**Exhibit 3.1**

 

**AMENDEDAND RESTATEDBYLAWSOF**

** **

**BROADVISION,INC.(A DELAWARE CORPORATION)****AsApproved by the Board of Directors onApril 16, 1996****Effective as of June 21, 1996**

** **

**And**

** **

**AsAmended by the Board of Directors on**

** **

**September4, 2002**

** **

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| ARTICLE I   | OFFICES                                       |   |
|-------------|-----------------------------------------------|--------|
|        |                                          |   |
| Section 1.  | Registered Office                             |   |
|        |                                          |   |
| Section 2.  | Other Offices                                 |   |
|        |                                          |   |
| ARTICLE II  | CORPORATE SEAL                                |   |
|        |                                          |   |
| Section 3.  | Corporate Seal                                |   |
|        |                                          |   |
| ARTICLE III | STOCKHOLDERS’  MEETINGS                  |   |
|        |                                          |   |
| Section 4.  | Place Of Meetings                             |   |
|        |                                          |   |
| Section 5.  | Annual Meetings                               |   |
|        |                                          |   |
| Section 6.  | Special Meetings                              |   |
|        |                                          |   |
| Section 7.  | Notice Of Meetings                            |   |
|        |                                          |   |
| Section 8.  | Quorum                                        |   |
|        |                                          |   |
| Section 9.  | Adjournment And Notice Of  Adjourned Meetings |   |
|        |                                          |   |
| Section 10. | Voting Rights                                 |   |
|        |                                          |   |
| Section 11. | Joint Owners Of Stock                         |   |
|        |                                          |   |
| Section 12. | List Of Stockholders                          |   |
|        |                                          |   |
| Section 13. | Action Without Meeting                        |   |
|        |                                          |   |
| Section 14. | Organization                                  |   |
|        |                                          |   |
| ARTICLE IV  | DIRECTORS                                     |   |
|        |                                          |   |
| Section 15. | Number And Term Of Office                     |   |
|        |                                          |   |
| Section 16. | Powers                                        |   |
|        |                                          |   |
| Section 17. | Board of Directors                            |   |
|        |                                          |   |
| Section 18. | Vacancies                                     |   |
|        |                                          |   |
| Section 19. | Resignation                                   |   |
|        |                                          |   |
| Section 20. | Removal.                                      |   |
|        |                                          |   |
| Section 21. | Meetings                                      |   |
|        |                                          |   |
| Section 22. | Quorum And Voting                             |   |
|        |                                          |   |
| Section 23. | Action Without Meeting                        |   |
|        |                                          |   |
| Section 24. | Fees And Compensation                         |   |
|        |                                          |   |
| Section 25. | Committees                                    |   |
|        |                                          |   |
| Section 26. | Organization                                  |   |
|        |                                          |   |
| ARTICLE V   | OFFICERS                                      |   |
|        |                                          |   |
| Section 27. | Officers Designated                           |   |
|        |                                          |   |
| Section 28. | Tenure And Duties Of  Officers                |   |
|        |                                          |   |
| Section 29. | Delegation Of Authority                       |   |
|        |                                          |   |
| Section 30. | Resignations                                  |   |
|        |                                          |   |
| Section 31. | Removal                                       |   |

 

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| ARTICLE  VI   | EXECUTION  OF CORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION         |   |
|---------------|-----------------------------------------------------------------------------------------------|--------|
|          |                                                                                          |   |
| Section 32.   | Execution Of Corporate  Instruments                                                           |   |
|          |                                                                                          |   |
| Section 33.   | Voting Of Securities Owned  By The Corporation                                                |   |
|          |                                                                                          |   |
| ARTICLE VII   | SHARES OF STOCK                                                                               |   |
|          |                                                                                          |   |
| Section 34.   | Form And Execution Of  Certificates                                                           |   |
|          |                                                                                          |   |
| Section 35.   | Lost Certificates                                                                             |   |
|          |                                                                                          |   |
| Section 36.   | Transfers                                                                                     |   |
|          |                                                                                          |   |
| Section 37.   | Fixing Record Dates                                                                           |   |
|          |                                                                                          |   |
| Section 38.   | Registered Stockholders                                                                       |   |
|          |                                                                                          |   |
| ARTICLE  VIII | OTHER  SECURITIES OF THE CORPORATION                                                          |   |
|          |                                                                                          |   |
| Section 39.   | Execution Of Other  Securities                                                                |   |
|          |                                                                                          |   |
| ARTICLE IX    | DIVIDENDS                                                                                     |   |
|          |                                                                                          |   |
| Section 40.   | Declaration Of Dividends                                                                      |   |
|          |                                                                                          |   |
| Section 41.   | Dividend Reserve                                                                              |   |
|          |                                                                                          |   |
| ARTICLE X     | FISCAL YEAR                                                                                   |   |
|          |                                                                                          |   |
| Section 42.   | Fiscal Year                                                                                   |   |
|          |                                                                                          |   |
| ARTICLE XI    | INDEMNIFICATION                                                                               |   |
|          |                                                                                          |   |
| Section 43.   | Indemnification Of  Directors, Executive Officers, Other Officers, Employees And Other Agents |   |
|          |                                                                                          |   |
| ARTICLE XII   | NOTICES                                                                                       |   |
|          |                                                                                          |   |
| Section 44.   | Notices                                                                                       |   |
|          |                                                                                          |   |
| Section 45.   | Amendments                                                                                    |   |

** **

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**AMENDED AND RESTATED**

** **

**BYLAWSOFBROADVISION, INC.**

** **

**ARTICLE I**Offices

 

**Section1****.              RegisteredOffice.**  The registered office of the corporation inthe State of Delaware shall be in the City of Wilmington, County of Dover.  

 

**Section2****.              OtherOffices.**  The corporation shall also have and maintainan office or principal place of business at such place as may be fixed by theBoard of Directors, and may also have offices at such other places, both withinand without the State of Delaware as the Board of Directors may from time totime determine or the business of the corporation may require.  

 

**ARTICLE II**CorporateSeal

** **

**Section3****.              CorporateSeal.**  The Board of Directors may adopt a corporateseal.  The corporate seal shall consistof a die bearing the name of the corporation and the inscription, “Corporate Seal– Delaware.”  Said seal may be used bycausing it or a facsimile thereof to be impressed or affixed or reproduced orotherwise. 

 

**ARTICLE III**Stockholders’Meetings

** **

**Section4****.              PlaceOf Meetings.**  Meetings of the stockholders of thecorporation may be held at such place, either within or without the State ofDelaware, as may be determined from time to time by the Board of Directors. TheBoard of Directors may, in its sole discretion, determine that the meetingshall not be held at any place, but may instead be held solely by means ofremote communication as provided under the Delaware General Corporation Law(“DGCL”). 

 

**Section5****.              AnnualMeetings.**

 

**(a)          **The annual meeting of the stockholders ofthe corporation, for the purpose of election of directors and for such otherbusiness as may lawfully come before it, shall be held on such date and at suchtime as may be designated from time to time by the Board of Directors.  

 

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Nominations of personsfor election 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:  (i) pursuant to thecorporation’s notice of meeting of stockholders; (ii) by or at the direction ofthe Board of Directors; or (iii) by any stockholder of the corporation who wasa stockholder of record at the time of giving the stockholder’s notice providedfor in the following paragraph, who is entitled to vote at the meeting and whocomplied with the notice procedures set forth in Section 5. 

