Exhibit
4.0


 


THIRD
AMENDED AND RESTATED BY-LAWS


 


OF


 


MANUGISTICS GROUP, INC.


 












 


ARTICLE I.  OFFICES
AND RECORDS


 


Section 1.1            Delaware Office.  The principal office of the Corporation in the State of Delaware
shall be located in the City of Wilmington, County of New Castle, and the name
and address of its registered agent is Corporation Trust Company, 1209 Orange
Street, Wilmington, Delaware 19801.


 


Section 1.2.           Other Offices.  The Corporation may have such other offices, either within or
without the State of Delaware, as the Board of Directors may designate or as
the business of the Corporation may from time to time require.


 


Section 1.3.           Books and Records.  The books and records of the Corporation may
be kept at the Corporation’s headquarters in Maryland or at such other
locations outside the State of Delaware as may from time to time be designated
by the Board of Directors.


 


ARTICLE II. 
STOCKHOLDERS


 


Section 2.1.           Annual Meetings.  If required by applicable law, an annual meeting of stockholders
shall be held for the election of directors at such date, time and place,
either within or without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time.  Any other proper business may be transacted
at the annual meeting.


 


Section 2.2.           Special Meetings. 
Special meetings of stockholders for any purpose or purposes
may be called at any time by the Board of Directors, but such special meetings
may not be called by any other person or persons.  Business transacted at any special meeting of stockholders shall
be limited to the purposes stated in the notice.


 


Section 2.3.           Notice of Meetings.  Whenever stockholders are required or
permitted to take any action at a meeting, a notice of the meeting shall be
given that shall state the place, date and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is
called.  Unless otherwise provided by
law, the Amended and Restated Certificate of Incorporation of the Corporation
(as it may be amended from time to time, the “Certificate of Incorporation”) or
these by-laws, the notice of any meeting shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting. 
If mailed, such notice shall be deemed to be given when deposited in the
United States mail, postage prepaid, directed to the stockholder at his address
as it appears on the records of the Corporation.


 

















 


Section 2.4.           Adjournments.  Any meeting of stockholders, annual or special, may adjourn from
time to time to reconvene at the same or some other place, and notice need not
be given of any such adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken.  At the adjourned meeting the Corporation may
transact any business which might have been transacted at the original
meeting.  If the adjournment is for more
than thirty (30) days, or if after the adjournment a new record date is fixed
for the adjourned meeting, notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.


 


Section 2.5.           Quorum.  Except
as otherwise provided by law, the Certificate of Incorporation or these
by-laws, at each meeting of stockholders the presence in person or by proxy of
the holders of a majority in voting power of the outstanding shares of stock
entitled to vote at the meeting shall be necessary and sufficient to constitute
a quorum.  In the absence of a quorum,
the stockholders so present may, by a majority in voting power thereof, adjourn
the meeting from time to time in the manner provided in Section 2.4 of these
by-laws until a quorum shall attend. 
Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the Corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the Corporation or any
subsidiary of the Corporation to vote stock, including but not limited to its
own stock, held by it in a fiduciary capacity.


 


Section 2.6.           Organization.  Meetings of stockholders shall be presided over by the Chairman
of the Board, if any, or in his absence by the Vice Chairman of the Board, if
any, or in his absence by the President, or in his absence by a Vice President,
or in the absence of the foregoing persons by a chairman designated by the
Board of Directors, or in the absence of such designation by a chairman chosen
at the meeting.  The Secretary shall act
as secretary of the meeting, but in his absence the chairman of the meeting may
appoint any person to act as secretary of the meeting.


 


Section 2.7.           Voting; Proxies.  Except as otherwise provided by or pursuant to the provisions of
the Certificate of Incorporation, each stockholder entitled to vote at any
meeting of stockholders shall be entitled to one vote for each share of stock held
by such stockholder which has voting power upon the matter in question.  Each stockholder entitled to vote at a
meeting of stockholders or to express consent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period.  A proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy which is not irrevocable by attending the meeting and voting
in person or by delivering to the Secretary of the Corporation a revocation of the
proxy or a new proxy bearing a later date. 
Voting at meetings of stockholders need not be by written ballot.  At all meetings of stockholders for the
election of directors a plurality of the votes cast shall be sufficient to
elect.  All other elections and
questions shall, unless otherwise provided by the Certificate of Incorporation,
these by-laws, the rules or regulations of any stock exchange applicable to the
Corporation, or applicable law or pursuant to any regulation applicable to the
Corporation or its securities, be 


 


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decided by the affirmative vote of the holders of a majority in voting
power of the shares of stock of the Corporation which are present in person or
by proxy and entitled to vote thereon.


