exv4w5





Exhibit 4.5



AMENDED AND RESTATED BYLAWS




OF




US AIRWAYS, INC.




(hereinafter called the “Corporation”)




March 31, 2003




* * * * * * * * * * *




ARTICLE I




OFFICES 




     The registered office of the Corporation shall be in the City of Wilmington, County of New
Castle, Delaware. The Corporation may also have offices at such other places, both within and
without the State of Delaware, as the Board of Directors may from time to time determine.



ARTICLE II




MEETINGS OF STOCKHOLDERS 




     Section 1. Annual Meetings. The annual meeting of stockholders for the election of
Directors shall be held on such date and at such time as shall be designated from time to time by
the Board of Directors, at which meeting the stockholders shall elect a Board of Directors pursuant
to Article III hereof and may transact such other business as may properly come before the meeting.



     Section 2. Special Meetings. Special meetings of the stockholders (i) may be called
at any time by the Chairman of the Board, Chief Executive Officer or President and (ii) shall be
called by the President or Secretary on the written request, or by vote, of a majority of the Board
of Directors or the holders of a majority of the voting power of the shares entitled to vote for
the election of Directors. No business may be transacted at a special meeting of the stockholders
except as set forth in the notice of such meeting (or any supplement thereto).



     Section 3. Location of Meetings. All meetings of the stockholders for any purpose
may be held, within or without the State of Delaware, at such time and place as shall be designated
from time to time by the Board of Directors.



     Section 4. List of Stockholders. The Secretary shall cause to be prepared a complete
list of stockholders entitled to vote at any meeting of the stockholders, arranged in alphabetical
order and showing the address of each stockholder and number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, at the principal place of business of the Corporation. The list shall also
be produced and kept at the time and



 









 




place of the meeting during the whole time thereof, and may be inspected by any stockholder
who is present.




     Section 5. Voting. Except as otherwise required by applicable law or provided in the
Amended and Restated Certificate of Incorporation, as the same may be amended, restated or
supplemented from time to time (the “Certificate of Incorporation”), each stockholder entitled to
vote shall, at every meeting of the stockholders, be entitled to one (1) vote in person or by proxy
(as described below) for each share of voting stock held by him. Such right to vote shall be
subject to the right of the Board of Directors to fix a record date for voting stockholders as
hereinafter provided.



     Each stockholder entitled to vote at a meeting of stockholders or to express consent or
dissent to corporate action in writing without a meeting may authorize another person or persons to
act for him or her by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable
regardless of whether the interest with which it is coupled is an interest in the stock itself or
an interest in the Corporation generally. Any proxy is suspended when the person executing the
proxy is present at a meeting of stockholders and elects to vote, except that when such proxy is
coupled with an interest and the fact of the interest appears on the face of the proxy, the agent
named in the proxy shall have all voting and other rights referred to in the proxy, notwithstanding
the presence of the person executing the proxy. At each meeting of the stockholders, and before
any voting commences, all proxies filed at or before the meeting shall be submitted to and examined
by the Secretary or a person designated by the Secretary, and no shares may be represented or voted
under a proxy that has been found to be invalid or irregular.



     Section 6. Consent of Stockholders in Lieu of a Meeting. Unless otherwise provided
in the Certificate of Incorporation, any action required or permitted to be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted and shall be delivered to the Corporation by
delivery to its registered office in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in which proceedings of meetings of
the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by
hand or by certified or registered mail, return receipt requested. Every written consent shall
bear the date of signature of each stockholder who signs the consent and no written consent shall
be effective to take the corporate action referred to therein unless, within sixty (60) days of the
earliest dated consent delivered in the manner required by this Section 6 to the Corporation,
written consents signed by a sufficient number of holders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation



2









 




having custody of the book in which proceedings of meetings of the stockholders are recorded.
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or
used in lieu of the original writing for any and all purposes for which the original writing could
be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction
of the entire original writing. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those stockholders who have not
consented in writing and who, if the action had been taken at a meeting, would have been entitled
to notice of the meeting if the record date for such meeting had been the date that written
consents signed by a sufficient number of holders to take the action were delivered to the
Corporation as provided above in this Section 6.




