**Exhibit 3.2**

** **

** **

** **

**BYLAWS**

**OF**

**DITECH NETWORKS, INC.**

**(A DELAWARE CORPORATION)**

**(As Amended and Restated on March 28, 2002,and revised to reflect the change of thename of the Corporation effective May 18, 2006)**

 

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**TABLE OF CONTENTS**
|                                                               | ** ** | PAGE   | ** ** |
|---------------------------------------------------------------|------------|--------|------------|
| ARTICLE I  OFFICES                                            |       |   | 1          |   |   |
| Section 1. Registered Office                             |       |   | 1          |   |   |
| Section 2. Other Offices                                 |       |   | 1          |   |   |
| ARTICLE II  CORPORATE SEAL                                    |       |   | 1          |   |   |
| Section 3. Corporate Seal                                |       |   | 1          |   |   |
| ARTICLE III  STOCKHOLDERS’ MEETINGS                      |       |   | 1          |   |   |
| Section 4. Place Of Meetings                             |       |   | 1          |   |   |
| Section 5. Annual Meetings                               |       |   | 1          |   |   |
| Section 6. Special Meetings                              |       |   | 4          |   |   |
| Section 7. Notice Of Meetings                            |       |   | 5          |   |   |
| Section 8. Quorum                                        |       |   | 5          |   |   |
| Section 9. Adjournment And Notice Of Adjourned  Meetings |       |   | 5          |   |   |
| Section 10. Voting Rights                                |       |   | 6          |   |   |
| Section 11. Joint Owners Of Stock                        |       |   | 6          |   |   |
| Section 12. List Of Stockholders                         |       |   | 6          |   |   |
| Section 13. Action Without Meeting                       |       |   | 6          |   |   |
| Section 14.  Organization                                |       |   | 7          |   |   |
| ARTICLE IV  DIRECTORS                                         |       |   | 8          |   |   |
| Section 15. Number And Term Of Office                    |       |   | 8          |   |   |
| Section 16. Powers                                       |       |   | 8          |   |   |
| Section 17. Classes of Directors                         |       |   | 8          |   |   |
| Section 18.  Vacancies                                   |       |   | 9          |   |   |
| Section 19. Resignation                                  |       |   | 10         |   |   |
| Section 20.  Removal                                     |       |   | 10         |   |   |
| Section 21.  Meetings                                    |       |   | 10         |   |   |
| Section 22. Quorum And Voting                            |       |   | 11         |   |   |
| Section 23. Action Without Meeting                       |       |   | 12         |   |   |
| Section 24. Fees And Compensation                        |       |   | 12         |   |   |
| Section 25.  Committees                                  |       |   | 12         |   |   |

 

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**TABLE OF CONTENTS(CONTINUED)**
|                                                                                                                | ** ** | PAGE   | ** ** |
|----------------------------------------------------------------------------------------------------------------|------------|--------|------------|
| Section 26. Organization                                                                                  |       |   | 13         |   |   |
| ARTICLE V  OFFICERS                                                                                            |       |   | 14         |   |   |
| Section 27. Officers Designated                                                                           |       |   | 14         |   |   |
| Section 28. Tenure And Duties Of Officers                                                                 |       |   | 14         |   |   |
| Section 29. Delegation Of Authority                                                                       |       |   | 15         |   |   |
| Section 30. Resignations                                                                                  |       |   | 15         |   |   |
| Section 31. Removal                                                                                       |       |   | 15         |   |   |
| ARTICLE VI  EXECUTION OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE  CORPORATION              |       |   | 16         |   |   |
| Section 32. Execution Of Corporate Instruments                                                            |       |   | 16         |   |   |
| Section 33. Voting Of Securities Owned By The  Corporation                                                |       |   | 16         |   |   |
| ARTICLE VII  SHARES OF STOCK                                                                                   |       |   | 16         |   |   |
| Section 34. Form And Execution Of Certificates                                                       |       |   | 16         |   |   |
| Section 35. Lost Certificates                                                                             |       |   | 17         |   |   |
| Section 36.  Transfers                                                                                    |       |   | 17         |   |   |
| Section 37. Fixing Record Dates                                                                           |       |   | 17         |   |   |
| Section 38. Registered Stockholders                                                                       |       |   | 18         |   |   |
| ARTICLE  VIII OTHER SECURITIES OF THE CORPORATION                                                              |       |   | 19         |   |   |
| Section 39. Execution Of Other Securities                                                                 |       |   | 19         |   |   |
| ARTICLE IX  DIVIDENDS                                                                                          |       |   | 19         |   |   |
| Section 40. Declaration Of Dividends                                                                      |       |   | 19         |   |   |
| Section 41. Dividend Reserve                                                                              |       |   | 19         |   |   |
| ARTICLE X  FISCAL YEAR                                                                                         |       |   | 20         |   |   |
| Section 42. Fiscal Year                                                                                   |       |   | 20         |   |   |
| ARTICLE XI  INDEMNIFICATION                                                                                    |       |   | 20         |   |   |
| Section 43. Indemnification Of Directors,  Executive Officers, Other Officers, Employees And Other Agents |       |   | 20         |   |   |

 

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**TABLE OF CONTENTS(CONTINUED)**
|                                    | ** ** | PAGE   | ** ** |
|------------------------------------|------------|--------|------------|
| ARTICLE XII  NOTICES               |       |   | 23         |   |   |
| Section 44.  Notices          |       |   | 23         |   |   |
| ARTICLE  XIII AMENDMENTS           |       |   | 25         |   |   |
| Section 45. Amendments        |       |   | 25         |   |   |
| ARTICLE XIV  LOANS TO OFFICERS     |       |   | 25         |   |   |
| Section 46. Loans To Officers |       |   | 25         |   |   |

 

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**BYLAWS**

**OF**

**DITECH NETWORKS, INC.**

**(A DELAWARE CORPORATION)**

**ARTICLE IOffices**

**Section 1.              RegisteredOffice.**The registered office of the corporation in the Stateof Delaware shall be in the Cityof Dover, County of Kent.

**Section 2.              OtherOffices.**The corporation shall also have and maintain anoffice or principal place of businessat such place as may be fixed by the Board of Directors, and may also haveoffices at such other places, both within and without the State of Delaware asthe Board of Directors may from time to time determine or the business of thecorporation may require.

**ARTICLE IICorporate Seal**

**Section 3.              CorporateSeal.**The corporate seal shall consist of a die bearing thename of the corporation and theinscription, “Corporate Seal-Delaware.”  Said seal may be used by causing it or afacsimile thereof to be impressed or affixed or reproduced or otherwise.

**ARTICLE IIIStockholders’ Meetings**

**Section 4.              PlaceOf Meetings.**Meetings of the stockholders of the corporationshall be held at such place, either within or withoutthe State of Delaware, as may be designated from time totime by the Board of Directors, or, if not so designated, then at the office ofthe corporation required to be maintained pursuant to Section 2 hereof.

**Section 5.              Annual Meetings.**

**(a)          **Theannual meeting of the stockholders of the corporation, for the purpose ofelection of directors and for such other business as may lawfully come beforeit, shall be held on such date and at such time as may be designated from timeto time by the Board of Directors. Nominations of persons for election to theBoard of Directors of the corporation and the proposal of business to beconsidered by the stockholders may be made at an annual meeting ofstockholders:  (i) pursuant to thecorporation’s notice of meeting of stockholders; (ii) by or at the 

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direction of theBoard of Directors; or (iii) by any stockholder of the corporation who wasa stockholder of record at the time of giving of notice provided for in thefollowing paragraph, who is entitled to vote at the meeting and who compliedwith the notice procedures set forth in Section 5.

