**Exhibit 3.2**

 

**SECOND AMENDED AND RESTATED**

 

**BYLAWS**

 

**OF NUANCE COMMUNICATIONS, INC.**

 

**AS AMENDED ON DECEMBER 10, 2002**

**TABLE OF CONTENTS**

 

ARTICLE I CORPORATE OFFICES
  
1
   
1.1
  
Registered Office
  
1
   
1.2
  
Other Offices
  
1

ARTICLE II MEETINGS OF STOCKHOLDERS
  
1
   
2.1
  
Place of Meetings
  
1
   
2.2
  
Annual Meeting
  
1
   
2.3
  
Special Meeting
  
1
   
2.4
  
Notice of Stockholders’ Meeting
  
1
   
2.5
  
Manner of Giving Notice; Affidavit of Notice
  
2
   
2.6
  
Quorum
  
2
   
2.7
  
Adjourned Meeting; Notice
  
2
   
2.8
  
Voting
  
2
   
2.9
  
Waiver of Notice
  
2
   
2.10
  
Stockholder Action by Written Consent Without a Meeting
  
3
   
2.11
  
Record Date for Stockholder Notice; Voting; Giving Consents
  
4
   
2.12
  
Proxies
  
4
   
2.13
  
List of Stockholders Entitled to Vote
  
5
   
2.14
  
Nominations and Proposals
  
5

ARTICLE III DIRECTORS
  
6
   
3.1
  
Powers
  
6
   
3.2
  
Number of Directors
  
6
   
3.3
  
Election, Qualification and Term of Office of Directors
  
6
   
3.4
  
Resignation and Vacancies
  
6
   
3.5
  
Place of Meetings; Meetings by Telephone
  
7
   
3.6
  
First Meetings
  
7
   
3.7
  
Regular Meetings
  
7
   
3.8
  
Special Meetings; Notice
  
8
   
3.9
  
Quorum
  
8
   
3.10
  
Waiver of Notice
  
8
   
3.11
  
Adjourned Meeting; Notice
  
8
   
3.12
  
Board Action by Written Consent Without a Meeting
  
8
   
3.13
  
Fees and Compensation of Directors
  
9
   
3.14
  
Approval of Loans to Officers
  
9
   
3.15
  
Removal of Directors
  
9

ARTICLE IV COMMITTEES
  
9
   
4.1
  
Committees of Directors
  
9
   
4.2
  
Committee Minutes
  
10
   
4.3
  
Meetings and Action of Committees
  
10

ARTICLE V OFFICERS
  
10
   
5.1
  
Officers
  
10
   
5.2
  
Election of Officers
  
10
   
5.3
  
Subordinate Officers
  
10

 

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5.4
  
Removal and Resignation of Officers
  
10
   
5.5
  
Vacancies in Offices
  
11
   
5.6
  
Chairman of the Board
  
11
   
5.7
  
President
  
11
   
5.8
  
Vice President
  
11
   
5.9
  
Secretary
  
11
   
5.10
  
Chief Financial Officer
  
12
   
5.11
  
Assistant Secretary
  
12
   
5.12
  
Assistant Financial Officer
  
12
   
5.13
  
Authority and Duties of Officers
  
12

ARTICLE VI INDEMNITY
  
13
   
6.1
  
Indemnification of Directors and Officers
  
13
   
6.2
  
Indemnification of Others
  
13
   
6.3
  
Insurance
  
13
   
6.4
  
Amendment and Scope
  
13

ARTICLE VII RECORDS AND REPORTS
  
14
   
7.1
  
Maintenance and Inspection of Records
  
14
   
7.2
  
Inspection by Directors
  
14
   
7.3
  
Annual Statement to Stockholders
  
14
   
7.4
  
Representation of Shares of Other Corporations
  
14

ARTICLE VIII GENERAL MATTERS
  
15
   
8.1
  
Checks
  
15
   
8.2
  
Execution of Corporate Contracts and Instruments
  
15
   
8.3
  
Stock Certificates; Partly Paid Shares
  
15
   
8.4
  
Special Designation on Certificates
  
16
   
8.5
  
Lost Certificates
  
16
   
8.6
  
Construction; Definitions
  
16
   
8.7
  
Dividends
  
16
   
8.8
  
Fiscal Year
  
16
   
8.9
  
Seal
  
17
   
8.10
  
Transfer of Stock
  
17
   
8.11
  
Stock Transfer Agreements
  
17
   
8.12
  
Registered Stockholders
  
17

ARTICLE IX AMENDMENTS
  
17

ARTICLE X DISSOLUTION
  
17

ARTICLE XI CUSTODIAN
  
18

 

ii 

 

