**Exhibit 3(ii)**

 

**Last AmendedAugust 4, 2004**

** **

**AMENDED AND RESTATED**

 

**BYLAWS OF**

 

**INTRAWARE, INC.**

**(a Delaware corporation)**

 

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**TABLE OF CONTENTS**

 
| ARTICLE I CORPORATE OFFICES               |                                                                       |
|------------------------------------------------|----------------------------------------------------------------------------|
|                                           |                                                                       |   |
| 1.1                                            | REGISTERED  OFFICE                                                         |   |
| 1.2                                            | OTHER OFFICES                                                         |   |
|                                           |                                                                       |   |
| ARTICLE II  MEETINGS OF STOCKHOLDERS |                                                                       |
|                                           |                                                                       |   |
| 2.1                                            | PLACE OF MEETINGS                                                |   |
| 2.2                                            | ANNUAL MEETING                                                        |   |
| 2.3                                            | SPECIAL MEETING                                                       |   |
| 2.4                                            | NOTICE OF STOCKHOLDERS’ MEETINGS                       |   |
| 2.5                                            | MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE |   |
| 2.6                                            | QUORUM                                                                     |   |
| 2.7                                            | ADJOURNED MEETING; NOTICE                                        |   |
| 2.8                                            | VOTING                                                                     |   |
| 2.9                                            | STOCKHOLDER ACTION BY WRITTEN CONSENT  WITHOUT A MEETING                   |   |
| 2.10                                           | RECORD DATE FOR STOCKHOLDER NOTICE; VOTING                                 |   |
| 2.11                                           | PROXIES                                                                    |   |
| 2.12                                           | ORGANIZATION                                                               |   |
| 2.13                                           | LIST OF STOCKHOLDERS ENTITLED TO VOTE                                      |   |
|                                           |                                                                       |   |
| ARTICLE  III DIRECTORS                         |                                                                       |
|                                           |                                                                       |   |
| 3.1                                            | POWERS                                                                     |   |
| 3.2                                            | NUMBER OF DIRECTORS                                              |   |
| 3.3                                            | ELECTION AND TERM OF OFFICE OF DIRECTORS     |   |
| 3.4                                            | RESIGNATION AND VACANCIES                                                  |   |
| 3.5                                            | REMOVAL OF DIRECTORS                                                       |   |
| 3.6                                            | PLACE OF MEETINGS; MEETINGS BY TELEPHONE          |   |
| 3.7                                            | FIRST MEETINGS                                                             |   |
| 3.8                                            | REGULAR  MEETINGS                                                          |   |
| 3.9                                            | SPECIAL MEETINGS; NOTICE                                                   |   |
| 3.10                                           | QUORUM                                                                     |   |
| 3.11                                           | WAIVER OF NOTICE                                                 |   |
| 3.12                                           | ADJOURNMENT                                                                |   |
| 3.13                                           | NOTICE OF ADJOURNMENT                                                      |   |
| 3.14                                           | BOARD ACTION BY WRITTEN CONSENT WITHOUT A  MEETING                         |   |

 

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| 3.15                                                                           | FEES AND COMPENSATION OF DIRECTORS  |   |
|--------------------------------------------------------------------------------|---------------------------------------------------------|--------|
| 3.16                                                                           | APPROVAL OF LOANS TO OFFICERS                           |   |
| 3.17                                                                           | SOLE DIRECTOR PROVIDED BY CERTIFICATE OF  INCORPORATION |   |
|                                                                           |                                                    |   |
| ARTICLE IV COMMITTEES                                                          |                                                    |
|                                                                           |                                                    |   |
| 4.1                                                                            | COMMITTEES OF DIRECTORS                                 |   |
| 4.2                                                                            | MEETINGS AND ACTION OF COMMITTEES   |   |
| 4.3                                                                            | COMMITTEE  MINUTES                                      |   |
|                                                                           |                                                    |   |
| ARTICLE V OFFICERS                                                             |                                                    |
|                                                                           |                                                    |   |
| 5.1                                                                            | OFFICERS                                                |   |
| 5.2                                                                            | ELECTION OF OFFICERS                          |   |
| 5.3                                                                            | SUBORDINATE OFFICERS                               |   |
| 5.4                                                                            | REMOVAL AND RESIGNATION OF OFFICERS                     |   |
| 5.5                                                                            | VACANCIES IN OFFICES                          |   |
| 5.6                                                                            | CHAIRMAN OF THE BOARD                    |   |
| 5.7                                                                            | PRESIDENT                                               |   |
| 5.8                                                                            | VICE PRESIDENTS                                    |   |
| 5.9                                                                            | SECRETARY                                               |   |
| 5.10                                                                           | CHIEF FINANCIAL OFFICER                       |   |
| 5.11                                                                           | ASSISTANT SECRETARY                                     |   |
| 5.12                                                                           | ADMINISTRATIVE OFFICERS                                 |   |
| 5.13                                                                           | AUTHORITY AND DUTIES OF OFFICERS                        |   |
|                                                                           |                                                    |   |
| ARTICLE VI INDEMNIFICATION OF DIRECTORS,  OFFICERS, EMPLOYEES AND OTHER AGENTS |                                                    |
|                                                                           |                                                    |   |
| 6.1                                                                            | INDEMNIFICATION OF DIRECTORS AND OFFICERS               |   |
| 6.2                                                                            | INDEMNIFICATION OF OTHERS                               |   |
| 6.3                                                                            | INSURANCE                                               |   |
|                                                                           |                                                    |   |
| ARTICLE  VII RECORDS AND REPORTS                                               |                                                    |
|                                                                           |                                                    |   |
| 7.1                                                                            | MAINTENANCE AND INSPECTION OF RECORDS                   |   |
| 7.2                                                                            | INSPECTION BY DIRECTORS                                 |   |
| 7.3                                                                            | ANNUAL STATEMENT TO STOCKHOLDERS                        |   |
| 7.4                                                                            | REPRESENTATION OF SHARES OF OTHER  CORPORATIONS         |   |
| 7.5                                                                            | CERTIFICATION AND INSPECTION OF BYLAWS                  |   |

 

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| ARTICLE  VIII GENERAL MATTERS |                                                          |
|------------------------------------|---------------------------------------------------------------|
|                               |                                                          |   |
| 8.1                                | RECORD DATE FOR PURPOSES OTHER THAN NOTICE  AND VOTING        |   |
| 8.2                                | CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS |   |
| 8.3                                | CORPORATE CONTRACTS AND INSTRUMENTS:  HOW EXECUTED       |   |
| 8.4                                | STOCK CERTIFICATES; TRANSFER; PARTLY PAID  SHARES             |   |
| 8.5                                | SPECIAL DESIGNATION ON CERTIFICATES                           |   |
| 8.6                                | LOST CERTIFICATES                                        |   |
| 8.7                                | TRANSFER AGENTS AND REGISTRARS                                |   |
| 8.8                                | CONSTRUCTION; DEFINITIONS                                |   |
|                               |                                                          |   |
| ARTICLE IX AMENDMENTS              |                                                          |

 

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Last Amended July 29, 2002

 

AMENDED AND RESTATED BYLAWS

 

OF

 

INTRAWARE, INC.

