exv4w12



 





Exhibit 4.12



AMENDED AND RESTATED BYLAWS




OF




MOBILITY ELECTRONICS, INC.

(Effective as of May 26, 2004)




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TABLE OF CONTENTS




	 	  	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	Section 1.
	 	Registered Office
	 	 	2	 
	Section 2.
	 	Other Offices
	 	 	2	 
	ARTICLE II
	 	 	 	 
	Section 1.
	 	Place of Meetings
	 	 	2	 
	Section 2.
	 	Annual Meeting
	 	 	2	 
	Section 3.
	 	List of Stockholders
	 	 	2	 
	Section 4.
	 	Special Meetings
	 	 	2	 
	Section 5.
	 	Notice
	 	 	2	 
	Section 6.
	 	Quorum
	 	 	2	 
	Section 7.
	 	Voting
	 	 	2	 
	Section 8.
	 	Method of Voting
	 	 	2	 
	Section 9.
	 	Record Date
	 	 	3	 
	Section 10.
	 	Action by Consent.
	 	 	3	 
	ARTICLE III
	 	 	 	 
	Section 1.
	 	Management.
	 	 	3	 
	Section 2.
	 	Qualification; Election; Term
	 	 	3	 
	Section 3.
	 	Number; Election; Term; Qualification
	 	 	3	 
	Section 4.
	 	Changes in Number
	 	 	4	 
	Section 5.
	 	Removal
	 	 	4	 
	Section 6.
	 	Vacancies
	 	 	4	 
	Section 7.
	 	Place of Meetings
	 	 	5	 
	Section 8.
	 	Annual Meeting
	 	 	5	 
	Section 9.
	 	Regular Meetings
	 	 	5	 
	Section 10.
	 	Special Meetings
	 	 	5	 
	Section 11.
	 	Quorum
	 	 	5	 
	Section 12.
	 	Interested Directors
	 	 	5	 
	Section 13.
	 	Committees
	 	 	7	 
	Section 14.
	 	Action by Consent
	 	 	7	 
	Section 15.
	 	Compensation of Directors.
	 	 	7	 
	ARTICLE IV
	 	 	 	 
	Section 1.
	 	Form of Notice
	 	 	7	 
	Section 2.
	 	Waiver
	 	 	7	 
	ARTICLE V
	 	 	 	 
	Section 1.
	 	In General
	 	 	7	 
	Section 2.
	 	Election
	 	 	7	 
	Section 3.
	 	Other Officers and Agents
	 	 	7	 
	Section 4.
	 	Compensation
	 	 	7	 
	Section 5.
	 	Term of Office and Removal
	 	 	7	 
	Section 6.
	 	Employment and Other Contracts
	 	 	7	 
	Section 7.
	 	Chairman of the Board of Directors
	 	 	7	 
	Section 8.
	 	President
	 	 	7	 
	Section 9.
	 	Vice Presidents
	 	 	9	 







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	Section 10.
	 	Secretary
	 	 	9	 
	Section 11.
	 	Assistant Secretaries
	 	 	9	 
	Section 12.
	 	Treasurer
	 	 	9	 
	Section 13.
	 	Assistant Treasurers
	 	 	9	 
	Section 14.
	 	General Counsel
	 	 	 	 
	Section 15.
	 	Bonding
	 	 	9	 
	ARTICLE VI
	 	 	 	 
	Section 1.
	 	Form of Certificates
	 	 	9	 
	Section 2.
	 	Lost Certificates
	 	 	9	 
	Section 3.
	 	Transfer of Shares
	 	 	9	 
	Section 4.
	 	Registered Stockholders
	 	 	10	 
	ARTICLE VII
	 	 	 	 
	Section 1.
	 	Dividends
	 	 	10	 
	Section 2.
	 	Reserves
	 	 	10	 
	Section 3.
	 	Telephone and Similar Meetings
	 	 	10	 
	Section 4.
	 	Books and Records
	 	 	10	 
	Section 5.
	 	Fiscal Year
	 	 	11	 
	Section 6.
	 	Seal
	 	 	11	 
	Section 7.
	 	Advances of Expenses
	 	 	11	 
	Section 8.
	 	Indemnification
	 	 	12	 
	Section 9.
	 	Insurance
	 	 	12	 
	Section 10.
	 	Resignation
	 	 	12	 
	Section 11.
	 	Amendment of Bylaws
	 	 	12	 
	Section 12.
	 	Invalid Provisions
	 	 	12	 
	Section 13.
	 	Relation to the Certificate of Incorporation
	 	 	13	 







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BYLAWS




OF




MOBILITY ELECTRONICS, INC.