BYLAWS

 

OF

 

NUANCE COMMUNICATIONS, INC.

 

(As adopted on November 22, 1999) 

(As amended on January 19, 2000) 

(As amended on December 10, 2002) 

 

ARTICLE I

 

CORPORATEOFFICES

 

1.1    Registered Office.    The address of the corporation’s registered office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware 19801, County of New Castle. Thename of its registered agent at such address is The Corporation Trust Company. 

 

1.2    Other Offices.    The board of directors may at any time establish other offices at any place or places where the corporation is qualified to dobusiness. 

 

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

2.1    Place of Meetings.    Meetings of stockholders shall be held at any place, within or outside the State of Delaware, designated by the board of directors. In the absence of anysuch designation, stockholders’ meetings shall be held at the registered office of the corporation. 

 

2.2    Annual Meeting.    The annual meeting of stockholders shall be held each year on adate and at a time designated by the board of directors. At the meeting, directors shall be elected and any other proper business may be transacted. 

 

2.3    Special Meeting.    A special meeting of the stockholders may be called at any timeby the board of directors, or by the chairman of the board, or by the president, or so long as the corporation is subject to the provisions of Section 2115 of the California General Corporation Law, by one or more stockholders holding shares in theaggregate entitled to cast not less than ten percent (10%) of the votes at that meeting. 

 

2.4     Notice of Stockholders’ Meeting.    All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given inaccordance with Section 2.5. of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, date, and hour of 

 

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the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. 

 

2.5    Manner of Giving Notice;Affidavit of Notice.    Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records ofthe corporation. 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. 

 

2.6    Quorum.    The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at allmeetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then thestockholders 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 is present or represented. At suchadjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed. 

 

2.7    Adjourned Meeting; Notice.    When a meeting isadjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting thecorporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of theadjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 

 

2.8    Voting.    The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.11of these bylaws, subject to the provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners of stock and to voting trusts and other voting agreements). At astockholders’ meeting at which directors are to be elected, or at elections held under special circumstances, each stockholder shall be entitled to one vote for each share of Common Stock held by such stockholder and to the number of votesequal to the number of shares of Common Stock into which their Preferred Stock is convertible on the appropriate record date. There shall be no cumulative voting. 

 

2.9    Waiver of Notice.    Whenever notice is required to begiven under any provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall bedeemed equivalent to notice. 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 transactionof any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders need be 

 

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specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws. 

 

2.10    Stockholder Action by WrittenConsent Without a Meeting.    Unless otherwise provided in the certificate of incorporation, any action required by this chapter to be taken at any annual or special meeting of stockholders of the corporation, or any actionthat may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice, and without a vote if a consent in writing, setting forth the action so taken, is signed by the holders of outstandingstock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. 

 

Notwithstanding the foregoing, effective upon the registrationof any class of securities of the Corporation pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the stockholders of the Corporation may not take action by written consent without a meeting duly called. 

 

Prompt notice of the taking of the corporate action without ameeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. If the action which is consented to is such as would have required the filing of a certificate under any Section of the GeneralCorporation Law of Delaware if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such Section shall state, in lieu of any statement required by such Section concerning any vote of stockholders, thatwritten notice and written consent have been given as provided in Section 228 of the General Corporation Law of Delaware. 