**(b)          **Atan annual meeting of the stockholders, only such business shall be conducted asshall have been properly brought before the meeting. For nominations or otherbusiness to be properly brought before an annual meeting by a stockholderpursuant to clause (iii) of Section 5(a) of these Bylaws, (i) thestockholder must have given timely notice thereof in writing to the Secretaryof the corporation, (ii) such other business must be a proper matter forstockholder action under the General Corporation Law of Delaware, (iii) ifthe stockholder, or the beneficial owner on whose behalf any such proposal ornomination is made, has provided the corporation with a Solicitation Notice (asdefined in this Section 5(b)), such stockholder or beneficial owner must,in the case of a proposal, have delivered a proxy statement and form of proxyto holders of at least the percentage of the corporation’s voting sharesrequired under applicable law to carry any such proposal, or, in the case of anomination or nominations, have delivered a proxy statement and form of proxyto holders of a percentage of the corporation’s voting shares reasonablybelieved by such stockholder or beneficial owner to be sufficient to elect thenominee or nominees proposed to be nominated by such stockholder, and must, ineither case, have included in such materials the Solicitation Notice, and (iv) ifno Solicitation Notice relating thereto has been timely provided pursuant tothis section, the stockholder or beneficial owner proposing such business ornomination must not have solicited a number of proxies sufficient to haverequired the delivery of such a Solicitation Notice under this Section 5. Tobe timely, a stockholder’s notice shall be delivered to the Secretary at theprincipal executive offices of the Corporation not later than the close ofbusiness on the ninetieth (90th)day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the firstanniversary of the preceding year’s annual meeting; provided, however, that inthe event that the date of the annual meeting is advanced more than thirty (30)days prior to or delayed by more than thirty (30) days after the anniversary ofthe preceding year’s annual meeting, notice by the stockholder to be timelymust be so delivered not earlier than the close of business on the one hundredtwentieth (120th) dayprior to such annual meeting and not later than the close of business on thelater of the ninetieth (90th) dayprior to such annual meeting or the tenth (10th) day following the day on which publicannouncement of the date of such meeting is first made. In no event shall thepublic announcement of an adjournment of an annual meeting commence a new timeperiod for the giving of a stockholder’s notice as described above. Suchstockholder’s notice shall set forth:  (A) asto each person whom the stockholder proposed to nominate for election orreelection as a director all information relating to such person that isrequired to be disclosed in solicitations of proxies for election of directorsin an election contest, or is otherwise required, in each case pursuant toRegulation 14A under the Securities Exchange Act of 1934, as amended (the “1934Act”) and Rule 14a-11 thereunder (including such person’s writtenconsent to being named in the proxy statement as a nominee and to serving as adirector if elected); (B) as to any other business that the stockholderproposes to bring before the meeting, a brief description of the businessdesired to be brought before the meeting, the reasons for conducting suchbusiness at the meeting and any material interest in such business of suchstockholder and the beneficial owner, if any, on whose behalf the proposal ismade; and (C) as to the stockholder giving the notice and the 

 

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beneficial owner,if any, on whose behalf the nomination or proposal is made (i) the nameand address of such stockholder, as they appear on the corporation’s books, andof such beneficial owner, (ii) the class and number of shares of thecorporation which are owned beneficially and of record by such stockholder andsuch beneficial owner, and (iii) whether either such stockholder orbeneficial owner intends to deliver a proxy statement and form of proxy toholders of, in the case of the proposal, at least the percentage of thecorporation’s voting shares required under applicable law to carry the proposalor, in the case of a nomination or nominations, a sufficient number of holdersof the corporation’s voting shares to elect such nominee or nominees (anaffirmative statement of such intent, a “Solicitation Notice”).

**(c)          **Notwithstandinganything in the second sentence of Section 5(b) of these Bylaws tothe contrary, in the event that the number of directors to be elected to theBoard of Directors of the corporation is increased and there is no publicannouncement naming all of the nominees for director or specifying the size ofthe increased Board of Directors made by the corporation at least one hundred(100) days prior to the first anniversary of the preceding year’s annualmeeting, a stockholder’s notice required by this Section 5 shall also beconsidered timely, but only with respect to nominees for any new positions createdby such increase, if it shall be delivered to the Secretary at the principalexecutive offices of the corporation not later than the close of business onthe tenth (10th) dayfollowing the day on which such public announcement is first made by the corporation.

**(d)          **Onlysuch persons who are nominated in accordance with the procedures set forth inthis Section 5 shall be eligible to serve as directors and only suchbusiness shall be conducted at a meeting of stockholders as shall have beenbrought before the meeting in accordance with the procedures set forth in this Section 5.Except as otherwise provided by law, the Chairman of the meeting shall have thepower and duty to determine whether a nomination or any business proposed to bebrought before the meeting was made, or proposed, as the case may be, inaccordance with the procedures set forth in these Bylaws and, if any proposednomination or business is not in compliance with these Bylaws, to declare thatsuch defective proposal or nomination shall not be presented for stockholderaction at the meeting and shall be disregarded.

**(e)          **Notwithstandingthe foregoing provisions of this Section 5, in order to includeinformation with respect to a stockholder proposal in the proxy statement andform of proxy for a stockholder’s meeting, stockholders must provide notice asrequired by the regulations promulgated under the 1934 Act. Nothing in theseBylaws shall be deemed to affect any rights of stockholders to requestinclusion of proposals in the corporation proxy statement pursuant to Rule 14a-8under the 1934 Act.

**(f)           **For purposes ofthis Section 5, “public announcement” shall mean disclosure in a pressrelease reported by the Dow Jones News Service, Associated Press or comparablenational news service or in a document publicly filed by the corporation withthe Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) ofthe 1934 Act.

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**Section 6.              Special Meetings.**

**(a)          **Specialmeetings of the stockholders of the corporation may be called, for any purposeor purposes, by (i) the Chairman of the Board of Directors, (ii) theChief Executive Officer, or (iii) the Board of Directors pursuant to aresolution adopted by a majority of the total number of authorized directors(whether or not there exist any vacancies in previously authorizeddirectorships at the time any such resolution is presented to the Board ofDirectors for adoption), and shall be held at such place, on such date, and atsuch time as the Board of Directors, shall fix**.**

At any time or timesthat the corporation is subject to Section 2115(b) of the CaliforniaGeneral Corporation Law (“CGCL”), stockholders holding five percent (5%) ormore of the outstanding shares shall have the right to call a special meetingof stockholders as set forth in Section 18(c) herein**.**

**(b)          **Ifa special meeting is properly called by any person or persons other than theBoard of Directors, the request shall be in writing, specifying the generalnature of the business proposed to be transacted, and shall be deliveredpersonally or sent by registered mail or by telegraphic or other facsimiletransmission to the Chairman of the Board of Directors, the Chief ExecutiveOfficer, or the Secretary of the corporation. No business may be transacted atsuch special meeting otherwise than specified in such notice. The Board ofDirectors shall determine the time and place of such special meeting, whichshall be held not less than thirty-five (35) nor more than one hundred twenty(120) days after the date of the receipt of the request. Upon determination ofthe time and place of the meeting, the officer receiving the request shallcause notice to be given to the stockholders entitled to vote, in accordancewith the provisions of Section 7 of these Bylaws. If the notice is notgiven within one hundred (100) days after the receipt of the request, theperson or persons properly requesting the meeting may set the time and place ofthe meeting and give the notice. Nothing contained in this paragraph (b) shallbe construed as limiting, fixing, or affecting the time when a meeting ofstockholders called by action of the Board of Directors may be held.

**(c)          **Nominationsof persons for election to the Board of Directors may be made at a specialmeeting of stockholders at which directors are to be elected pursuant to thecorporation’s notice of meeting (i) by or at the direction of the Board ofDirectors or (ii) by any stockholder of the corporation who is astockholder of record at the time of giving notice provided for in these Bylawswho shall be entitled to vote at the meeting and who complies with the noticeprocedures set forth in this Section 6(c). In the event the corporationcalls a special meeting of stockholders for the purpose of electing one or moredirectors to the Board of Directors, any such stockholder may nominate a personor persons (as the case may be), for election to such position(s) asspecified in the corporation’s notice of meeting, if the stockholder’s noticerequired by Section 5(b) of these Bylaws shall be delivered to theSecretary at the principal executive offices of the corporation not earlierthan the close of business on the one hundred twentieth (120th)day prior to such special meeting and not later than theclose of business on the later of the ninetieth (90th) day prior to such meeting or the tenth(10th) dayfollowing the day on which public announcement is first made of the date of thespecial meeting and of the nominees proposed by the Board of Directors to beelected at such meeting. In no 

 

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event shall the publicannouncement of an adjournment of a special meeting commence a new time periodfor the giving of a stockholder’s notice as described above.

**Section 7.              NoticeOf Meetings.**Except as otherwise provided by law or theCertificate of Incorporation, writtennotice of each meeting of stockholders shall be given not less than ten (10) normore than sixty (60) days before the date of the meeting to each stockholderentitled to vote at such meeting, such notice to specify the place, date andhour and purpose or purposes of the meeting. Notice of the time, place andpurpose of any meeting of stockholders may be waived in writing, signed by theperson entitled to notice thereof, either before or after such meeting, andwill be waived by any stockholder by his attendance thereat in person or byproxy, except when the stockholder attends a meeting for the express purpose ofobjecting, at the beginning of the meeting, to the transaction of any businessbecause the meeting is not lawfully called or convened. Any stockholder sowaiving notice of such meeting shall be bound by the proceedings of any suchmeeting in all respects as if due notice thereof had been given.

