exv4w2







Exhibit 4.2




AMENDED AND RESTATED BYLAWS OF

KIOR, INC.,

a Delaware corporation




(Dated as of June 29, 2011)



ARTICLE I.

OFFICES



     Section 1. Registered Office. The registered office shall be at the office of
Corporation Trust Center, in the City of Wilmington, New Castle County, State of Delaware.



     Section 2. Other Offices. 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 or the business of the corporation may require.



ARTICLE II.

MEETINGS OF STOCKHOLDERS




     Section 1. Annual Meeting. An annual meeting of the stockholders for the election of
directors shall be held at such place either within or without the State of Delaware as shall be
designated on an annual basis by the Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof. Any other proper business may be transacted at the annual
meeting.



     Section 2. Notice of Annual Meeting. Unless otherwise required by applicable law,
written notice of the annual meeting stating the place, date and hour of the meeting shall be given
to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before
the date of the meeting.



     Section 3. Voting List. The officer who has charge of the stock ledger of the
corporation shall prepare and make, or cause a third party to prepare and make, at least 10 days
before every meeting of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each stockholder and the 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 10 days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. 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 4. Special Meetings. Special meetings of the stockholders of this
corporation, for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, shall be called by the President or Secretary at the request in
writing of a majority of the members of the Board of Directors, the Chairman of the Board, the Lead



1









 




Director, the Chief Executive Officer or the President, and may not be called absent such a
request. Such request shall state the purpose or purposes of the proposed meeting.




     Section 5. Notice of Special Meetings. As soon as reasonably practicable after
receipt of a request as provided in Section 4 of this Article II, written notice of a special
meeting, stating the place, date (which shall be not less than 10 nor more than 60 days from the
date of the notice) and hour of the special meeting and the purpose or purposes for which the
special meeting is called, shall be given to each stockholder entitled to vote at such special
meeting.



     Section 6. Scope of Business at Special Meeting. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.



     Section 7. Quorum. The holders of a majority of the voting power of the stock issued
and 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, except as
otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the chairman of the meeting
or the stockholders entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned meeting at which a
quorum shall be present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for more than 30 days, or
if a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting as provided in Section 2 or
Section 5 of this Article II, as applicable. To the fullest extent permitted by law, the Board of
Directors may postpone or reschedule any previously scheduled special or annual meeting of
stockholders before it is to be held, in which case notice shall be provided to the stockholders of
the new date, time and place, if any, of the meeting as provided in Section 2 or Section 5 of this
Article II, as applicable.



     Section 8. Qualifications to Vote. The stockholders of record on the books of the
corporation at the close of business on the record date as determined by the Board of Directors and
only such stockholders shall be entitled to vote at any meeting of stockholders or any adjournment
thereof.



     Section 9. Record Date. The Board of Directors may fix a record date for the
determination of the stockholders entitled to notice of or to vote at any stockholders’ meeting and
at any adjournment thereof, or to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action. Unless otherwise required by law,
the record date shall not be more than 60 nor less than 10 days before the date of such meeting,
and not more than 60 days prior to any other action. 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 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. To the fullest extent permitted by law, a determination
of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply
to



2









 




any adjournment of the meeting; provided, however, that the Board of Directors may fix a new
record date for the adjourned meeting.




     Section 10. Action at Meetings. When a quorum is present at any meeting, the vote of
the holders of a majority of the voting power of the shares of stock having voting power present in
person or represented by proxy shall decide any question brought before such meeting, unless the
question is one upon which by express provision of applicable law, the Certificate of Incorporation
or this Section 10, a different vote is required, in which case such express provision shall govern
and control the decision of such question. With respect to a matter submitted for a vote of the
stockholders as to which a stockholder approval requirement is applicable under the stockholder
approval policy of any stock exchange or quotation system on which the capital stock of the
corporation is traded or quoted, the requirements of Rule 16b-3 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), or any provision of the Internal Revenue Code, in each
case for which no higher voting requirement is specified by the General Corporation Law of the
State of Delaware, the Certificate of Incorporation or these Bylaws, the vote required for approval
shall be the requisite vote specified in such stockholder approval policy, Rule 16b-3 or Internal
Revenue Code provision, as the case may be (or the highest such requirement if more than one is
applicable). For the approval of the appointment of independent public accountants (if submitted
for a vote of the stockholders) or the approval of any matter recommended to the stockholders by
the Board of Directors with respect to the compensation of executives, including any advisory vote
regarding executive compensation, the vote required for approval shall be a majority of the votes
cast on the matter.



     Section 11. Voting and Proxies. Except as otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote
in person or by proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period. Each proxy shall be revocable unless expressly provided therein to
be irrevocable and unless it is coupled with an interest sufficient in law to support an
irrevocable power.



     Section 12. No Action by Consent Without a Meeting. Except as otherwise permitted by
the Certificate of Incorporation, no action shall be taken by written consent of the stockholders
of the Corporation.