     Section 7. Notice to Stockholders. Notice of all meetings shall be mailed by the
Secretary to each stockholder of record entitled to vote, at his or her last known post office
address, not less than ten (10) nor more than sixty (60) days prior to any annual or special
meeting. Such notice shall state the place, date and hour of the meeting, and the purpose or
purposes for which the meeting is called. No business may be transacted at a special meeting of
the stockholders except as set forth in the notice of such meeting (or any supplement thereto).



     Section 8. Quorum. The holders of a majority of the Corporation’s capital stock
outstanding and entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum,
once established, shall not be broken by the withdrawal of enough votes to leave less than a
quorum. If, however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy,
shall have the power to adjourn the meeting from time to time without further notice until a quorum
shall be present or represented.



     Section 9. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, the
Board of Directors may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If
no record date is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of the stockholders shall be at the close of business
on the day next preceding the day on which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.



     In order that the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than ten (10) days after the date upon
which the resolution fixing the record date is



3









 




adopted by the Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is required by applicable
law, shall be the first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of the stockholders are recorded.
Delivery made to the Corporation’s registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the Board of Directors and
prior action by the Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the Board of Directors adopts the resolution taking
such prior action.




     Section 10. Conduct of Meetings. The Board of Directors may adopt by resolution such
rules and regulations for the conduct of any meeting of the stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the
Board of Directors, the chairman of any meeting of the stockholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman
of the meeting, may include, without limitation, the following: (i) the establishment of an agenda
or order of business for the meeting; (ii) the determination of when the polls shall open and close
for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining
order at the meeting and the safety of those present; (iv) limitations on attendance at or
participation in the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi)
limitations on the time allotted to questions or comments by participants.



     Section 11. Inspectors of Meeting. In advance of any meeting of the stockholders,
the Board of Directors, by resolution, the Chairman of the Board, Chief Executive Officer or the
President shall appoint one or more inspectors to act at the meeting and make a written report
thereof. One or more other persons may be designated as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a meeting of the
stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by applicable law, inspectors may be Officers, employees or
agents of the Corporation. Each inspector, before entering upon the discharge of the duties of
inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of such inspector’s ability. The inspector shall have the
duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall
make a certificate of the result of the vote taken and of such other facts as may be required by
applicable law.



4









 





ARTICLE III




DIRECTORS 




     Section 1. Number. The business, property and affairs of the Corporation shall be
managed by or under the direction of its Board of Directors, consisting of not less than one or
more than fifteen (15) members, the exact number of which shall be fixed from time to time by
resolution adopted by the affirmative vote of a majority of the Board of Directors then in office.
Directors need not be stockholders.



     Section 2. Election, Term, Vacancies. Each Director shall hold office until the next
annual election and until such Director’s successor is duly elected and qualified, or until such
Director’s earlier death, resignation or removal. Directors shall be elected by a plurality of the
votes cast at each annual meeting of the stockholders, except that if there be a vacancy in the
Board of Directors by reason of death, resignation, removal or otherwise, such vacancy shall be
filled for the unexpired term by a majority of the remaining Directors then in office, though less
than a quorum, or a sole remaining Director.



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



     Section 4. Compensation. Directors and members of Committees shall receive such
compensation for their service as Directors, and be paid their expenses, if any, of attendance at
each meeting of Directors, as the Board of Directors shall from time to time prescribe. Except as
provided by applicable law, no such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.



     Section 5. Resignations and Removals of Directors. Any Director of the Corporation
may resign at any time, by giving notice in writing to the Chairman of the Board, the Chief
Executive Officer, the President or the Secretary of the Corporation. Such resignation shall take
effect at the time therein specified or, if no time is specified, immediately; and, unless
otherwise specified in such notice, the acceptance of such resignation shall not be necessary to
make it effective. Except as otherwise required by applicable law, any Director may be removed
from office with or without cause at any time by the affirmative vote of the holders of at least a
majority in voting power of the issued and outstanding capital stock of the Corporation entitled to
vote in the election of Directors.