 

**(b)          **At an annual meeting of the stockholders,only such business shall be conducted as shall have been properly broughtbefore the meeting.  For nominations orother business to be properly brought before an annual meeting by a stockholderpursuant to clause (iii) of Section 5(a) of these Bylaws, (i) thestockholder must have given timely notice thereof in writing to the Secretaryof the corporation, (ii) such other business must be a proper matter for stockholderaction under DGCL, (iii) if the stockholder, or the beneficial owner on whosebehalf any such proposal or nomination is made, has provided the corporationwith a Solicitation Notice (as defined in clause (iii) of the last sentence ofthis Section 5(b)), such stockholder or beneficial owner must, in the caseof a proposal, have delivered a proxy statement and form of proxy to holders ofat least the percentage of the corporation’s voting shares required underapplicable law to carry any such proposal, or, in the case of a nomination ornominations, have delivered a proxy statement and form of proxy to holders of apercentage of the corporation’s voting shares reasonably believed by suchstockholder or beneficial owner to be sufficient to elect the nominee ornominees proposed to be nominated by such stockholder, and must, in eithercase, have included in such materials the Solicitation Notice, and (iv) if noSolicitation Notice relating thereto has been timely provided pursuant to thissection, 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 thisSection 5.  To be timely, astockholder’s notice shall be delivered to the Secretary at the principalexecutive offices of the corporation not later than the close of business onthe ninetieth (90th) day nor earlier than the close of business onthe one hundred twentieth (120th) day prior to the first anniversaryof the preceding year’s annual meeting; provided, however, that in the eventthat the date of the annual meeting is advanced more than thirty (30) daysprior to or delayed by more than thirty (30) days after the anniversary of thepreceding year’s annual meeting, notice by the stockholder to be timely must beso delivered not earlier than the close of business on the one hundredtwentieth (120th) day prior to such annual meeting and not laterthan the close of business on the later of the ninetieth (90th) dayprior to such annual meeting or the tenth (10th) day following theday on which public announcement of the date of such meeting is firstmade.  In no event shall the publicannouncement of an adjournment of an annual meeting commence a new time periodfor the giving of a stockholder’s notice as described above.  Such stockholder’s notice shall setforth:  (A) as to each person whom thestockholder proposed to nominate for election or reelection as a director allinformation relating to such person that is required to be disclosed insolicitations of proxies for election of directors in an election contest, oris otherwise required, in each case pursuant to Regulation 14A under theSecurities Exchange Act of 1934, as amended (the “1934 Act”) and Rule 14a-4(d)thereunder (including such person’s written consent to being named in the proxystatement as a nominee and to serving as a director if elected); (B) as to anyother business that the stockholder proposes to bring before the meeting, abrief description of the business desired to be brought before the meeting, thereasons for conducting such business at the meeting and any material interestin such business of such stockholder and the beneficial

 

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owner, if any, on whosebehalf the proposal is made; and (C) as to the stockholder giving the noticeand the beneficial owner, if any, on whose behalf the nomination or proposal ismade (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 which 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 the 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”).

 

**(c)          **Notwithstanding anything in the thirdsentence of Section 5(b) of these Bylaws to the contrary, in the eventthat the number of directors to be elected to the Board of Directors of thecorporation is increased and there is no public announcement naming all of thenominees for director or specifying the size of the increased Board of Directorsmade by the corporation at least one hundred (100) days prior to the firstanniversary of the preceding year’s annual meeting, a stockholder’s noticerequired by this Section 5 shall also be considered timely, but only withrespect to nominees for any new positions created by such increase, if it shallbe delivered to the Secretary at the principal executive offices of thecorporation not later than the close of business on the tenth (10th)day following the day on which such public announcement is first made by thecorporation.

 

**(d)          **Only such persons who are nominated inaccordance with the procedures set forth in this Section 5 shall beeligible to serve as directors and only such business shall be conducted at ameeting of stockholders as shall have been brought before the meeting inaccordance with the procedures set forth in this Section 5.  Except as otherwise provided by law, theChairman of the meeting shall have the power and duty to determine whether a nominationor any business proposed to be brought before the meeting was made, orproposed, as the case may be, in accordance with the procedures set forth inthese Bylaws and, if any proposed nomination or business is not in compliancewith these Bylaws, to declare that such defective proposal or nomination shallnot be presented for stockholder action at the meeting and shall bedisregarded.

 

**(e)          **Notwithstanding the foregoing provisionsof this Section 5, in order to include information with respect to astockholder proposal in the proxy statement and form of proxy for astockholders’ meeting, stockholders must provide notice as required by theregulations promulgated under the 1934 Act. Nothing in these Bylaws shall be deemed to affect any rights ofstockholders to request inclusion of proposals in the corporation proxystatement pursuant to Rule 14a-8 under the 1934 Act.

 

**(f)           **For purposes of this Section 5,“public announcement” shall mean disclosure in a press release reported by theDow Jones News Service, Associated Press or comparable national news service orin a document publicly filed by the corporation with the Securities andExchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.

 

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**Section6****.              SpecialMeetings.**

 

**(a)          **Special meetings of the stockholders ofthe corporation may be called, for any purpose or purposes, by (i) theChairman of the Board of Directors, (ii) the Chief Executive Officer, or(iii) the Board of Directors pursuant to a resolution adopted by amajority of the total number of authorized directors (whether or not thereexist any vacancies in previously authorized directorships at the time any suchresolution is presented to the Board of Directors for adoption).

 

**(b)          **If a special meeting is properly calledby any person or persons other than the Board of Directors, the request shallbe in writing, specifying the general nature of the business proposed to betransacted, and shall be delivered personally or sent by certified orregistered mail, return receipt requested, to the Chairman of the Board ofDirectors, the Chief Executive Officer, or the Secretary of thecorporation.  No business may betransacted at such special meeting otherwise than specified in such notice.  The Board of Directors shall determine thetime and place of such special meeting, which shall be held not less thanthirty-five (35) nor more than one hundred twenty (120) days after the date ofthe receipt of the request.  Upondetermination of the time and place of the meeting, the officer receiving therequest shall cause notice to be given to the stockholders entitled to vote, inaccordance with the provisions of Section 7 of these Bylaws.  Nothing contained in this paragraph (b)shall be construed as limiting, fixing, or affecting the time when a meeting ofstockholders called by action of the Board of Directors may be held.

 

**(c)          **Nominations of persons for election tothe Board of Directors may be made at a special meeting of stockholders atwhich directors are to be elected pursuant to the corporation’s notice ofmeeting (i) by or at the direction of the Board of Directors or (ii) by anystockholder of the corporation who is a stockholder of record at the time ofgiving notice provided for in these Bylaws who shall be entitled to vote at themeeting and who complies with the notice procedures set forth in thisSection 6(c).  In the event thecorporation calls a special meeting of stockholders for the purpose of electingone or more directors to the Board of Directors, any such stockholder may nominatea person or persons (as the case may be), for election to such position(s) asspecified in the corporation’s notice of meeting, if the stockholder’s noticerequired by Section 5(b) of these Bylaws shall be delivered to theSecretary at the principal executive offices of the corporation not earlierthan the close of business on the one hundred twentieth (120th)day prior to such special meeting and not later than the close ofbusiness on the later of the ninetieth (90th) day prior to suchmeeting or the tenth (10th) day following the day on which publicannouncement is first made of the date of the special meeting and of thenominees proposed by the Board of Directors to be elected at such meeting.  In no event shall the public announcement ofan adjournment of a special meeting commence a new time period for the givingof a stockholder’s notice as described above.