     Section 13. Stockholder Proposals. At an annual meeting of stockholders of the
corporation, only such business shall be conducted, and only such proposals shall be acted upon, as
shall have been properly brought before such annual meeting. To be properly brought before an
annual meeting, business or proposals (other than any nomination of directors of the corporation,
which is governed by Section 18 of Article III hereof) must (i) be specified in the notice relating
to the meeting (or any supplement thereto) given by or at the direction of the Board of Directors
in accordance with Section 1 of Article IV hereof or (ii) be properly brought before the meeting by
a stockholder of the corporation who (A) is a stockholder of record at the time of the giving of
such stockholder’s notice provided for in this Section 13, (B) shall be entitled to vote at the
annual meeting and (C) complies with the requirements of this Section 13,
and otherwise be proper subjects for stockholder action and be properly introduced at the
annual meeting. Clause (ii) of the immediately preceding sentence shall be the exclusive means for
a



3









 




stockholder to submit business or proposals (other than matters properly brought under Rule 14a-8
under the Securities Exchange Act 1934, as amended (the “Exchange Act”), and included in the notice
relating to the meeting (or any supplement thereto) given by or at the direction of the Board of
Directors in accordance with Section 1 of Article IV hereof) before an annual meeting of
stockholders of the corporation. For a proposal to be properly brought before an annual meeting by
a stockholder of the corporation pursuant to these provisions, in addition to any other applicable
requirements, such stockholder must have given timely advance notice thereof in writing to the
Secretary of the corporation. To be timely, such stockholder’s notice must be delivered to, or
mailed and received at, the principal executive offices of the corporation not earlier than the
close of business on the 120th day and not later than the close of business on the 90th day prior
to the first anniversary of the annual meeting date of the next preceding annual meeting (except in
the case of the 2012 annual meeting, for which such notice shall be timely if delivered in the same
time period as if such meeting were a special meeting governed by the penultimate sentence of the
second paragraph of Section 18 of Article III hereof); provided, however, that if the scheduled
annual meeting date differs from such anniversary date by more than 30 days, notice by such
stockholder, to be timely, must be so delivered or received not earlier than the close of business
on the 120th day and not later than the close of business on the later of the 90th day prior to the
date of such annual meeting or, if less than 100 days’ prior notice or public disclosure of the
scheduled meeting date is given or made, the 10th day following the earlier of the day on which the
notice of such meeting was mailed to stockholders of the corporation or the day on which such
public disclosure was made. In no event shall any adjournment, postponement or deferral of an
annual meeting or the announcement thereof commence a new time period for the giving of a
stockholder’s notice as described above. For purposes of this Section 13 and Section 18 of Article
III, “public disclosure” shall mean disclosure in a press release or in a document publicly filed
with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act.




     Any such stockholder’s notice to the Secretary of the corporation shall set forth as to each
matter such stockholder proposes to bring before the annual meeting (i) a description of the
proposal desired to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, together with the text of the proposal or business (including the
text of any resolutions proposed for consideration), (ii) as to such stockholder proposing such
business and the beneficial owner, if any, on whose behalf the proposal is made, (A) the name and
address of such stockholder, as they appear on the corporation’s books, and of such beneficial
owner, if any, and the name and address of any other stockholders known by such stockholder to be
supporting such business or proposal, (B) (1) the class or series and number of shares of capital
stock of the corporation which are, directly or indirectly, owned beneficially and of record by
such stockholder and such beneficial owner, (2) any option, warrant, convertible security, stock
appreciation right or similar right with an exercise or conversion privilege or a settlement
payment or mechanism at a price related to any class or series of shares of capital stock of the
corporation or with a value derived in whole or in part from the price, value or volatility of any
class or series of shares of capital stock of the corporation or any derivative or synthetic
arrangement having characteristics of a long position in any class or series of shares of capital
stock of the corporation, whether or not such instrument or right shall be subject to settlement in
the underlying class or series of capital stock of the corporation or otherwise (any
such instrument, a “Derivative Instrument”) directly or indirectly owned beneficially by such
stockholder and by such beneficial owner and any other direct or indirect opportunity to profit or



4









 




share in any profit derived from any increase or decrease in the value of shares of capital stock
of the corporation, (3) any proxy, contract, arrangement, understanding or relationship the effect
or intent of which is to increase or decrease the voting power of such stockholder or beneficial
owner with respect to any shares of any security of the corporation, (4) any pledge by such
stockholder or beneficial owner of any security of the corporation or any short interest of such
stockholder or beneficial owner in any security of the corporation (for purposes of this Section 13
and Section 18 of Article III hereof, a person shall be deemed to have a short interest in a
security if such person directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share in any profit derived from any
decrease in the value of the subject security), (5) any rights to dividends on the shares of
capital stock of the corporation owned beneficially by such stockholder and by such beneficial
owner that are separated or separable from the underlying shares of capital stock of the
Corporation, (6) any proportionate interest in shares of capital stock of the corporation or
Derivative Instruments held, directly or indirectly, by a general or limited partnership in which
such stockholder or beneficial owner is a general partner or, directly or indirectly, beneficially
owns an interest in a general partner and (7) any performance-related fees (other than an
asset-based fee) that such stockholder or beneficial owner is entitled to based on any increase or
decrease in the value of shares of capital stock of the corporation or Derivative Instruments, if
any, as of the date of such notice, including, without limitation, any such interests held by
members of such stockholder’s or beneficial owner’s immediate family sharing the same household
(which information shall be supplemented by such stockholder and beneficial owner, if any, not
later than 10 days after the record date for the meeting to disclose such ownership as of the
record date), and (C) any other information relating to such stockholder and beneficial owner, if
any, that would be required to be disclosed in solicitations of proxies for the proposal, or would
otherwise be required, in each case pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder; (iii) any material interest of such stockholder and beneficial
owner, if any, in such business or proposal and (iv) a description of all agreements, arrangements
and understandings between such stockholder and beneficial owner, if any, on the one hand, and any
other person or persons (including their names), on the other hand, in connection with such
business or proposal by such stockholder.