ARTICLE IV




MEETINGS OF DIRECTORS 




     Section 1. Annual Meeting. After each annual election of Directors, the newly
elected Board of Directors may meet for the purpose of organization, the election of



5









 




Officers, and the transaction of other business, at such place and time as shall be fixed by
the newly elected Board of Directors at the annual meeting, and, if a majority of the newly elected
Board of Directors be present at such place and time, no prior notice of such meeting shall be
required to be given to the newly elected Board of Directors. The place and time of such meeting
may also be fixed by written consent of the newly elected Board of Directors.




     Section 2. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from time to time be determined by the Board
of Directors.



     Section 3. Special Meetings. Special meetings of the Directors may be called
individually by the Chairman of the Board, the Chief Executive Officer or the President, or by any
Director. Notice thereof stating the place, date and hour of the special meeting shall be given to
each Director either by mail not less than forty-eight (48) hours before the hour provided for the
start of such meeting, by telephone, telegram or electronic means not less than twenty-four (24)
hours’ before the hour provided for the start of such meeting, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the circumstances.



     Section 4. Location. Meetings of the Directors, both regular and special, may be
held within or without the State of Delaware at such place as is indicated in the notice thereof.



     Section 5. Quorum. Except as otherwise required by applicable law or the Certificate
of Incorporation, at all meetings of the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum for the transaction of business and the act of a majority of
the Directors present at any meeting at which there is a quorum shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be
present.



     Section 6. Organization. At each meeting of the Board of Directors, the Chairman of
the Board, or, in his or her absence, a Director chosen by a majority of the Directors present,
shall act as chairman. The Secretary of the Corporation shall act as secretary at each meeting of
the Board of Directors. In case the Secretary shall be absent from any meeting of the Board of
Directors, the chairman of the meeting may appoint any person to act as secretary of the meeting.



     Section 7. Actions of the Board by Written Consent. Unless otherwise provided in the
Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any Committee thereof may be taken without a meeting, if
all the members of the Board of Directors or Committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors or Committee.



6









 





     Section 8. Meetings by Means of Conference Telephone. Unless otherwise provided in
the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any
Committee thereof, may participate in a meeting of the Board of Directors or such Committee by
means of a conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this
Section 8 shall constitute presence in person at such meeting.



     Section 9. Interested Directors. No contract or transaction between the Corporation
and one or more of its Directors or Officers, or between the Corporation and any other corporation,
partnership, association or other organization in which one or more of its Directors or Officers
are directors or officers or have a financial interest, shall be void or voidable solely for this
reason, or solely because the Director or Officer is present at or participates in the meeting of
the Board of Directors or Committee thereof which authorizes the contract or transaction, or solely
because any such Director’s or Officer’s vote is counted for such purpose if: (i) the material
facts as to the Director’s or Officer’s relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the Committee, and the Board of
Directors or Committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested Directors, even though the disinterested Directors be less
than a quorum; or (ii) the material facts as to the Director’s or Officer’s relationship or
interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith by
vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of
the time it is authorized, approved or ratified by the Board of Directors, a Committee thereof or
the stockholders. Common or interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a Committee which authorizes the contract or
transaction.



ARTICLE V



COMMITTEES 




     Section 1. Creation. The Board of Directors may, by resolution or resolutions passed
by a majority of the Board of Directors, designate one or more committees each to consist of one or
more Directors of the Corporation. The Board of Directors may designate one or more Directors as
alternate members of any Committee, who may replace any absent or disqualified member at any
meeting of any such Committee. In the absence or disqualification of a member of a Committee, and
in the absence of a designation by the Board of Directors of an alternate member to replace the
absent or disqualified member, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Each Committee shall have and may exercise such powers, duties
and authority in the management of the business and affairs of the Corporation as shall be
delegated to it by the Board of Directors except that no such Committee shall have power to (a)
approve or adopt, or recommend to the



7









 




stockholders, any action or matter expressly required by law to be submitted to stockholders
for approval, or (b) adopt, amend or repeal any Bylaw of the Corporation.




