notice and (4) if no SolicitationNotice relating thereto has been timely provided pursuant to this section, the stockholder orbeneficial owner proposing such business or nomination must not have solicited a number of proxiessufficient to have required the delivery of such a Solicitation Notice under this section. To betimely, a stockholder’s notice shall be delivered to the Secretary at the principal executiveoffices of the Corporation not less than forty-five (45) or more than seventy-five (75) days priorto the first anniversary (the “Anniversary”) of the date on which the Corporation first mailed itsproxy materials for the preceding year’s annual meeting of stockholders; provided, however, that ifno proxy materials were mailed by the Corporation in connection with the preceding year’s annualmeeting, or if the date of the annual meeting is advanced more than thirty (30) days prior to ordelayed by more than thirty (30) days after the anniversary of the preceding year’s annual meeting,notice by the stockholder to be timely must be so delivered not later than the close of business onthe later of (x) the 90th day prior to such annual meeting or (y) the 10th day following the day onwhich public announcement of the date of such meeting is first made. Such stockholder’s noticeshall set forth: (a) as to each person whom the stockholder proposes to nominate for election orreelection as a director all information relating to such person as would be required to bedisclosed in solicitations of proxies for the election of such nominees as directors pursuant toRegulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and suchperson’s written consent to serve as a director if elected; (b) as to any other business that thestockholder proposes to bring before the meeting, a brief description of such business, the reasonsfor conducting such business at the meeting and any material interest in such business of suchstockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as tothe stockholder giving the notice and the beneficial owner, if any, on whose behalf the nominationor proposal is made (i) the name and address of such stockholder, as they appear on theCorporation’s books, and of such beneficial owner, (ii) the class and number of shares of theCorporation that are owned beneficially and of record by such stockholder and such beneficialowner, and (iii) whether either such stockholder or beneficial owner intends to deliver a proxystatement and form of proxy to holders of, in the case of a proposal, at least the percentage ofthe Corporation’s voting shares required under applicable law to carry the proposal or, in the caseof a nomination or nominations, a sufficient number of holders of the Corporation’s voting sharesto elect such nominee or nominees (an affirmative statement of such intent, a “SolicitationNotice”).               C. Only persons nominated in accordance with the procedures set forth in this Section 2.7shall be eligible to serve as directors and only such business shall be conducted at an annualmeeting of stockholders as shall have been brought before the meeting in accordance with theprocedures set forth in this Section 2.7. The chair of the meeting shall have the power and theduty to determine whether a nomination or any business proposed to be brought before the meetinghas been made in accordance with the procedures set forth in theseBylaws and, if any proposed nomination or business is not in compliance with these Bylaws, todeclare that such defective proposed business or nomination shall not be presented for stockholderaction at the meeting and shall be disregarded.
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               D. Only such business shall be conducted at a special meeting of stockholders as shall havebeen brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations ofpersons for election to the Board of Directors may be made at a special meeting of stockholders atwhich directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at thedirection of the Board of Directors or (2) by any stockholder of record of the Corporation who is astockholder of record at the time of giving of notice provided for in this paragraph, who shall beentitled to vote at the meeting and who complies with the notice procedures set forth in thisSection 2.7. Nominations by stockholders of persons for election to the Board of Directors may bemade at such a special meeting of stockholders if the stockholder’s notice required by paragraph(B) of this Section 2.7 shall be delivered to the Secretary at the principal executive offices ofthe Corporation not later than the close of business on the later of the 90th day prior to suchspecial meeting or the 10th day following the day on which public announcement is first made of thedate of the special meeting and of the nominees proposed by the Board to be elected at suchmeeting.               E. For purposes of this Section 2.7, “public announcement” shall mean disclosure in a pressrelease reported by the Dow Jones News Service, Associated Press or a comparable national newsservice or in a document publicly filed by the Corporation with the Securities and ExchangeCommission pursuant to Section 13, 14 or 15(d) of the Exchange Act.               