     A stockholder providing notice of business proposed to be brought before an annual meeting
shall further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 13 shall be true and correct as of
the record date for the meeting and as of the date that is ten business days prior to the meeting
or any adjournment or postponement thereof, and such update and supplement shall be delivered to,
or mailed and received at, the principal executive offices of the corporation not later than five
business days after the record date for the meeting (in the case of the update and supplement
required to be made as of the record date), and not later than eight business days prior to the
date of the meeting or if practicable (or, if not practicable, on the first practicable date prior
to) any adjournment or postponement thereof (in the case of the update and supplement required to
be made as of ten business days prior to the meeting or any adjournment or postponement thereof).
In addition, a stockholder providing notice of business proposed to be brought before an annual
meeting shall update and supplement such notice, and deliver such update and supplement to the
principal executive offices of the corporation, promptly following
the occurrence of any event that materially changes the information provided or required to be
provided in such notice pursuant to this Section 13.



5









 





     The Chairman of the Board, the Lead Director if the Chairman is not presiding or, if neither
the Chairman nor the Lead Director is presiding, the presiding officer of the meeting of
stockholders of the corporation shall determine whether the requirements of this Section 13 have
been met with respect to any stockholder proposal. If the Chairman of the Board, the Lead Director
or the presiding officer determines that any stockholder proposal was not made in accordance with
the terms of this Section 13, he shall so declare at the meeting and any such proposal shall not be
acted upon at the meeting.



     At a special meeting of stockholders of the corporation, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been properly brought before
such special meeting. To be properly brought before such a special meeting, business or proposals
(other than any nomination of directors of the corporation, which is governed by Section 18 of
Article III hereof) must (i) be specified in the notice relating to the meeting (or any supplement
thereto) given by or at the direction of the Board of Directors in accordance with Section 1 of
Article IV hereof or (ii) constitute matters incident to the conduct of the meeting as the Chairman
of the Board, the Lead Director or the presiding officer of the meeting shall determine to be
appropriate.



     In addition to the foregoing provisions of this Section 13, a stockholder of the corporation
shall also comply with all applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in this Section 13. Nothing in this
Section 13 shall be deemed to affect any rights of stockholders to request inclusion of proposals
in the corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.



ARTICLE III.

DIRECTORS




     Section 1. Powers. The business 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 applicable law or by the Certificate of Incorporation
or by these Bylaws directed or required to be exercised or done by the stockholders.



     Section 2. Number; Election; Tenure and Qualification. Within the limits specified in
the Certificate of Incorporation, and subject to such rights of holders of shares of one or more
outstanding series of preferred stock of the corporation to elect one or more directors of the
corporation under circumstances as shall be provided by or pursuant to the Certificate of
Incorporation, the number of directors of the corporation that shall constitute the Board of
Directors shall be fixed from time to time exclusively by, and may be increased or decreased from
time to time exclusively by, the affirmative vote of at least a majority of the whole board. The
directors shall be divided, with respect to the time for which they severally hold office, into
classes as provided in the Certificate of Incorporation. No decrease in the authorized number of
directors shall shorten the term of any incumbent director. Directors need not be stockholders.



     Section 3. Vacancies and Newly Created Directorships. Unless otherwise specifically
provided in the Certificate of Incorporation or these Bylaws, vacancies and newly-created
directorships resulting from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a sole



6









 







remaining
director and not by the stockholders. Each director so chosen shall hold office for a term
expiring at the next annual meeting of stockholders or until his or her successor shall have been
duly elected and qualified, unless sooner displaced. If there are no directors in office, then an
election of directors may be held in the manner provided by applicable law.



     Section 4. Location of Meetings. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of Delaware.



     Section 5. Meeting of Newly Elected Board of Directors. The first meeting of each
newly elected Board of Directors shall be held immediately following the annual meeting of
stockholders and no notice of such meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at such time, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the Board of Directors,
or as shall be specified in a written waiver signed by all of the directors.



     Section 6. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be determined by the Board
of Directors; provided that any director who is absent when such a determination is made shall be
given notice of such location.



     Section 7. Special Meetings. Special meetings of the Board of Directors may be called
by the President on, (a) in the event directors are required to attend such meeting in person, five
business days’ notice and (b) in all other cases, two days’ notice, in each case to each director
by mail, overnight courier service or facsimile; special meetings shall be called by the President
or Secretary in a like manner and on like notice on the written request of any director. Notice
may be waived in accordance with Section 229 of the General Corporation Law of the State of
Delaware. Each notice of special meetings delivered pursuant to the foregoing shall contain a
general description of the matters intended to be discussed at such meeting.