ARTICLE I




OFFICES




     Section 1. Registered Office. The registered office and registered agent
of Mobility Electronics, Inc. (the “Corporation”) will be as from time to time
set forth in the Corporation’s Certificate of Incorporation or in any
certificate filed with the Secretary of State of the State of Delaware, and the
appropriate county Recorder or Recorders, as the case may be, to amend such
information.



     Section 2. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
may require.



ARTICLE II




STOCKHOLDERS




     Section 1. Place of Meetings. All meetings of the stockholders for the
election of Directors will be held at such place, within or without the State
of Delaware, as may be fixed from time to time by the Board of Directors.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as may be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.



     Section 2. Annual Meeting. An annual meeting of the stockholders will be
held at such time as may be determined by the Board of Directors, at which
meeting the stockholders will elect a Board of Directors, and transact such
other business as may properly be brought before the meeting.



     Section 3. List of Stockholders. At least ten days before each meeting
of stockholders, a complete list of the stockholders entitled to vote at said
meeting, arranged in alphabetical order, with the address of and the number of
voting shares registered in the name of each, will be prepared by the officer
or agent having charge of the stock transfer books. Such list will be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place will be specified in the notice of the meeting, or if not so
specified at the place where the meeting is to be held. Such list will be
produced and kept open at the time and place of the meeting during the whole
time thereof, and will be subject to the inspection of any stockholder who may
be present.



 









 





     Section 4. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by law, the Certificate of
Incorporation or these Bylaws, may be called by the Chairman of the Board, the
President or the Board of Directors. Business transacted at all special
meetings will be confined to the purposes stated in the notice of the meeting
unless all stockholders entitled to vote are present and consent.



     Section 5. Notice. Written or printed notice stating the place, day and
hour of any meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, will be delivered not less
than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the Chairman of the Board, the
President, the Secretary, or the officer or person calling the meeting, to each
stockholder of record entitled to vote at the meeting. If mailed, such notice
will be deemed to be delivered when deposited in the United States mail,
addressed to the stockholder at his address as it appears on the stock transfer
books of the Corporation, with postage thereon prepaid.



     Section 6. Quorum. At all meetings of the stockholders, the presence in
person or by proxy of the holders of a majority of the shares issued and
outstanding and entitled to vote will be necessary and sufficient to constitute
a quorum for the transaction of business except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws. If, however, such quorum is
not present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, will have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present or represented. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting will
be given to each stockholder of record entitled to vote at the meeting. At
such adjourned meeting at which a quorum is present or represented, any
business may be transacted that might have been transacted at the meeting as
originally notified.



     Section 7. Voting. When a quorum is present at any meeting of the
Corporation’s stockholders, the vote of the holders of a majority of the shares
entitled to vote on, and voted for or against, any matter will decide any
questions brought before such meeting, unless the question is one upon which,
by express provision of law, the Certificate of Incorporation or these Bylaws,
a different vote is required, in which case such express provision will govern
and control the decision of such question. The stockholders present in person
or by proxy at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave
less than a quorum.



     Section 8. Method of Voting. Each outstanding share of the Corporation’s
capital stock, regardless of class, will be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders, except to the extent that the
voting rights of the shares of any class or classes are limited or denied by
the Certificate of Incorporation, as amended from time to time. At any meeting
of the stockholders, every stockholder having the right to vote will be
entitled to vote in person, or by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to such meeting, unless such instrument provides for a longer period.
Each proxy will be revocable unless expressly provided therein to be



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irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the Corporation generally. Such
proxy will be filed with the Secretary of the Corporation prior to or at the
time of the meeting. Voting on any question or in any election, other than for
directors, may be by voice vote or show of hands unless the presiding officer
orders, or any stockholder demands, that voting be by written ballot.