(a Delaware corporation)

 

ARTICLE I

 

CORPORATE OFFICES

 

1.1                                 REGISTEREDOFFICE

 

The registered office of the corporationshall be fixed in the certificate of incorporation of the corporation.

 

1.2                                 OTHER OFFICES

 

The board of directors may at any timeestablish branch or subordinate offices at any place or places where thecorporation is qualified to do business.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

2.1                                 PLACE OF MEETINGS

 

Meetings of stockholders shall be held at anyplace within or outside the State of Delaware designated by the board ofdirectors.  In the absence of any suchdesignation, stockholders’ meetings shall be held at the principal executiveoffice of the corporation.

 

2.2                                 ANNUAL MEETING

 

The annual meeting of the stockholders ofthis corporation shall be held each year on a date and at a time designated bythe board of directors.  At the meeting,directors shall be elected and any other proper business may betransacted.  Nominations of persons forelection to the board of directors of the corporation and the proposal ofbusiness to be considered by the stockholders may be made at an annual meetingof 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 anystockholder of the corporation who was a stockholder of record at the time ofgiving of notice provided for in these Bylaws, who is entitled to vote at themeeting and who complies with the notice procedures set forth in this Bylaw.

 

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For nominations or other business to beproperly brought before an annual meeting by a stockholder pursuant to clause(c) of the foregoing paragraph, (1) the stockholder must have given timelynotice thereof in writing to the secretary of the corporation, (2) suchbusiness must be a proper matter for stockholder action under the GeneralCorporation Law of Delaware, (3) if the stockholder, or the beneficial owner onwhose behalf any such proposal or nomination is made, has provided thecorporation with a Solicitation Notice, as that term is defined in subclause(c)(iii) of this paragraph, such stockholder or beneficial owner must, in thecase of a proposal, have delivered a proxy statement and form of proxy toholders of at least the percentage of the corporation’s voting shares requiredunder applicable law to carry any such proposal, or, in the case of anomination or nominations, have delivered a proxy statement and form of proxyto holders of a percentage of the corporation’s voting shares reasonablybelieved by such stockholder or beneficial holder to be sufficient to elect thenominee or nominees proposed to be nominated by such stockholder, and must, ineither case, have included in such materials the Solicitation Notice and (4) ifno Solicitation Notice relating thereto has been timely provided pursuant tothis section, the stockholder or beneficial owner proposing such business ornomination must not have solicited a number of proxies sufficient to haverequired the delivery of such a Solicitation Notice under this section.  To be timely, a stockholder’s notice shallbe delivered to the secretary of the corporation at the principal executiveoffices of the corporation not less than 60 or more than 90 days prior to thefirst anniversary (the “Anniversary”) of the date on which the corporationfirst mailed its proxy materials for the preceding year’s annual meeting ofstockholders; provided, however, that if the date of the annual meeting isadvanced more than 30 days prior to or delayed by more than 30 days after theanniversary of the preceding year’s annual meeting, notice by the stockholderto be timely must be so delivered not later than the close of business on thelater of (i) the 90th day prior to such annual meeting or (ii) the10th day following the day on which public announcement of the dateof such meeting is first made.  Suchstockholder’s notice shall be set forth (a) as to each person whom thestockholder proposes to nominate for election or reelection as a director allinformation relating to such person as would be required to be disclosed insolicitations of proxies for the election of such nominees as directorspursuant to Regulation 14A under the Securities Exchange Act of 1934, asamended (the “Exchange Act”), and such person’s written consent to serve as adirector if elected; (b) as to any other business that the stockholder proposesto bring before the meeting, a brief description of such business, the reasonsfor conducting such business at the meeting and any material interest in suchbusiness of such stockholder and the beneficial owner, if any, on whose behalfthe proposal is made; (c) as to the stockholder giving the notice and thebeneficial owner, if any, on whose behalf the nomination or proposal is made(i) the name and address of such stockholder, as they appear on thecorporation’s books, and of such beneficial owner, (ii) the class and number ofshares of the corporation that are owned beneficially and of record by suchstockholder and such beneficial owner, and (iii) whether either suchstockholder or beneficial owner intends to deliver a proxy statement and formof proxy to holders of, in the case of a proposal, at least the percentage ofthe corporation’s voting shares required under applicable law to carry theproposal or, in the case of a nomination or nominations, a sufficient number ofholders of the corporation’s voting shares to elect such nominee or nominees(an affirmative statement of such intent, a “Solicitation Notice”).

 

Only persons nominated in accordance with theprocedures set forth in this Bylaw shall be eligible to serve as directors andonly such business shall be conducted at an annual meeting of stockholders asshall have been brought before the meeting in accordance with the proceduresset

 

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forth in this section.  Thechair of the meeting shall have the power and the duty to determine whether anomination or any business proposed to be brought before the meeting has beenmade in accordance with the procedures set forth in these Bylaws and, if anyproposed nomination or business is not in compliance with these Bylaws, todeclare that such defective proposed business or nomination shall not bepresented for stockholder action at the meeting and shall be disregarded.

 

For the purposes of this section, “publicannouncement” shall mean disclosure in a press release reported by the DowJones News Service, Associated Press or a comparable national news service orin a document publicly filed by the corporation with the Securities and ExchangeCommission pursuant to Section 13, 14 or 15(d) of the Exchange Act.”

 

2.3                                 SPECIAL MEETING

 

A special meeting of the stockholders may becalled at any time by the board of directors, or by the chairman of the board,by the president or by one or more stockholders holding shares in the aggregateentitled to cast not less than ten percent (10%) of the votes at that meeting.

 

If a special meeting is called by any personor persons other than the board of directors, the request shall be in writingto the secretary of the corporation, and shall set forth (a) as to eachperson whom such person or persons propose to nominate for election orreelection as a director at such meeting all information relating to suchproposed nominee that is required to be disclosed in solicitations of proxiesfor election of directors in an election contest, or is otherwise required, ineach case pursuant to Regulation 14A under the Exchange Act (or anysuccessor thereto) and Rule 14a-11 thereunder (or any successor thereto)(including such proposed nominee’s written consent to being named in the proxystatement as a nominee and to serving as a director if elected); (b) as toany other business to be taken at the meeting, a brief description of suchbusiness, the reasons for conducting such business and any material interest insuch business of the person or persons calling such meeting and the beneficialowners, if any, on whose behalf such meeting is called; and (c) as to theperson or persons calling such meeting and the beneficial owners, if any, onwhose behalf the meeting is called (i) the name and address of suchpersons, as they appear on the corporation’s books, and of such beneficialowners, and (ii) the class and number of shares of the corporation whichare owned beneficially and of record by such persons and such beneficialowners.  No business may be transactedat such special meeting otherwise than specified in such notice or by or at thedirection of the corporation’s board of directors.  The corporation’s secretary shall cause notice to be promptlygiven to the stockholders entitled to vote, in accordance with the provisionsof Sections 2.4 and 2.5, that a meeting will be held at the timereasonably requested by the person or persons who called the meeting, not less than60 nor more than 90 days after the receipt of the request.  If the notice is not given within 20 daysafter the receipt of a valid request, the person or persons requesting themeeting may give the notice.  Nothingcontained in this paragraph 2.3 shall be construed as limiting, fixing oraffecting the time when a meeting of stockholders called by action of the boardof directors may be held.