     Section 8. Quorum and Action at Meetings. At all meetings of the Board of Directors,
a majority of the directors then in office 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, except as may be otherwise specifically provided
by statute or by the Certificate of Incorporation. 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, until a quorum shall be present.



     Section 9. Action Without a Meeting. Unless otherwise restricted by 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 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.



7









 





     Section 10. Telephonic Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors, or any committee,
by means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.



     Section 11. Committees. The Board of Directors may, by resolution passed by a
majority of the whole board, designate one or more committees, each committee to consist of one or
more of the 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 the committee. In the absence or disqualification of a member of a committee,
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 such absent or disqualified member.



     Section 12. Chairman of the Board and Lead Director. The Board of Directors may elect
from among its members a Chairman of the Board, who may be an officer of the corporation. The
Chairman of the Board, if any, shall preside at all meetings of the Board of Directors and of the
stockholders at which the Chairman shall be present. The Chairman shall have and may exercise such
powers as are, from time to time, assigned to the Chairman by the Board of Directors and as may be
provided by law.



     If an officer of the Corporation is serving as the Chairman of the Board, the Board of
Directors may appoint from among its members a director who shall be designated as the Lead
Director. The Lead Director shall consult with and act as a liaison between the Board of Directors
and the officers of the corporation and shall have and may exercise such powers as are, from time
to time, assigned to such person by the Board of Directors. The Lead Director, if any, shall, when
present, preside over meetings of the Board of Directors or of the stockholders in the absence of
the Chairman of the Board. Meetings of the members of the Board of Directors who are not officers
of the corporation shall be presided over by the Lead Director, or if there is none, by the
Chairman of the Board, if he or she is independent, or if he or she is not independent, by a
director selected to so preside at such meeting(s).



     Section 13. Committee Authority. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of the corporation, and may
authorize the seal of the corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to (a) approving, adopting or recommending
to the stockholders, any action or matter expressly required by the General Corporation Law of the
State of Delaware to be submitted to stockholders for approval, or (b) adopting, amending or
repealing any Bylaw of the corporation. Such committee or committees
shall have such name or names as may be determined from time to time by resolution adopted by
the Board of Directors.



8









 





     Section 14. Committee Minutes. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required to do so by the Board of
Directors.



     Section 15. Compensation of Directors. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of attendance at each
meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.



     Section 16. Resignation. Any director or officer of the corporation may resign at any
time. Each such resignation shall be made in writing and shall take effect at the time specified
therein, or, if no time is specified, at the time of its receipt by either the Board of Directors,
the President or the Secretary. The acceptance of a resignation shall not be necessary to make it
effective unless expressly so provided in the resignation.



     Section 17. Removal. Directors may be removed as provided in the Certificate of
Incorporation.



     Section 18. Stockholder Nominations. Subject to such rights of holders of shares of
one or more outstanding series of preferred stock of the corporation to elect one or more directors
of the corporation under circumstances as shall be provided by or pursuant to the Certificate of
Incorporation, only persons who are nominated in accordance with the procedures set forth in this
Section 18 shall be eligible for election as, and to serve as, directors of the corporation.
Nominations of persons for election to the Board of Directors may be made only at a meeting of the
stockholders of the corporation at which directors of the corporation are to be elected (i) by or
at the direction of the Board of Directors or (ii) (if but only if the Board of Directors has
determined that directors shall be elected at such meeting) by any stockholder of the corporation
who is a stockholder of record at the time of the giving of such stockholder’s notice provided for
in this Section 18, who shall be entitled to vote at such meeting in the election of directors of
the corporation and who complies with the requirements of this Section 18. Clause (ii) of the
immediately preceding sentence shall be the exclusive means for a stockholder to make any
nomination of a person or persons for election as a director of the corporation at an annual
meeting or special meeting (other than matters properly brought under Rule 14a-11 under the
Exchange Act and included in the notice relating to the meeting (or any supplement thereto) given
by or at the direction of the Board of Directors in accordance with Section 1 of Article IV
hereof). Any such nomination by a stockholder of the corporation shall be preceded by timely
advance notice in writing to the Secretary of the corporation.



     To be timely with respect to an annual meeting, such stockholder’s notice must be delivered
to, or mailed and received at, the principal executive offices of the corporation not
earlier than the close of business on the 120th day and not later than the close of business
on the 90th day prior to the first anniversary of the annual meeting date of the next preceding
annual meeting (except in the case of the 2012 annual meeting, for which such notice shall be
timely if