F. Notwithstanding the foregoing provisions of this Section 2.7, a stockholder shall alsocomply with all applicable requirements of the Exchange Act and the rules and regulationsthereunder with respect to matters set forth in this Section 2.7. Nothing in this Section 2.7shall be deemed to affect any rights of stockholders to request inclusion of proposals in theCorporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.          Section 2.8 Procedure for Election of Directors. Election of directors at allmeetings of the stockholders at which directors are to be elected shall be by written ballot, and,except as otherwise set forth in the Certificate of Incorporation with respect to the right of theholders of any series of Preferred Stock or any other series or class of stock to elect additionaldirectors under specified circumstances, a plurality of the votes cast thereat shall electdirectors. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws,all matters other than the election of directors submitted to the stockholders at any meeting shallbe decided by a majority of the votes cast affirmatively or negatively.          Section 2.9 Inspectors of Elections.               A. The Board of Directors by resolution shall appoint one or more inspectors, which inspectoror inspectors may include individuals who serve the Corporation in other capacities, including,without limitation, as officers, employees, agents or representatives of the Corporation, to act atthe meeting and make a written report thereof. One or more personsmay be designated as alternate inspectors to replace any inspector who fails to act. If noinspector or alternate has been appointed to act, or if all inspectors or alternates who have beenappointed are unable to act, at a meeting of stockholders, the chairman of the meeting shallappoint one or more inspectors to act at the meeting. Each inspector, before discharging his orher duties, shall take and sign an oath to execute faithfully the duties of inspector with strictimpartiality and according to the best of his or her ability. The inspectors shall have the dutiesprescribed by the Delaware General Corporation Law.
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          Section 2.10 Conduct of Meetings.               A. The Chief Executive Officer shall preside at all meetings of the stockholders. In theabsence of the Chief Executive Officer, the Chairman of the Board shall preside at a meeting of thestockholders. In the absence of the Chief Executive Officer or the Chairman of the Board, theSecretary shall preside at a meeting of the stockholders. In the anticipated absence of allofficers designated to preside over the meetings of stockholders, the Board of Directors maydesignate an individual to preside over a meeting of the stockholders.               B. The chairman of the meeting shall fix and announce at the meeting the date and time of theopening and the closing of the polls for each matter upon which the stockholders will vote at ameeting.               C. The Board of Directors may, to the extent not prohibited by law, adopt by resolution suchrules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate.Except to the extent inconsistent with such rules and regulations as adopted by the Board ofDirectors, the chairman of any meeting of stockholders shall have the right and authority toprescribe such rules, regulations and procedures and to do all such acts as, in the judgment ofsuch chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations orprocedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting,may to the extent not prohibited by law include, without limitation, the following: (i) theestablishment of an agenda or order of business for the meeting; (ii) rules and procedures formaintaining order at the meeting and the safety of those present; (iii) limitations on attendanceat or participation in the meeting to stockholders of record of the Corporation, their dulyauthorized and constituted proxies or such other persons as the chairman of the meeting shalldetermine; (iv) restrictions on entry to the meeting after the time fixed for the commencementthereof; and (v) limitations on the time allotted to questions or comments by participants.Unless, and to the extent, determined by the Board of Directors or the chairman of the meeting,meetings of stockholders shall not be required to be held in accordance with the rules ofparliamentary procedure.          Section 2.11 No Consent of Stockholders in Lieu of Meeting. Any action required orpermitted to be taken by the stockholders of the Corporation must be effected at a duly calledannual or special meeting of stockholders of the Corporation and may not be effected by any consentin writing by such stockholders.ARTICLE IIIBOARD OF DIRECTORS          Section 3.1 General Powers. The business and affairs of the Corporation shall bemanaged by or under the direction of the Board of Directors. In addition to the powers andauthority expressly conferred upon them by statute or by the Certificate of Incorporation or bythese Bylaws, the directors are hereby empowered to exercise all such powers and do all such actsand things as may be exercised or done by the Corporation.