     Section 2. Committee Procedure. Each such Committee established by the Board of
Directors shall meet at stated times or on notice to all members by any member of such Committee.
Each such Committee shall establish its own rules of procedure. Each such Committee shall keep
regular minutes of its proceedings and report the same to the Board of Directors.



ARTICLE VI




INDEMNIFICATION 




     Section 1. Power to Indemnify in Actions, Suits or Proceedings other than Those by or in
the Right of the Corporation. Subject to Section 3 of this Article VI, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by reason of the fact
that such person is or was a Director or Officer of the Corporation, or is or was a Director or
Officer of the Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that such person’s conduct was unlawful.



     Section 2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VI, the Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that such person is or was a Director or Officer of the Corporation, or is or
was a Director or Officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in or not opposed to the
best interests of the Corporation; except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of the State of



8









 




Delaware or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.




     Section 3. Authorization of Indemnification. Any indemnification under this Article
VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the present or former Director or Officer is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in Section 1 or Section 2 of this Article VI, as the case may be. Such determination shall
be made, with respect to a person who is a Director or Officer at the time of such determination,
(i) by a majority vote of the Directors who are not parties to such action, suit or proceeding,
even though less than a quorum, or (ii) by a Committee of such Directors designated by a majority
vote of such Directors, even though less than a quorum, or (iii) if there are no such Directors, or
if such Directors so direct, by independent legal counsel in a written opinion, or (iv) by the
stockholders. Such determination shall be made, with respect to former Directors and Officers, by
any person or persons having the authority to act on the matter on behalf of the Corporation. To
the extent, however, that a present or former Director or Officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding described above,
or in defense of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection
therewith, without the necessity of authorization in the specific case.



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



     Section 5. Indemnification by a Court. Notwithstanding any contrary determination in
the specific case under Section 3 of this Article VI, and notwithstanding the absence of any
determination thereunder, any Director or Officer may apply to the Court of Chancery of the State
of Delaware or any other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 1 or Section 2 of this Article
VI. The basis of such indemnification by a court



9









 




shall be a determination by such court that indemnification of the Director or Officer is proper in
the circumstances because such person has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VI, as the case may be. Neither a contrary determination in
the specific case under Section 3 of this Article VI nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that the Director or
Officer seeking indemnification has not met any applicable standard of conduct. Notice of any
application for indemnification pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in part, the Director or
Officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such
application.




     Section 6. Expenses Payable in Advance. Subject to applicable law, expenses
(including attorneys’ fees) incurred by a Director or Officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Director or Officer to repay such amount if it shall ultimately be
determined that such person is not entitled to be indemnified by the Corporation as authorized in
this Article VI. Subject to applicable law, such expenses (including attorneys’ fees) incurred by
other employees and agents may be so paid upon such terms and conditions, if any, as the
Corporation deems appropriate.



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



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



     Section 9. Certain Definitions. For purposes of this Article VI, references to “the
Corporation” shall include, in addition to the resulting corporation, any constituent



10









 




corporation (including any constituent of a constituent) absorbed in a consolidation or merger
which, if its separate existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of such constituent
corporation, or is or was a director or officer of such constituent corporation serving at the
request of such constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article VI with respect to the resulting or surviving
corporation as such person would have with respect to such constituent corporation if its separate
existence had continued. The term “another enterprise” as used in this Article VI shall mean any
other corporation or any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the Corporation as a director,
officer, employee or agent. For purposes of this Article VI, references to “fines” shall include
any excise taxes assessed on a person with respect to an employee benefit plan; and references to
“serving at the request of the Corporation” shall include any service as a Director, Officer,
employee or agent of the Corporation which imposes duties on, or involves services by, such
Director or Officer with respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner “not opposed to the best interests of the Corporation” as referred to in this
Article VI.