9









 




delivered in the same time period as if such meeting were a special meeting governed by
the following sentence); provided, however, that (1) if the scheduled annual meeting date differs
from such anniversary date by more than 30 days, notice by such stockholder, to be timely, must be
so delivered or received not earlier than the close of business on the 120th day and not later than
the close of business on the later of the 90th day prior to the date of such annual meeting or, if
less than 100 days’ prior notice or public disclosure of the scheduled meeting date is given or
made, the 10th day following the earlier of the day on which the notice of such meeting was mailed
to stockholders of the corporation or the day on which such public disclosure was made; and (2) if
the number of directors to be elected to the Board of Directors at such annual meeting is increased
and there is no prior notice or public disclosure by the corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 100 days prior to such
anniversary date, a stockholder’s notice required by this Section 18 shall also be considered
timely, but only with respect to nominees for any new positions created by such increase, if it
shall be delivered to the principal executive offices of the corporation not later than the close
of business on the 10th day following the earlier of the day on which the notice of such meeting
was mailed to stockholders of the corporation or the day on which such public disclosure was made.
To be timely with respect to a special meeting, such stockholder’s notice must be delivered to, or
mailed and received at, the principal executive offices of the corporation not earlier than the
close of business on the 120th day and not later than the close of business on the 90th day prior
to the scheduled special meeting date; provided, however, that if less than 100 days’ prior notice
or public disclosure of the scheduled meeting date is given or made, notice by such stockholder, to
be timely, must be so delivered or received not later than the close of business on the 10th day
following the earlier of the day on which the notice of such meeting was mailed to stockholders of
the corporation or the day on which such public disclosure was made. In no event shall any
adjournment, postponement or deferral of an annual meeting or special meeting or the announcement
thereof commence a new time period for the giving of a stockholder’s notice as described above.




     Any such stockholder’s notice to the Secretary of the corporation shall set forth (i) as to
each person whom such stockholder proposes to nominate for election or re-election as a director of
the corporation, (A) the name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) any other information relating to such
person that would be required to be disclosed in solicitations of proxies for election of directors
of the corporation in a contested election, or would otherwise be required, in each case pursuant
to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including,
without limitation, the written consent of such person to having such person’s name placed in
nomination at the meeting and to serve as a director of the corporation if elected), and (D) a
description of all direct and indirect compensation and other material monetary agreements,
arrangements and understandings during the past three years, and any other material relationships,
between or among such stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination is made, and their respective affiliates and associates, or others acting in
concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates
and associates, or others acting in concert therewith, on the other hand, including, without
limitation, all information that would be required to be disclosed pursuant to
Rule 404 promulgated under Regulation S-K if such stockholder and such beneficial owner, or
any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for
purposes of such rule and the nominee were a director or executive officer of such registrant; and



10









 




(ii) as to such stockholder giving the notice, the beneficial owner, if any, on whose behalf the
nomination is made and the proposed nominee, (A) the name and address of such stockholder, as they
appear on the corporation’s books, and of such beneficial owner, if any, and the name and address
of any other stockholders known by such stockholder to be supporting such nomination, (B) (1) the
class or series and number of shares of capital stock of the corporation which are, directly or
indirectly, owned beneficially and of record by any of such stockholder, such beneficial owner or
such nominee, (2) any Derivative Instrument directly or indirectly owned beneficially by any of
such stockholder, such beneficial owner or such nominee and any other direct or indirect
opportunity to profit or share in any profit derived from any increase or decrease in the value of
shares of capital stock of the corporation, (3) any proxy, contract, arrangement, understanding or
relationship the effect or intent of which is to increase or decrease the voting power of such
stockholder, beneficial owner or nominee with respect to any shares of any security of the
corporation, (4) any pledge by such stockholder, beneficial owner or nominee of any security of the
corporation or any short interest of such stockholder, beneficial owner or nominee in any security
of the corporation, (5) any rights to dividends on the shares of capital stock of the corporation
owned beneficially by such stockholder and by such beneficial owner that are separated or separable
from the underlying shares of capital stock of the Corporation, (6) any proportionate interest in
shares of capital stock of the corporation or Derivative Instruments held, directly or indirectly,
by a general or limited partnership in which such stockholder, beneficial owner or nominee is a
general partner or, directly or indirectly, beneficially owns an interest in a general partner and
(6) any performance-related fees (other than an asset-based fee) that such stockholder, beneficial
owner or nominee is entitled to based on any increase or decrease in the value of shares of capital
stock of the corporation or Derivative Instruments, if any, as of the date of such notice,
including, without limitation, any such interests held by members of such stockholder’s, beneficial
owner’s or nominee’s immediate family sharing the same household (which information shall be
supplemented by such stockholder, beneficial owner, if any, and nominee not later than 10 days
after the record date for the meeting to disclose such ownership as of the record date), and (C)
any other information relating to such stockholder, beneficial owner, if any, and nominee that
would be required to be disclosed in solicitations of proxies for election of directors of the
corporation in a contested election, or would otherwise be required, in each case pursuant to
Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Any such
stockholder’s notice to the Secretary of the corporation shall also include or be accompanied by,
with respect to each nominee for election or reelection to the Board of Directors, a completed and
signed questionnaire, representation and agreement required by this Section 18. The corporation may
require any proposed nominee to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as an independent
director of the corporation or that could be material to a reasonable stockholder’s understanding
of the independence, or lack thereof, of such nominee.