**Section 8.              Quorum.**At all meetings of stockholders, except where otherwiseprovided by statute or by the Certificate ofIncorporation, or by these Bylaws, the presence, in person or by proxy dulyauthorized, of the holders of a majority of the outstanding shares of stockentitled to vote shall constitute a quorum for the transaction of business. Inthe absence of a quorum, any meeting of stockholders may be adjourned, fromtime to time, either by the chairman of the meeting or by vote of the holdersof a majority of the shares represented thereat, but no other business shall betransacted at such meeting. The stockholders present at a duly called orconvened meeting, at which a quorum is present, may continue to transactbusiness until adjournment, notwithstanding the withdrawal of enoughstockholders to leave less than a quorum. Except as otherwise provided bystatute, the Certificate of Incorporation or these Bylaws, in all matters otherthan the election of directors, the affirmative vote of the majority of sharespresent in person or represented by proxy at the meeting and entitled to voteon the subject matter shall be the act of the stockholders. Except as otherwiseprovided by statute, the Certificate of Incorporation or these Bylaws,directors shall be elected by a plurality of the votes of the shares present inperson or represented by proxy at the meeting and entitled to vote on theelection of directors. Where a separate vote by a class or classes or series isrequired, except where otherwise provided by the statute or by the Certificateof Incorporation or these Bylaws, a majority of the outstanding shares of suchclass or classes or series, present in person or represented by proxy, shallconstitute a quorum entitled to take action with respect to that vote on thatmatter and, except where otherwise provided by the statute or by theCertificate of Incorporation or these Bylaws, the affirmative vote of themajority (plurality, in the case of the election of directors) of the votescast by the holders of shares of such class or classes or series shall be theact of such class or classes or series.

**Section 9.              AdjournmentAnd Notice Of Adjourned Meetings.**Any meeting ofstockholders, whether annualor special, may be adjourned from time to time either by the chairman of themeeting or by the vote of a majority of the shares casting votes. When ameeting is adjourned to another time or place, notice need not be given of theadjourned meeting if the time and place thereof are announced at the meeting atwhich the adjournment is taken. At the 

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adjourned meeting,the corporation may transact any business which might have been transacted atthe original meeting. If the adjournment is for more than thirty (30) days orif after the adjournment a new record date is fixed for the adjourned meeting,a notice of the adjourned meeting shall be given to each stockholder of recordentitled to vote at the meeting.

**Section 10.            VotingRights.**For the purpose of determining those stockholdersentitled to vote at any meeting of the stockholders, exceptas otherwise provided by law, only persons in whose names shares stand on thestock records of the corporation on the record date, as provided in Section 12of these Bylaws, shall be entitled to vote at any meeting of stockholders. Everyperson entitled to vote or execute consents shall have the right to do soeither in person or by an agent or agents authorized by a proxy granted inaccordance with Delaware law. An agent so appointed need not be a stockholder. Noproxy shall be voted after three (3) years from its date of creationunless the proxy provides for a longer period.

**Section 11.            JointOwners Of Stock.**If shares or other securities having votingpower stand of record in the names of two (2) ormore persons, whether fiduciaries, members of a partnership,joint tenants, tenants in common, tenants by the entirety, or otherwise, or iftwo (2) or more persons have the same fiduciary relationship respectingthe same shares, unless the Secretary is given written notice to the contraryand is furnished with a copy of the instrument or order appointing them orcreating the relationship wherein it is so provided, their acts with respect tovoting shall have the following effect:  (a) ifonly one (1) votes, his act binds all; (b) if more than one (1) votes,the act of the majority so voting binds all; (c) if more than one (1) votes,but the vote is evenly split on any particular matter, each faction may votethe securities in question proportionally, or may apply to the Delaware Courtof Chancery for relief as provided in the Delaware General Corporation Law, Section 217(b).If the instrument filed with the Secretary shows that any such tenancy is heldin unequal interests, a majority or even-split for the purpose ofsubsection (c) shall be a majority or even-split in interest.

**Section 12.            ListOf Stockholders.**The Secretary shall prepare and make, atleast ten (10) days before every meeting of stockholders, acomplete list of the stockholders entitled to vote at said meeting, arranged inalphabetical order, showing the address of each stockholder and the number ofshares registered in the name of each stockholder. Such list shall be open tothe examination of any stockholder, for any purpose germane to the meeting,during ordinary business hours, for a period of at least ten (10) daysprior to the meeting, either at a place within the city where the meeting is tobe held, which place shall be specified in the notice of the meeting, or, ifnot specified, at the place where the meeting is to be held. The list shall beproduced and kept at the time and place of meeting during the whole time thereofand may be inspected by any stockholder who is present.

**Section 13.            Action Without Meeting.**

**(a)          **Unlessotherwise provided in the Certificate of Incorporation, any action required bystatute to be taken at any annual or special meeting of the stockholders, orany action which may be taken at any annual or special meeting of thestockholders, may be taken without a meeting, without prior notice and withouta vote, if a consent in writing, setting forth the action 

 

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so taken, shall besigned by the holders of outstanding stock having not less than the minimumnumber of votes that would be necessary to authorize or take such action at ameeting at which all shares entitled to vote thereon were present and voted.

**(b)          **Everywritten consent shall bear the date of signature of each stockholder who signsthe consent, and no written consent shall be effective to take the corporateaction referred to therein unless, within sixty (60) days of the earliest datedconsent delivered to the corporation in the manner herein required, writtenconsents signed by a sufficient number of stockholders to take action aredelivered to the corporation by delivery to its registered office in the Stateof Delaware, its principal place of business or an officer or agent of the corporationhaving custody of the book in which proceedings of meetings of stockholders arerecorded. Delivery made to a corporation’s registered office shall be by handor by certified or registered mail, return receipt requested.

**(c)          **Promptnotice of the taking of the corporate action without a meeting by less thanunanimous written consent shall be given to those stockholders who have notconsented in writing. If the action which is consented to is such as would haverequired the filing of a certificate under any section of the Delaware GeneralCorporation Law if such action had been voted on by stockholders at a meetingthereof, then the certificate filed under such section shall state, in lieu ofany statement required by such section concerning any vote of stockholders,that written consent has been given in accordance with Section 228 of theDelaware General Corporation Law.

**(d)          **Notwithstandingthe foregoing, no such action by written consent may be taken following theclosing of the initial public offering pursuant to an effective registrationstatement under the Securities Act of 1933, as amended (the “1933 Act”),covering the offer and sale of Common Stock of the corporation (the “InitialPublic Offering”).

**Section 14.            Organization.**

**(a)          **Atevery meeting of stockholders, the Chairman of the Board of Directors, or, if aChairman has not been appointed or is absent, the President, or, if thePresident is absent, a chairman of the meeting chosen by a majority in interestof the stockholders entitled to vote, present in person or by proxy, shall actas chairman. The Secretary, or, in his absence, an Assistant Secretary directedto do so by the President, shall act as secretary of the meeting.

**(b)          **TheBoard of Directors of the corporation shall be entitled to make such rules orregulations for the conduct of meetings of stockholders as it shall deemnecessary, appropriate or convenient. Subject to such rules andregulations of the Board of Directors, if any, the chairman of the meetingshall have the right and authority to prescribe such rules, regulations andprocedures and to do all such acts as, in the judgment of such chairman, arenecessary, appropriate or convenient for the proper conduct of the meeting,including, without limitation, establishing an agenda or order of business forthe meeting, rules and procedures for maintaining order at the meeting andthe safety of those present, limitations on participation in such meeting tostockholders of record of the corporation and their duly authorized and constitutedproxies and such other persons as the chairman shall permit, restrictions onentry to the meeting after the time 

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fixed for thecommencement thereof, limitations on the time allotted to questions or commentsby participants and regulation of the opening and closing of the polls forballoting on matters which are to be voted on by ballot. Unless and to theextent 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 rules ofparliamentary procedure.

**ARTICLE IV**

**Directors**

**Section 15.            NumberAnd Term Of Office.**The authorized number of directors of thecorporation shall be fixed in accordance with theCertificate of Incorporation. Directorsneed not be stockholders unless so required by the Certificate of Incorporation.If for any cause, the directors shall not have been elected at an annualmeeting, they may be elected as soon thereafter as convenient at a specialmeeting of the stockholders called for that purpose in the manner provided inthese Bylaws.

**Section 16.            Powers.**The powers of the corporation shall be exercised, itsbusiness conducted and its property controlled by the Board ofDirectors, except as may be otherwise provided by statute or by the Certificateof Incorporation.