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



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



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



11









 





ARTICLE VII




OFFICERS 




     Section 1. General. The Officers of the Corporation shall be chosen by the Board of
Directors and shall be a Chairman of the Board, a Chief Executive Officer, a President, one or more
Vice Presidents, a Secretary, a Treasurer and such other officers as may from time to time be
chosen by the Board of Directors. The Chief Executive Officer shall be empowered to appoint and
remove from office, at his or her discretion, Assistant Vice Presidents and Assistant Secretaries.
Except for the offices of Chairman of the Board and Chief Executive Officer, any number of offices
may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise
provide. The Officers of the Corporation need not be stockholders of the Corporation nor, except
in the case of the Chairman of the Board, need such Officers be Directors of the Corporation.



     Section 2. Election, Term, Vacancies. The Board of Directors, at its first meeting
held after each annual meeting of stockholders (or action by written consent of stockholders in
lieu of the annual meeting of stockholders), shall elect the Officers of the Corporation who shall
hold their offices for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the Board of Directors; and each Officer of the Corporation
shall hold office until such Officer’s successor is elected and qualified, or until such Officer’s
earlier death, resignation or removal. Any Officer chosen or appointed by the Board of Directors
may be removed either with or without cause at any time by the affirmative vote of a majority of
the entire Board of Directors. If the office of any Officer other than an assistant officer
becomes vacant for any reason, the vacancy shall be filled by the affirmative vote of a majority of
the entire Board of Directors.



     Section 3. Chairman of the Board. A Chairman of the Board shall be chosen from among
the Directors. The Chairman of the Board shall preside at all meetings of the stockholders and the
Board of Directors. Except where by law the signature of the Chief Executive Officer or President
is required, the Chairman of the Board shall possess the same power as the Chief Executive Officer
and President to sign all contracts, certificates and other instruments of the Corporation which
may be authorized by the Board of Directors. During the absence or disability of the Chief
Executive Officer, the Chairman of the Board shall exercise all the powers and discharge all the
duties of the Chief Executive Officer. The Chairman of the Board shall also perform such other
duties and may exercise such other powers as may from time to time be assigned to such Officer by
these Bylaws or by the Board of Directors.



     Section 4. Chief Executive Officer. The Chief Executive Officer shall have
responsibility for the general and active management of the business of the Corporation and shall
have the general powers and duties of management usually vested in the chief executive officer of a
corporation. The Chief Executive Officer shall see that all orders and resolutions of the Board of
Directors are carried into effect and shall implement the general directives, plans and policies
formulated by the Board of Directors. The Chief



12









 




Executive Officer may employ and discharge employees and agents of the Corporation, except
such as shall be appointed by the Board of Directors, and he or she may delegate these powers. In
the absence or disability of the Chairman of the Board, the Chief Executive Officer shall preside
at all meetings of the stockholders. Except where by law the signature of the President is
required, the Chief Executive Officer shall possess the same power as the President to sign all
contracts, certificates and other instruments of the Corporation which may be authorized by the
Board of Directors. During the absence or disability of the President, the Chief Executive Officer
shall exercise all the powers and discharge all the duties of the President. The Chief Executive
Officer shall also perform such other duties and may exercise such other powers as may from time to
time be assigned to such Officer by these Bylaws or by the Board of Directors.




     Section 5. President. The President shall be the Chief Operating Officer of the
Corporation. The President shall have such responsibilities and authority as determined by the
Chief Executive Officer of the Corporation.



     Section 6. Vice President. The Vice President or Vice Presidents, in the order
designated by the Board of Directors, shall be vested with all the powers and required to perform
all the duties of the President in his or her absence or disability and shall perform such other
duties as may be prescribed by the Board of Directors.



     Section 7. Secretary. The Secretary shall perform all the duties commonly incident
to his or her office, and keep accurate minutes of all meetings of the stockholders, the Board of
Directors and the Committees of the Board of Directors, recording all the proceedings of such
meetings in a book or books to be kept for that purpose. He or she shall give, or cause to be
given, proper notice of meetings of stockholders and the Board of Directors. If the Secretary
shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and
meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board
of Directors, the Chief Executive Officer or the President may choose another Officer to cause such
notice to be given. The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by the signature of the
Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other Officer to affix the seal of the Corporation and to attest to the
affixing by such Officer’s signature. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be, and shall perform such other duties as the Board of Directors shall
designate.