 

**Section7****.              NoticeOf Meetings.**  Except as otherwise provided by law, notice,given in writing or by electronic transmission, of each meeting of stockholdersshall be given not less than ten (10) nor more than sixty (60) days before thedate of the meeting to each stockholder entitled to vote at such meeting, suchnotice to specify the place, if any, date and hour, in the case of specialmeetings, the purpose or purposes of the meeting, and the means of remotecommunications, if any, by which stockholders and proxy holders may be deemedto be present in person and vote at any such meeting.  If mailed, notice is given when deposited in the United

 

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States mail, postageprepaid, directed to the stockholder at such stockholder’s address as itappears on the records of the corporation. Notice of the time, place, if any, and purpose of any meeting of stockholdersmay be waived in writing, signed by the person entitled to notice thereof, orby electronic transmission by such person, either before or after such meeting,and will be waived by any stockholder by his attendance thereat in person, byremote communication, if applicable, or by proxy, except when the stockholderattends a meeting for the express purpose of objecting, at the beginning of themeeting, to the transaction of any business because the meeting is not lawfullycalled or convened.  Any stockholder sowaiving notice of such meeting shall be bound by the proceedings of any suchmeeting in all respects as if due notice thereof had been given. 

 

**Section8****.              Quorum.** At all meetings of stockholders, except where otherwise provided bystatute or by the Certificate of Incorporation, or by these Bylaws, thepresence, in person, by remote communication, if applicable, or by proxy dulyauthorized, of the holders of a majority of the outstanding shares of stockentitled to vote shall constitute a quorum for the transaction ofbusiness.  In the absence of a quorum,any meeting of stockholders may be adjourned, from time to time, either by thechairman of the meeting or by vote of the holders of a majority of the sharesrepresented thereat, but no other business shall be transacted at suchmeeting.  The stockholders present at aduly called or convened meeting, at which a quorum is present, may continue totransact business until adjournment, notwithstanding the withdrawal of enoughstockholders to leave less than a quorum. Except as otherwise provided by statute or by applicable stock exchangeor Nasdaq rules, or by the Certificate of Incorporation or these Bylaws, in allmatters other than the election of directors, the affirmative vote of themajority of shares present in person, by remote communication, if applicable,or represented by proxy at the meeting and entitled to vote generally on thesubject matter shall be the act of the stockholders.  Except as otherwise provided by statute, the Certificate ofIncorporation or these Bylaws, directors shall be elected by a plurality of thevotes of the shares present in person, by remote communication, if applicable,or represented by proxy at the meeting and entitled to vote generally on theelection of directors.  Where a separatevote by a class or classes or series is required, except where otherwiseprovided by the statute or by the Certificate of Incorporation or these Bylaws,a majority of the outstanding shares of such class or classes or series, presentin person, by remote communication, if applicable, or represented by proxy dulyauthorized, shall constitute a quorum entitled to take action with respect tothat vote on that matter. Except where otherwise provided by statute or by theCertificate of Incorporation or these Bylaws, the affirmative vote of themajority (plurality, in the case of the election of directors) of shares ofsuch class or classes or series present in person, by remote communication, ifapplicable, or represented by proxy at the meeting shall be the act of suchclass or classes or series.

 

**Section9****.              AdjournmentAnd Notice Of Adjourned Meetings.**  Any meetingof stockholders, whether annual or special, may be adjourned from time to timeeither by the chairman of the meeting or by the vote of a majority of theshares present in person, by remote communication, if applicable, orrepresented by proxy at the meeting. When a meeting is adjourned to another time or place, if any, noticeneed not be given of the adjourned meeting if the time and place, if any,thereof are announced at the meeting at which the adjournment is taken.  At the adjourned meeting, the corporationmay transact any business which might have been transacted at the original meeting.  If the adjournment is for more than thirty(30) days or if

 

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after the adjournment anew record date is fixed for the adjourned meeting, a notice of the adjournedmeeting shall be given to each stockholder of record entitled to vote at themeeting.  

 

**Section10****.            VotingRights.**  For the purpose of determining thosestockholders entitled to vote at any meeting of the stockholders, except asotherwise provided by law, only persons in whose names shares stand on thestock records of the corporation on the record date, as provided inSection 12 of these Bylaws, shall be entitled to vote at any meeting ofstockholders.  Every person entitled tovote shall have the right to do so either in person, by remote communication,if applicable, or by an agent or agents authorized by a proxy granted inaccordance with Delaware law.  An agentso appointed need not be a stockholder. No proxy shall be voted after three (3) years from its date of creationunless the proxy provides for a longer period. 

 

**Section11****.            JointOwners Of Stock.**  If shares or other securities having votingpower stand of record in the names of two (2) or more persons, whetherfiduciaries, members of a partnership, joint tenants, tenants in common,tenants by the entirety, or otherwise, or if two (2) or more persons have thesame fiduciary relationship respecting the same shares, unless the Secretary isgiven written notice to the contrary and is furnished with a copy of theinstrument or order appointing them or creating the relationship wherein it isso provided, their acts with respect to voting shall have the followingeffect:  (a) if only one (1) votes,his act binds all; (b) if more than one (1) votes, the act of the majorityso voting binds all; (c) if more than one (1) votes, but the vote isevenly split on any particular matter, each faction may vote the securities inquestion proportionally, or may apply to the Delaware Court of Chancery forrelief as provided in the DGCL, Section 217(b).  If the instrument filed with the Secretary shows that any suchtenancy is held in unequal interests, a majority or even-split for the purposeof subsection (c) shall be a majority or even-split in interest.  

 

**Section12****.            ListOf Stockholders.**  The Secretary shall prepare and make, atleast ten (10) days before every meeting of stockholders, a complete list ofthe stockholders entitled to vote at said meeting, arranged in alphabeticalorder, showing the address of each stockholder and the number of sharesregistered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for anypurpose germane to the meeting, (a) on a reasonably accessible electronicnetwork, provided that the information required to gain access to such list isprovided with the notice of the meeting, or (b) during ordinary business hours,at the principal place of business of the corporation.  In the event that the corporation determinesto make the list available on an electronic network, the corporation may takereasonable steps to ensure that such information is available only tostockholders of the corporation.  Thelist shall be open to the examination of any stockholder during the time of themeeting as provided by law.  

 

**Section13****.            ActionWithout Meeting.**Noaction shall be taken by the stockholders except at an annual or specialmeeting of stockholders called in accordance with these Bylaws, and no actionshall be taken by the stockholders by written consent or by electronictransmission.

 

**Section14****.            Organization.**

 

**(a)          **At every meeting of stockholders, theChairman of the Board of Directors, or, if a Chairman has not been appointed oris absent, the President, or, if the President is absent, 

 

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a chairman of the meetingchosen by a majority in interest of the stockholders entitled to vote, presentin person or by proxy, shall act as chairman. The Secretary, or, in his absence, an Assistant Secretary directed to doso by the President, shall act as secretary of the meeting.