 

Only such business shall be conducted at aspecial meeting of stockholders called by action of the board of directors asshall have been brought before the meeting pursuant to the corporation’s noticeof meeting.

 

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2.4                                 NOTICE OF STOCKHOLDERS’ MEETINGS

 

All notices of meetings of stockholders shallbe sent or otherwise given in accordance with Sections 2.2 and 2.3 ofthese bylaws not less than ten (10) nor more than sixty (60) days before thedate of the meeting.  The notice shallspecify the place, date and hour of the meeting and (i) in the case of aspecial meeting, the purpose or purposes for which the meeting is called (nobusiness other than that specified in the notice may be transacted) or(ii) in the case of the annual meeting, those matters which the board ofdirectors, at the time of giving the notice, intends to present for action bythe stockholders (but any proper matter may be presented at the meeting forsuch action).  The notice of any meetingat which directors are to be elected shall include the name of any nominee ornominees who, at the time of the notice, the board intends to present forelection.

 

2.5                                 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE

 

Written notice of any meeting of stockholdersshall be given either personally or by first-class mail or by telegraphic orother written communication.  Noticesnot personally delivered shall be sent charges prepaid and shall be addressedto the stockholder at the address of that stockholder appearing on the books ofthe corporation or given by the stockholder to the corporation for the purposeof notice.  Notice shall be deemed tohave been given at the time when delivered personally or deposited in the mailor sent by telegram or other means of written communication.

 

An affidavit of the mailing or other means ofgiving any notice of any stockholders’ meeting, executed by the secretary,assistant secretary or any transfer agent of the corporation giving the notice,shall be prima facie evidence of the giving of such notice.

 

2.6                                 QUORUM

 

The holders of a majority in voting power ofthe stock issued and outstanding and entitled to vote thereat, present inperson or represented by proxy, shall constitute a quorum at all meetings ofthe stockholders for the transaction of business except as otherwise providedby statute or by the certificate of incorporation.  If, however, such quorum is not present or represented at anymeeting of the stockholders, then either (i) the chairman of the meeting or(ii) the stockholders entitled to vote thereat, present in person orrepresented by proxy, shall have power to adjourn the meeting in accordancewith Section 2.7 of these bylaws.

 

When a quorum is present at any meeting, thevote of the holders of a majority of the stock having voting power present inperson or represented by proxy shall decide any question brought before such meeting,unless the question is one upon which, by express provision of the laws of theState of Delaware or of the certificate of incorporation or these bylaws, adifferent vote is required, in which case such express provision shall governand control the decision of the question.

 

If a quorum be initially present, thestockholders may continue to transact business until adjournment,notwithstanding the withdrawal of enough stockholders to leave less than aquorum, if any action taken is approved by a majority of the stockholdersinitially constituting the quorum.

 

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2.7                                 ADJOURNED MEETING; NOTICE

 

When a meeting is adjourned to another timeand place, unless these bylaws otherwise require, notice need not be given ofthe adjourned meeting if the time and place thereof are announced at themeeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business thatmight have been transacted at the original meeting.  If the adjournment is for more than thirty (30) days, or if afterthe adjournment a new record date is fixed for the adjourned meeting, a noticeof the adjourned meeting shall be given to each stockholder of record entitledto vote at the meeting.

 

2.8                                 VOTING

 

The stockholders entitled to vote at anymeeting of stockholders shall be determined in accordance with the provisionsof Section 2.10 of these bylaws, subject to the provisions of Sections 217and 218 of the General Corporation Law of Delaware (relating to voting rightsof fiduciaries, pledgors and joint owners, and to voting trusts and othervoting agreements).

 

Except as may be otherwise provided in thecertificate of incorporation or these bylaws, each stockholder shall beentitled to one vote for each share of capital stock held by such stockholder.

 

2.9                                 STOCKHOLDERACTION BY WRITTEN CONSENT WITHOUT A MEETING

 

The stockholders may not take any action bywritten consent in lieu of a meeting, and must take any actions at a dulycalled annual or special meeting of stockholders and the power of stockholdersto consent in writing is specifically denied.

 

2.10                           RECORDDATE FOR STOCKHOLDER NOTICE; VOTING

 

For purposes of determining the stockholdersentitled to notice of any meeting or to vote thereat, the board of directorsmay fix, in advance, a record date, which shall not precede the date uponwhich the resolution fixing the record date is adopted by the board ofdirectors and which shall not be more than sixty (60) days nor less thanten (10) days before the date of any such meeting, and in such event onlystockholders of record on the date so fixed are entitled to notice and tovote, notwithstanding any transfer of any shares on the books of thecorporation after the record date.

 

If the board of directors does not so fix arecord date, the record date for determining stockholders entitled to notice ofor to vote at a meeting of stockholders shall be at the close of business onthe business day next preceding the day on which notice is given, or, if noticeis waived, at the close of business on the business day next preceding the dayon which the meeting is held.

 

A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply toany adjournment of the meeting unless the board of directors fixes a new recorddate for the adjourned meeting, but the board of directors shall fix a newrecord date if the meeting is adjourned for more than thirty (30) days from thedate set for the original meeting.

 

The record date for any other purpose shallbe as provided in Section 8.1 of these bylaws.

 

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2.11                           PROXIES

 

Every person entitled to vote for directors,or on any other matter, shall have the right to do so either in person or byone or more agents authorized by a written proxy signed by the person and filedwith the secretary of the corporation, but no such proxy shall be voted oracted upon after three (3) years from its date, unless the proxy provides for alonger period.  A proxy shall be deemedsigned if the stockholder’s name is placed on the proxy (whether by manualsignature, typewriting, telegraphic transmission, telefacsimile or otherwise)by the stockholder or the stockholder’s attorney-in-fact.  The revocability of a proxy that states onits face that it is irrevocable shall be governed by the provisions of Section212(e) of the General Corporation Law of Delaware.

 

2.12                           ORGANIZATION

 

The president, or in the absence of thepresident, the chairman of the board, shall call the meeting of thestockholders to order, and shall act as chairman of the meeting.  In the absence of the president, thechairman of the board, and all of the vice presidents, the stockholders shallappoint a chairman for such meeting. The chairman of any meeting of stockholders shall determine the order ofbusiness and the procedures at the meeting, including such matters as theregulation of the manner of voting and the conduct of business.  The secretary of the corporation shall actas secretary of all meetings of the stockholders, but in the absence of thesecretary at any meeting of the stockholders, the chairman of the meeting mayappoint any person to act as secretary of the meeting.

 

2.13                           LISTOF STOCKHOLDERS ENTITLED TO VOTE

 

The officer who has charge of the stockledger of the corporation shall prepare and make, at least ten (10) days beforeevery meeting of stockholders, a complete list of the stockholders entitled tovote at the meeting, arranged in alphabetical order, and showing the address ofeach stockholder and the number of shares registered in the name of eachstockholder.  Such list shall be open tothe examination of any stockholder, for any purpose germane to the meeting,during ordinary business hours, for a period of at least ten (10) days prior tothe 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 sospecified, at the place where the meeting is to be held.  The list shall also be produced and kept atthe time and place of the meeting during the whole time thereof, and may beinspected by any stockholder who is present.