     Section 9. Record Date. The Board of Directors may fix in advance a
record date for the purpose of determining stockholders entitled to notice of
or to vote at a meeting of stockholders, which record date will not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors, and which record date will not be less than ten nor more than
sixty days prior to such meeting. In the absence of any action by the Board of
Directors, the close of business on the date next preceding the day on which
the notice is given will be the record date, or, if notice is waived, the close
of business on the day next preceding the day on which the meeting is held will
be the record date.



     Section 10. Action by Consent. Any action required or permitted by law,
the Certificate of Incorporation or these Bylaws to be taken at a meeting of
the stockholders of the Corporation may be taken without a meeting if a
consent or consents in writing, setting forth the action so taken, is signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted and will be
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or an officer or agent of the Corporation
having custody of the minute book.



ARTICLE III




BOARD OF DIRECTORS




     Section 1. Management. The business and affairs of the Corporation will
be managed by or under the direction of its Board of Directors who may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by law, by the Certificate of Incorporation or by these Bylaws directed
or required to be exercised or done by the stockholders.



     Section 2. Qualification; Election; Term. None of the Directors need be
a stockholder of the Corporation or a resident of the State of Delaware. The
Directors will be elected by written ballot, by plurality vote at the annual
meeting of the stockholders, except as hereinafter provided, and each Director
elected will hold office until whichever of the following occurs first: his
successor is elected and qualified, his resignation, his removal from office by
the stockholders or his death.



     Section 3. Number; Election; Term; Qualification. The number of
Directors which shall constitute the Board of Directors shall be not less than
one. The first Board of Directors shall



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consist of the number of Directors named in the Certificate of
Incorporation. Thereafter, the number of Directors which shall constitute the
entire Board of Directors shall be determined by resolution of the Board of
Directors at any meeting thereof, but shall never be less than one. The Board
of Directors of the Corporation shall be divided into three classes which shall
be as nearly equal in number as is possible. At the first election of
Directors to such classified Board of Directors, each Class I Director shall be
elected to serve until the next ensuing annual meeting of stockholders, each
Class II Director shall be elected to serve until the second ensuing annual
meeting of stockholders, each Class III Director shall be elected to serve
until the third ensuing annual meeting of stockholders. At each annual meeting
of stockholders following the meeting at which the Board of Directors is
initially classified, the number of Directors equal to the number of the class
whose term expires at the time of such meeting shall be elected to serve until
the third ensuing annual meeting of stockholders. At each annual meeting of
stockholders, Directors shall be elected to hold office until their successors
are elected and qualified or until their earlier resignation, removal from
office or death. No Director need be a stockholder, a resident of the State of
Delaware, or a citizen of the United States.



     Section 4. Changes in Number. In the event of any change in the
authorized number of Directors, the number of Directors in each class shall be
adjusted so that thereafter each of the three classes shall be composed, as
nearly as may be possible, of one-third of the authorized number of Directors;
provided that any change in the authorized number of Directors shall not
increase or shorten the term of any Director, and any decrease shall become
effective only as and when the term or terms of office of the class or classes
of Directors affected thereby shall expire, or a vacancy or vacancies in such
class or classes shall occur. Any directorship to be filled by reason of an
increase in the number of Directors may be filled by (i) the stockholders at
any annual or special meeting of stockholders called for that purpose or (ii)
the Board of Directors for a term of office continuing only until the next
election of one or more Directors by the stockholders. Notwithstanding the
foregoing, whenever the holders of any class or series of shares are entitled
to elect one or more Directors by the provisions of the Certificate of
Incorporation, any newly created directorship(s) of such class or series to be
filled by reason of an increase in the number of such Directors may be filled
by the affirmative vote of a majority of the Directors elected by such class or
series then in office or by a sole remaining Director so elected or by the vote
of the holders of the outstanding shares of such class or series, and such
directorship(s) shall not in any case be filled by the vote of the remaining
Directors or by the holders of the outstanding shares of the Corporation as a
whole unless otherwise provided in the Certificate of Incorporation.