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          Section 3.2 Number, Tenure and Qualifications. Subject to the rights of the holdersof any series of Preferred Stock to elect additional directors under specified circumstances, thenumber of directors shall be fixed from time to time exclusively by the Board of Directors pursuantto a resolution adopted by a majority of the Whole Board. The directors, other than those who maybe elected by the holders of any series of Preferred Stock under specified circumstances, shall bedivided into three classes pursuant to the Certificate of Incorporation. At each annual meeting ofstockholders, directors elected to succeed those directors whose terms expire shall be elected fora term of office to expire at the third succeeding annual meeting of stockholders after theirelection.          Section 3.3 Regular Meetings. The Board of Directors may, by resolution, provide thetime and place for the holding of regular meetings of the Board of Directors.          Section 3.4 Special Meetings. Special meetings of the Board of Directors shall becalled at the request of the Chairman of the Board, the Chief Executive Officer or a majority ofthe Board of Directors. The person or persons authorized to call special meetings of the Board ofDirectors may fix the place and time of the meetings.          Section 3.5 Action By Unanimous Consent of Directors. The Board of Directors may takeaction without the necessity of a meeting by unanimous consent of directors. Such consent may bein writing or given by electronic transmission, as such term is defined in the Delaware GeneralCorporation Law.          Section 3.6 Notice. Notice of any special meeting shall be given to each director athis business or residence in writing, or by telegram, facsimile transmission, telephonecommunication or electronic transmission (provided, with respect to electronic transmission, thatthe director has consented to receive the form of transmission at the address to which it isdirected). If mailed, such notice shall be deemed adequately delivered when deposited in theUnited States mails so addressed, with postage thereon prepaid, at least five (5) days before suchmeeting. If by telegram, such notice shall be deemed adequately delivered when the telegram isdelivered to the telegraph company at least twenty-four (24) hours before such meeting. If byfacsimile transmission or other electronictransmission, such notice shall be transmitted at least twenty-four (24) hours before suchmeeting. If by telephone, the notice shall be given at least twelve (12) hours prior to the timeset for the meeting. Neither the business to be transacted at, nor the purpose of, any regular orspecial meeting of the Board of Directors need be specified in the notice of such meeting, exceptfor amendments to these Bylaws as provided under Section 8.1 of Article VIII hereof. A meeting maybe held at any time without notice if all the directors are present (except as otherwise providedby law) or if those not present waive notice of the meeting in writing or by electronictransmission, either before or after such meeting.          Section 3.7 Conference Telephone Meetings. Members of the Board of Directors, or anycommittee thereof, may participate in a meeting of the Board of Directors or such committee bymeans of conference telephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other, and such participation in a meeting shallconstitute presence in person at such meeting.
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          Section 3.8 Quorum. A whole number of directors equal to at least a majority of theWhole Board shall constitute a quorum for the transaction of business, but if at any meeting of theBoard of Directors there shall be less than a quorum present, a majority of the directors presentmay adjourn the meeting from time to time without further notice. The act of the majority of thedirectors present at a meeting at which a quorum is present shall be the act of the Board ofDirectors.          Section 3.9 Vacancies. Subject to the rights of the holders of any series ofPreferred Stock then outstanding, newly created directorships resulting from any increase in theauthorized number of directors or any vacancies in the Board of Directors resulting from death,resignation, retirement, disqualification, removal from office or other cause shall, unlessotherwise provided by law or by resolution of the Board of Directors, be filled only by a majorityvote of the directors then in office, though less than a quorum (and not by stockholders), anddirectors so chosen shall hold office for a term expiring at the annual meeting of stockholders atwhich the term of office of the class to which they have been chosen expires or until suchdirector’s successor shall have been duly elected and qualified. No decrease in the authorizednumber of directors shall shorten the term of any incumbent director.          Section 3.10 Committees.               