 

ARTICLE III

 

DIRECTORS

 

3.1                                 POWERS

 

Subject to the provisions of the GeneralCorporation Law of Delaware and to any limitations in the certificate ofincorporation or these bylaws relating to action required to be approved by thestockholders or by the outstanding shares, the business and affairs of thecorporation shall be managed and all corporate powers shall be exercised by orunder the direction of the board of directors.

 

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3.2                                 NUMBER OF DIRECTORS

 

The board of directors shall consist of seven(7) members.  The number of directorsmay be changed by an amendment to this bylaw, duly adopted by the board ofdirectors or by the stockholders, or by a duly adopted amendment to thecertificate of incorporation.

 

3.3                                 ELECTION AND TERM OF OFFICE OF DIRECTORS

 

Except as provided in Section 3.4 ofthese bylaws, directors shall be elected at each annual meeting of stockholdersto hold office until the next annual meeting. Each director, including adirector elected or appointed to fill a vacancy, shall hold office until theexpiration of the term for which elected and until a successor has been electedand qualified.

 

Election of directors need not be by writtenballot.

 

3.4                                 RESIGNATIONAND VACANCIES

 

Any director may resign effective on givingwritten notice to the chairman of the board, the president, the secretary orthe board of directors, unless the notice specifies a later time for thatresignation to become effective.  If theresignation of a director is effective at a future time, the board of directorsmay elect a successor to take office when the resignation becomes effective.

 

Vacancies in the board of directors may befilled by a majority of the remaining directors, even if less than a quorum, orby a sole remaining director; however, a vacancy created by the removal of adirector by the vote of the stockholders or by court order may be filled onlyby the affirmative vote of a majority of the shares represented and voting at aduly held meeting at which a quorum is present (which shares votingaffirmatively also constitute a majority of the required quorum).  Unless otherwise provided in the certificateof incorporation or these bylaws, each director so elected shall hold officeuntil the next annual meeting of the stockholders and until a successor hasbeen elected and qualified.

 

Unless otherwise provided in the certificateof incorporation or these bylaws:

 

(i)            Vacancies and newly createddirectorships resulting from any increase in the authorized number of directorselected by all of the stockholders having the right to vote as a single classmay be filled by a majority of the directors then in office, although less thana quorum, or by a sole remaining director.

 

(ii)           Whenever the holders of any class orclasses of stock or series thereof are entitled to elect one or more directorsby the provisions of the certificate of incorporation, vacancies and newlycreated directorships of such class or classes or series may be filled by amajority of the directors elected by such class or classes or series thereofthen in office, or by a sole remaining director so elected.

 

If at any time, by reason of death orresignation or other cause, the corporation should have no directors in office,then any officer or any stockholder or an executor, administrator, trustee orguardian of a stockholder, or other fiduciary entrusted with likeresponsibility for the person or estate of a stockholder, may call a specialmeeting of stockholders in accordance with the provisions of the certificate ofincorporation or these bylaws, or may apply to the Court of Chancery for adecree

 

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summarily ordering an election as provided in Section 211 of theGeneral Corporation Law of Delaware.

 

If, at the time of filling any vacancy or anynewly created directorship, the directors then in office constitute less than amajority of the whole board (as constituted immediately prior to any suchincrease), then the Court of Chancery may, upon application of any stockholderor stockholders holding at least ten (10) percent of the total number ofthe shares at the time outstanding having the right to vote for such directors,summarily order an election to be held to fill any such vacancies or newlycreated directorships, or to replace the directors chosen by the directors thenin office as aforesaid, which election shall be governed by the provisions ofSection 211 of the General Corporation Law of Delaware as far asapplicable.

 

3.5                                 REMOVALOF DIRECTORS

 

Unless otherwise restricted by statute, bythe certificate of incorporation or by these bylaws, any director or the entireboard of directors may be removed, with or without cause, by the holders of amajority of the shares then entitled to vote at an election of directors,provided that, when by the provisions of the Certificate of Incorporation theholders of the shares of any class or series, voting as a class or series, areentitled to elect one (1) or more directors, any directors so elected may beremoved only by the applicable vote of the holders of the shares of that classor series.

 

3.6                                 PLACE OF MEETINGS; MEETINGS BY TELEPHONE

 

Regular meetings of the board of directorsmay be held at any place within or outside the State of Delaware that hasbeen designated from time to time by resolution of the board.  In the absence of such a designation,regular meetings shall be held at the principal executive office of thecorporation.  Special meetings of theboard may be held at any place within or outside the State of Delaware that hasbeen designated in the notice of the meeting or, if not stated in the notice orif there is no notice, at the principal executive office of the corporation.

 

Any meeting of the board, regular or special,may be held by conference telephone or similar communication equipment, so longas all directors participating in the meeting can hear one another; and allsuch participating directors shall be deemed to be present in person at themeeting.

 

3.7                                 FIRSTMEETINGS

 

The first meeting of each newly elected boardof directors shall be held at such time and place as shall be fixed by the voteof the stockholders at the annual meeting. In the event of the failure of the stockholders to fix the time or placeof such first meeting of the newly elected board of directors, or in the eventsuch meeting is not held at the time and place so fixed by the stockholders,the meeting may be held at such time and place as shall be specified in anotice given as hereinafter provided for special meetings of the board ofdirectors, or as shall be specified in a written waiver signed by all of thedirectors.

 

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3.8                                 REGULARMEETINGS

 

Regular meetings of the board of directorsmay be held without notice at such time as shall from time to time bedetermined by the board of directors. If any regular meeting day shall fall on a legal holiday, then themeeting shall be held at the same time and place on the next succeeding fullbusiness day.

 

3.9                                 SPECIALMEETINGS; NOTICE

 

Special meetings of the board of directorsfor any purpose or purposes may be called at any time by the chairman of theboard, the president, any vice president, the secretary or any two directors.

 

Notice of the time and place of specialmeetings shall be delivered personally or by telephone to each director orsent by first-class mail, telecopy or telegram, charges prepaid, addressedto each director at that director’s address as it is shown on the records ofthe corporation.  If the notice ismailed, it shall be deposited in the United States mail at least four (4) daysbefore the time of the holding of the meeting. If the notice is delivered personally or by telephone, telecopy ortelegram, it shall be delivered personally or by telephone or to the telegraphcompany at least forty-eight (48) hours before the time of the holding of themeeting.  Any oral notice givenpersonally or by telephone may be communicated either to the director or to aperson at the office of the director who the person giving the notice hasreason to believe will promptly communicate it to the director.  The notice need not specify the purpose orthe place of the meeting, if the meeting is to be held at the principalexecutive office of the corporation.