     Section 5. Removal. Any Director may be removed either for or without
cause, at any special meeting of stockholders by the affirmative vote of a
majority in number of shares of the stockholders present in person or
represented by proxy at such meeting and entitled to vote for the election of
such Director; provided that notice of the intention to act upon such matter
has been given in the notice calling such meeting.



     Section 6. Vacancies. Vacancies occurring in the Board of Directors
caused by death, resignation, retirement, disqualification or removal from
office of any Directors or otherwise, may be filled by the vote of a majority
of the Directors then in office, though less than a quorum,



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or a successor or successors may be chosen at a special meeting of the
stockholders called for that purpose, and each successor Director so chosen
will hold office until the next election of the class for which such Director
has been chosen or until whichever of the following occurs first: his
successor is elected and qualified, his resignation, his removal from office by
the stockholders or his death.



     Section 7. Place of Meetings. Meetings of the Board of Directors,
regular or special, may be held at such place within or without the State of
Delaware as may be fixed from time to time by the Board of Directors.



     Section 8. Annual Meeting. The first meeting of each newly elected Board
of Directors will be held without further notice immediately following the
annual meeting of stockholders and at the same place, unless by unanimous
consent, the Directors then elected and serving change such time or place.



     Section 9. Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and place as is from time to time
determined by resolution of the Board of Directors.



     Section 10. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President on oral or written
notice to each Director, given either personally, by telephone, by telegram or
by mail; special meetings will be called by the Chairman of the Board,
President or Secretary in like manner and on like notice on the written request
of at least two Directors. The purpose or purposes of any special meeting will
be specified in the notice relating thereto.



     Section 11. Quorum. At all meetings of the Board of Directors the
presence of a majority of the number of Directors fixed by these Bylaws will be
necessary and sufficient to constitute a quorum for the transaction of
business, and the affirmative vote of at least a majority of the Directors
present at any meeting at which there is a quorum will be the act of the Board
of Directors, except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws. If a quorum is not present at
any meeting of the Board of Directors, the Directors present thereat may
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum is present.



     Section 12. Interested Directors. No contract or transaction between the
Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of the Corporation’s Directors or officers
are directors or officers or have a financial interest, will be void or
voidable solely for this reason, solely because the Director or officer is
present at or participates in the meeting of the Board of Directors or
committee thereof that authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose, if: (i) the material
facts as to his relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or committee in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the



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disinterested Directors, even though the disinterested Directors be less
than a quorum, (ii) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee that authorizes the contract or transaction.



     Section 13. Committees. The Board of Directors may, by resolution passed
by a majority of the entire Board, designate committees, each committee to
consist of two or more Directors of the Corporation, which committees will have
such power and authority and will perform such functions as may be provided in
such resolution. Such committee or committees will have such name or names as
may be designated by the Board and will keep regular minutes of their
proceedings and report the same to the Board of Directors when required.



     Section 14. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee of the Board of
Directors may be taken without such a meeting if a consent or consents in
writing, setting forth the action so taken, is signed by all the members of the
Board of Directors or such committee, as the case may be.



     Section 15. Compensation of Directors. Directors will receive such
compensation for their services and reimbursement for their expenses as the
Board of Directors, by resolution, may establish; provided that nothing herein
contained will be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.



ARTICLE IV




NOTICE




     Section 1. Form of Notice. Whenever by law, the Certificate of
Incorporation or of these Bylaws, notice is to be given to any Director or
stockholder, and no provision is made as to how such notice will be given, such
notice may be given in writing, by mail, postage prepaid, addressed to such
Director or stockholder at such address as appears on the books of the
Corporation. Any notice required or permitted to be given by mail will be
deemed to be given at the time the same is deposited in the United States
mails.



     Section 2. Waiver. Whenever any notice is required to be given to any
stockholder or Director of the Corporation as required by law, the Certificate
of Incorporation or these Bylaws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated in such notice, will be equivalent to the giving of such notice.
Attendance of a stockholder or Director at a meeting will constitute a waiver
of notice of such meeting, except where such stockholder or Director attends
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been
lawfully called or convened.