**Section 17.            Classesof Directors.**

**(a)          **Subjectto the rights of the holders of any series of Preferred Stock to electadditional directors under specified circumstances, following the closing ofthe Initial Public Offering and during such time or times that the corporationis not subject to §2115(b) of the CGCL, the directors shall be dividedinto three classes designated as Class I, Class II and Class III,respectively. Directors shall be assigned to each class in accordance with aresolution or resolutions adopted by the Board of Directors. At the firstannual meeting of stockholders following the closing of the Initial PublicOffering (assuming the corporation is not subject to §2115(b) of theCGCL), the term of office of the Class I directors shall expire and Class Idirectors shall be elected for a full term of three years. At the second annualmeeting of stockholders following the Initial Public Offering (assuming thecorporation is not subject to §2115(b) of the CGCL), the term of office ofthe Class II directors shall expire and Class II directors shall beelected for a full term of three years. At the third annual meeting ofstockholders following the Initial Public Offering (assuming the corporation isnot subject to §2115(b) of the CGCL), the term of office of the Class IIIdirectors shall expire and Class III directors shall be elected for a fullterm of three years. At each succeeding annual meeting of stockholders(assuming the corporation is not subject to §2115(b) of the CGCL),directors shall be elected for a full term of three years to succeed thedirectors of the class whose terms expire at such annual meeting.

**(b)          **Inthe event that the corporation is subject to §2115(b) of the CGCL at anytime, or from time to time, Section 17(a) of these Bylaws shall notapply and all directors shall be elected at each annual meeting of stockholdersto hold office until the next annual meeting.

 

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**(c)          **Noperson entitled to vote at an election for directors may cumulate votes towhich such person is entitled, unless, at the time of such election, thecorporation is subject to §2115(b) of the CGCL. During such time or timesthat the corporation is subject to §2115(b) of the CGCL, every stockholderentitled to vote at an election for directors may cumulate such stockholder’svotes and give one candidate a number of votes equal to the number of directorsto be elected multiplied by the number of votes to which such stockholder’sshares are otherwise entitled, or distribute the stockholder’s votes on thesame principle among as many candidates as such stockholder thinks fit. Nostockholder, however, shall be entitled to so cumulate such stockholder’s votesunless (i) the names of such candidate or candidates have been placed innomination prior to the voting and (ii) the stockholder has given noticeat the meeting, prior to the voting, of such stockholder’s intention tocumulate such stockholder’s votes. If any stockholder has given proper noticeto cumulate votes, all stockholders may cumulate their votes for any candidateswho have been properly placed in nomination. Under cumulative voting, thecandidates receiving the highest number of votes, up to the number of directorsto be elected, are elected.

Notwithstandingthe foregoing provisions of this section, each director shall serve until hissuccessor is duly elected and qualified or until his death, resignation orremoval. No decrease in the number of directors constituting the Board ofDirectors shall shorten the term of any incumbent director.

**Section 18.            Vacancies.**

**(a)          **Unlessotherwise provided in the Certificate of Incorporation, any vacancies on theBoard of Directors resulting from death, resignation, disqualification, removalor other causes and any newly created directorships resulting from any increasein the number of directors shall, unless the Board of Directors determines byresolution that any such vacancies or newly created directorships shall befilled by stockholders, be filled only by the affirmative vote of a majority ofthe directors then in office, even though less than a quorum of the Board ofDirectors. Any director elected in accordance with the preceding sentence shallhold office for the remainder of the full term of the director for which thevacancy was created or occurred and until such director’s successor shall havebeen elected and qualified. A vacancy in the Board of Directors shall be deemedto exist under this Bylaw in the case of the death, removal or resignation ofany director.

**(b)          **Ifat the time of filling any vacancy or any newly created directorship, thedirectors then in office shall constitute less than a majority of the wholeboard (as constituted immediately prior to any such increase), the DelawareCourt of Chancery may, upon application of any stockholder or stockholdersholding at least ten percent (10%) of the total number of the shares at thetime outstanding having the right to vote for such directors, summarily orderan election to be held to fill any such vacancies or newly createddirectorships, or to replace the directors chosen by the directors then inoffices as aforesaid, which election shall be governed by Section 211 ofthe Delaware General Corporation Law.

 

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**(c)          **Atany time or times that the corporation is subject to Section 2115(b) ofthe CGCL, if, after the filling of any vacancy, the directors then in officewho have been elected by stockholders shall constitute less than a majority ofthe directors then in office, then

**(1)          **Anyholder or holders of an aggregate of five percent (5%) or more of the totalnumber of shares at the time outstanding having the right to vote for thosedirectors may call a special meeting of stockholders; or

**(2)          **TheSuperior Court of the proper county shall, upon application of such stockholderor stockholders, summarily order a special meeting of stockholders, to be heldto elect the entire board, all in accordance with Section 305(c) ofthe CGCL. The term of office of any director shall terminate upon that electionof a successor.

**Section 19.            Resignation.**Any director may resign at any time by delivering his writtenresignation to the Secretary,such resignation to specify whether it will be effective at a particular time,upon receipt by the Secretary or at the pleasure of the Board of Directors. Ifno such specification is made, it shall be deemed effective at the pleasure ofthe Board of Directors. When one or more directors shall resign from the Boardof Directors, effective at a future date, a majority of the directors then inoffice, including those who have so resigned, shall have power to fill suchvacancy or vacancies, the vote thereon to take effect when such resignation orresignations shall become effective, and each Director so chosen shall holdoffice for the unexpired portion of the term of the Director whose place shallbe vacated and until his successor shall have been duly elected and qualified.

**Section 20.            Removal**.

**(a)          **Duringsuch time or times that the corporation is subject to Section 2115(b) ofthe CGCL, he Board of Directors or any individual director may be removed fromoffice at any time without cause by the affirmative vote of the holders of atleast a majority of the outstanding shares entitled to vote on such removal;provided, however, that unless the entire Board is removed, no individual directormay be removed when the votes cast against such director’s removal, or notconsenting in writing to such removal, would be sufficient to elect thatdirector if voted cumulatively at an election which the same total number ofvotes were cast (or, if such action is taken by written consent, all sharesentitled to vote were voted) and the entire number of directors authorized atthe time of such director’s most recent election were then being elected.

**(b)          **Followingany date on which the corporation is no longer subject to Section 2115(b)of the CGCL and subject to any limitations imposed by law, Section 20(a) aboveshall no longer apply and removal shall be as provided in Section 141(k) ofthe Delaware General Corporation Law.

**Section 21.            Meetings.**

**(a)           AnnualMeetings.**The annual meeting of the Board of Directors shallbe held immediately before or after the annual meeting of stockholders and atthe place where such 

 

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meeting is held. Nonotice of an annual meeting of the Board of Directors shall be necessary andsuch meeting shall be held for the purpose of electing officers and transactingsuch other business as may lawfully come before it.

**(b)           RegularMeetings.** Unless otherwise restricted by the Certificate ofIncorporation, regular meetings of the Board of Directors may be held at anytime or date and at any place within or without the State of Delaware which hasbeen designated by the Board of Directors and publicized among all directors. Noformal notice shall be required for regular meetings of the Board of Directors.

**(c)           SpecialMeetings.**Unless otherwise restricted by the Certificate ofIncorporation, special meetings of the Board of Directors may be held at anytime and place within or without the State of Delaware whenever called by theChairman of the Board, the President or any two of the directors

**(d)           TelephoneMeetings.**Any member of the Board of Directors, or of anycommittee thereof, may participate in a meeting by means of conferencetelephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other, and participation in ameeting by such means shall constitute presence in person at such meeting.

**(e)           Noticeof Meetings.**Notice of the time and place of all specialmeetings of the Board of Directors shall be orally or in writing, by telephone,including a voice messaging system or other system or technology designed torecord and communicate messages, facsimile, telegraph or telex, or byelectronic mail or other electronic means, during normal business hours, atleast twenty-four (24) hours before the date and time of the meeting, or sentin writing to each director by first class mail, charges prepaid, at leastthree (3) days before the date of the meeting. Notice of any meeting may bewaived in writing at any time before or after the meeting and will be waived byany director by attendance thereat, except when the director attends themeeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened.

**(f)            Waiverof Notice.**The transaction of all business at any meeting ofthe Board of Directors, or any committee thereof, however called or noticed, orwherever held, shall be as valid as though had at a meeting duly held afterregular call and notice, if a quorum be present and if, either before or afterthe meeting, each of the directors not present shall sign a written waiver ofnotice. All such waivers shall be filed with the corporate records or made apart of the minutes of the meeting.