 

3.10                           QUORUM

 

A majority of the authorized number ofdirectors shall constitute a quorum for the transaction of business, except toadjourn as provided in Section 3.12 of these bylaws.  Every act or decision done or made by amajority of the directors present at a duly held meeting at which a quorum ispresent shall be regarded as the act of the board of directors, subject to theprovisions of the certificate of incorporation and applicable law.

 

A meeting at which a quorum is initiallypresent may continue to transact business notwithstanding the withdrawal ofdirectors, if any action taken is approved by at least a majority of the quorumfor that meeting.

 

3.11                           WAIVER OF NOTICE

 

Notice of a meeting need not be given to anydirector (i) who signs a waiver of notice, whether before or after themeeting, or (ii) who attends the meeting other than for the expresspurposed of objecting at the beginning of the meeting to the transaction of anybusiness because the meeting is not lawfully called or convened.  All such waivers shall be filed with thecorporate records or made part of the minutes of the meeting.  A waiver of notice need not specify thepurpose of any regular or special meeting of the board of directors.

 

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3.12                           ADJOURNMENT

 

A majority of the directors present, whetheror not constituting a quorum, may adjourn any meeting of the board to anothertime and place.

 

3.13                           NOTICEOF ADJOURNMENT

 

Notice of the time and place of holding anadjourned meeting of the board need not be given unless the meeting isadjourned for more than twenty-four (24) hours.  If the meeting is adjourned for more than twenty-four (24) hours,then notice of the time and place of the adjourned meeting shall be givenbefore the adjourned meeting takes place, in the manner specified inSection 3.9 of these bylaws, to the directors who were not present at thetime of the adjournment.

 

3.14                           BOARDACTION BY WRITTEN CONSENT WITHOUT A MEETING

 

Any action required or permitted to be takenby the board of directors may be taken without a meeting, provided that allmembers of the board individually or collectively consent in writing to thataction.  Such action by written consentshall have the same force and effect as a unanimous vote of the board ofdirectors. Such written consent and any counterparts thereof shall be filedwith the minutes of the proceedings of the board of directors.

 

3.15                           FEES AND COMPENSATION OF DIRECTORS

 

Directors and members of committees mayreceive such compensation, if any, for their services and such reimbursement ofexpenses as may be fixed or determined by resolution of the board ofdirectors.  This Section 3.15 shallnot be construed to preclude any director from serving the corporation in anyother capacity as an officer, agent, employee or otherwise and receivingcompensation for those services.

 

3.16                           APPROVALOF LOANS TO OFFICERS

 

The corporation may lend money to, orguarantee any obligation of, or otherwise assist any officer or other employeeof the corporation or any of its subsidiaries, including any officer oremployee who is a director of the corporation or any of its subsidiaries,whenever, in the judgment of the directors, such loan, guaranty or assistancemay reasonably be expected to benefit the corporation, provided, however, thatsuch loan, guaranty, or assistance does not contravene, in any mannerwhatsoever, any law or regulation (governmental or otherwise) applicableto the corporation and/or such officer or employee.  Any such loan, guaranty or other assistance may be with orwithout interest and may be unsecured, or secured in such manner as the boardof directors shall approve, including, without limitation, a pledge of sharesof stock of the corporation.  Nothingcontained in this section shall be deemed to deny, limit or restrict the powersof guaranty or warranty of the corporation at common law or under any statute.

 

3.17                           SOLEDIRECTOR PROVIDED BY CERTIFICATE OF INCORPORATION

 

In the event only one director is required bythese bylaws or the certificate of incorporation, then any reference herein tonotices, waivers, consents, meetings or other actions by a majority or quorumof the directors shall be deemed to refer to such notice, waiver, etc., by suchsole director,

 

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who shall have all the rights and duties and shall be entitled toexercise all of the powers and shall assume all the responsibilities otherwiseherein described as given to the board of directors.

 

ARTICLE IV

 

COMMITTEES

 

4.1                                 COMMITTEESOF DIRECTORS

 

The board of directors may, by resolutionadopted by a majority of the authorized number of directors, designate one (1)or more committees, each consisting of two or more directors, to serve at thepleasure of the board.  The board maydesignate one (1) or more directors as alternate members of any committee,who may replace any absent or disqualified member at any meeting of thecommittee.  The appointment of membersor alternate members of a committee requires the vote of a majority of theauthorized number of directors.  Anycommittee, to the extent provided in the resolution of the board, shall haveand may exercise all the powers and authority of the board, but no suchcommittee shall have the power or authority to (i) amend the certificateof incorporation (except that a committee may, to the extent authorized in theresolution or resolutions providing for the issuance of shares of stock adoptedby the board of directors as provided in Section 151(a) of the GeneralCorporation Law of Delaware, fix the designations and any of the preferences orrights of such shares relating to dividends, redemption, dissolution, anydistribution of assets of the corporation or the conversion into, or theexchange of such shares for, shares of any other class or classes or any otherseries of the same or any other class or classes of stock of the corporation),(ii) adopt an agreement of merger or consolidation under Sections 251or 252 of the General Corporation Law of Delaware, (iii) recommend to thestockholders the sale, lease or exchange of all or substantially all of thecorporation’s property and assets, (iv) recommend to the stockholders adissolution of the corporation or a revocation of a dissolution or(v) amend the bylaws of the corporation; and, unless the board resolutionestablishing the committee, the bylaws or the certificate of incorporation expresslyso provide, no such committee shall have the power or authority to declare adividend, to authorize the issuance of stock, or to adopt a certificate ofownership and merger pursuant to Section 253 of the General CorporationLaw of Delaware.

 

4.2                                 MEETINGS AND ACTION OF COMMITTEES

 

Meetings and actions of committees shall begoverned by, and held and taken in accordance with, the following provisions ofArticle III of these bylaws: Section 3.6 (place of meetings; meetings bytelephone), Section 3.8 (regular meetings), Section 3.9 (specialmeetings; notice), Section 3.10 (quorum), Section 3.11 (waiver ofnotice), Section 3.12 (adjournment), Section 3.13 (notice ofadjournment) and Section 3.14 (board action by written consent withoutmeeting), with such changes in the context of those bylaws as are necessary tosubstitute the committee and its members for the board of directors and itsmembers; provided, however, that the time of regular meetings of committees maybe determined either by resolution of the board of directors or by resolutionof the committee, that special meetings of committees may also be called byresolution of the board of directors, and that notice of special meetings ofcommittees shall also be given to all alternate members, who shall have theright to attend all meetings of the committee. The board of

 

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directors may adopt rules for the government of any committee notinconsistent with the provisions of these bylaws.

 

4.3                                 COMMITTEEMINUTES

 

Each committee shall keep regular minutes ofits meetings and report the same to the board of directors when required.

 

ARTICLE V

 

OFFICERS

 

5.1                                 OFFICERS

 

The Corporate Officers of the corporationshall be a president, a secretary and a chief financial officer.  The corporation may also have, at thediscretion of the board of directors, a chairman of the board, one or more vicepresidents (however denominated), one or more assistant secretaries, one ormore assistant treasurers, and such other officers as may be appointed inaccordance with the provisions of Section 5.3 of these bylaws.  Any number of offices may be held by thesame person.