 

**(b)          **The Board of Directors of the corporationshall be entitled to make such rules or regulations for the conduct of meetingsof stockholders as it shall deem necessary, appropriate or convenient.  Subject to such rules and regulations of theBoard of Directors, if any, the chairman of the meeting shall have the rightand authority to prescribe such rules, regulations and procedures and to do allsuch acts as, in the judgment of such chairman, are necessary, appropriate orconvenient for the proper conduct of the meeting, including, withoutlimitation, establishing an agenda or order of business for the meeting, rulesand procedures for maintaining order at the meeting and the safety of thosepresent, limitations on participation in such meeting to stockholders of recordof the corporation and their duly authorized and constituted proxies and suchother persons as the chairman shall permit, restrictions on entry to themeeting after the time fixed for the commencement thereof, limitations on thetime allotted to questions or comments by participants and regulation of theopening and closing of the polls for balloting on matters which are to be votedon by ballot.  The date and time of theopening and closing of the polls for each matter upon which the stockholderswill vote at the meeting shall be announced at the meeting.  Unless and to the extent determined by theBoard of Directors or the chairman of the meeting, meetings of stockholdersshall not be required to be held in accordance with rules of parliamentary procedure.

 

**ARTICLE IV**Directors

** **

**Section15****.            NumberAnd Term Of Office.**  The authorized number of directors of thecorporation shall be fixed in accordance with the Certificate ofIncorporation.  Directors need not bestockholders unless so required by the Certificate of Incorporation.  If for any cause, the directors shall nothave been elected at an annual meeting, they may be elected as soon thereafteras convenient at a special meeting of the stockholders called for that purposein the manner provided in these Bylaws.

 

**Section16****.            Powers.** The powers of the corporation shall be exercised, its business conductedand its property controlled by the Board of Directors, except as may beotherwise provided by statute or by the Certificate of Incorporation. 

 

**Section17****.            Boardof Directors.**  Subject to the rights of the holders of anyseries of Preferred Stock to elect additional directors under specifiedcircumstances, directors shall be elected at each annual meeting ofstockholders for a term of one year.  Eachdirector shall serve until his successor is duly elected and qualified or untilhis death, resignation or removal.  Nodecrease in the number of directors constituting the Board of Directors shallshorten the term of any incumbent director.

 

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**Section18****.            Vacancies.**

 

**(a)          **Unless otherwise provided in theCertificate of Incorporation and subject to the rights of the holders of anyseries of Preferred Stock, any vacancies on the Board of Directors resultingfrom death, resignation, disqualification, removal or other causes and anynewly created directorships resulting from any increase in the number ofdirectors shall, unless the Board of Directors determines by resolution thatany such vacancies or newly created directorships shall be filled bystockholders, be filled only by the affirmative vote of a majority of thedirectors then in office, even though less than a quorum of the Board ofDirectors.  Any director elected inaccordance with the preceding sentence shall hold office for the remainder ofthe full term of the director for which the vacancy was created or occurred anduntil such director’s successor shall have been elected and qualified.  A vacancy in the Board of Directors shall bedeemed to exist under this Section 18 in the case of the death, removal orresignation of any director.

 

**Section19****.            Resignation.** Any director may resign at any time by delivering his or her notice inwriting or by electronic transmission to the Secretary, such resignation tospecify whether it will be effective at a particular time, upon receipt by theSecretary or at the pleasure of the Board of Directors.  If no such specification is made, it shallbe deemed effective at the pleasure of the Board of Directors.  When one or more directors shall resign fromthe Board of Directors, effective at a future date, a majority of the directorsthen in office, including those who have so resigned, shall have power to fillsuch vacancy or vacancies, the vote thereon to take effect when suchresignation or resignations shall become effective, and each Director so chosenshall hold office for the unexpired portion of the term of the Director whoseplace shall be vacated and until his successor shall have been duly elected andqualified.

** **

**Section20****.            Removal.** Subject to the rights of the holders ofany series of Preferred Stock, (a) with cause by the affirmative vote of theholders of a majority of the voting power of all the then-outstanding shares ofcapital stock of the corporation, entitled to vote generally at an election ofdirectors or (b) without cause by the affirmative vote of the holders of atleast sixty-six and two-thirds percent(66 2/3%) of the voting power of all the then-outstanding shares of thecapital stock of the corporation entitled to vote generally at an election ofdirectors. 

 

**Section21****.            Meetings.**

 

**(a)           RegularMeetings.**  Unless otherwise restricted by theCertificate of Incorporation, regular meetings of the Board of Directors may beheld at any time or date and at any place within or without the State ofDelaware which has been designated by the Board of Directors and publicizedamong all directors, either orally or in writing, by telephone, including avoice-messaging system or other system designed to record and communicatemessages, facsimile, telegraph or telex, or by electronic mail or otherelectronic means.  No further noticeshall be required for regular meetings of the Board of Directors. 

 

**(b)           SpecialMeetings. **Unless otherwise restricted by the Certificateof Incorporation, special meetings of the Board of Directors may be held at anytime and place within or without the State of Delaware whenever called by theChairman of the Board, the President ora majority of the authorized number of directors. 

 

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**(c)           Meetingsby Electronic Communications Equipment. **Any memberof the Board of Directors, or of any committee thereof, may participate in ameeting by means of conference telephone or other communications equipment bymeans of which all persons participating in the meeting can hear each other,and participation in a meeting by such means shall constitute presence inperson at such meeting. 

 

**(d)           Noticeof Special Meetings. **Notice of the time and place of allspecial meetings of the Board of Directors shall be orally or in writing, bytelephone, including a voice messaging system or other system or technologydesigned to record and communicate messages, facsimile, telegraph or telex, orby electronic mail or other electronic means, during normal business hours, atleast twenty-four (24) hours before the date and time of the meeting. If noticeis sent by U.S. mail, it shall be sent by first class mail, charges prepaid, atleast three (3) days before the date of the meeting.  Notice of any meeting may be waived in writing, or by electronictransmission, at any time before or after the meeting and will be waived by anydirector by attendance thereat, except when the director attends the meetingfor the express purpose of objecting, at the beginning of the meeting, to thetransaction of any business because the meeting is not lawfully called orconvened.

 

**(e)           Waiverof Notice. **The transaction of all business at anymeeting of the Board of Directors, or any committee thereof, however called ornoticed, or wherever held, shall be as valid as though had at a meeting dulyheld after regular call and notice, if a quorum be present and if, eitherbefore or after the meeting, each of the directors not present who did notreceive notice shall sign a written waiver of notice or shall waive notice byelectronic transmission.  All suchwaivers shall be filed with the corporate records or made a part of the minutesof the meeting.

 

**Section22****.            QuorumAnd Voting.**

 

**(a)          **Unless the Certificate of Incorporationrequires a greater number, a quorum of the Board of Directors shall consist ofa majority of the exact number of directors fixed from time to time by theBoard of Directors in accordance with the Certificate of Incorporation; *provided,however,* at any meeting whether a quorum be present or otherwise, amajority of the directors present may adjourn from time to time until the timefixed for the next regular meeting of the Board of Directors, without noticeother than by announcement at the meeting.

 

**(b)          **At each meeting of the Board of Directorsat which a quorum is present, all questions and business shall be determined bythe affirmative vote of a majority of the directors present, unless a differentvote be required by law, the Certificate of Incorporation or these Bylaws.

 

**Section23****.            ActionWithout Meeting.**  Unless otherwise restricted by theCertificate of Incorporation or these Bylaws, any action required or permittedto be taken at any meeting of the Board of Directors or of any committeethereof may be taken without a meeting, if all members of the Board ofDirectors or committee, as the case may be, consent thereto in writing or byelectronic transmission, and such writing or writings or transmission ortransmissions are filed with the minutes of proceedings of the Board ofDirectors or committee.  Such filingshall

 

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be in paper form if theminutes are maintained in paper form and shall be in electronic form if the minutesare maintained in electronic form.