 

In the event of the delivery, in the manner provided hereby, to the corporation of the requisite written consent or consents to takecorporate action and/or any related revocation or revocations, the corporation may engage independent inspectors of elections for the purpose of performing promptly a ministerial review of the validity of the consents and revocations. For thepurpose of permitting the inspectors to perform such review, in the event such inspectors are appointed, no action by written consent without a meeting shall be effective until such date as such appointed independent inspectors certify to thecorporation that the consents delivered to the corporation in accordance herewith represent at least the minimum number of votes that would be necessary to take the corporate action. Nothing contained in these Bylaws shall in any way be construed tosuggest or imply that the board of directors or any stockholder shall not be entitled to contest the validity of any consent or revocation thereof, whether before or after any certification by any independent inspectors, or to take any other action(including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief in such litigation). 

 

Every written consent shall bear the date of signature of each stockholder who signs the consent and nowritten consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated written consent received in accordance herewith, a written consent or consents signed by a sufficient number ofholders to take such action are delivered to the corporation in the manner prescribed herein. 

 

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2.11    Record Date for Stockholder Notice; Voting; Giving Consents. 

 

(a)    Actions other than Written Consent.    For the purpose of determining thestockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or the allotment of any rights, or entitled to exercise any rights inrespect of any change, conversion, or exchange of stock, or other lawful purpose (other than the expression of consent to corporate action in writing without a meeting) the directors may fix, in advance, a record date, which, in the case of ameeting of stockholders, shall not be more than 60 days nor less than 10 days before the date of such meeting. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholdersshall 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 and the record date for determiningstockholders for any other purpose pursuant to this Section 2.11(a) shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice ofor to vote at any 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. 

 

(b)    Action by Written Consent.    In order that thecorporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the recorddate is adopted by the board of directors. Any stockholder of record seeking to have the stockholders authorize or take corporate action by written consent shall, by written notice to the secretary, request the board of directors to fix a recorddate. The board of directors may, at anytime within ten (10) days after the date on which such a request is received, adopt a resolution fixing the record date (unless a record date has previously been fixed by the first sentence of this Section2.11(b)). If no record date has been fixed by the board of directors pursuant to the first sentence of this Section ****2.11(b) or otherwise within ten (10) days of the date on which such a request is received, the record date for determiningstockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the board of directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action takenor proposed to be taken is delivered to the corporation by delivery to its registered office in Delaware, its principal place of business, or to any officer or agent of the corporation having custody of the book in which proceedings of meetings ofstockholders are recorded. Delivery shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the board of directors and prior action by the board of directors is required by applicable law,the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the board of directors adopts the resolution taking such prior action.

 

2.12    Proxies.    Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize anotherperson or persons to act for him by a written proxy, signed by the stockholder and filed with the secretary of the corporation, but no such proxy shall be voted or acted upon after three (3) years 

 

4 

from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed if the stockholder’s name is placed on theproxy (whether by manual signature, typewriting, telegraphic transmission or otherwise) by the stockholder or the stockholder’s attorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable shall be governed bythe provisions of Section 212(c) of the General Corporation Law of Delaware. 

 

2.13    List of Stockholders Entitled to Vote.    The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten(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 eachstockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city wherethe 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 thewhole time thereof, and may be inspected by any stockholder who is present. 

 

2.14    Nominations and Proposals.    Nominations of persons for election to the board of directors of the corporation and the proposal of business to beconsidered by the stockholders may be made at any meeting of stockholders only (a) pursuant to the corporation’s notice of meeting, (b) by or at the direction of the board of directors or (c) by any stockholder of the corporation who was astockholder of record at the time of giving of notice provided for in these bylaws, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.14. 

 

For nominations or other business to be properly broughtbefore a stockholders meeting by a stockholder pursuant to clause (c) of the preceding sentence, the stockholder must have given timely notice thereof in writing to the secretary of the corporation and such other business must otherwise be a propermatter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the secretary at the principal executive offices of the corporation not later than the close of business on the 90th day nor earlier than the close ofbusiness on the 120th day prior to the meeting; provided, however, that in the event that less than 95 days notice of the meeting is given to stockholders, notice by the stockholder to be timely must be so delivered not earlier than the close ofbusiness on the seventh (7th) day following the day on which the notice of meeting was mailed. In no event shall the public announcement of an adjournment of a stockholders meeting commence a new time period for the giving of a stockholder’snotice as described above. Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a director all information relating to such person that is required to bedisclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (or any successor thereto) and Rulel4a-11 thereunder (or any successor thereto) (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (b) as to any other business that the stockholder proposes tobring before the meeting, a brief description of the 

 

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business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in suchbusiness of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the 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, and of such beneficial owner, and (ii) the class and number of shares of the corporation which are owned beneficially and of record by such stockholder and suchbeneficial owner. Notwithstanding any provision herein to the contrary, no business shall be conducted at a stockholders meeting except in accordance with the procedures set forth in this Section 2.14. 