 

In addition to the Corporate Officers of theCompany described above, there may also be such Administrative Officers of thecorporation as may be designated and appointed from time to time by thepresident of the corporation in accordance with the provisions of Section 5.12of these bylaws.

 

5.2                                 ELECTION OF OFFICERS

 

The Corporate Officers of the corporation,except such officers as may be appointed in accordance with the provisionsof Section 5.3 or Section 5.5 of these bylaws, shall be chosenby the board of directors, subject to the rights, if any, of an officer underany contract of employment, and shall hold their respective offices for suchterms as the board of directors may from time to time determine.

 

5.3                                 SUBORDINATE OFFICERS

 

The board of directors may appoint, or mayempower the president to appoint, such other Corporate Officers as the businessof the corporation may require, each of whom shall hold office for such period,have such power and authority, and perform such duties as are provided in thesebylaws or as the board of directors may from time to time determine.

 

The president may from time to time designateand appoint Administrative Officers of the corporation in accordance with theprovisions of Section 5.12 of these bylaws.

 

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5.4                                 REMOVALAND RESIGNATION OF OFFICERS

 

Subject to the rights, if any, of a CorporateOfficer under any contract of employment, any Corporate Officer may be removed,either with or without cause, by the board of directors at any regular orspecial meeting of the board or, except in case of a Corporate Officer chosenby the board of directors, by any Corporate Officer upon whom such power ofremoval may be conferred by the board of directors.

 

Any Corporate Officer may resign at any timeby giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of thatnotice or at any later time specified in that notice; and, unless otherwisespecified in that notice, the acceptance of the resignation shall not benecessary to make it effective.  Anyresignation is without prejudice to the rights, if any, of the corporationunder any contract to which the Corporate Officer is a party.

 

Any Administrative Officer designated andappointed by the president may be removed, either with or without cause, at anytime by the president.  AnyAdministrative Officer may resign at any time by giving written notice to thepresident or to the secretary of the corporation.

 

5.5                                 VACANCIES IN OFFICES

 

A vacancy in any office because of death,resignation, removal, disqualification or any other cause shall be filled inthe manner prescribed in these bylaws for regular appointmentsto that office.

 

5.6                                 CHAIRMAN OF THE BOARD

 

The chairman of the board, if such an officerbe elected, shall, if present, preside at meetings of the board of directorsand exercise such other powers and perform such other duties as may from timeto time be assigned to him by the board of directors or as may be prescribed bythese bylaws.  If there is no president,then the chairman of the board shall also be the chief executive officer of thecorporation and shall have the powers and duties prescribed in Section 5.7of 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, ifthere be such an officer, the president shall be the chief executive officer ofthe corporation and shall, subject to the control of the board of directors,have general supervision, direction and control of the business and theofficers of the corporation.  He or sheshall preside at all meetings of the stockholders and, in the absence ornonexistence of a chairman of the board, at all meetings of the board ofdirectors.  He or she shall have thegeneral powers and duties of management usually vested in the office ofpresident of a corporation, and shall have such other powers and perform suchother duties as may be prescribed by the board of directors or these bylaws.

 

5.8                                 VICE PRESIDENTS

 

In the absence or disability of thepresident, and if there is no chairman of the board, the vice presidents, ifany, in order of their rank as fixed by the board of directors or, if notranked, a vice president designated by the board of directors, shall performall the duties of the president and when so acting shall have all the powersof, and be subject to all the restrictions upon, the president.  The

 

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vice presidents shall have such other powers and perform such otherduties as from time to time may be prescribed for them respectively by the boardof directors, these bylaws, the president or the chairman of the board.

 

5.9                                 SECRETARY

 

The secretary shall keep or cause to be kept,at the principal executive office of the corporation or such other place as theboard of directors may direct, a book of minutes of all meetings and actions ofthe board of directors, committees of directors and stockholders.  The minutes shall show the time and place ofeach meeting, whether regular or special (and, if special, how authorized andthe notice given), the names of those present at directors’ meetings orcommittee meetings, the number of shares present or represented atstockholders’ meetings and the proceedings thereof.

 

The secretary shall keep, or cause to bekept, at the principal executive office of the corporation or at the office ofthe corporation’s transfer agent or registrar, as determined by resolution ofthe board of directors, a share register or a duplicate share register, showingthe names of all stockholders and their addresses, the number and classes ofshares held by each, the number and date of certificates evidencing such sharesand the number and date of cancellation of every certificate surrendered forcancellation.

 

The secretary shall give, or cause to begiven, notice of all meetings of the stockholders and of the board ofdirectors required to be given by law or by these bylaws.  He or she shall keep the seal of thecorporation, if one be adopted, in safe custody and shall have such other powersand perform such other duties as may be prescribed by the board of directors orby these bylaws.

 

5.10                           CHIEF FINANCIAL OFFICER

 

The chief financial officer shall keep andmaintain, or cause to be kept and maintained, adequate and correct books andrecords of accounts of the properties and business transactions of thecorporation, including accounts of its assets, liabilities, receipts,disbursements, gains, losses, capital, retained earnings and shares.  The books of account shall at all reasonabletimes be open to inspection by any director for a purpose reasonably related tohis position as a director.

 

The chief financial officer shall deposit allmoney and other valuables in the name and to the credit of the corporation withsuch depositaries as may be designated by the board of directors. He or sheshall disburse the funds of the corporation as may be ordered by the board ofdirectors, shall render to the president and directors, whenever they requestit, an account of all of his or her transactions as chief financial officer andof the financial condition of the corporation, and shall have such other powersand perform such other duties as may be prescribed by the board of directors orthese bylaws.

 

5.11                           ASSISTANTSECRETARY

 

The assistant secretary, if any, or, if thereis more than one, the assistant secretaries in the order determined by theboard 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 hisor her inability or refusal to

 

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act, perform the duties and exercise the powers of the secretary andshall perform such other duties and have such other powers as the board ofdirectors may from time to time prescribe.

 

5.12                           ADMINISTRATIVEOFFICERS

 

In addition to the Corporate Officers of thecorporation as provided in Section 5.1 of these bylaws and such subordinateCorporate Officers as may be appointed in accordance with Section 5.3 ofthese bylaws, there may also be such Administrative Officers of the corporationas may be designated and appointed from time to time by the president of thecorporation.  Administrative Officersshall perform such duties and have such powers as from time to time may bedetermined by the president or the board of directors in order to assist theCorporate Officers in the furtherance of their duties.  In the performance of such duties and theexercise of such powers, however, such Administrative Officers shall havelimited authority to act on behalf of the corporation as the board of directorsshall establish, including but not limited to limitations on the dollar amountand on the scope of agreements or commitments that may be made by suchAdministrative Officers on behalf of the corporation, which limitations may notbe exceeded by such individuals or altered by the president without furtherapproval by the board of directors.

 

5.13                           AUTHORITYAND DUTIES OF OFFICERS

 

In addition to the foregoing powers,authority and duties, all officers of the corporation shall respectively havesuch authority and powers and perform such duties in the management of thebusiness of the corporation as may be designated from time to time by the boardof directors.