     A stockholder providing notice of any nomination proposed to be made at a meeting shall
further update and supplement such notice, if necessary, so that the information provided or
required to be provided in such notice pursuant to this Section 18 shall be true and correct as of
the record date for the meeting and as of the date that is ten business days prior to the meeting
or any adjournment or postponement thereof, and such update and supplement shall be delivered to,
or mailed and received at, the principal executive offices of the corporation not later than five
business days after the record date for the meeting (in the case of the update and supplement



11









 




required to be made as of the record date), and not later than eight business days prior to the
date for the meeting or if practicable (or, if not practicable, on the first practicable date prior
to) any adjournment or postponement thereof (in the case of the update and supplement required to
be made as of ten business days prior to the meeting or any adjournment or postponement thereof).
In addition, a stockholder providing notice of any nomination proposed to be made at a meeting
shall update and supplement such notice, and deliver such update and supplement to the principal
executive offices of the corporation, promptly following the occurrence of any event that
materially changes the information provided or required to be provided in such notice pursuant to
this Section 18.




     To be eligible to be a nominee for election or reelection as a director of the corporation, a
person must deliver (in accordance with the time periods prescribed for delivery of notice under
this Section 18) to the Secretary at the principal executive offices of the corporation a written
questionnaire with respect to the background and qualification of such person and the background of
any other person or entity on whose behalf the nomination is being made (which questionnaire shall
be in the form provided by the Secretary upon written request) and a written representation and
agreement (in the form provided by the Secretary upon written request) that such person (A) is not
and will not become a party to (1) any agreement, arrangement or understanding with, and has not
given any commitment or assurance to, any person or entity as to how such person, if elected as a
director of the corporation, will act or vote on any issue or question (a “Voting Commitment”) that
has not been disclosed to the corporation or (2) any Voting Commitment that could limit or
interfere with such person’s ability to comply, if elected as a director of the corporation, with
such person’s fiduciary duties under applicable law, (B) is not and will not become a party to any
agreement, arrangement or understanding with any person or entity other than the corporation with
respect to any direct or indirect compensation, reimbursement or indemnification in connection with
service or action as a director that has not been disclosed therein, and (C) in such person’s
individual capacity and on behalf of any person or entity on whose behalf the nomination is being
made, would be in compliance, if elected as a director of the corporation, and will comply with all
applicable publicly disclosed corporate governance, conflict of interest, confidentiality and stock
ownership and trading policies and guidelines of the corporation.



     The Chairman of the Board, the Lead Director if he is not presiding or, if neither the
Chairman nor the Lead Director is presiding, the presiding officer of the meeting of stockholders
of the corporation shall determine whether the requirements of this Section 18 have been met with
respect to any nomination or intended nomination. If the Chairman of the Board, the Lead Director
or the presiding officer determines that any nomination was not made in accordance with the
requirements of this Section 18, he shall so declare at the meeting and the defective nomination
shall be disregarded. In addition to the foregoing provisions of this Section 18, a stockholder of
the corporation shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this Section 18. Nothing
in this Section 18 shall be deemed to affect any rights of stockholders to request inclusion of
proposals in the corporation’s proxy statement pursuant to Rule 14a-11 under the Exchange Act.



12









 





ARTICLE IV.

NOTICES




     Section 1. Notice to Directors and Stockholders. Whenever, under the provisions of
the statutes or of the Certificate of Incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal notice, but such
notice may be given in writing, by mail, addressed to such director or stockholder, at his 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.
An affidavit of the Secretary or an Assistant Secretary or of the transfer agent of the
corporation that the notice has been given shall in the absence of fraud, be prima facie evidence
of the facts stated therein. Notice to directors may also be given by telephone, electronic mail,
facsimile or telegram (with confirmation of receipt). Notice to any stockholder shall be effective
if given by a form of electronic transmission consented to by the stockholder to whom the notice is
given in accordance with Section 232 of the General Corporation Law of the State of Delaware. To
the extent required by the General Corporation Law of the State of Delaware, any such consent by a
stockholder to notice by electronic transmission shall be deemed revoked if (a) the Corporation is
unable to deliver by electronic transmission two consecutive notices given by the Corporation in
accordance with such consent and (b) such inability becomes known to the Secretary or an Assistant
Secretary of the Corporation or to the transfer agent, or other person responsible for the giving
of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall
not invalidate any meeting or other action.



     Section 2. Waiver. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation or of these Bylaws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. The written waiver need not specify the
business to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors, or members of a committee of directors. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the person attends a
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. Attendance at the meeting is
not a waiver of any right to object to the consideration of matters required by the General
Corporation Law of the State of Delaware to be included in the notice of the meeting but not so
included, if such objection is expressly made at the meeting.



ARTICLE V.

OFFICERS




     Section 1. Enumeration. The officers of the corporation shall be chosen by the Board
of Directors and shall include a President, a Secretary, a Treasurer or Chief Financial Officer and
such other officers with such other titles as the Board of Directors shall determine. The Board of
Directors may also choose one or more Vice Presidents, Assistant Secretaries and Assistant
Treasurers. Any number of offices may be held by the same person, unless the Certificate of
Incorporation or these Bylaws otherwise provide.



13









 





     Section 2. Appointment of Other Agents. The Board of Directors may appoint such other
officers and agents as it shall deem necessary, 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.



     Section 3. Compensation. The salaries of all officers of the corporation shall be
fixed by the Board of Directors or a committee thereof or by the President or any Vice President of
the corporation pursuant to authority that may be delegated to the President or any Vice President
by the Board of Directors. The salaries of agents of the corporation shall, unless fixed by the
Board of Directors, be fixed by the President or any Vice President of the corporation.