 

 

ARTICLE III

 

DIRECTORS

 

3.1    Powers.    Subject to the provisions of the General Corporation Law of Delaware and any limitations in the certificate of incorporation or these bylaws relating to action requiredto be approved by the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the board of directors. 

 

3.2    Number ofDirectors.    Subject to any contrary provisions in the certificate of incorporation, the authorized number of directors shall be eight (8). This number may be changed by a duly adopted amendment to the certificate ofincorporation or by an amendment to this bylaw adopted by the vote or written consent of the holders of a majority of the stock issued and outstanding and entitled to vote or by resolution of a majority of the board of directors. 

 

No reduction of the authorized number of directors shall havethe effect of removing any director before that director’s term of office expires. 

 

3.3    Election, Qualification and Term of Office of Directors.    Except as provided in the certificate of incorporation and Section 3.4 of thesebylaws, directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws, wherein otherqualifications for directors may be prescribed. Each director, including a director elected to fill a vacancy, shall hold office until his successor is elected and qualified or until his earlier resignation or removal. 

 

Elections of directors need not be by written ballot.

 

3.4    Resignation andVacancies.    Any director may resign at any time upon written notice to the corporation. When one or more directors so resigns and the resignation is effective at a future date, a majority of the directors then in office,including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in thisSection in the filling of other vacancies. 

 

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Unlessotherwise provided in the certificate of incorporation or these bylaws: 

 

(a)    Vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may befilled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director. 

 

(b)    Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or moredirectors by the provisions of the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then inoffice, or by a sole remaining director so elected. 

 

If at any time, by reason of death or resignation or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or otherfiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may apply to the Court ofChancery for a decree summarily ordering an election as provided in Section 211 of the General Corporation Law of Delaware. 

 

If, at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority ofthe whole board (as constituted immediately prior to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten (10) percent of the total number of the shares at the time outstandinghaving the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall begoverned by the provisions of Section 211 of the General Corporation Law of Delaware as far as applicable. 

 

3.5    Place of Meetings; Meetings by Telephone.    The board of directors of thecorporation may hold meetings, both regular and special, either within or outside the State of Delaware. 

 

Unless otherwise restricted by the certificate of incorporation or these bylaws, members of the board of directors, or any committeedesignated 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 heareach other, and such participation in a meeting shall constitute presence in person at the meeting. 

 

3.6    First Meetings.    The first meeting of each newly elected board of directors shallbe held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorumshall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of 

 

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directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such timeand 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. 

 

3.7    RegularMeetings.    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. 

 

3.8    Special Meetings;Notice.    Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board, the president, any vice president, the secretary or any two (2) directors.

 

Notice of the time and place of special meetingsshall be delivered personally or by telephone to each director or sent by first-class mail or telegram, charges prepaid, addressed to each director at that director’s address as it is shown on the records of the corporation. If the notice ismailed, it shall be deposited in the United States mail at least four (4) days before the time of the holding of the meeting. If the notice is delivered personally or by telephone or by telegram, it shall be delivered personally or by telephone orto the telegraph company at least forty-eight (48) hours before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director who theperson giving the notice has reason to believe will promptly communicate it to the director. The notice need not specify the purpose or the place of the meeting, if the meeting is to be held at the principal executive office of the corporation.

 

3.9    Quorum.    At all meetings of the board of directors, a majority of the authorized number of directors shall constitute a quorum for the transaction of business and the act of amajority 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 is not present atany meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present. 

 

3.10    Waiver ofNotice.    Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitledto notice, whether before or after the time stated therein, shall be deemed equivalent to notice. 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 expresspurpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of thedirectors, or members of a committee of directors, need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws. 