     Section 8. Treasurer. The Treasurer shall have custody of the funds and securities
of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all monies and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. He or she shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, Chief Executive Officer or President, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer, President and the Board of Directors, at its regular
meetings,



13









 




or whenever the Board of Directors may require it, an account of all his or her transactions
as Treasurer and of the financial condition of the Corporation. Until such time as a controller
may be elected by the Board of Directors, the Treasurer shall also maintain adequate records of all
assets, liabilities and transactions of the Corporation and shall see that adequate audits thereof
are currently and regularly made. The Treasurer shall cause to be prepared, compiled and filed
such reports, statements, statistics and other data as may be required by law or prescribed by the
President. If required by the Board of Directors, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of the Treasurer and for the restoration to
the Corporation, in case of the Treasurer’s death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in the Treasurer’s
possession or under the Treasurer’s control belonging to the Corporation. The Treasurer shall also
perform such other duties and may exercise such other powers as may from time to time be assigned
to such Officer by these Bylaws or by the Board of Directors.




     Section 9. Other Officers. Such other officers as the Board of Directors may choose
shall perform such duties and have such powers as from time to time may be assigned to them by the
Board of Directors. The Board of Directors may delegate to any other Officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.



     Section 10. Voting Securities Owned by the Corporation. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to securities owned by the
Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the
Board, Chief Executive Officer, President, any Vice President or any other officer authorized to do
so by the Board of Directors and any such Officer may, in the name of and on behalf of the
Corporation, take all such action as any such Officer may deem advisable to vote in person or by
proxy at any meeting of security holders of any corporation in which the Corporation may own
securities and at any such meeting shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof, the Corporation might
have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.



ARTICLE VIII




STOCK 




     Section 1. Certificates. Every holder of stock in the Corporation shall be entitled
to have a stock certificate signed by, or in the name of, the Corporation (i) by the Chairman of
the Board, the Chief Executive Officer, the President or a Vice President and (ii) by the Treasurer
or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by such stockholder in the Corporation. Any or all of the
signatures on a stock certificate may be a facsimile, either engraved or printed. The Board of
Directors may from time to time appoint and maintain one or more transfer agents and registrars of
transfers, which may be the same



14









 




agency or agencies, and may require all certificates to bear the signatures of one (1) of such
transfer agents and one (1) of such registrars of transfers, or as the Board of Directors may
otherwise direct. The stock certificates of the Corporation shall bear the seal of the Corporation
or shall bear a facsimile of such seal engraved or printed.




     In case any Officer, transfer agent or registrar who has signed, or whose facsimile signature
or signatures have been used on, any certificate or certificates of stock, shall have ceased to be
an Officer, transfer agent or registrar, whether because of death, resignation or otherwise, before
such certificate or certificates is issued and delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation with the same effect as if
such person were such Officer, transfer agent or registrar at the date of issue.



     Section 2. Lost Certificates. If a certificate of stock is lost, stolen or
destroyed, the Board of Directors may direct a new certificate to be issued by the Corporation in
its stead upon affidavit of that fact by the person claiming the certificate of stock to be lost,
stolen or destroyed and the giving of a satisfactory bond of indemnity, in an amount sufficient to
indemnify the Corporation against any claim that may be made against the Corporation on account of
the alleged loss, theft or destruction of such certificate or the issuance of such new certificate.
A certificate may be issued without requiring bond when, in the judgment of the Board of
Directors, it is proper to do so.



     Section 3. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of
the Corporation only by the person named in the certificate or by such person’s attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, properly endorsed for
transfer and payment of all necessary transfer taxes; provided, however, that such
surrender and endorsement or payment of taxes shall not be required in any case in which the
Officers of the Corporation shall determine to waive such requirement. Every certificate
exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of
cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent
thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it
shall have been entered in the stock records of the Corporation by an entry showing from and to
whom transferred.



     Section 4. Dividend Record Date. In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of any change, conversion or
exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board of Directors adopts the
resolution relating thereto.



15









 





     Section 5. Stockholders of Record. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise required by law.