** **

**Section24****.            FeesAnd Compensation.**  Directors shall be entitled to suchcompensation for their services as may be approved by the Board of Directors,including, if so approved, by resolution of the Board of Directors, a fixed sumand expenses of attendance, if any, for attendance at each regular or specialmeeting of the Board of Directors and at any meeting of a committee of theBoard of Directors.  Nothing hereincontained shall be construed to preclude any director from serving thecorporation in any other capacity as an officer, agent, employee, or otherwiseand receiving compensation therefor.

 

**Section25****.            Committees.**

 

**(a)           ExecutiveCommittee.**  The Board of Directors may by resolutionpassed by a majority of the whole Board of Directors appoint an ExecutiveCommittee to consist of one (1) or more members of the Board of Directors.  The Executive Committee, to the extentpermitted by law and provided in the resolution of the Board of Directors shallhave and may exercise all the powers and authority of the Board of Directors inthe management of the business and affairs of the corporation, includingwithout limitation the power or authority to declare a dividend, to authorizethe issuance of stock and to adopt a certificate of ownership and merger, andmay authorize the seal of the corporation to be affixed to all papers which mayrequire it; but no such committee shall have the power or authority inreference to amending the Certificate of Incorporation (except that a committeemay, to the extent authorized in the resolution or resolutions providing forthe issuance of shares of stock adopted by the Board of Directors fix thedesignations and any of the preferences or rights of such shares relating todividends, redemption, dissolution, any distribution of assets of thecorporation or the conversion into, or the exchange of such shares for, sharesof any other class or classes or any other series of the same or any otherclass or classes of stock of the corporation or fix the number of shares of anyseries of stock or authorize the increase or decrease of the shares of anyseries), adopting an agreement of merger or consolidation, recommending to thestockholders the sale, lease or exchange of all or substantially all of thecorporation’s property and assets, recommending to the stockholders adissolution of the corporation or a revocation of a dissolution, or amendingthe bylaws of the corporation.

 

**(b)           OtherCommittees.**  The Board of Directors may, from time totime, appoint such other committees as may be permitted by law.  Such other committees appointed by the Boardof Directors shall consist of one (1) or more members of the Board of Directorsand shall have such powers and perform such duties as may be prescribed by theresolution or resolutions creating such committees, but in no event shall anysuch committee have the powers denied to the Executive Committee in theseBylaws.

 

**(c)           Term.** The Board of Directors, subject to any requirements of any outstandingseries of Preferred Stock and the provisions of subsections (a) or (b) ofthis Section 25, may at any time increase or decrease the number of members ofa committee or terminate the existence of a committee.  The membership of a committee member shallterminate on the date of his death or voluntary resignation from the committeeor from the Board of Directors.  TheBoard of Directors may at any time for any reason remove any individualcommittee member 

 

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and the Board ofDirectors may fill any committee vacancy created by death, resignation, removalor increase in the number of members of the committee.  The Board of Directors may designate one ormore directors as alternate members of any committee, who may replace anyabsent or disqualified member at any meeting of the committee, and, inaddition, in the absence or disqualification of any member of a committee, themember or members thereof present at any meeting and not disqualified fromvoting, whether or not he or they constitute a quorum, may unanimously appointanother member of the Board of Directors to act at the meeting in the place ofany such absent or disqualified member. 

 

**(d)           Meetings.** Unless the Board of Directors shall otherwise provide, regular meetingsof the Executive Committee or any other committee appointed pursuant to thisSection 25 shall be held at such times and places as are determined by theBoard of Directors, or by any such committee, and when notice thereof has beengiven to each member of such committee, no further notice of such regularmeetings need be given thereafter. Special meetings of any such committee may be held at any place whichhas been determined from time to time by such committee, and may be called byany director who is a member of such committee, upon notice (written or byelectronic transmission) to the members of such committee of the time and placeof such special meeting given in the manner provided for the giving of notice(written or by electronic transmission) to members of the Board of Directors ofthe time and place of special meetings of the Board of Directors.  Notice of any special meeting of anycommittee may be waived in writing or by electronic transmission at any timebefore or after the meeting and will be waived by any director by attendancethereat, except when the director attends such special meeting for the expresspurpose of objecting, at the beginning of the meeting, to the transaction ofany business because the meeting is not lawfully called or convened.  Unless otherwise provided by the Board ofDirectors in the resolutions authorizing the creation of the committee, amajority of the authorized number of members of any such committee shallconstitute a quorum for the transaction of business, and the act of a majorityof those present at any meeting at which a quorum is present shall be the actof such committee.

 

**Section26****.            Organization.**  Atevery meeting of the directors, the Chairman of the Board of Directors, or, ifa Chairman has not been appointed or is absent, the President (if a director),or if the President is absent, the most senior Vice President (if a director),or, in the absence of any such person, a chairman of the meeting chosen by amajority of the directors present, shall preside over the meeting.  The Secretary, or in his absence, anyAssistant Secretary directed to do so by the President, shall act as secretaryof the meeting.

 

**ARTICLE V**Officers

** **

**Section27****.            OfficersDesignated.**  The officers of the corporation shall include,if and when designated by the Board of Directors, the Chairman of the Board ofDirectors, the Chief Executive Officer, the President, one or more VicePresidents, the Secretary, the Chief Financial Officer, the Treasurer and theController, all of whom shall be elected at the annual organizational meetingof the Board of Directors.  The Board ofDirectors may also appoint one or more Assistant Secretaries, AssistantTreasurers, Assistant Controllers and such other officers and agents with suchpowers and duties as it shall deem necessary. The Board of Directors may

 

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assign such additionaltitles to one or more of the officers as it shall deem appropriate.  Any one person may hold any number of officesof the corporation at any one time unless specifically prohibited therefrom bylaw.  The salaries and othercompensation of the officers of the corporation shall be fixed by or in themanner designated by the Board of Directors.

 

**Section28****.            TenureAnd Duties Of Officers.**

 

**(a)           General.** All officers shall hold office at the pleasure of the Board of Directorsand until their successors shall have been duly elected and qualified, unlesssooner removed.  Any officer elected orappointed by the Board of Directors may be removed at any time by the Board ofDirectors.  If the office of any officerbecomes vacant for any reason, the vacancy may be filled by the Board ofDirectors. 

 

**(b)           Dutiesof Chairman of the Board of Directors.**  The Chairmanof the Board of Directors, when present, shall preside at all meetings of thestockholders and the Board of Directors. The Chairman of the Board of Directors shall perform other dutiescommonly incident to the office and shall also perform such other duties andhave such other powers, as the Board of Directors shall designate from time totime.  If there is no President, thenthe Chairman of the Board of Directors shall also serve as the Chief ExecutiveOfficer of the corporation and shall have the powers and duties prescribed inparagraph (c) of this Section 28. 

 

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

 

**(d)           Dutiesof Vice Presidents.**  The Vice Presidents may assume and performthe duties of the President in the absence or disability of the President orwhenever the office of President is vacant. The Vice Presidents shall perform other duties commonly incident totheir office and shall also perform such other duties and have such otherpowers as the Board of Directors or the President shall designate from time totime.  