 

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3.11    Adjourned Meeting; Notice.    If a quorum is not present at any meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time,without notice other than announcement at the meeting, until a quorum is present. 

 

3.12    Board Action by Written Consent Without a Meeting.    Unless otherwise restricted by the certificate of incorporation or these bylaws, any actionrequired 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 or committee, as the case may be, consent thereto in writing and the writing orwritings are filed with the minutes of proceedings of the board or committee. 

 

3.13    Fees and Compensation of Directors.    Unless otherwise restricted by the certificate of incorporation or these bylaws, the board of directorsshall have the authority to fix the compensation of directors. 

 

3.14    Approval of Loans to Officers.    The corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or ofits subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan,guaranty or other assistance may be with or without interest and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing contained inthis Section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the corporation at common law or under any statute. 

 

3.15    Removal of Directors.    Unless otherwise restricted by statute, by the certificateof incorporation or by these bylaws, any director or the entire board of directors may be removed, with cause, by the holders of a majority of the shares then entitled to vote at an election of directors. 

 

No reduction of the authorized number of directors shall havethe effect of removing any director prior to the expiration of such director’s term of office. 

 

 

ARTICLE IV

 

COMMITTEES

 

4.1    Committees of Directors.    The board of directors may, by resolution passed by amajority of the whole board, designate one or more committees, with each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replaceany 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 he or theyconstitute 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. Any such committee, to the extent provided in the resolution of the board ofdirectors or in the bylaws of the corporation, shall have and may exercise all the powers and authority of 

 

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the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to beaffixed to all papers that may require it; but no such committee shall have the power or authority to (i) amend the certificate of incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing forthe issuance of shares of stock adopted by the board of directors as provided in Section 151(a) of the General Corporation Law of Delaware, fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, anydistribution of assets of the corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation), (ii) adopt anagreement of merger or consolidation under Sections 251 or 252 of the General Corporation Law of Delaware, (iii) recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets,(iv) recommend to the stockholders a dissolution of the corporation or a revocation of a dissolution, or (v) amend the bylaws of the corporation; and, unless the board resolution establishing the committee, the bylaws or the certificate ofincorporation expressly so provide, no such committee shall have the power or authority to declare a dividend, to authorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the General CorporationLaw of Delaware. 

 

4.2    Committee Minutes.    Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. 

 

4.3    Meetings and Action ofCommittees.    Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Article III of these bylaws, Section 3.5 (place of meetings and meetings by telephone), Section3.7 (regular meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of adjournment), and Section 3.12 (action without a meeting), with such changes in thecontext of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members; provided, however, that the time of regular meetings of committees may also be called by resolution of the board ofdirectors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors may adopt rules for the government of any committeenot inconsistent with the provisions of these bylaws. 

 

 

ARTICLE V

 

OFFICERS

 

5.1    Officers.    The officers of the corporation shall be a president, one or more vicepresidents, a secretary, and a treasurer. The corporation may also have, at the discretion of the board of directors, a chairman of the board, one or more assistant vice presidents, assistant secretaries, assistant treasurers, and any such otherofficers as may be appointed in accordance with the provisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person. 

 

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5.2    Election of Officers.    The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shallbe chosen by the board of directors, subject to the rights, if any, of an officer under any contract of employment. 

 

5.3    Subordinate Officers.    The board of directors may appoint, or empower thepresident to appoint, such other officers and agents as the business of the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the board ofdirectors may from time to time determine. 

 

5.4    Removal and Resignation of Officers.    Subject to the rights, if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, byan affirmative vote of the majority of the board of directors at any regular or special meeting of the board or, except in the case of an officer chosen by the board of directors, by any officer upon whom such power of removal may be conferred bythe board of directors. 

 

Any officer may resignat any time by giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of theresignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party. 

 

5.5    Vacancies in Offices.    Any vacancy occurring in anyoffice of the corporation shall be filled by the board of directors. 