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ARTICLE V




OFFICERS AND AGENTS




     Section 1. In General. The officers of the Corporation will be elected
by the Board of Directors and will be a President, a Vice President, a
Secretary and a Treasurer. The Board of Directors may also elect a Chairman of
the Board, additional Vice Presidents, Assistant Vice Presidents, one or more
Assistant Secretaries and Assistant Treasurers, and a General Counsel. Any two
or more offices may be held by the same person.



     Section 2. Election. The Board of Directors, at its first meeting after
each annual meeting of stockholders, will elect the officers, none of whom need
be a member of the Board of Directors.



     Section 3. Other Officers and Agents. The Board of Directors may also
elect and appoint such other officers and agents as it deems necessary, who
will be elected and appointed for such terms and will exercise such powers and
perform such duties as may be determined from time to time by the Board.



     Section 4. Compensation. The compensation of all officers and agents of
the Corporation will be fixed by the Board of Directors or any committee of the
Board, if so authorized by the Board.



     Section 5. Term of Office and Removal. Each officer of the Corporation
will hold office until his death, his resignation or removal from office, or
the election and qualification of his successor, whichever occurs first. Any
officer or agent elected or appointed by the Board of Directors may be removed
at any time, for or without cause, by the affirmative vote of a majority of the
entire Board of Directors, but such removal will not prejudice the contract
rights, if any, of the person so removed. If the office of any officer becomes
vacant for any reason, the vacancy may be filled by the Board of Directors.



     Section 6. Employment and Other Contracts. The Board of Directors may
authorize any officer or officers or agent or agents to enter into any contract
or execute and deliver any instrument in the name or on behalf of the
Corporation, and such authority may be general or confined to specific
instances. The Board of Directors may, when it believes the interest of the
Corporation will best be served thereby, authorize executive employment
contracts that will have terms no longer than ten years and contain such other
terms and conditions as the Board of Directors deems appropriate. Nothing
herein will limit the authority of the Board of Directors to authorize
employment contracts for shorter terms.



     Section 7. Chairman of the Board of Directors. If the Board of Directors
has elected a Chairman of the Board, he will preside at all meetings of the
stockholders and the Board of Directors. Except where by law the signature of
the President is required, the Chairman will have the same power as the
President to sign all certificates, contracts and other instruments of the
Corporation. During the absence or disability of the President, the Chairman
will exercise the powers and perform the duties of the President.



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     Section 8. President. The President will be the chief executive officer
of the Corporation and, subject to the control of the Board of Directors, will
supervise and control all of the business and affairs of the Corporation. He
will, in the absence of the Chairman of the Board, preside at all meetings of
the stockholders and the Board of Directors. The President will have all
powers and perform all duties incident to the office of President and will have
such other powers and perform such other duties as the Board of Directors may
from time to time prescribe.



     Section 9. Vice Presidents. Each Vice President will have the usual and
customary powers and perform the usual and customary duties incident to the
office of Vice President, and will have such other powers and perform such
other duties as the Board of Directors or any committee thereof may from time
to time prescribe or as the President may from time to time delegate to him.
In the absence or disability of the President and the Chairman of the Board, a
Vice President designated by the Board of Directors, or in the absence of such
designation the Vice Presidents in the order of their seniority in office, will
exercise the powers and perform the duties of the President.



     Section 10. Secretary. The Secretary will attend all meetings of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary will perform like duties for the
Board of Directors and committees thereof when required. The Secretary will
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors. The Secretary will keep in safe
custody the seal of the Corporation. The Secretary will be under the
supervision of the President. The Secretary will have such other powers and
perform such other duties as the Board of Directors may from time to time
prescribe or as the President may from time to time delegate to him.



     Section 11. Assistant Secretaries. The Assistant Secretaries in the order
of their seniority in office, unless otherwise determined by the Board of
Directors, will, in the absence or disability of the Secretary, exercise the
powers and perform the duties of the Secretary. They will have such other
powers and perform such other duties as the Board of Directors may from time to
time prescribe or as the President may from time to time delegate to them.