**Section 22.            Quorum And Voting.**

**(a)          **Unlessthe Certificate of Incorporation requires a greater number and except withrespect to indemnification questions arising under Section 43 hereof, forwhich a quorum shall be one-third of the exact number of directors fixed fromtime to time in accordance with the Certificate of Incorporation, a quorum ofthe Board of Directors shall consist of a majority of the exact number ofdirectors fixed from time to time by the Board of Directors in 

 

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accordance withthe Certificate of Incorporation; *provided, however,*at any meeting whether a quorum be present or otherwise, a majority of thedirectors present may adjourn from time to time until the time fixed for thenext regular meeting of the Board of Directors, without notice other than byannouncement at the meeting.

**(b)          **Ateach meeting of the Board of Directors at which a quorum is present, allquestions and business shall be determined by the affirmative vote of a majorityof the directors present, unless a different vote be required by law, theCertificate of Incorporation or these Bylaws.

**Section 23.            ActionWithout Meeting.** Unless otherwise restricted by theCertificate of Incorporation or these Bylaws, any action requiredor permitted to be taken at any meeting of the Board of Directors or of anycommittee thereof may be taken without a meeting, if all members of the Boardof Directors or committee, as the case may be, consent thereto in writing or byelectronic transmission, and such writing or writings or transmission ortransmissions are filed with the minutes of proceedings of the Board ofDirectors or committee. Such filing shall be in paper form if the minutes aremaintained in paper form and shall be in electronic form if the minutes aremaintained in electronic form.

**Section 24.            FeesAnd Compensation.**Directors shall be entitled to suchcompensation for their services as may be approved by theBoard of Directors, including, if so approved, by resolution of the Board ofDirectors, a fixed sum and expenses of attendance, if any, for attendance ateach regular or special meeting of the Board of Directors and at any meeting ofa committee of the Board of Directors. Nothing herein contained shall beconstrued to preclude any director from serving the corporation in any othercapacity as an officer, agent, employee, or otherwise and receivingcompensation therefor.

**Section 25.            Committees.**

**(a)           ExecutiveCommittee.**The Board of Directors may appoint an ExecutiveCommittee to consist of one (1) or more members of the Board of Directors.The Executive Committee, to the extent permitted by law and provided in theresolution of the Board of Directors shall have and may exercise all the powersand authority of the Board of Directors in the management of the business andaffairs of the corporation, and may authorize the seal of the corporation to beaffixed to all papers which may require it; but no such committee shall havethe power or authority in reference to (i) approving or adopting, orrecommending to the stockholders, any action or matter expressly required bythe Delaware General Corporation Law to be submitted to stockholders forapproval, or (ii) adopting, amending or repealing any bylaw of thecorporation.

**(b)           OtherCommittees.**The Board of Directors may, from time to time,appoint such other committees as may be permitted by law. Such other committeesappointed by the Board of Directors shall consist of one (1) or moremembers of the Board of Directors and shall have such powers and perform suchduties as may be prescribed by the resolution or resolutions creating suchcommittees, but in no event shall any such committee have the powers denied tothe Executive Committee in these Bylaws.

 

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**(c)           Term.**Each member of a committee of the Board of Directors shallserve a term on the committee coexistent with such member’s term on the Boardof Directors. The Board of Directors, subject to any requirements of anyoutstanding series of preferred Stock and the provisions of subsections (a) or(b) of this Bylaw, may at any time increase or decrease the number ofmembers of a committee or terminate the existence of a committee. Themembership of a committee member shall terminate on the date of his death orvoluntary resignation from the committee or from the Board of Directors. TheBoard of Directors may at any time for any reason remove any individualcommittee member and the Board of Directors may fill any committee vacancycreated by death, resignation, removal or increase in the number of members ofthe committee. The Board of Directors may designate one or more directors asalternate members of any committee, who may replace any absent or disqualifiedmember at any meeting of the committee, and, in addition, in the absence or disqualificationof any member of a committee, the member or members thereof present at anymeeting and not disqualified from voting, whether or not he or they constitutea quorum, may unanimously appoint another member of the Board of Directors toact at the meeting in the place of any such absent or disqualified member.

**(d)           Meetings.**Unless the Board of Directors shall otherwise provide,regular meetings of the Executive Committee or any other committee appointedpursuant to this Section 25 shall be held at such times and places as aredetermined by the Board of Directors, or by any such committee, and when noticethereof has been given to each member of such committee, no further notice ofsuch regular meetings need be given thereafter. Special meetings of any suchcommittee may be held at any place which has been determined from time to timeby such committee, and may be called by any director who is a member of suchcommittee, upon written notice to the members of such committee of the time andplace of such special meeting given in the manner provided for the giving ofwritten notice to members of the Board of Directors of the time and place ofspecial meetings of the Board of Directors. Notice of any special meeting ofany committee may be waived in writing at any time before or after the meetingand will be waived by any director by attendance thereat, except when thedirector attends such special meeting for the express purpose of objecting, atthe beginning of the meeting, to the transaction of any business because themeeting is not lawfully called or convened. A majority of the authorized numberof members of any such committee shall constitute a quorum for the transactionof business, and the act of a majority of those present at any meeting at whicha quorum is present shall be the act of such committee.

**Section 26.            Organization.**At every meeting of the directors, the Chairman of the Boardof Directors, or, if a Chairmanhas not been appointed or is absent, the President (if a director), or if thePresident is absent, the most senior Vice President (if a director), or, in theabsence of any such person, a chairman of the meeting chosen by a majority ofthe directors present, shall preside over the meeting. The Secretary, or in hisabsence, any Assistant Secretary directed to do so by the President, shall actas secretary of the meeting.

 

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**ARTICLE VOfficers**

**Section 27.            OfficersDesignated.**The officers of the corporation shall include, ifand when designated by the Boardof Directors, the Chairman of the Board of Directors, the Chief ExecutiveOfficer, the President, one or more Vice Presidents, the Secretary, the ChiefFinancial Officer, the Treasurer and the Controller, all of whom shall beelected at the annual organizational meeting of the Board of Directors. TheBoard of Directors may also appoint one or more Assistant Secretaries, AssistantTreasurers, Assistant Controllers and such other officers and agents with suchpowers and duties as it shall deem necessary. The Board of Directors may assignsuch additional titles to one or more of the officers as it shall deemappropriate. Any one person may hold any number of offices of the corporationat any one time unless specifically prohibited therefrom by law. The salariesand other compensation of the officers of the corporation shall be fixed by orin the manner designated by the Board of Directors.

**Section 28.            Tenure And Duties Of Officers.**

**(a)           General.**All officers shall hold office at the pleasure of the Boardof Directors and until their successors shall have been duly elected andqualified, unless sooner removed. Any officer elected or appointed by the Boardof Directors may be removed at any time by the Board of Directors. If theoffice of any officer becomes vacant for any reason, the vacancy may be filledby the Board of Directors.

**(b)           Dutiesof Chairman of the Board of Directors.**The Chairman of theBoard of Directors, when present, shall preside at all meetings of thestockholders and the Board of Directors. The Chairman of the Board of Directorsshall perform other duties commonly incident to his office and shall alsoperform such other duties and have such other powers, as the Board of Directorsshall designate from time to time. If there is no President, then the Chairmanof the Board of Directors shall also serve as the Chief Executive Officer ofthe corporation and shall have the powers and duties prescribed inparagraph (c) of this Section 28.

**(c)           Dutiesof President.**The President shall preside at all meetings ofthe stockholders and at all meetings of the Board of Directors, unless theChairman of the Board of Directors has been appointed and is present. Unlesssome other officer has been elected Chief Executive Officer of the corporation,the President shall be the chief executive officer of the corporation andshall, subject to the control of the Board of Directors, have generalsupervision, direction and control of the business and officers of thecorporation. The President shall perform other duties commonly incident to hisoffice and shall also perform such other duties and have such other powers, asthe Board of Directors shall designate from time to time.

**(d)           Dutiesof Vice Presidents.**The Vice Presidents may assume andperform the duties of the President in the absence or disability of thePresident or whenever the office of President is vacant. The Vice Presidentsshall perform other duties commonly incident to their office and shall alsoperform such other duties and have such other powers as the Board of Directorsor the President shall designate from time to time.

 

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**(e)           Dutiesof Secretary.**The Secretary shall attend all meetings of thestockholders and of the Board of Directors and shall record all acts andproceedings thereof in the minute book of the corporation. The Secretary shallgive notice in conformity with these Bylaws of all meetings of the stockholdersand of all meetings of the Board of Directors and any committee thereofrequiring notice. The Secretary shall perform all other duties given him inthese Bylaws and other duties commonly incident to his office and shall alsoperform such other duties and have such other powers, as the Board of Directorsshall designate from time to time. The President may direct any AssistantSecretary to assume and perform the duties of the Secretary in the absence ordisability of the Secretary, and each Assistant Secretary shall perform otherduties commonly incident to his office and shall also perform such other dutiesand have such other powers as the Board of Directors or the President shalldesignate from time to time.