 

5.6    Chairman of the Board.    The chairman of the board, if such an officer be elected, shall, if present, preside at meetings of the board of directors and exercise andperform such other powers and duties as may from time to time be assigned to him by the board of directors or as may be prescribed by these bylaws. If there is no president, then the chairman of the board shall also be the chief executive officer ofthe corporation and shall have the powers and duties prescribed in Section 5.7 of these bylaws. 

 

5.7    President.    Subject to such supervisory powers, if any, as may be given by the board of directors to the chairman of the board, if there be suchan officer, the president shall be the chief executive officer of the corporation and shall, subject to the control of the board of directors, have general supervision, direction, and control of the business and the officers of the corporation. Heshall preside at all meetings of the stockholders and, in the absence or nonexistence of a chairman of the board, at all meetings of the board of directors. He shall have the general powers and duties of management usually vested in the office ofpresident of a corporation and shall have such other powers and duties as may be prescribed by the board of directors or these bylaws. 

 

5.8    Vice President.    In the absence or disability of the president, the vicepresidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a vice president designated by the board of directors, shall perform all the duties of the president and when so 

 

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acting shall have all the powers of, and be subject to all the restrictions upon, the president. The vice presidents shall have such otherpowers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors, these bylaws, the president or the chairman of the board. 

 

5.9    Secretary.    The secretary shall keep or cause to bekept, at the principal executive office of the corporation or such other place as the board of directors may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders. The minutes shall show thetime and place of each meeting, whether regular or special (and, if special, how authorized and the notice given), the names of those present at directors’ meetings or committee meetings, the number of shares present or represented atstockholders’ meetings, and the proceedings thereof. 

 

The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the board of directors, ashare register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and date ofcancellation of every certificate surrendered for cancellation. 

 

The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the board of directors required to be given by law or by these bylaws. He shall keep the seal of the corporation, if one be adopted, insafe custody and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by these bylaws. 

 

5.10    Chief Financial Officer.    The chief financial officer shall keep and maintain, orcause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital,retained earnings, and shares. The books of account shall at all reasonable times be open to inspection by any director. 

 

The chief financial officer shall deposit all money and other valuables in the name and to the credit of the corporation with suchdepositaries as may be designated by the board of directors. He shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever they request it, an account of all of histransactions as chief financial officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws. 

 

5.11    AssistantSecretary.    The assistant secretary, or, if there is more than one, the assistant secretaries in the order determined by the stockholders or board of directors (or if there be no such determination, then in the order oftheir election) shall, in the absence of the secretary or in the event of his or her 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 theboard of directors or the stockholders may from time to time prescribe. 

 

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5.12    Assistant Financial Officer.    The assistant financial officer, or, if there is more than one, the assistant financial officers, in the order determined by the stockholders orboard of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the chief financial officer or in the event of his or her inability or refusal to act, perform the duties and exercise thepowers of the chief financial officer and shall perform such other duties and have such other powers as the board of directors or the stockholders may from time to time prescribe. 

 

5.13    Authority and Duties of Officers.    In addition tothe foregoing authority and duties, all officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the board of directorsor the stockholders. 

 

 

ARTICLE VI

 

INDEMNITY

 

6.1    Indemnification of Directors and Officers.    The corporation shall, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware, indemnify eachof its directors and officers against expenses (including attorneys’ fees), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason of the fact that such person isor was an agent of the corporation. For purposes of this Section 6.1, a “director” or “officer” of the corporation includes any person (i) who is or was a director or officer of the corporation, (ii) who is or was serving at therequest of the corporation as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or officer of a corporation which was a predecessor corporation of the corporation or ofanother enterprise at the request of such predecessor corporation. 

 

6.2    Indemnification of Others.    The corporation shall have the power, to the extent and in the manner permitted by the General Corporation Law of Delaware, to indemnifyeach of its employees and agents (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arising byreason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or officer) includes any person (i) who is or was anemployee or agent of the corporation, (ii) who is or was serving at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or agent of acorporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation. 

 

6.3    Insurance.    The corporation may purchase and maintain insurance on behalf of anyperson who 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 otherenterprise against any liability asserted 

 

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against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have thepower to indemnify him against such liability under the provisions of the General Corporation Law of Delaware. 