 

**(e)           Dutiesof Secretary.**  The Secretary shall attend all meetings ofthe stockholders and of the Board of Directors and shall record all acts andproceedings thereof in the minute book of the corporation.  The Secretary shall give notice inconformity with these Bylaws of all meetings of the stockholders and of allmeetings of the Board of Directors and any committee thereof requiringnotice.  The Secretary shall perform allother duties provided for in these Bylaws and other duties commonly incident tothe office and shall also perform such other duties and have such other powers,as the Board of Directors shall designate from time to time.  The President may direct any AssistantSecretary to assume and perform the duties of the Secretary in the absence ordisability of the Secretary, and each Assistant Secretary shall perform otherduties commonly incident to the office and shall also perform such other dutiesand have such other powers as the Board of Directors or the President shalldesignate from time to time.  

 

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**(f)            Dutiesof Chief Financial Officer.**  The ChiefFinancial Officer shall keep or cause to be kept the books of account of thecorporation in a thorough and proper manner and shall render statements of thefinancial affairs of the corporation in such form and as often as required bythe Board of Directors or the President. The Chief Financial Officer, subject to the order of the Board ofDirectors, shall have the custody of all funds and securities of thecorporation.  The Chief FinancialOfficer shall perform other duties commonly incident to the office and shallalso perform such other duties and have such other powers as the Board ofDirectors or the President shall designate from time to time.  The President may direct the Treasurer orany Assistant Treasurer, or the Controller or any Assistant Controller toassume and perform the duties of the Chief Financial Officer in the absence ordisability of the Chief Financial Officer, and each Treasurer and AssistantTreasurer and each Controller and Assistant Controller shall perform otherduties commonly incident to the office and shall also perform such other dutiesand have such other powers as the Board of Directors or the President shalldesignate from time to time. 

 

**Section29****.            DelegationOf Authority.**  The Board of Directors may from time to timedelegate the powers or duties of any officer to any other officer or agent,notwithstanding any provision hereof.

 

**Section30****.            Resignations.**  Anyofficer may resign at any time by giving notice in writing or by electronictransmission to the Board of Directors or to the President or to theSecretary.  Any such resignation shallbe effective when received by the person or persons to whom such notice isgiven, unless a later time is specified therein, in which event the resignationshall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any suchresignation shall not be necessary to make it effective.  Any resignation shall be without prejudiceto the rights, if any, of the corporation under any contract with the resigningofficer. 

 

**Section31****.            Removal.**  Anyofficer may be removed from office at any time, either with or without cause,by the affirmative vote of a majority of the directors in office at the time,or by the unanimous written consent of the directors in office at the time, orby any committee or superior officers upon whom such power of removal may havebeen conferred by the Board of Directors.

 

**ARTICLE VI**ExecutionOf Corporate Instruments And Voting Of Securities Owned By The Corporation

** **

**Section32****.            ExecutionOf Corporate Instruments.**  The Board of Directors may, inits discretion, determine the method and designate the signatory officer orofficers, or other person or persons, to execute on behalf of the corporationany corporate instrument or document, or to sign on behalf of the corporationthe corporate name without limitation, or to enter into contracts on behalf ofthe corporation, except where otherwise provided by law or these Bylaws, andsuch execution or signature shall be binding upon the corporation.  All checks and drafts drawn on banks orother depositaries on funds to the credit of the corporation or in specialaccounts of the corporation shall be signed by such person or persons as theBoard of Directors

 

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shall authorize so todo.  Unless authorized or ratified bythe Board of Directors or within the agency power of an officer, no officer,agent or employee shall have any power or authority to bind the corporation byany contract or engagement or to pledge its credit or to render it liable forany purpose or for any amount. 

** **

**Section33****.            VotingOf Securities Owned By The Corporation.**  All stock andother securities of other corporations owned or held by the corporation foritself, or for other parties in any capacity, shall be voted, and all proxieswith respect thereto shall be executed, by the person authorized so to do byresolution of the Board of Directors, or, in the absence of such authorization,by the Chairman of the Board of Directors, the Chief Executive Officer, thePresident, or any Vice President.

 

**ARTICLE VII**SharesOf Stock

** **

**Section34****.            FormAnd Execution Of Certificates.**  Certificatesfor the shares of stock of the corporation shall be in such form as isconsistent with the Certificate of Incorporation and applicable law.  Every holder of stock in the corporationshall be entitled to have a certificate signed by or in the name of the corporationby the Chairman of the Board of Directors, or the President or any VicePresident and by the Treasurer or Assistant Treasurer or the Secretary orAssistant Secretary, certifying the number of shares owned by him in thecorporation.  Any or all of thesignatures on the certificate may be facsimiles.  In case any officer, transfer agent, or registrar who has signedor whose facsimile signature has been placed upon a certificate shall haveceased to be such officer, transfer agent, or registrar before such certificateis issued, it may be issued with the same effect as if he were such officer,transfer agent, or registrar at the date of issue.  Each certificate shall state upon the face or back thereof, infull or in summary, all of the powers, designations, preferences, and rights,and the limitations or restrictions of the shares authorized to be issued orshall, except as otherwise required by law, set forth on the face or back astatement that the corporation will furnish without charge to each stockholderwho so requests the powers, designations, preferences and relative,participating, optional, or other special rights of each class of stock orseries thereof and the qualifications, limitations or restrictions of suchpreferences and/or rights.  Within areasonable time after the issuance or transfer of uncertificated stock, thecorporation shall send to the registered owner thereof a written noticecontaining the information required to be set forth or stated on certificatespursuant to this section or otherwise required by law or with respect to thissection a statement that the corporation will furnish without charge to eachstockholder who so requests the powers, designations, preferences and relativeparticipating, optional or other special rights of each class of stock orseries thereof and the qualifications, limitations or restrictions of suchpreferences and/or rights. 

 

**Section35****.            LostCertificates.**  A new certificate or certificates shall beissued in place of any certificate or certificates theretofore issued by thecorporation alleged to have been lost, stolen, or destroyed, upon the making ofan affidavit of that fact by the person claiming the certificate of stock to belost, stolen, or destroyed.  Thecorporation may require, as a condition precedent to the issuance of a new certificateor certificates, the owner of such lost, stolen, or destroyed certificate orcertificates, or the owner’s legal representative, to agree to indemnify the

 

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corporation in suchmanner as it shall require or to give the corporation a surety bond in suchform and amount as it may direct as indemnity against any claim that may bemade against the corporation with respect to the certificate alleged to havebeen lost, stolen, or destroyed. 

 

**Section36****.            Transfers.**

 

**(a)          **Transfers of record of shares of stock ofthe corporation shall be made only upon its books by the holders thereof, inperson or by attorney duly authorized, and upon the surrender of a properlyendorsed certificate or certificates for a like number of shares. 

 

**(b)          **The corporation shall have power to enterinto and perform any agreement with any number of stockholders of any one ormore classes of stock of the corporation to restrict the transfer of shares ofstock of the corporation of any one or more classes owned by such stockholdersin any manner not prohibited by the DGCL.

 

**Section37****.            FixingRecord Dates.**

 

**(a)          **In order that the corporation maydetermine the stockholders entitled to notice of or to vote at any meeting ofstockholders or any adjournment thereof, the Board of Directors may fix, inadvance, a record date, which record date shall not precede the date upon whichthe resolution fixing the record date is adopted by the Board of Directors, andwhich record date shall, subject to applicable law, not be more than sixty (60)nor less than ten (10) days before the date of such meeting.  If no record date is fixed by the Board ofDirectors, 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 day next preceding the day on which notice is given, or if notice iswaived, at the close of business on the day next preceding the day on which themeeting is held.  A determination ofstockholders of record entitled to notice of or to vote at a meeting ofstockholders shall apply to any adjournment of the meeting; *provided,however,* that the Board of Directors may fix a new record date forthe adjourned meeting.