A. The Board of Directors may designate one or more committees, each committee to consist ofone or more of the directors of the Corporation. The Board of Directors may designate one or moredirectors as alternate members of any committee, who may replace any absent or disqualified memberat any meeting of the committee. In the absence or disqualification of a member of the committee,the member or members thereof present at any meeting and not disqualified from voting, whether ornot he or they constitute a quorum, may unanimously appoint another member of the Board ofDirectors to act at the meeting in place of any such absent or disqualified member. Any suchcommittee, to the extent permitted by law and to the extent provided in the resolution of the Boardof Directors, shall have and may exercise all the powers and authority of the Board of Directors inthe management of thebusiness and affairs of the Corporation, and may authorize the seal of the Corporation to beaffixed to all papers which may require it; provided, however, that no committee shall have poweror authority in reference to the following matters: (1) approving, adopting or recommending tostockholders any action or matter required by law to be submitted to stockholders for approval; or(2) adopting, amending or repealing any bylaw.               B. Unless the Board of Directors otherwise provides, each committee designated by the Board ofDirectors may make, alter and repeal rules for the conduct of its business. In the absence of suchrules, each committee shall conduct its business in the same manner as the Board of Directorsconducts its business pursuant to these Bylaws.          Section 3.11 Removal. Subject to the rights of the holders of any series of PreferredStock then outstanding, any director, or the entire Board of Directors, may be removed from officeat any time, but only for cause and only by the affirmative vote of the holders of at least amajority of the voting power of all of the then-outstanding shares of capital stock of theCorporation entitled to vote generally in the election of directors, voting together as a singleclass.
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ARTICLE IVOFFICERS          Section 4.1 Elected Officers. The elected officers of the Corporation shall be aChairman of the Board, a Chief Executive Officer and President, a Secretary, a Treasurer and suchother officers as the Board of Directors from time to time may deem proper. The Chairman of theBoard shall be chosen from the directors. All officers chosen by the Board of Directors shall eachhave such powers and duties as generally pertain to their respective offices, subject to thespecific provisions of this Article IV. Such officers shall also have powers and duties as fromtime to time may be conferred by the Board of Directors or by any committee thereof.          Section 4.2 Election and Term of Office. The elected officers of the Corporationshall be elected annually by the Board of Directors at the regular meeting of the Board ofDirectors held after each annual meeting of the stockholders. If the election of officers shallnot be held at such meeting, such election shall be held as soon thereafter as convenient. Subjectto Section 4.7 of these Bylaws, each officer shall hold office until his successor shall have beenduly elected and shall have qualified or until his death or until he shall resign.          Section 4.3 Chairman of the Board. The Chairman of the Board shall preside at allmeetings of the Board.          Section 4.4 Chief Executive Officer and President. The Chief Executive Officer andPresident shall be the general manager of the Corporation, subject to the control of the Board ofDirectors, and as such shall, subject to Section 2.10 (A) hereof, preside at all meetings ofstockholders, shall have general supervision of the affairs of the Corporation, shall sign orcountersign or authorizeanother officer to sign all certificates, contracts, and other instruments of the Corporationas authorized by the Board of Directors, shall make reports to the Board of Directors andstockholders, and shall perform all such other duties as are incident to such office or areproperly required by the Board of Directors. If the Board of Directors creates the office of ChiefExecutive Officer as a separate office from President, (i) the President shall be the chiefoperating officer of the Corporation and shall be subject to the general supervision, direction andcontrol of the Chief Executive Officer, unless the Board of Directors provides otherwise, and (iii)expect for this Section 4.4, all references herein to the “President” shall be deemed to refer tothe Chief Executive Officer.          Section 4.5 Secretary. The Secretary shall give, or cause to be given, notice of allmeetings of stockholders and directors and all other notices required by law or by these Bylaws,and in case of his absence or refusal or neglect so to do, any such notice may be given by anyperson thereunto directed by the Chairman of the Board, the Chief Executive Officer, the Presidentor by the Board of Directors, upon whose request the meeting is called as provided in these Bylaws.He shall record all the proceedings of the meetings of the Board of Directors, any committeesthereof and the stockholders of the Corporation in a book to be kept for that purpose, and shallperform such other duties as may be assigned to him by the Board of Directors, the Chairman of theBoard, the Chief Executive Officer or the President. He shall have custody of the seal of theCorporation and shall affix the same to all instruments requiring it, when authorized by the Boardof Directors, the Chairman of the Board, the Chief Executive Officer or the President, and attestto the same.