 

6.4    Amendment and Scope.    The rights conferred in these bylaws are not exclusive, andthe corporation is authorized to enter into indemnification agreements with its directors, executive officers and employees. Neither any amendment nor repeal of this Article VI nor the adoption of any provision of these bylaws inconsistent with thisArticle VI shall eliminate or reduce the effect of this Article VI, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VI, would accrue or arise, prior to such amendment, repeal oradoption of an inconsistent provision. 

 

 

ARTICLE VII

 

RECORDS AND REPORTS

 

7.1    Maintenance and Inspection of Records.    The corporation shall, either at its principal executive office or at such place or places as designatedby the board of directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by each stockholder, a copy of these bylaws as amended to date, accounting books, and other records. 

 

Any stockholder of record, in person or by attorney or otheragent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books andrecords and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right toinspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the corporation at itsregistered office in Delaware or at its principal place of business. 

 

The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (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 ten (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, atthe 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. 

 

7.2    Inspection byDirectors.    Any director shall have the right to examine the corporation’s stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his position as a director. TheCourt of Chancery is hereby vested with the 

 

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exclusive jurisdiction to determine whether a director is entitled to the inspection sought. The Court may summarily order the corporation topermit the director to inspect any and all books and records, the stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection,or award such other and further relief as the Court may deem just and proper. 

 

7.3    Annual Statement to Stockholders.    The board of directors shall present at each annual meeting, and at any special meeting of the stockholderswhen called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. 

 

7.4    Representation of Shares of Other Corporations.    The chairman of the board, thepresident, any vice president, the chief financial officer, the secretary or assistant secretary of this corporation, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent,and exercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority granted herein may be exercised either by such person directly orby any other person authorized to do so by proxy or power of attorney duly executed by such person having the authority. 

 

 

ARTICLE VIII

 

GENERAL MATTERS

 

8.1    Checks.    From time to time, the board of directors shall determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment ofmoney, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse those instruments. 

 

8.2    Execution of Corporate Contracts andInstruments.    The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the name of and onbehalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power orauthority to bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount. 

 

8.3    Stock Certificates; Partly Paid Shares.    The shares of the corporation shall berepresented by certificates, provided that the board of directors of the corporation may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall notapply to shares represented by a certificate until such certificate is surrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and upon requestevery holder of un certificated shares shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors, or the president or vice-president, and by the chief financialofficer or an assistant financial officer, or 

 

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the secretary or an assistant secretary of such corporation representing the number of shares registered in certificate form. Any or all ofthe signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar beforesuch certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 

 

The corporation may issue the whole or any part of its shares as partly paid and subject to call for theremainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, upon the books and records of the corporation in the case of un certificated partly paid shares, thetotal amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, the corporation shall declare a dividend upon partly paid shares of the same class, butonly upon the basis of the percentage of the consideration actually paid thereon. 

 

8.4    Special Designation on Certificates.    If the corporation is authorized to issue more than one class of stock or more than one series of anyclass, then the powers, the designations, the preferences, and the 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/orrights shall be set forth in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the GeneralCorporation Law of Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent such class or series of stock a statement that the corporation willfurnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitationsor restrictions of such preferences and/or rights. 

 

8.5    Lost Certificates.    Except as provided in this Section 8.5, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter issurrendered to the corporation and cancelled at the same time. The corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed,and the corporation may require the owner of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the allegedloss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares. 

 

8.6    Construction; Definitions.    Unless the context requires otherwise, the generalprovisions, rules of construction, and definitions in the Delaware General Corporation Law shall govern the construction of these bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural numberincludes the singular, and the term “person” includes both a corporation and a natural person. 

 

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8.7    Dividends.    The directors of the corporation, subject to any restrictions contained in the certificate of incorporation, may declare and pay dividends upon the shares of itscapital stock pursuant to the General Corporation Law of Delaware. Dividends may be paid in cash, in property, or in shares of the corporation’s capital stock. 

 

The directors of the corporation may set apart out of any of the funds of the corporation available fordividends a reserve or reserves for any proper purpose and may abolish any such reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation, and meeting contingencies.