     Section 12. Treasurer. The Treasurer will have responsibility for the
receipt and disbursement of all corporate funds and securities, will keep full
and accurate accounts of such receipts and disbursements, and will deposit or
cause to be deposited all moneys and other valuable effects in the name and to
the credit of the Corporation in such depositories as may be designated by the
Board of Directors. The Treasurer will render to the Directors whenever they
may require it an account of the operating results and financial condition of
the Corporation, and will have such other powers and perform such other duties
as the Board of Directors may from time to time prescribe or as the President
may from time to time delegate to him.



     Section 13. Assistant Treasurers. The Assistant Treasurers in the order
of their seniority in office, unless otherwise determined by the Board of
Directors, will, in the absence or disability of the Treasurer, exercise the
powers and perform the duties of the Treasurer. They will have such other
powers and perform such other duties as the Board of Directors may from time to
time prescribe or as the President may from time to time delegate to them.



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     Section 14. General Counsel. The General Counsel will have responsibility
for the legal affairs of the Corporation and will have such other powers and
perform such other duties as the Board of Directors or any committee thereof
may from time to time prescribe or as the President may from time to time
delegate to him.



     Section 15. Bonding. The Corporation may secure a bond to protect the
Corporation from loss in the event of defalcation by any of the officers, which
bond may be in such form and amount and with such surety as the Board of
Directors may deem appropriate.



ARTICLE VI




CERTIFICATES REPRESENTING SHARES




     Section 1. Form of Certificates. Certificates, in such form as may be
determined by the Board of Directors, representing shares to which stockholders
are entitled will be delivered to each stockholder. Such certificates will be
consecutively numbered and will be entered in the stock book of the Corporation
as they are issued. Each certificate will state on the face thereof the
holder’s name, the number, class of shares, and the par value of such shares or
a statement that such shares are without par value. They will be signed by the
President or a Vice President and the Secretary or an Assistant Secretary, and
may be sealed with the seal of the Corporation or a facsimile thereof. If any
certificate is countersigned by a transfer agent, or an assistant transfer
agent or registered by a registrar, either of which is other than the
Corporation or an employee of the Corporation, the signatures of the
Corporation’s officers may be facsimiles. In case any officer or officers who
have signed, or whose facsimile signature or signatures have been used on such
certificate or certificates, ceases to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the Corporation or its
agents, such certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers
of the Corporation.



     Section 2. Lost Certificates. The Board of Directors may direct that a
new certificate be issued in place of any certificate theretofore issued by the
Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing such issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost or destroyed certificate, or his
legal representative, to advertise the same in such manner as it may require
and/or to give the Corporation a bond, in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost or destroyed. When a certificate has been lost, apparently destroyed
or wrongfully taken, and the holder of record fails to notify the Corporation
within a reasonable time after such holder has notice of it, and the
Corporation registers a transfer of the shares represented by the certificate
before receiving such



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notification, the holder of record is precluded from making any claim
against the Corporation for the transfer of a new certificate.



     Section 3. Transfer of Shares. Shares of stock will be transferable only
on the books of the Corporation by the holder thereof in person or by such
holder’s duly authorized attorney. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it will be the duty of the Corporation or the transfer
agent of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.



     Section 4. Registered Stockholders. The Corporation will be entitled to
treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, will not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it has express or other notice thereof, except as
otherwise provided by law.



ARTICLE VII




GENERAL PROVISIONS




     Section 1. Dividends. Dividends upon the outstanding shares of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting. Dividends may be declared and paid in cash, in property, or in shares
of the Corporation, subject to the provisions of the General Corporation Law of
the State of Delaware and the Certificate of Incorporation. The Board of
Directors may fix in advance a record date for the purpose of determining
stockholders entitled to receive payment of any dividend, such record date will
not precede the date upon which the resolution fixing the record date is
adopted, and such record date will not be more than sixty days prior to the
payment date of such dividend. In the absence of any action by the Board of
Directors, the close of business on the date upon which the Board of Directors
adopts the resolution declaring such dividend will be the record date.



     Section 2. Reserves. There may be created by resolution of the Board of
Directors out of the surplus of the Corporation such reserve or reserves as the
Directors from time to time, in their discretion, deem proper to provide for
contingencies, or to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the Directors may deem
beneficial to the Corporation, and the Directors may modify or abolish any such
reserve in the manner in which it was created. Surplus of the Corporation to
the extent so reserved will not be available for the payment of dividends or
other distributions by the Corporation.