ARTICLE IX




NOTICES




     Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, to be given to any stockholder, such notice may be given by mail,
addressed to such stockholder, at such person’s address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Without limiting the manner by which
notice otherwise may be given effectively to stockholders, any notice to stockholders given by the
Corporation under applicable law, the Certificate of Incorporation or these Bylaws shall be
effective if given by a form of electronic transmission if consented to by the stockholder to whom
the notice is given. Any such consent shall be revocable by the stockholder by written notice to
the Corporation. Any such consent shall be deemed to be revoked if (i) the Corporation is unable
to deliver by electronic transmission two (2) consecutive notices by the Corporation in accordance
with such consent, and (ii) such inability becomes known to the Secretary or Assistant Secretary of
the Corporation or to the transfer agent, or other person responsible for the giving of notice;
provided, however, that the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action. Notice given by electronic
transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive notice; (ii) if by
electronic mail, when directed to an electronic mail address at which the stockholder has consented
to receive notice; (iii) if by a posting on an electronic network, together with separate notice to
the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of
such separate notice; and (iv) if by any other form of electronic transmission, when directed to
the stockholder. Notice to Directors or Committee members may be given personally, by mail as
described above, or by telegram, telex, cable or by means of electronic transmission.



     Section 2. Waivers of Notice. Whenever any notice is required by applicable law, the
Certificate of Incorporation or these Bylaws, to be given to any Director, member of a Committee or
stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a
waiver by electronic transmission by the person or persons entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a
meeting, present in person or represented by proxy, shall constitute a waiver of notice of such
meeting, except where the person attends the meeting for the express purpose of objecting at the
beginning of the meeting to the transaction of any business because the meeting is not lawfully
called or convened.



16









 




Neither the business to be transacted at, nor the purpose of, any annual or special meeting of
stockholders or any regular or special meeting of the Directors or members of a Committee of
Directors need be specified in any written waiver of notice unless so required by law, the
Certificate of Incorporation or these Bylaws.




ARTICLE X




GENERAL PROVISIONS 




     Section 1. Fiscal Year. The fiscal year of the Corporation shall begin the first day
of January and end on the 31st day of December of each year.



     Section 2. Dividends. Dividends upon the capital stock of the Corporation, subject
to the requirements of the DGCL and the provisions of the Certificate of Incorporation, if any, may
be declared by the Board of Directors at any regular or special meeting of the Board of Directors
(or any action by written consent in lieu thereof in accordance with Section 7 of Article IV
hereof) and may be paid in cash, in property or in shares of the Corporation’s capital stock.
Before payment of any dividend, the Directors may set apart out of any of the funds of the
Corporation available for dividends such sum or sums as the Board of Directors from time to time,
in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for
purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes,
scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve or reserves.



     Section 3. Disbursements. All checks, drafts, demands or orders for the payment of
money and notes of the Corporation shall be signed by the Treasurer or by such other Officer,
Officers, person or persons as the Board of Directors may from time to time designate.



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



ARTICLE XI




AMENDMENT TO BYLAWS 




     Subject to the provisions of the Certificate of Incorporation, these Bylaws may be altered,
amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by
the Board of Directors; provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of the
stockholders or the Board of Directors, as the case may be. All such



17









 




amendments must be approved by a majority of the entire Board of Directors then in office or
by the holders of at least a majority of the voting power of the outstanding shares of capital
stock entitled to vote for the election of directors. Notice of all such amendments shall be
provided to the stockholders in accordance with the provisions of Article II hereof.




ARTICLE XII




CERTIFICATE OF INCORPORATION TO GOVERN 




     Notwithstanding anything to the contrary herein, in the event any provision contained herein
is inconsistent with or conflicts with a provision of the Certificate of Incorporation, such
provision herein shall be superseded by the inconsistent provision in the Certificate of
Incorporation, to the extent necessary to give effect to such provision in the Certificate of
Incorporation.



* * * * * * * * * * *




	 	 	 	 	 
	Adopted as of: 

	 	 

	 	 






	 	 	 	 	 
	Last Amended as of: 

	 	 

	 	 






18