     Section 4. Tenure. The officers of the corporation shall hold office until their
successors are chosen and qualified or until their earlier resignation, death or removal. Any
officer elected or appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the directors of the Board of Directors. If the Board of
Directors has empowered the Chief Executive Officer to appoint any Vice Presidents of the
Corporation, then such Vice Presidents may be removed by the Chief Executive Officer. Any vacancy
occurring in any office of the corporation shall be filled by the Board of Directors.



     Section 5. President. The President shall be the Chief Executive Officer of the
corporation unless such title is assigned to another officer of the corporation by the Board of
Directors; in the absence of a Chairman of the Board and the Lead Director, if any, the President
shall preside as the chairman of meetings of the stockholders and the Board of Directors; and the
President shall have general and active management of the business of the corporation and shall see
that all orders and resolutions of the Board of Directors are carried into effect. The President
or any Vice President shall execute bonds, mortgages and other contracts requiring a seal, under
the seal of the corporation, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the corporation.



     Section 6. Vice President. In the absence of the President or in the event of the
President’s inability or refusal to act, the Vice President, if any (or in the event there be more
than one Vice President, the Vice Presidents in the order designated by the Board of Directors, or
in the absence of any designation, then in the order of their election) shall perform the duties of
the President, and when so acting shall have all the powers of and be subject to all the
restrictions upon the President. The Vice President shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.



     Section 7. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of the meetings of
the corporation and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision the Secretary shall be subject. The Secretary shall have
custody of the corporate seal of the corporation and the Secretary, or an Assistant Secretary,
shall have authority to affix the same to any instrument requiring it and when so affixed, it may
be



14









 




attested by the Secretary’s signature or by the signature of 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 the affixing by such officer’s signature.




     Section 8. Assistant Secretary. The Assistant Secretary, or if there be more than
one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in the absence of the Secretary or
in the event of the Secretary’s inability or refusal to act, perform the duties and exercise the
powers of the Secretary and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.



     Section 9. Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the corporation and shall deposit all moneys 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. The Treasurer shall disburse the funds of the corporation as may be ordered by the
Board of Directors, President or Chief Executive Officer, taking proper vouchers for such
disbursements, and shall render to the President, Chief Executive Officer and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires, an account of all
such transactions as Treasurer and of the financial condition of the corporation. If required by
the Board of Directors, the Treasurer shall give the corporation a bond (which shall be renewed
every six years) 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 Treasurer’s office 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 possession or under the control of the Treasurer that belongs to the corporation.



     Section 10. Assistant Treasurer. The Assistant Treasurer, or if there be more than
one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no
such determination, then in the order of their election) shall, in the absence of the Treasurer or
in the event of the Treasurer’s inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and shall perform such other duties and have such other powers as the Board
of Directors may from time to time prescribe.



ARTICLE VI.

CAPITAL STOCK




     Section 1. Certificates. The certificates for shares of the capital stock of the
corporation shall be in such form as may be approved by the Board of Directors or may be
uncertificated shares. In the case of certificated shares, the Corporation shall deliver
certificates representing shares to which stockholders are entitled. Certificates shall be signed
by, or in the name of the corporation by, (a) the Chairman of the Board, the President or a Vice
President, and (b) the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary. Certificates may be issued for partly paid shares and in such case upon the face or
back of the certificates issued to represent any such partly paid shares, the total amount of the
consideration to be paid therefor and the amount paid thereon shall be specified.



15









 





     Section 2. Class or Series. If the corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences and/or rights shall be set
forth in full or summarized on the face or back of the certificate which the corporation shall
issue to represent such class or series of stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate which the corporation
shall issue to represent such class or series of stock, a statement that the corporation will
furnish without charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Within a reasonable time after the issuance or transfer of uncertificated stock, the corporation
shall send to the registered owner thereof a written notice containing the information required to
be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the
Delaware Corporation Law or a statement that the corporation will furnish without charge, to each
stockholder who so requests, the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.



     Section 3. Signature. Any of or all of the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the corporation with the same
effect as if such person were such officer, transfer agent or registrar at the date of issue.



     Section 4. Lost Certificates. The Board of Directors may direct a new certificate or
certificates, or uncertificated shares, to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of stock to be lost,
stolen or destroyed. When authorizing such issue of a new certificate or certificates, or
uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent
to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner’s legal representative, to advertise the same in such manner as it
shall require and/or to give the corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.



     Section 5. Transfer of Stock. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, it shall be the duty of the corporation to issue
a new certificate to the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Upon receipt of proper transfer instructions from the registered owner
of uncertificated shares such uncertificated shares shall be canceled and issuance of new
equivalent uncertificated shares or certificated shares shall be made to the person entitled
thereto and the transaction shall be recorded upon the books of the corporation.



16









 





     Section 6. Record Date. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholder or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment of any rights, or
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 shall not be more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.



     Section 7. Registered Stockholders. 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 provided by the laws of
Delaware.



ARTICLE VII.