 

ARTICLE VI

 

INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEESAND OTHER AGENTS

 

6.1                                 INDEMNIFICATIONOF DIRECTORS AND OFFICERS

 

The corporation shall, to the maximum extentand in the manner permitted by the General Corporation Law of Delaware as thesame now exists or may hereafter be amended, indemnify any person againstexpenses (including attorneys’ fees), judgments, fines, and amounts paid insettlement actually and reasonably incurred in connection with any threatened,pending or completed action, suit, or proceeding in which such person was or isa party or is threatened to be made a party by reason of the fact that suchperson is or was a director or officer of the corporation.  For purposes of this Section 6.1, a“director” or “officer” of the corporation shall mean any person (i) whois or was a director or officer of the corporation, (ii) who is or wasserving at the request of the corporation as a director or officer of anothercorporation, partnership, joint venture, trust or other enterprise, or(iii) who was a director or officer of a corporation which was a predecessorcorporation of the corporation or of another enterprise at the request of suchpredecessor corporation.

 

The corporation shall be required toindemnify a director or officer in connection with an action, suit, orproceeding (or part thereof) initiated by such director or officer only if theinitiation

 

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of such action, suit, or proceeding (or part thereof) by the directoror officer was authorized by the board of Directors of the corporation.

 

The corporation shall pay the expenses(including attorney’s fees) incurred by a director or officer of thecorporation entitled to indemnification hereunder in defending any action, suitor proceeding referred to in this Section 6.1 in advance of its final disposition;provided, however, that payment of expenses incurred by a director or officerof the corporation in advance of the final disposition of such action, suit orproceeding shall be made only upon receipt of an undertaking by the director orofficer to repay all amounts advanced if it should ultimately be determinedthat the director or officer is not entitled to be indemnified under thisSection 6.1 or otherwise.

 

If a claim for indemnification or payment ofexpenses under this Article is not paid in full within sixty days after awritten claim therefor has been received by the corporation the claimant mayfile suit to recover the unpaid amount of such claim and, if successful inwhole or in part, shall be entitled to be paid the expense of prosecuting suchclaim.  In any such action thecorporation shall have the burden of proving that the claimant was not entitledto the requested indemnification or payment of expenses under applicable law.

 

The rights conferred on any person by thisArticle shall not be exclusive of any other rights which such person may haveor hereafter acquire under any statute, provision of the corporation’sCertificate of Incorporation, these bylaws, agreement, vote of the stockholdersor disinterested directors or otherwise.

 

Any repeal or modification of the foregoingprovisions of this Article shall not adversely affect any right or protectionhereunder of any person in respect of any act or omission occurring prior tothe time of such repeal or modification.

 

6.2                                 INDEMNIFICATIONOF OTHERS

 

The corporation shall have the power, to themaximum extent and in the manner permitted by the General Corporation Law ofDelaware as the same now exists or may hereafter be amended, to indemnify anyperson (other than directors and officers) against expenses (includingattorneys’ fees), judgments, fines, and amounts paid in settlement actually andreasonably incurred in connection with any threatened, pending or completedaction, suit, or proceeding, in which such person was or is a party or is threatenedto be made a party by reason of the fact that such person is or was an employeeor agent of the corporation.  Thecorporation’s obligation, if any, to indemnify any person who was or is servingat its request as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust, enterprise or non-profit entityshall be reduced by any amount such person may collect as indemnification fromsuch other corporation, partnership, joint venture, trust, enterprise or non-profitenterprise.  For purposes of thisSection 6.2, an “employee” or “agent” of the corporation (other than adirector or officer) shall mean any person (i) who is or was an employeeor agent of the corporation, (ii) who is or was serving at the request ofthe corporation as an employee or agent of another corporation, partnership,joint venture, trust or other enterprise, or (iii) who was an employee oragent of a corporation which was a predecessor corporation of the corporationor of another enterprise at the request of such predecessor corporation.

 

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6.3                                 INSURANCE

 

The corporation may purchase and maintaininsurance on behalf of any person who is or was a director, officer, employeeor agent of the corporation, or is or was serving at the request of thecorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise against any liabilityasserted against him or her and incurred by him or her in any such capacity, orarising out of his or her status as such, whether or not the corporation wouldhave the power to indemnify him or her against such liability under theprovisions of the General Corporation Law of Delaware.

 

ARTICLE VII

 

RECORDS AND REPORTS

 

7.1                                 MAINTENANCEAND INSPECTION OF RECORDS

 

The corporation shall, either at itsprincipal executive office or at such place or places as designated by theboard of directors, keep a record of its stockholders listing their names andaddresses and the number and class of shares held by each stockholder, a copyof these bylaws as amended to date, accounting books and other records of itsbusiness and properties.

 

Any stockholder of record, in person or byattorney or other agent, shall, upon written demand under oath stating thepurpose thereof, have the right during the usual hours for business to inspectfor any proper purpose the corporation’s stock ledger, a list of itsstockholders, and its other books and records and to make copies or extractstherefrom.  A proper purpose shall meana purpose reasonably related to such person’s interest as a stockholder.  In every instance where an attorney or otheragent is the person who seeks the right to inspection, the demand under oathshall be accompanied by a power of attorney or such other writing thatauthorizes the attorney or other agent to so act on behalf of the stockholder.The demand under oath shall be directed to the corporation at its registeredoffice in Delaware or at its principal place of business.

 

7.2                                 INSPECTIONBY DIRECTORS

 

Any director shall have the right to examinethe corporation’s stock ledger, a list of its stockholders and its other booksand records for a purpose reasonably related to his or her position as adirector.

 

7.3                                 ANNUALSTATEMENT TO STOCKHOLDERS

 

The board of directors shall present at eachannual meeting, and at any special meeting of the stockholders when called forby vote of the stockholders, a full and clear statement of the business andcondition of the corporation.

 

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7.4                                 REPRESENTATIONOF SHARES OF OTHER CORPORATIONS

 

The chairman of the board, if any, thepresident, any vice president, the chief financial officer, the secretary orany assistant secretary of this corporation, or any other person authorized bythe board of directors or the president or a vice president, is authorized tovote, represent and exercise on behalf of this corporation all rights incidentto any and all shares of the stock of any other corporation or corporationsstanding in the name of this corporation. The authority herein granted may be exercised either by such persondirectly or by any other person authorized to do so by proxy or power of attorneyduly executed by such person having the authority.

 

7.5                                 CERTIFICATIONAND INSPECTION OF BYLAWS

 

The original or a copy of these bylaws, asamended or otherwise altered to date, certified by the secretary, shall be keptat the corporation’s principal executive office and shall be open to inspectionby the stockholders of the corporation, at all reasonable times during officehours.

 

ARTICLE VIII

 

GENERAL MATTERS

 

8.1                                 RECORDDATE FOR PURPOSES OTHER THAN NOTICE AND VOTING

 

For purposes of determining the stockholdersentitled to receive payment of any dividend or other distribution or allotmentof any rights or the stockholders entitled to exercise any rights in respect ofany change, conversion or exchange of stock, or for the purpose of any otherlawful action, the board of directors may fix, in advance, a record date, whichshall not precede the date upon which the resolution fixing the record date isadopted and which shall not be more than sixty (60) days before any suchaction.  In that case, only stockholdersof record at the close of business on the date so fixed are entitled to receivethe dividend, distribution or allotment of rights, or to exercise such rights,as the case may be, notwithstanding any transfer of any shares on the books ofthe corporation after the record date so fixed, except as otherwise provided bylaw.