 

**(b)          **In order that the corporation maydetermine the stockholders entitled to receive payment of any dividend or otherdistribution or allotment of any rights or the stockholders entitled toexercise any rights in respect of any change, conversion or exchange of stock,or for the purpose of any other lawful action, the Board of Directors may fix,in advance, a record date, which record date shall not precede the date uponwhich the resolution fixing the record date is adopted, and which record dateshall be not more than sixty (60) days prior to such action.  If no record date is fixed, the record datefor determining stockholders for any such purpose shall be at the close ofbusiness on the day on which the Board of Directors adopts the resolutionrelating thereto.

 

**Section38****.            RegisteredStockholders.**  The corporation shall be entitled torecognize the exclusive right of a person registered on its books as the ownerof shares to receive dividends, and to vote as such owner, and shall not bebound to recognize any equitable or other claim to or interest in such share orshares on the part of any other person whether or not it shall have express orother notice thereof, except as otherwise provided by the laws of Delaware. 

 

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**ARTICLE VIII**Other SecuritiesOf The Corporation

** **

**Section39****.            ExecutionOf Other Securities.**  All bonds, debentures and other corporatesecurities of the corporation, other than stock certificates (covered inSection 34), may be signed by the Chairman of the Board of Directors, thePresident or any Vice President, or such other person as may be authorized bythe Board of Directors, and the corporate seal impressed thereon or a facsimileof such seal imprinted thereon and attested by the signature of the Secretaryor an Assistant Secretary, or the Chief Financial Officer or Treasurer or anAssistant Treasurer; *provided, however,* that where any suchbond, debenture or other corporate security shall be authenticated by themanual signature, or where permissible facsimile signature, of a trustee underan indenture pursuant to which such bond, debenture or other corporate securityshall be issued, the signatures of the persons signing and attesting thecorporate seal on such bond, debenture or other corporate security may be the imprintedfacsimile of the signatures of such persons. Interest coupons appertaining to any such bond, debenture or othercorporate security, authenticated by a trustee as aforesaid, shall be signed bythe Treasurer or an Assistant Treasurer of the corporation or such other personas may be authorized by the Board of Directors, or bear imprinted thereon thefacsimile signature of such person.  Incase any officer who shall have signed or attested any bond, debenture or othercorporate security, or whose facsimile signature shall appear thereon or on anysuch interest coupon, shall have ceased to be such officer before the bond,debenture or other corporate security so signed or attested shall have beendelivered, such bond, debenture or other corporate security nevertheless may beadopted by the corporation and issued and delivered as though the person whosigned the same or whose facsimile signature shall have been used thereon hadnot ceased to be such officer of the corporation.

 

**ARTICLE IX**Dividends

** **

**Section40****.            DeclarationOf Dividends.**  Dividends upon the capital stock of thecorporation, subject to the provisions of the Certificate of Incorporation andapplicable law, if any, may be declared by the Board of Directors pursuant tolaw at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capitalstock, subject to the provisions of the Certificate of Incorporation andapplicable law. 

 

**Section41****.            DividendReserve.**  Before payment of any dividend, there may beset aside out of any funds of the corporation available for dividends such sumor sums as the Board of Directors from time to time, in their absolutediscretion, think proper as a reserve or reserves to meet contingencies, or forequalizing dividends, or for repairing or maintaining any property of thecorporation, or for such other purpose as the Board of Directors shall thinkconducive to the interests of the corporation, and the Board of Directors maymodify or abolish any such reserve in the manner in which it was created.

 

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**ARTICLE X**FiscalYear

** **

**Section42****.            FiscalYear.**  The fiscal year of the corporation shall befixed by resolution of the Board of Directors.

 

**ARTICLE XI**Indemnification

** **

**Section43****.            IndemnificationOf Directors, Executive Officers, Other Officers, Employees And Other Agents.**

 

**(a)           Directorsand Executive Officers.**The corporation shall indemnify its directors andexecutive officers (for the purposes of this Article XI, “executive officers”shall have the meaning defined in Rule 3b-7 promulgated under the 1934 Act) tothe fullest extent not prohibited by the DGCL or any other applicable law; *provided,however,* that the corporation may modify the extent of suchindemnification by individual contracts with its directors and executiveofficers; and, *provided, further,* that the corporation shall not berequired to indemnify any director or executive officer in connection with anyproceeding (or part thereof) initiated by such person unless (i) suchindemnification is expressly required to be made by law, (ii) theproceeding was authorized by the Board of Directors of the corporation,(iii) such indemnification is provided by the corporation, in its solediscretion, pursuant to the powers vested in the corporation under the DGCL orany other applicable law or (iv) such indemnification is required to be madeunder subsection (d).

 

**(b)           OtherOfficers, Employees and Other Agents.**  Thecorporation shall have power to indemnify its other officers, employees andother agents as set forth in the DGCL or any other applicable law.  The Board of Directors shall have the powerto delegate the determination of whether indemnification shall be given to anysuch person (except executive officers) as the Board of Directors shalldetermine.

 

**(c)           Expenses.** The corporation shall advance to any person who was or is a party or isthreatened to be made a party to any threatened, pending or completed action,suit or proceeding, whether civil, criminal, administrative or investigative,by reason of the fact that he is or was a director or****executive officer of the corporation,or is or was serving at the request of the corporation as a director orexecutive officer of another corporation, partnership, joint venture, trust orother enterprise, prior to the final disposition of the proceeding, promptlyfollowing request therefor, all expenses incurred by any director or****executiveofficer in connection with such proceeding provided, however, that ifthe DGCL requires, an advancement of expenses incurred by a director or****executiveofficer****in his or her capacity as a director or****executiveofficer****(and not in any other capacity in whichservice was or is rendered by such indemnitee, including, without limitation,service to an employee benefit plan) shall be made only upon delivery to thecorporation of an undertaking (hereinafter an “undertaking”), by or on behalfof such indemnitee, to repay all amounts so advanced if it shall ultimately bedetermined by final judicial decision from which there is no further right toappeal (hereinafter a “final 

 

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adjudication”) that suchindemnitee is not entitled to be indemnified for such expenses under thisSection 43 or otherwise.

 

Notwithstanding the foregoing, unlessotherwise determined pursuant to paragraph (e) of this Section 43, noadvance shall be made by the corporation to an executive officer of the corporation (except by reason of the fact thatsuch executive officer is or was a director of the corporation in whichevent this paragraph shall not apply) in any action, suit or proceeding,whether civil, criminal, administrative or investigative, if a determination isreasonably and promptly made (i) by a majority vote of directors who werenot parties to the proceeding, even if not a quorum, or (ii) by acommittee of such directors designated by a majority vote of such directors,even though less than a quorum, or (iii) if there are no such directors, orsuch directors so direct, by independent legal counsel in a written opinion,that the facts known to the decision-making party at the time suchdetermination is made demonstrate clearly and convincingly that such personacted in bad faith or in a manner that such person did not believe to be in ornot opposed to the best interests of the corporation.