GENERAL PROVISIONS




     Section 1. Dividends. Dividends upon the capital stock of the corporation, subject to
the applicable provisions, if any, of the Certificate of Incorporation, may be declared by the
Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property or in shares of capital stock, subject to the provisions of the Certificate of
Incorporation. Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the Board of Directors from time to time,
in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the corporation, or for such
other purposes as the Board of Directors shall think conducive to the interest of the corporation,
and the Board of Directors may modify or abolish any such reserve in the manner in which it was
created.



     Section 2. Checks. All checks or demands for money and notes of the corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.



     Section 3. Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.



     Section 4. Seal. The Board of Directors may adopt a corporate seal having inscribed
thereon the name of the corporation, the year of its organization 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.



17









 





ARTICLE VIII.

INDEMNIFICATION




     Section 1. Scope. The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as that Section may be amended from
time to time (but, in the case of any such amendment, only to the extent that such amendment
permits the corporation to provide broader indemnification rights than such law permitted the
corporation to provide prior to such amendment), indemnify any director, officer, employee or agent
of the corporation, against expenses (including attorneys’ fees), judgments, fines, amounts paid in
settlement and/or other matters referred to in or covered by that Section, by reason of the fact
that such person is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including employee benefit
plans.



     Section 2. Advancing Expenses. Expenses (including attorneys’ fees) incurred by a
present or former director or officer of the corporation in defending a civil, criminal,
administrative or investigative action, suit or proceeding by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation (or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including employee benefit plans) 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 by final judicial decision from which there is no appeal that such
person is not entitled to be indemnified by the corporation as authorized by relevant provisions of
the General Corporation Law of the State of Delaware; provided, however, the corporation shall not
be required to advance such expenses to a director (i) who commences any action, suit or proceeding
as a plaintiff unless such advance is specifically approved by a majority of the Board of
Directors, or (ii) who is a party to an action, suit or proceeding brought by the corporation and
approved by a majority of the Board of Directors which alleges willful misappropriation of
corporate assets by such director, disclosure of confidential information in violation of such
director’s fiduciary or contractual obligations to the corporation, or any other willful and
deliberate breach in bad faith of such director’s duty to the corporation or its stockholders.



     Section 3. Liability Offset. The corporation’s obligation to provide indemnification
under this Article VIII shall be offset to the extent the indemnified party is indemnified by any
other source including, but not limited to, any applicable insurance coverage under a policy
maintained by the corporation, the indemnified party or any other person.



     Section 4. Continuing Obligation. The provisions of this Article VIII shall be deemed
to be a contract between the corporation and each director of the corporation who serves in such
capacity at any time while this bylaw is in effect, and any repeal or modification thereof shall
not affect any rights or obligations then existing with respect to any state of facts then or
theretofore existing or any action, suit or proceeding theretofore or thereafter brought based in
whole or in part upon any such state of facts.



18









 





     Section 5. Nonexclusive. The indemnification and advancement of expenses provided for
in this Article VIII shall (i) not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement or vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacities and as to action in another
capacity while holding such office, (ii) continue as to a person who has ceased to be a director
and (iii) inure to the benefit of the heirs, executors and administrators of such a person.



     Section 6. Other Persons. In addition to the indemnification rights of directors,
officers, employees, or agents of the corporation, the Board of Directors in its discretion shall
have the power on behalf of the corporation to indemnify any other person made a party to any
action, suit or proceeding who the corporation may indemnify under Section 145 of the General
Corporation Law of the State of Delaware.



     Section 7. Definitions. The phrases and terms set forth in this Article VIII shall be
given the same meaning as the identical terms and phrases are given in Section 145 of the General
Corporation Law of the State of Delaware, as that Section may be amended and supplemented from time
to time.



     Section 8. Savings Clause. If any provision of this Article VIII is determined by a
court having jurisdiction over the matter to require the corporation to do or refrain from doing
any act that is in violation of applicable law, the court shall be empowered to modify or reform
such provision so that, as modified or reformed, such provision provides the maximum of
indemnification permitted by law and such provision, as so modified or reformed, and the balance of
this Article VIII shall be applied in accordance with their terms. Without limiting the generality
of the foregoing, if any portion of this Article VIII shall be invalidated on any ground, the
corporation shall nevertheless indemnify a director, officer, employee or agent of the corporation
to the full extent permitted by an applicable portion of this Article VIII that shall not have been
invalidated and to the full extent permitted by law with respect to that portion that has been
invalidated.



ARTICLE IX.

AMENDMENTS




     Except as otherwise provided in the Certificate of Incorporation, these Bylaws may be altered,
amended or repealed, or new Bylaws may be adopted, by the holders of at least two-thirds (2/3) of
the voting power of all of the then-outstanding shares of capital stock of this corporation
entitled to vote generally in the election of directors, voting together as a single class, or by
the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate
of Incorporation, at any regular meeting of the stockholders or of the Board of Directors or at any
special meeting of the stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such special meeting. If
the power to adopt, amend or repeal Bylaws is conferred upon the Board of Directors by the
Certificate of Incorporation, it shall not divest or limit the power of the stockholders to adopt,
amend or repeal Bylaws as set forth in the Certificate of Incorporation.




19