**(f)            Dutiesof Chief Financial Officer.**The Chief Financial Officer shallkeep or cause to be kept the books of account of the corporation in a thoroughand proper manner and shall render statements of the financial affairs of thecorporation in such form and as often as required by the Board of Directors orthe President. The Chief Financial Officer, subject to the order of the Boardof Directors, shall have the custody of all funds and securities of thecorporation. The Chief Financial Officer shall perform other duties commonlyincident to his office and shall also perform such other duties and have suchother powers as the Board of Directors or the President shall designate fromtime to time. The President may direct the Treasurer or any AssistantTreasurer, or the Controller or any Assistant Controller to assume and performthe duties of the Chief Financial Officer in the absence or disability of theChief Financial Officer, and each Treasurer and Assistant Treasurer and eachController and Assistant Controller shall perform other duties commonly incidentto his office and shall also perform such other duties and have such otherpowers as the Board of Directors or the President shall designate from time totime.

**Section 29.            DelegationOf Authority.**The Board of Directors may from time to timedelegate the powers or dutiesof any officer to any other officer or agent, notwithstanding any provisionhereof.

**Section 30.            Resignations.**Any officer may resign at any time by giving written noticeto the Board of Directorsor to the President or to the Secretary. Any such resignation shall beeffective when received by the person or persons to whom such notice is given,unless a later time is specified therein, in which event the resignation shallbecome effective at such later time. Unless otherwise specified in such notice,the acceptance of any such resignation shall not be necessary to make iteffective. Any resignation shall be without prejudice to the rights, if any, ofthe corporation under any contract with the resigning officer.

**Section 31.            Removal.**Any officer may be removed from office at any time, eitherwith or without cause, by theaffirmative vote of a majority of the directors in office at the time, or bythe unanimous written consent of the directors in office at the time, or by anycommittee or superior officers upon whom such power of removal may have beenconferred by the Board of Directors.

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**ARTICLE VIExecution Of Corporate Instruments And Voting Of Securities Owned By TheCorporation**

**Section 32.            ExecutionOf Corporate Instruments.**The Board of Directors may, in itsdiscretion, determine the method and designate thesignatory officer or officers, or other person or persons, toexecute on behalf of the corporation any corporate instrument or document, orto sign on behalf of the corporation the corporate name without limitation, orto enter into contracts on behalf of the corporation, except where otherwiseprovided by law or these Bylaws, and such execution or signature shall bebinding upon the corporation.

All checks and draftsdrawn on banks or other depositaries on funds to the credit of the corporationor in special accounts of the corporation shall be signed by such person orpersons as the Board of Directors shall authorize so to do.

Unless authorized orratified by the Board of Directors or within the agency power of an officer, noofficer, agent or employee shall have any power or authority to bind thecorporation by any contract or engagement or to pledge its credit or to renderit liable for any purpose or for any amount.

**Section 33.            VotingOf Securities Owned By The Corporation.**All stock and othersecurities of other corporationsowned or held by the corporation for itself, or for other parties in anycapacity, shall be voted, and all proxies with respect thereto shall beexecuted, by the person authorized so to do by resolution of the Board ofDirectors, or, in the absence of such authorization, by the Chairman of theBoard of Directors, the Chief Executive Officer, the President, or any VicePresident.

**ARTICLE VIIShares Of Stock**

**Section 34.            Form AndExecution Of Certificates.**Certificates for the shares ofstock of the corporation shall be in such form as isconsistent with the Certificate of Incorporation and applicable law. Everyholder of stock in the corporation shall be entitled to have a certificatesigned by or in the name of the corporation by the Chairman of the Board ofDirectors, or the President or any Vice President and by the Treasurer orAssistant Treasurer or the Secretary or Assistant Secretary, certifying thenumber of shares owned by him in the corporation. Any or all of the signatureson the certificate may be facsimiles. In case any officer, transfer agent, orregistrar who has signed or whose facsimile signature has been placed upon acertificate shall have ceased to be such officer, transfer agent, or registrarbefore such certificate is issued, it may be issued with the same effect as ifhe were such officer, transfer agent, or registrar at the date of issue. Eachcertificate shall state upon the face or back thereof, in full or in summary,all of the powers, designations, preferences, and rights, and the limitationsor restrictions of the shares authorized to be issued or shall, except asotherwise required by law, set forth on the face or back a statement that the corporationwill furnish without charge to each stockholder who so requests 

 

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the powers,designations, preferences and relative, participating, optional, or otherspecial rights of each class of stock or series thereof and the qualifications,limitations or restrictions of such preferences and/or rights. Within areasonable time after the issuance or transfer of uncertificated stock, thecorporation shall send to the registered owner thereof a written noticecontaining the information required to be set forth or stated on certificatespursuant to this section or otherwise required by law or with respect to thissection a statement that the corporation will furnish without charge to eachstockholder who so requests the powers, designations, preferences and relativeparticipating, optional or other special rights of each class of stock orseries thereof and the qualifications, limitations or restrictions of suchpreferences and/or rights. Except as otherwise expressly provided by law, therights and obligations of the holders of certificates representing stock of thesame class and series shall be identical.

**Section 35.            LostCertificates.**A new certificate or certificates shall beissued in place of any certificate or certificates theretoforeissued by the corporation alleged to have been lost, stolen, or destroyed, uponthe making of an affidavit of that fact by the person claiming the certificateof stock to be lost, stolen, or destroyed. The corporation may require, as acondition precedent to the issuance of a new certificate or certificates, theowner of such lost, stolen, or destroyed certificate or certificates, or hislegal representative, to agree to indemnify the corporation in such manner asit shall require or to give the corporation a surety bond in such form andamount as it may direct as indemnity against any claim that may be made againstthe corporation with respect to the certificate alleged to have been lost,stolen, or destroyed.

**Section 36.            Transfers.**

**(a)          **Transfersof record of shares of stock of the corporation shall be made only upon itsbooks by the holders thereof, in person or by attorney duly authorized, andupon the surrender of a properly endorsed certificate or certificates for alike number of shares.

**(b)          **Thecorporation shall have power to enter into and perform any agreement with anynumber of stockholders of any one or more classes of stock of the corporationto restrict the transfer of shares of stock of the corporation of any one ormore classes owned by such stockholders in any manner not prohibited by theDelaware General Corporation Law.

**Section 37.            Fixing Record Dates.**

**(a)          **Inorder that the corporation may determine the stockholders entitled to notice ofor to vote at any meeting of stockholders or any adjournment thereof, the Boardof Directors may fix, in advance, a record date, which record date shall notprecede the date upon which the resolution fixing the record date is adopted bythe Board of Directors, and which record date shall, subject to applicable law,not be more than sixty (60) nor less than ten (10) days before the date ofsuch meeting. If no record date is fixed by the Board of Directors, the recorddate for determining stockholders entitled to notice of or to vote at a meetingof stockholders shall be at the close of business on the day next preceding theday on which notice is given, or if notice is waived, at the close of businesson the day next preceding the day on which the meeting is held. A determinationof stockholders of record entitled to notice of or to 

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vote at a meetingof stockholders shall apply to any adjournment of the meeting; *provided, however,* that the Board of Directors may fix a newrecord date for the adjourned meeting.

**(b)          **Priorto the Initial Public Offering, in order that the corporation may determine thestockholders entitled to consent to corporate action in writing without ameeting, the Board of Directors may fix a record date, which record date shallnot precede the date upon which the resolution fixing the record date is adoptedby the Board of Directors, and which date shall not be more than ten (10) daysafter the date upon which the resolution fixing the record date is adopted bythe Board of Directors. Any stockholder of record seeking to have thestockholders authorize or take corporate action by written consent shall, bywritten notice to the Secretary, request the Board of Directors to fix a recorddate. The Board of Directors shall promptly, but in all events within ten (10) daysafter the date on which such a request is received, adopt a resolution fixingthe record date. If no record date has been fixed by the Board of Directorswithin ten (10) days of the date on which such a request is received, therecord date for determining stockholders entitled to consent to corporateaction in writing without a meeting, when no prior action by the Board ofDirectors is required by applicable law, shall be the first date on which asigned written consent setting forth the action taken or proposed to be takenis delivered to the corporation by delivery to its registered office in theState of Delaware, its principal place of business or an officer or agent ofthe corporation having custody of the book in which proceedings of meetings ofstockholders are recorded. Delivery made to the corporation’s registered officeshall be by hand or by certified or registered mail, return receipt requested. Ifno record date has been fixed by the Board of Directors and prior action by theBoard of Directors is required by law, the record date for determiningstockholders entitled to consent to corporate action in writing without ameeting shall be at the close of business on the day on which the Board ofDirectors adopts the resolution taking such prior action.