 

If the board of directors does not so fix arecord date, then the record date for determining stockholders for any suchpurpose shall be at the close of business on the day on which the board ofdirectors adopts the applicable resolution.

 

8.2                                 CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS

 

From time to time, the board of directorsshall determine by resolution which person or persons may sign or endorse allchecks, drafts, other orders for payment of money, notes or other evidences ofindebtedness that are issued in the name of or payable to the corporation, andonly the persons so authorized shall sign or endorse those instruments.

 

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8.3                                 CORPORATECONTRACTS AND INSTRUMENTS:  HOW EXECUTED

 

The board of directors, except as otherwiseprovided in these bylaws, may authorize and empower any officer or officers, oragent or agents, to enter into any contract or execute any instrument in thename of and on behalf of the corporation; such power and authority may begeneral or confined to specific instances. Unless so authorized or ratified by the board of directors or within theagency power of an officer, no officer, agent or employee shall have any poweror authority to bind the corporation by any contract or engagement or to pledgeits credit or to render it liable for any purpose or for any amount.

 

8.4                                 STOCKCERTIFICATES; TRANSFER; PARTLY PAID SHARES

 

The shares of the corporation shall berepresented by certificates, provided that the board of directors of thecorporation may provide by resolution or resolutions that some or all of any orall classes or series of its stock shall be uncertificated shares.  Any such resolution shall not apply toshares represented by a certificate until such certificate is surrendered tothe corporation.  Notwithstanding theadoption of such a resolution by the board of directors, every holder of stockrepresented by certificates and, upon request, every holder of uncertificatedshares, shall be entitled to have a certificate signed by, or in the name ofthe corporation by, the chairman or vice-chairman of the board of directors, orthe president or vice-president, and by the treasurer or an assistanttreasurer, or the secretary or an assistant secretary of such corporationrepresenting the number of shares registered in certificate form.  Any or all of the signatures on thecertificate may be a facsimile.  In caseany officer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate has ceased to be such officer,transfer agent or registrar before such certificate is issued, it may be issuedby the corporation with the same effect as if he or she were such officer,transfer agent or registrar at the date of issue.

 

Certificates for shares shall be of such formand device as the board of directors may designate and shall state the name ofthe record holder of the shares represented thereby; its number; date ofissuance; the number of shares for which it is issued; a summary statement orreference to the powers, designations, preferences or other special rights ofsuch stock and the qualifications, limitations or restrictions of suchpreferences and/or rights, if any; a statement or summary of liens, if any; aconspicuous notice of restrictions upon transfer or registration of transfer,if any; a statement as to any applicable voting trust agreement; if the sharesbe assessable, or, if assessments are collectible by personal action, a plainstatement of such facts.

 

Upon surrender to the secretary or transferagent of the corporation of a certificate for shares duly endorsed oraccompanied by proper evidence of succession, assignment or authority totransfer, it shall be the duty of the corporation to issue a new certificate tothe person entitled thereto, cancel the old certificate and record thetransaction upon its books.

 

The corporation may issue the whole or anypart of its shares as partly paid and subject to call for the remainder of theconsideration to be paid therefor.  Uponthe face or back of each stock certificate issued to represent any such partlypaid shares, or upon the books and records of the corporation in the case ofuncertificated partly paid shares, the total amount of the consideration to bepaid therefor and the amount paid thereon shall be stated.  Upon the declaration of any dividend

 

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on fully paid shares, the corporation shall declare a dividend uponpartly paid shares of the same class, but only upon the basis of the percentageof the consideration actually paid thereon.

 

8.5                                 SPECIALDESIGNATION ON CERTIFICATES

 

If the corporation is authorized to issuemore than one class of stock or more than one series of any class, then thepowers, the designations, the preferences and the relative, participating,optional or other special rights of each class of stock or series thereof andthe qualifications, limitations or restrictions of such preferences and/orrights shall be set forth in full or summarized on the face or back of thecertificate that the corporation shall issue to represent such class or seriesof stock; provided, however, that, except as otherwise provided inSection 202 of the General Corporation Law of Delaware, in lieu of theforegoing requirements there may be set forth on the face or back of thecertificate that the corporation shall issue to represent such class or seriesof stock a statement that the corporation will furnish without charge to eachstockholder who so requests the powers, the designations, the preferences andthe relative, participating, optional or other special rights of each class ofstock or series thereof and the qualifications, limitations or restrictions ofsuch preferences and/or rights.

 

8.6                                 LOST CERTIFICATES

 

Except as provided in this Section 8.6,no new certificates for shares shall be issued to replace a previously issuedcertificate unless the latter is surrendered to the corporation and cancelledat the same time.  The board ofdirectors may, in case any share certificate or certificate for any othersecurity is lost, stolen or destroyed, authorize the issuance of replacementcertificates on such terms and conditions as the board may require; the boardmay require indemnification of the corporation secured by a bond or otheradequate security sufficient to protect the corporation against any claim thatmay be made against it, including any expense or liability, on account of thealleged loss, theft or destruction of the certificate or the issuance of thereplacement certificate.

 

8.7                                 TRANSFERAGENTS AND REGISTRARS

 

The board of directors may appoint one ormore transfer agents or transfer clerks, and one or more registrars, each ofwhich shall be an incorporated bank or trust company — either domestic orforeign, who shall be appointed at such times and places as the requirements ofthe corporation may necessitate and the board of directors may designate.

 

8.8                                 CONSTRUCTION; DEFINITIONS

 

Unless the context requires otherwise, thegeneral provisions, rules of construction and definitions in the GeneralCorporation Law of Delaware shall govern the construction of these bylaws.  Without limiting the generality of thisprovision, as used in these bylaws, the singular number includes the plural, theplural number includes the singular, and the term “person” includes both anentity and a natural person.

 

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ARTICLE IX

 

AMENDMENTS

 

Any of these Bylaws may be altered, amendedor repealed by the affirmative vote of a majority of the members of the boardof directors or, with respect to Bylaw amendments, excluding amendmentsrelating to Sections 2.2, 2.3, 2.9 or Article VI, placed before thestockholders for approval and except as otherwise provided herein or requiredby law, by the affirmative vote of the holders of a majority of the shares ofthe corporation’s stock entitled to vote, voting as one class, and with respectto Bylaw amendments relating to Sections 2.2, 2.3, 2.9 or Article VI placedbefore the stockholders for approval and except as otherwise provided herein orrequired by law, by the affirmative vote of the holders of at least two-thirdsof the shares of the corporation’s stock entitled to vote, voting as one class.

 

Whenever an amendment or new bylaw isadopted, it shall be copied in the book of bylaws with the original bylaws, inthe appropriate place.  If any bylaw isrepealed, the fact of repeal with the date of the meeting at which the repealwas enacted or the filing of the operative written consent(s) shall be statedin said book.

 

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