     Section 3. Telephone and Similar Meetings. Stockholders, directors and
committee members may participate in and hold meetings by means of conference
telephone or similar communications equipment by which all persons
participating in the meeting can hear each other. Participation in such a
meeting will constitute presence in person at the meeting, except



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where a person participates in the meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting has not been lawfully called or convened.



     Section 4. Books and Records. The Corporation will keep correct and
complete books and records of account and minutes of the proceedings of its
stockholders and Board of Directors, and will keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.



     Section 5. Fiscal Year. The fiscal year of the Corporation will be fixed
by resolution of the Board of Directors.



     Section 6. Seal. The Corporation may have a seal, and the seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the Corporation will have authority to
affix the seal to any document requiring it.



     Section 7. Advances of Expenses. The Corporation will advance to its
directors and officers expenses incurred by them in connection with any
“Proceeding,” which term includes any threatened, pending or completed action,
suit or proceeding, whether brought by or in the right of the Corporation or
otherwise and whether of a civil, criminal, administrative or investigative
nature (including all appeals therefrom), in which a director or officer may be
or may have been involved as a party or otherwise, by reason of the fact that
he is or was a director or officer of the Corporation, by reason of any action
taken by him or of any inaction on his part while acting as such, or by reason
of the fact that he is or was serving at the request of the Corporation as a
director, officer, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise
(“Official,” which term also includes directors and officers of the Corporation
in their capacities as directors and officers of the Corporation), whether or
not he is serving in such capacity at the time any liability or expense is
incurred; provided that the Official undertakes to repay all amounts advanced
unless:




     (i) in the case of all Proceedings other than a Proceeding
by or in the right of the Corporation, the Official establishes to
the satisfaction of the disinterested members of the Board of
Directors that he acted in good faith or in a manner he reasonably
believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal proceeding, that he
did not have reasonable cause to believe his conduct was unlawful;
provided that the termination of any such Proceeding by judgment,
order of court, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not by itself create a
presumption as to whether the Official acted in good faith or in a
manner he reasonably believed to be in or not opposed to the best
interests of the Corporation or, with respect to any criminal
proceeding, as to whether he had reasonable cause to believe his
conduct was unlawful; or



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     (ii) in the case of a Proceeding by or in the right of the
Corporation, the Official establishes to the satisfaction of the
disinterested members of the Board of Directors that he acted in
good faith or in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; provided that if
in such a Proceeding the Official is adjudged to be liable to the
Corporation, all amounts advanced to the Official for expenses
must be repaid except to the extent that the court in which such
adjudication was made shall determine upon application that
despite such adjudication, in view of all the circumstances, the
Official is fairly and reasonably entitled to indemnity for such
expenses as the court may deem proper.



     Section 8. Indemnification. The Corporation will indemnify its directors
to the fullest extent permitted by the General Corporation Law of the State of
Delaware and may, if and to the extent authorized by the Board of Directors, so
indemnify its officers and any other person whom it has the power to indemnify
against any liability, reasonable expense or other matter whatsoever.



     Section 9. Insurance. The Corporation may at the discretion of the Board
of Directors purchase and maintain insurance on behalf of the Corporation and
any person whom it has the power to indemnify pursuant to law, the Certificate
of Incorporation, these Bylaws or otherwise.



     Section 10. Resignation. Any director, officer or agent may resign by
giving written notice to the President or the Secretary. Such resignation will
take effect at the time specified therein or immediately if no time is
specified therein. Unless otherwise specified therein, the acceptance of such
resignation will not be necessary to make it effective.



     Section 11. Amendment of Bylaws. These Bylaws may be altered, amended, or
repealed at any meeting of the Board of Directors at which a quorum is present,
by the affirmative vote of a majority of the Directors present at such meeting.



     Section 12. Invalid Provisions. If any part of these Bylaws is held
invalid or inoperative for any reason, the remaining parts, so far as possible
and reasonable, will be valid and operative.



     Section 13. Relation to the Certificate of Incorporation. These Bylaws
are subject to, and governed by, the Certificate of Incorporation of the
Corporation.




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