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          Section 4.6 Treasurer. The Treasurer shall have the custody of the corporate fundsand securities and shall keep full and accurate receipts and disbursements in books belonging tothe Corporation. The Treasurer shall deposit all moneys and other valuables in the name and to thecredit of the Corporation in such depositaries as may be designated by the Board of Directors. TheTreasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directorsthe Chairman of the Board, the Chief Executive Officer or the President, taking proper vouchers forsuch disbursements. The Treasurer shall render to the Chairman of the Board, the Chief ExecutiveOfficer, the President and the Board of Directors, whenever requested, an account of all histransactions as Treasurer and of the financial condition of the Corporation. If required by theBoard of Directors, the Treasurer shall give the Corporation a bond for the faithful discharge ofhis duties in such amount and with such surety as the Board of Directors shall prescribe.          Section 4.7 Removal. Any officer elected by the Board of Directors may be removed bythe Board of Directors whenever, in their judgment, the best interests of the Corporation would beserved thereby. No elected officer shall have any contractual rights against the Corporation forcompensation by virtue of such election beyond the date of the election of his successor, hisdeath, his resignation or his removal, whichever event shall first occur, except as otherwiseprovided in an employment contract or an employee plan.          Section 4.8 Vacancies. A newly created office and a vacancy in any office because ofdeath, resignation, or removal may be filledby the Board of Directors for the unexpired portion of the term at any meeting of the Board ofDirectors.ARTICLE VSTOCK CERTIFICATES AND TRANSFERS          Section 5.1 Stock Certificates and Transfers.               A. Unless the Board of Directors has determined that some or all of any or all classes orseries of stock shall be uncertificated shares, the interest of each stockholder of the Corporationshall be evidenced by certificates for shares of stock. The shares of the stock of the Corporationshall be transferred on the books of the Corporation by the holder thereof in person or by hisattorney, upon surrender for cancellation of certificates for the same number of shares, with anassignment and power of transfer endorsed thereon or attached thereto, duly executed, and with suchproof of the authenticity of the signature as the Corporation or its agents may reasonably require.               B. Every holder of stock represented by certificates shall be entitled to have a certificatesigned by, or in the name of the Corporation by the Chairman or Vice Chairman of the Board ofDirectors, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, orthe Secretary or an Assistant Secretary of the Corporation representing the number of sharesregistered in certificate form. Any or all of the signatures on the certificate may be afacsimile. In case any officer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate has ceased to be such officer, transfer agent orregistrar before such certificate is issued, it may be issued by the Corporation with the sameeffect as if he were such officer, transfer agent or registrar at the date of issue.