**(c)          **Inorder that the corporation may determine the stockholders entitled to receivepayment of any dividend or other distribution or allotment of any rights or thestockholders 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, in advance, a record date, which record dateshall not precede the date upon which the resolution fixing the record date isadopted, and which record date shall be not more than sixty (60) days prior tosuch action. If no record date is fixed, the record date for determiningstockholders for any such purpose shall be at the close of business on the dayon which the Board of Directors adopts the resolution relating thereto.

**Section 38.            RegisteredStockholders.**The corporation shall be entitled to recognizethe exclusive right of a personregistered on its books as the owner of shares to receive dividends, and tovote as such owner, and shall not be bound to recognize any equitable or otherclaim to or interest in such share or shares on the part of any other personwhether or not it shall have express or other notice thereof, except asotherwise provided by the laws of Delaware.

 

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**ARTICLE VIIIOther Securities Of The Corporation**

**Section 39.            ExecutionOf Other Securities.**All bonds, debentures and othercorporate securities of the corporation,other than stock certificates (covered in Section 34), may be signed bythe Chairman of the Board of Directors, the President or any Vice President, orsuch other person as may be authorized by the Board of Directors, and thecorporate seal impressed thereon or a facsimile of such seal imprinted thereonand attested by the signature of the Secretary or an Assistant Secretary, orthe Chief Financial Officer or Treasurer or an Assistant Treasurer; *provided, however,* that where any such bond, debenture orother corporate security shall be authenticated by the manual signature, orwhere permissible facsimile signature, of a trustee under an indenture pursuantto which such bond, debenture or other corporate security shall be issued, thesignatures of the persons signing and attesting the corporate seal on suchbond, debenture or other corporate security may be the imprinted facsimile ofthe signatures of such persons. Interest coupons appertaining to any such bond,debenture or other corporate security, authenticated by a trustee as aforesaid,shall be signed by the Treasurer or an Assistant Treasurer of the corporationor such other person as may be authorized by the Board of Directors, or bearimprinted thereon the facsimile signature of such person. In case any officerwho shall have signed or attested any bond, debenture or other corporatesecurity, or whose facsimile signature shall appear thereon or on any suchinterest coupon, shall have ceased to be such officer before the bond,debenture or other corporate security so signed or attested shall have beendelivered, such bond, debenture or other corporate security nevertheless may beadopted by the corporation and issued and delivered as though the person whosigned the same or whose facsimile signature shall have been used thereon hadnot ceased to be such officer of the corporation.

**ARTICLE IXDividends**

**Section 40.            DeclarationOf Dividends.**Dividends upon the capital stock of thecorporation, subject to the provisionsof the Certificate of Incorporation and applicable law, if any, may be declaredby the Board of Directors pursuant to law at any regular or special meeting. Dividendsmay be paid in cash, in property, or in shares of the capital stock, subject tothe provisions of the Certificate of Incorporation and applicable law.

**Section 41.            DividendReserve.**Before payment of any dividend, there may be setaside out of any funds of thecorporation available for dividends such sum or sums as the Board of Directorsfrom time to time, in their absolute discretion, think proper as a reserve orreserves to meet contingencies, or for equalizing dividends, or for repairingor maintaining any property of the corporation, or for such other purpose asthe Board of Directors shall think conducive to the interests of thecorporation, and the Board of Directors may modify or abolish any such reservein the manner in which it was created.

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**ARTICLE XFiscal Year**

**Section 42.            FiscalYear.**The fiscal year of the corporation shall be fixed byresolution of the Board of Directors.

**ARTICLE XIIndemnification**

**Section 43.            Indemnification Of Directors,Executive Officers, Other Officers, Employees And Other Agents.**

**(a)           DirectorsAnd Executive Officers.** The corporation shall indemnify itsdirectors and executive officers (for the purposes of this Article XI, “executiveofficers” shall have the meaning defined in Rule 3b-7 promulgatedunder the 1934 Act)****to the fullestextent not prohibited by the Delaware General Corporation Law or any otherapplicable law; *provided, however,* that thecorporation may modify the extent of such indemnification by individualcontracts with its directors and executive officers; and, *provided,further,* that the corporation shall not be required to indemnify anydirector or executive officer in connection with any proceeding (or partthereof) initiated by such person unless (i) such indemnification isexpressly required to be made by law, (ii) the proceeding was authorized bythe Board of Directors of the corporation, (iii) such indemnification isprovided by the corporation, in its sole discretion, pursuant to the powersvested in the corporation under the Delaware General Corporation Law or anyother applicable law or (iv) such indemnification is required to be madeunder subsection (d).

**(b)           OtherOfficers, Employees and Other Agents.**The corporation shallhave power to indemnify its other officers,****employees andother agents as set forth in the Delaware General Corporation Law or any otherapplicable law. The Board of Directors shall have the power to delegate thedetermination of whether indemnification shall be given to any such person tosuch officers or other persons as the Board of Directors shall determine.

**(c)           Expenses.**The corporation shall advance to any person who was or is aparty or is threatened to be made a party to any threatened, pending orcompleted action, suit or proceeding, whether civil, criminal, administrativeor investigative, by reason of the fact that he is or was a director orexecutive officer, of the corporation, or is or was serving at the request ofthe corporation as a director or executive officer of another corporation,partnership, joint venture, trust or other enterprise, prior to the final dispositionof the proceeding, promptly following request therefor, all expenses incurredby any director or executive officer****in connectionwith such proceeding upon receipt of an undertaking by or on behalf of suchperson to repay said amounts if it should be determined ultimately that suchperson is not entitled to be indemnified under this Bylaw or otherwise.

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Notwithstanding the foregoing, unless otherwisedetermined pursuant to paragraph (e) of this Bylaw, no advance shallbe made by the corporation to an executive officer of the corporation (exceptby reason of the fact that such executive officer is or was a director of thecorporation in which event this paragraph shall not apply) in any action, suitor proceeding, whether civil, criminal, administrative or investigative, if adetermination is reasonably and promptly made (i) by the Board ofDirectors by a majority vote of a quorum consisting of directors who were notparties to the proceeding, or (ii) if such quorum is not obtainable, or,even if obtainable, a quorum of disinterested directors so directs, byindependent legal counsel in a written opinion, that the facts known to thedecision-making party at the time such determination is made demonstrateclearly and convincingly that such person acted in bad faith or in a mannerthat such person did not believe to be in or not opposed to the best interestsof the corporation.

**(d)           Enforcement.**Without the necessity of entering into an express contract,all rights to indemnification and advances to directors and executive officersunder this Bylaw shall be deemed to be contractual rights and be effective tothe same extent and as if provided for in a contract between the corporationand the director or executive officer. Any right to indemnification or advancesgranted by this Bylaw to a director or executive officer shall be enforceableby or on behalf of the person holding such right in any court of competentjurisdiction if (i) the claim for indemnification or advances is denied,in whole or in part, or (ii) no disposition of such claim is made withinninety (90) days of request therefor. The claimant in such enforcement action,if successful in whole or in part, shall be entitled to be paid also theexpense of prosecuting his claim. In connection with any claim forindemnification, the corporation shall be entitled to raise as a defense to anysuch action that the claimant has not met the standards of conduct that make itpermissible under the Delaware General Corporation Law or any other applicable lawfor the corporation to indemnify the claimant for the amount claimed. Inconnection with any claim by an executive officer of the corporation (except inany action, suit or proceeding, whether civil, criminal, administrative orinvestigative, by reason of the fact that such executive officer is or was adirector of the corporation) for advances, the corporation shall be entitled toraise a defense as to any such action clear and convincing evidence that suchperson acted in bad faith or in a manner that such person did not believe to bein or not opposed to the best interests of the corporation, or with respect toany criminal action or proceeding that such person acted without reasonable****cause to believe that his conduct was lawful. Neither thefailure of the corporation (including its Board of Directors, independent legalcounsel or its stockholders) to have made a determination prior to thecommencement of such action that indemnification of the claimant is proper inthe circumstances because he has met the applicable standard of conduct setforth in the Delaware General Corporation Law or any other applicable law, noran actual determination by the corporation (including its Board of Directors,independent legal counsel or its stockholders) that the claimant has not metsuch applicable standard of conduct, shall be a defense to the action or createa presumption that claimant has not met the applicable standard of conduct.