 

**(d)           Enforcement. **Without the necessity of entering into an expresscontract, all rights to indemnification and advances to directors and executiveofficers under this Section 43 shall be deemed to be contractual rights and beeffective to the same extent and as if provided for in a contract between thecorporation and the director or executive officer.  Any right to indemnification or advances granted by this Section43 to a director or executive officer shall be enforceable by or on behalf ofthe person holding such right in any court of competent jurisdiction if(i) the claim for indemnification or advances is denied, in whole or inpart, or (ii) no disposition of such claim is made within ninety (90) daysof request therefor.  The claimant insuch enforcement action, if successful in whole or in part, shall be entitledto be paid also the expense of prosecuting his claim.  In connection with any claim for indemnification, the corporationshall be entitled to raise as a defense to any such action that the claimanthas not met the standards of conduct that make it permissible under the DGCL orany other applicable law for the corporation to indemnify the claimant for theamount claimed.  In connection with anyclaim by an executive officer of the corporation (except in any action, suit orproceeding, whether civil, criminal, administrative or investigative, by reasonof the fact that such executive officer is or was a director of the corporation)for advances, the corporation shall be entitled to raise a defense as to anysuch action clear and convincing evidence that such person acted in bad faithor in a manner that such person did not believe to be in or not opposed to thebest interests of the corporation, or with respect to any criminal action orproceeding that such person acted without reasonable cause to believe that hisconduct was lawful.  Neither the failureof the corporation (including its Board of Directors, independent legal counselor its stockholders) to have made a determination prior to the commencement ofsuch action that indemnification of the claimant is proper in the circumstancesbecause he has met the applicable standard of conduct set forth in the DGCL orany other applicable law, nor an actual determination by the corporation(including its Board of Directors, independent legal counsel or itsstockholders) that the claimant has not met such applicable standard ofconduct, shall be a defense to the action or create a presumption that claimanthas not met the applicable standard of conduct.  

 

**(e)           Non-Exclusivityof Rights. **The rights conferred on any person bythis Section 43 shall not be exclusive of any other right which such person mayhave or hereafter acquire under any applicable statute, provision of theCertificate of Incorporation, Bylaws, agreement, vote of stockholders ordisinterested directors or otherwise, both as to action in his officialcapacity and as to action in another capacity while holding office.  The corporation is specifically authorizedto enter into individual contracts with any or all of its directors, officers,

 

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employees or agentsrespecting indemnification and advances, to the fullest extent not prohibitedby the DGCL, or by any other applicable law.

 

**(f)            Survivalof Rights. **The rights conferred on any person bythis Section  43 shall continue as to aperson who has ceased to be a director or executive officer or officer,employee or other agent and shall inure to the benefit of the heirs, executorsand administrators of such a person.

 

**(g)           Insurance. **To the fullest extent permitted by the DGCL or anyother applicable law, the corporation, upon approval by the Board of Directors,may purchase insurance on behalf of any person required or permitted to beindemnified pursuant to this Section 43.

 

**(h)           Amendments. **Any repeal or modification of this Section 43shall only be prospective and shall not affect the rights under this Section 43in effect at the time of the alleged occurrence of any action or omission toact that is the cause of any proceeding against any agent of the corporation.

 

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

** **

**(j)            CertainDefinitions. **For the purposes of this Section 43, thefollowing definitions shall apply:

 

**(i)           **The term “proceeding” shall be broadlyconstrued and shall include, without limitation, the investigation,preparation, prosecution, defense, settlement, arbitration and appeal of, andthe giving of testimony in, any threatened, pending or completed action, suitor proceeding, whether civil, criminal, administrative or investigative.

 

**(ii)          **The term “expenses” shall be broadlyconstrued and shall include, without limitation, court costs, attorneys’ fees,witness fees, fines, amounts paid in settlement or judgment and any other costsand expenses of any nature or kind incurred in connection with any proceeding.

 

**(iii)        **The term the “corporation” shall include,in addition to the resulting corporation, any constituent corporation(including any constituent of a constituent) absorbed in a consolidation ormerger which, if its separate existence had continued, would have had power andauthority to indemnify its directors, officers, and employees or agents, sothat any person who is or was a director, officer, employee or agent of suchconstituent corporation, or is or was serving at the request of suchconstituent corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise, shall standin the same position under the provisions of this Section 43 with respectto the resulting or

 

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surviving corporation ashe would have with respect to such constituent corporation if its separateexistence had continued.

 

**(iv)         **References to a “director,” “executiveofficer,” “officer,” “employee,” or “agent” of the corporation shall include,without limitation, situations where such person is serving at the request ofthe corporation as, respectively, a director, executive officer, officer,employee, trustee or agent of another corporation, partnership, joint venture,trust or other enterprise.

 

**(v)           **References to “other enterprises” shallinclude employee benefit plans; references to “fines” shall include any excisetaxes assessed on a person with respect to an employee benefit plan; andreferences to “serving at the request of the corporation” shall include any serviceas a director, officer, employee or agent of the corporation which imposesduties on, or involves services by, such director, officer, employee, or agentwith respect to an employee benefit plan, its participants, or beneficiaries;and a person who acted in good faith and in a manner he reasonably believed tobe in the interest of the participants and beneficiaries of an employee benefitplan shall be deemed to have acted in a manner “not opposed to the bestinterests of the corporation” as referred to in this Section 43.

 

**ARTICLE XII**Notices

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**Section44****.            Notices.**

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**(a)           NoticeTo Stockholders.**Writtennotice to stockholders of stockholder meetings shall be given as provided inSection 7 herein.  Without limiting themanner by which notice may otherwise be given effectively to stockholders underany agreement or contract with such stockholder, and except as otherwiserequired by law, written notice to stockholders for purposes other thanstockholder meetings may be sent by US mail or nationally recognized overnightcourier, or by facsimile, telegraph or telex or by electronic mail or otherelectronic means.

 

**(b)           NoticeTo Directors. **Any notice required to be given to anydirector may be given by the method stated in subsection (a), as otherwiseprovided in these Bylaws, or by overnight delivery service, facsimile, telex ortelegram, except that such notice other than one which is delivered personallyshall be sent to such address as such director shall have filed in writing withthe Secretary, or, in the absence of such filing, to the last known post officeaddress of such director.

 

**(c)           AffidavitOf Mailing. **An affidavit of mailing, executed by aduly authorized and competent employee of the corporation or its transfer agentappointed with respect to the class of stock affected, or other agent,specifying the name and address or the names and addresses of the stockholderor stockholders, or director or directors, to whom any such notice or noticeswas or were given, and the time and method of giving the same, shall in theabsence of fraud, be prima facie evidence of the facts therein contained. 

 

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**(d)           Methodsof Notice. **It shall not be necessary that the samemethod of giving notice be employed in respect of all recipients of notice, butone permissible method may be employed in respect of any one or more, and anyother permissible method or methods may be employed in respect of any other orothers.

 

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

 

**ARTICLE XIII**Amendments

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**Section45****.            Amendments.** Subject to paragraph (h) of Section 43 of the Bylaws, the stockholdersshall have power to adopt, amend or repeal the Bylaws of the corporation; *provided, however,*that, in addition toany vote of the holders of any class or series of stock of the corporationrequired by law or by the Certificate of Incorporation, the affirmative vote ofthe holders of at least a majority of the voting power of all of thethen-outstanding shares of the capital stock of the corporation entitled tovote generally in the election of directors, voting together as a single class,shall be required to adopt, amend or repeal any provision of the Bylaws of thecorporation. The Board of Directors is also expressly empowered to adopt, amendor repeal the Bylaws of the corporation.

 

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