 

8.8    FiscalYear.    The fiscal year of the corporation shall be fixed by resolution of the board of directors and may be changed by the board of directors. 

 

8.9    Seal.    This corporation may have a corporate seal,which may be adopted or altered at the pleasure of the board of directors, and may use the same by causing it or a facsimile thereof, to be impressed or affixed or in any other manner reproduced. 

 

8.10    Transfer ofStock.    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 bethe duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate, and record the transaction in its books. 

 

8.11    Stock Transfer Agreements.    The corporation shall have power to enter into andperform any agreement with any number of stockholders of anyone or more classes of stock of the corporation to restrict the transfer of shares of stock of the corporation of anyone or more classes owned by such stockholders in any manner notprohibited by the General Corporation Law of Delaware. 

 

8.12    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 andto vote as such owner, shall be entitled to hold liable for calls and assessments the 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 onthe part of another person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. 

 

 

ARTICLE IX

 

AMENDMENTS

 

The original or other bylaws of the corporation may beadopted, amended or repealed by the stockholders entitled to vote; provided, however, that the corporation may, in its certificate of incorporation, confer the power to adopt, amend or repeal bylaws upon the directors. The fact that such power hasbeen so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws. 

 

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ARTICLE X

 

DISSOLUTION

 

If it should be deemed advisable in the judgment of the board of directors of the corporation that the corporation should be dissolved, the board, after the adoption of a resolution to that effect by a majority of the wholeboard at any meeting called for that purpose, shall cause notice to be mailed to each stockholder entitled to vote thereon of the adoption of the resolution and of a meeting of stockholders to take action upon the resolution. 

 

At the meeting a vote shall be taken for and against theproposed dissolution. If a majority of the outstanding stock of the corporation entitled to vote thereon votes for the proposed dissolution, then a certificate stating that the dissolution has been authorized in accordance with the provisions ofSection 275 of the General Corporation Law of Delaware and setting forth the names and residences of the directors and officers shall be executed, acknowledged, and filed and shall become effective in accordance with Section 103 of the GeneralCorporation Law of Delaware. Upon such certificate’s becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved. 

 

Whenever all the stockholders entitled to vote on a dissolution consent in writing, either in person or byduly authorized attorney, to a dissolution, no meeting of directors or stockholders shall be necessary. The consent shall be filed and shall become effective in accordance with Section 103 of the General Corporation Law of Delaware. Upon suchconsent’s becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved. If the consent is signed by an attorney, then the original power of attorney or a photocopy thereofshall be attached to and filed with the consent. The consent filed with the Secretary of State shall have attached to it the affidavit of the secretary or some other officer of the corporation stating that the consent has been signed by or on behalfof all the stockholders entitled to vote on a dissolution; in addition, there shall be attached to the consent a certification by the secretary or some other officer of the corporation setting forth the names and residences of the directors andofficers of the corporation. 

 

 

ARTICLE XI

 

CUSTODIAN

 

11.1    Appointment of a Custodian in Certain Cases.    The Court of Chancery, upon application of any stockholder, may appoint one or more persons to be custodians and, if thecorporation is insolvent, to be receivers, of and for the corporation when: 

 

(a)    at any meeting held for the election of directors the stockholders are so divided that they have failed to elect successors to directors whose terms have expired or wouldhave expired upon qualification of their successors; or 

 

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(b)    the business of the corporation is suffering or is threatened with irreparable injury because the directors are so divided respecting the management of the affairs of the corporation that the required votefor action by the board of directors cannot be obtained and the stockholders are unable to terminate this division; or 

 

(c)    the corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve,liquidate or distribute its assets. 

 

11.2    Duties of Custodian.    The custodian shall have all the powers and title of a receiver appointed under Section 291 of the General Corporation Law of Delaware, but the authorityof the custodian shall be to continue the business of the corporation and not to liquidate its affairs and distribute its assets, except when the Court of Chancery otherwise orders and except in cases arising under Sections 226(a)(3) or 352(a)(2) ofthe General Corporation Law of Delaware. 

 

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