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ARTICLE VIINDEMNIFICATION          Section 6.1 Right to Indemnification. Each person who was or is made a party or isthreatened to be made a party to or is otherwise involved in any action, suit or proceeding,whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason ofthe fact that he or she is or was a director or officer of the Corporation or, while a director orofficer of the Corporation, 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 orother enterprise, including service with respect to an employee benefit plan (hereinafter an“indemnitee”), where the basis of such proceeding is alleged action in an official capacity as adirector, officer, employee or agent, shall be indemnified and held harmless by the Corporation tothe fullest extent authorized by the Delaware General Corporation Law, as the same exists or mayhereafter be amended (but, in the case of any such amendment, only to the extent that suchamendment permits the Corporation to provide broader indemnification rights than permitted priorthereto), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISAexcise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by suchindemnitee in connection therewith and such indemnification shall continue as to an indemnitee whohas ceased to be a director, officer, employee or agent and shall inure to the benefit of theindemnitee’s heirs, executors and administrators; provided, however, that, exceptas provided in Section 6.3 hereof with respect to proceedings to enforce rights to indemnification,the Corporation shall indemnify any such indemnitee in connection with a proceeding (or partthereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized bythe Board of Directors of the Corporation.          Section 6.2 Right to Advancement of Expenses. The right to indemnification conferredin Section 6.1 shall include the right to be paid by the Corporation the expenses incurred indefending any proceeding for which such right to indemnification is applicable in advance of itsfinal disposition (hereinafter an “advancement of expenses”); provided, however,that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by anindemnitee in his or her capacity as a director or officer (and not in any other capacity in whichservice was or is rendered by such indemnitee, including, without limitation, service to anemployee benefit plan) shall be made only upon delivery to the Corporation of an undertaking(hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts soadvanced if it shall ultimately be determined by final judicial decision from which there is nofurther right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitledto be indemnified for such expenses under this Section or otherwise.          Section 6.3 Right of Indemnitee to Bring Suit. The rights to indemnification and tothe advancement of expenses conferred in Section 6.1 and Section 6.2, respectively, shall becontract rights. If a claim under Section 6.1 or Section 6.2 is not paid in full by the
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Corporation within sixty days after a written claim has been received by the Corporation, except inthe case of a claim for an advancement of expenses, in which case the applicable period shall betwenty days, the indemnitee may at any time thereafter bring suit against the Corporation torecover the unpaid amount of the claim. If successful in whole or in part in any such suit, or ina suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of anundertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting ordefending such suit. In (A) any suit brought by the indemnitee to enforce a right toindemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to anadvancement of expenses) it shall be a defense that, and (B) in any suit by the Corporation torecover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shallbe entitled to recover such expenses upon a final adjudication that, the indemnitee has not met anyapplicable standard for indemnification set forth in the Delaware General Corporation Law. Neitherthe failure of the Corporation (including its directors who are not parties to such action, acommittee of such directors, independent legal counsel, or its stockholders) to have made adetermination prior to the commencement of such suit that indemnification of the indemnitee isproper in the circumstances because the indemnitee has met the applicable standard of conduct setforth in the Delaware General Corporation Law, nor an actual determination by the Corporation(including its directors who are not parties to such action, a committee of such directors,independent legal counsel, or its stockholders) that the indemnitee has not met such applicablestandard of conduct,shall create a presumption that the indemnitee has not met the applicable standard of conductor, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suitbrought by the indemnitee to enforce a right to indemnification or to an advancement of expenseshereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of anundertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or tosuch advancement of expenses, under this Section 6.3 or otherwise shall be on the Corporation.          Section 6.4 Non-Exclusivity of Rights. The rights to indemnification and to theadvancement of expenses conferred in this Article VI shall not be exclusive of any other rightwhich any person may have or hereafter acquire under the Certificate of Incorporation, theseAmended and Restated Bylaws, or any statute, agreement, vote of stockholders or disinteresteddirectors or otherwise.          Section 6.5 Insurance. The Corporation may maintain insurance, at its expense, toprotect itself and any director, officer, employee or agent of the Corporation or anothercorporation, partnership, joint venture, trust or other enterprise against any expense, liabilityor loss, whether or not the Corporation would have the power to indemnify such person against suchexpense, liability or loss under the Delaware General Corporation Law.          Section 6.6 Amendment of Rights. Any amendment, alteration or repeal of this ArticleVI that adversely affects any right of an indemnitee or its successors shall be prospective onlyand shall not limit or eliminate any such right with respect to any proceeding involving anyoccurrence or alleged occurrence of any action or omission to act that took place prior to suchamendment or repeal.