**(e)           Non-Exclusivityof Rights.**The rights conferred on any person by this Bylawshall not be exclusive of any other right which such person may have orhereafter acquire under any applicable statute, provision of the Certificate ofIncorporation, Bylaws, agreement, vote of stockholders or disinteresteddirectors or otherwise, both as to action in his official 

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capacity and as toaction in another capacity while holding office. The corporation isspecifically authorized to enter into individual contracts with any or all ofits directors, officers, employees or agents respecting indemnification andadvances, to the fullest extent not prohibited by the Delaware GeneralCorporation Law, or by any other applicable law.

**(f)            Survivalof Rights.**The rights conferred on any person by this Bylawshall continue as to a person who has ceased to be a director, officer,employee or other agent and shall inure to the benefit of the heirs, executorsand administrators of such a person.

**(g)           Insurance.**To the fullest extent permitted by the Delaware GeneralCorporation Law or any other applicable law, the corporation, upon approval bythe Board of Directors, may purchase insurance on behalf of any person requiredor permitted to be indemnified pursuant to this Bylaw.

**(h)           Amendments.**Any repeal or modification of this Bylaw shall only beprospective and shall not affect the rights under this Bylaw in effect at thetime of the alleged occurrence of any action or omission to act that is thecause of any proceeding against any agent of the corporation.

**(i)            SavingClause.**If this Bylaw or any portion hereof shall beinvalidated on any ground by any court of competent jurisdiction, then thecorporation shall nevertheless indemnify each director and executive officer tothe full extent not prohibited by any applicable portion of this Bylaw thatshall not have been invalidated, or by any other applicable law. If this Section 43shall be invalid due to the application of the indemnification provisions ofanother jurisdiction, then the corporation shall indemnify each director andexecutive officer to the full extent under any other applicable law.

**(j)            CertainDefinitions.**For the purposes of this Bylaw, the followingdefinitions shall apply:

**(1)          **Theterm “proceeding” shall be broadly construed and shall include, withoutlimitation, the investigation, preparation, prosecution, defense, settlement,arbitration and appeal of, and the giving of testimony in, any threatened,pending or completed action, suit or proceeding, whether civil, criminal,administrative or investigative.

**(2)          **Theterm “expenses” shall be broadly construed and shall include, withoutlimitation, court costs, attorneys’ fees, witness fees, fines, amounts paid insettlement or judgment and any other costs and expenses of any nature or kindincurred in connection with any proceeding.

**(3)          **Theterm the “corporation” shall include, in addition to the resulting corporation,any constituent corporation (including any constituent of a constituent)absorbed in a consolidation or merger which, if its separate existence hadcontinued, would have had power and authority to indemnify its directors,officers, and employees or agents, so that any person who is or was a director,officer, employee or agent of such constituent corporation, or is or wasserving at the request of such constituent corporation as a director, officer,employee or 

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agent of another corporation, partnership, joint venture, trust orother enterprise, shall stand in the same position under the provisions of thisBylaw with respect to the resulting or surviving corporation as he would havewith respect to such constituent corporation if its separate existence hadcontinued.

**(4)          **Referencesto a “director,” “executive officer,” “officer,” “employee,” or “agent” of thecorporation shall include, without limitation, situations where such person isserving at the request of the corporation as, respectively, a director,executive officer, officer, employee, trustee or agent of another corporation,partnership, joint venture, trust or other enterprise.

**(5)          **Referencesto “other enterprises” shall include employee benefit plans; references to “fines”shall include any excise taxes assessed on a person with respect to an employeebenefit plan; and references to “serving at the request of the corporation”shall include any service as a director, officer, employee or agent of thecorporation which imposes duties on, or involves services by, such director,officer, employee, or agent with respect to an employee benefit plan, itsparticipants, or beneficiaries; and a person who acted in good faith and in amanner he reasonably believed to be in the interest of the participants andbeneficiaries of an employee benefit plan shall be deemed to have acted in amanner “not opposed to the best interests of the corporation” as referred to inthis Bylaw.

**ARTICLE XIINotices**

**Section 44.            Notices.**

**(a)           NoticeTo Stockholders.**Whenever, under any provisions of theseBylaws, notice is required to be given to any stockholder, it shall be given inwriting, timely and duly deposited in the United States mail, postage prepaid,and addressed to his last known post office address as shown by the stockrecord of the corporation or its transfer agent.

**(b)           NoticeTo Directors.**Any notice required to be given to any directormay be given by the method stated in subsection (a), or by overnightdelivery service, facsimile, telex or telegram, except that such notice otherthan one which is delivered personally shall be sent to such address as suchdirector shall have filed in writing with the Secretary, or, in the absence ofsuch filing, to the last known post office address of such director.

**(c)           AffidavitOf Mailing.**An affidavit of mailing, executed by a dulyauthorized and competent employee of the corporation or its transfer agentappointed with respect to the class of stock affected, specifying the name andaddress or the names and addresses of the stockholder or stockholders, ordirector or directors, to whom any such notice or notices was or were given,and the time and method of giving the same, shall in the absence of fraud, beprima facie evidence of the facts therein contained.

 

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**(d)           TimeNotices Deemed Given.**All notices given by mail or byovernight delivery service, as above provided, shall be deemed to have beengiven as at the time of mailing, and all notices given by facsimile, telex ortelegram shall be deemed to have been given as of the sending time recorded attime of transmission.

**(e)           Methodsof Notice.**It shall not be necessary that the same method ofgiving notice be employed in respect of all directors, but one permissible methodmay be employed in respect of any one or more, and any other permissible methodor methods may be employed in respect of any other or others.

**(f)            FailureTo Receive Notice.**The period or limitation of time withinwhich any stockholder may exercise any option or right, or enjoy any privilegeor benefit, or be required to act, or within which any director may exerciseany power or right, or enjoy any privilege, pursuant to any notice sent him inthe manner above provided, shall not be affected or extended in any manner bythe failure of such stockholder or such director to receive such notice.

**(g)           NoticeTo Person With Whom Communication Is Unlawful.**Whenevernotice is required to be given, under any provision of law or of theCertificate of Incorporation or Bylaws of the corporation, to any person withwhom communication is unlawful, the giving of such notice to such person shallnot be required and there shall be no duty to apply to any governmentalauthority or agency for a license or permit to give such notice to such person.Any action or meeting which shall be taken or held without notice to any suchperson with whom communication is unlawful shall have the same force and effectas if such notice had been duly given. In the event that the action taken bythe corporation is such as to require the filing of a certificate under anyprovision of the Delaware General Corporation Law, the certificate shall state,if such is the fact and if notice is required, that notice was given to allpersons entitled to receive notice except such persons with whom communicationis unlawful.

**(h)           NoticeTo Person With Undeliverable Address.**Whenever notice isrequired to be given, under any provision of law or the Certificate ofIncorporation or Bylaws of the corporation, to any stockholder to whom (i) noticeof two consecutive annual meetings, and all notices of meetings or of thetaking of action by written consent without a meeting to such person during theperiod between such two consecutive annual meetings, or (ii) all, and atleast two, payments (if sent by first class mail) of dividends or interest onsecurities during a twelve-month period, have been mailed addressed to suchperson at his address as shown on the records of the corporation and have beenreturned undeliverable, the giving of such notice to such person shall not berequired. Any action or meeting which shall be taken or held without notice tosuch person shall have the same force and effect as if such notice had beenduly given. If any such person shall deliver to the corporation a writtennotice setting forth his then current address, the requirement that notice begiven to such person shall be reinstated. In the event that the action taken bythe corporation is such as to require the filing of a certificate under anyprovision of the Delaware General Corporation Law, the certificate need notstate that notice was not given to persons to whom notice was not required tobe given pursuant to this paragraph.

 

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**ARTICLE XIIIAmendments**

**Section 45.            Amendments.**Subject to paragraph (h) of Section 43 of theBylaws, the Bylaws may be altered or amended or new Bylawsadopted by the affirmative vote of at least sixty-six and two-thirds percent (66-2/3%)of the voting power of all of the then-outstanding shares of the voting stockof the corporation entitled to vote. The Board of Directors shall also have thepower to adopt, amend, or repeal Bylaws.

**ARTICLE XIV**

**Loans ToOfficers**

**Section 46.            LoansTo Officers.**The corporation may lend money to, or guaranteeany obligation of, or otherwiseassist any officer or other employee of the corporation or of its subsidiaries,including any officer or employee who is a Director of the corporation or itssubsidiaries, whenever, in the judgment of the Board of Directors, such loan,guarantee or assistance may reasonably be expected to benefit the corporation. Theloan, guarantee or other assistance may be with or without interest and may beunsecured, or secured in such manner as the Board of Directors shall approve,including, without limitation, a pledge of shares of stock of the corporation. Nothingin these Bylaws shall be deemed to deny, limit or restrict the powers ofguaranty or warranty of the corporation at common law or under any statute.

 

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