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ARTICLE VIIMISCELLANEOUS PROVISIONS          Section 7.1 Fiscal Year. The fiscal year of the Corporation shall begin on the firstday of January and end on the thirty-first day of December of each year.          Section 7.2 Dividends. The Board of Directors may from time to time declare, and theCorporation may pay, dividends on its outstanding shares in the manner and upon the terms andconditions provided by law and its Certificate of Incorporation.          Section 7.3 Seal. The corporate seal shall have inscribed the name of the Corporationthereon and shall be in such form as may be approved from time to time by the Board of Directors.          Section 7.4 Waiver of Notice. Whenever any notice is required to be given to anystockholder or director of the Corporation under the provisions of the Delaware General CorporationLaw, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a waiver by electronictransmission, whether before or after the time stated therein, shall be deemed equivalent to thegiving of such notice. Neither the business to be transacted at, nor the purpose of, any annual orspecial meeting of the stockholders of the Board of Directors need be specified in any waiver ofnotice of such meeting.          Section 7.5 Audits. The accounts, books and records of the Corporation shall beaudited upon the conclusion of each fiscal year by an independent certified public accountantsselected by the Board of Directors, and it shall be the duty of the Board of Directors to causesuch audit to be made annually.          Section 7.6 Resignations. Any director or any officer, whether elected or appointed,may resign at any time by serving written notice of such resignation on the Chairman of the Board,the Chief Executive Officer or the Secretary, or by submitting such resignation by electronictransmission (as such term is defined in the Delaware General Corporation Law), and suchresignation shall be deemed to be effective as of the close of business on the date said notice isreceived by the Chairman of the Board, the Chief Executive Officer, or the Secretary or at suchlater date as is stated therein. No formal action shall be required of the Board of Directors orthe stockholders to make any such resignation effective.          Section 7.7 Contracts. Except as otherwise required by law, the Certificate ofIncorporation or these Bylaws, any contracts or other instruments may be executed and delivered inthe name and on the behalf of the Corporation by such officer or officers of the Corporation as theBoard of Directors may from time to time direct. Such authority may be general or confined tospecific instances as the Board may determine. The Chairman of the Board, the Chief ExecutiveOfficer, the President or any Vice President may execute bonds, contracts, deeds, leases and otherinstruments to be made or executed for or on behalf of the Corporation. Subject to anyrestrictions imposed by the Board of Directors or the Chairman of the Board, the Chief ExecutiveOfficer, the President or any Vice President of the Corporation may delegate contractual powers toothers under his jurisdiction, it being understood, however, that any such delegation of powershall not relieve such officer of responsibility with respect to the exercise of such delegatedpower.
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          Section 7.8 Proxies. Unless otherwise provided by resolution adopted by the Board ofDirectors, the Chairman of the Board, the Chief Executive Officer, the President or any VicePresident may from time to time appoint any attorney or attorneys or agent or agents of theCorporation, in the name and on behalf of the Corporation, to cast the votes which the Corporationmay be entitled to cast as the holder of stock or other securities in any other corporation orother entity, any of whose stock or other securities may be held by the Corporation, at meetings ofthe holders of the stock and other securities of such other corporation or other entity, or toconsent in writing, in the name of the Corporation as such holder, to any action by such othercorporation or other entity, and may instruct the person or persons so appointed as to the mannerof casting such votes or giving such consent, and may execute or cause to be executed in the nameand on behalf of the Corporation and under its corporate seal or otherwise, all such writtenproxies or other instruments as he may deem necessary or proper in the premises.ARTICLE VIIIAMENDMENTS          Section 8.1 Amendments. Subject to the provisions of the Certificate ofIncorporation, these Bylaws may be adopted, amended or repealed at any meeting of the Board ofDirectors by a resolution adopted by a majority of the Whole Board, provided notice of the proposedchange was given in the notice of the meeting in a notice given no less than twenty-four (24) hoursprior to the meeting. Subject to the provisions of the Certificate of Incorporation, thestockholders shall also have the power to adopt, amend or repeal these Bylaws, provided that noticeof the proposed change was given in the notice of the meeting and provided further that, inaddition to any vote of the holders of any class or series of stock of the Corporation required bylaw or by the Certificate of Incorporation, the affirmative vote of the holders of at leastsixty-six and two-thirds percent (66 2/3%) of the voting power of all of the then-outstandingshares of the capital stock of the Corporation entitled to vote generally in the election ofdirectors, voting together as a single class, shall be required to adopt, amend or repeal anyprovision of these Bylaws.
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