 


Section 2.8.           Fixing Date for Determination of Stockholders of
Record.  In order that the
Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or to express consent
to corporate action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60)
nor less than ten (10) days before the date of such meeting; (2) in the
case of determination of stockholders entitled to express consent to corporate
action in writing without a meeting, shall not be more than ten (10) days from
the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (3) in the case of any other action, shall not be
more than sixty (60) days prior to such other action.  If no record date is fixed: 
(1) the record date for determining stockholders entitled to notice
of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held; (2) the record date for determining stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action of the Board of Directors is required by law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in accordance with
applicable law, or, if prior action by the Board of Directors is required by
law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (3) the
record date for determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.  A
determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the
adjourned meeting.


 


Section 2.9.           List of Stockholders Entitled to Vote.  The Secretary shall prepare and make, at
least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and the number of shares
registered in the name of each stockholder. As required by applicable law, such
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting.  Except as
otherwise provided by law, the stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.


 


Section 2.10.        Action By Written Consent of Stockholders.  Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any annual or special meeting of the stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be 


 


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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 shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
minutes of proceedings of stockholders are recorded.  Delivery made to the Corporation’s registered office shall be by
hand or by certified or registered mail, return receipt requested.  Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall, to the
extent required by law, be given to those stockholders who have not consented
in writing and who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting if the record date for such meeting had been
the date that written consents signed by a sufficient number of holders to take
the action were delivered to the Corporation.


 


Section 2.11.        Inspectors of Election.  The Corporation may, and shall if required
by law, in advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the Corporation, to act at the
meeting or any adjournment thereof and to make a written report thereof.  The Corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act.  In the event that no inspector so appointed
or designated is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to
the best of his ability.  The inspector
or inspectors so appointed or designated shall (i) ascertain the number of
shares of capital stock of the Corporation outstanding and the voting power of
each such share; (ii) determine the shares of capital stock of the Corporation
represented at the meeting and the validity of proxies and ballots; (iii) count
all votes and ballots; (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors; and (v) certify their determination of the number of shares of
capital stock of the Corporation represented at the meeting and such
inspectors’ count of all votes and ballots. Such certification and report shall
specify such other information as may be required by law.  In determining the validity and counting of
proxies and ballots cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by applicable
law.  No person who is a candidate for
an office at an election may serve as an inspector at such election.


 


Section 2.12.        Conduct of Meetings.  The date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting by the person presiding over the
meeting.  The Board of Directors may
adopt by resolution such rules and regulations for the conduct of the meeting
of stockholders as it shall deem appropriate. 
Except to the extent inconsistent with such rules and regulations as adopted
by the Board of Directors, the person presiding over any meeting of
stockholders shall have the right and authority to convene and to adjourn the
meeting, to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting.  Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the presiding officer of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at
the meeting and the safety of those present; (iii) limitations on attendance at
or participation in the meeting to stockholders of 


 


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record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants.  The presiding
officer at any meeting of stockholders, in addition to making any other
determinations that may be appropriate to the conduct of the meeting, shall, if
the facts warrant, determine and declare to the meeting that a matter or
business was not properly brought before the meeting and if such presiding
officer should so determine, such person shall so declare to the meeting and any
such matter or business not properly brought before the meeting shall not be
transacted or considered.  Unless and to
the extent determined by the Board of Directors or the person presiding over
the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure.


 


Section 2.13.        Advance Notice of Stockholder Business.  At a meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting.  Any stockholder who intends to
bring any matter (other than the nomination of directors) before a meeting of
stockholders and is entitled to vote on such matter shall deliver written
notice of such stockholder’s intent to bring such matter before the meeting of
stockholders, to the Secretary of the Corporation.  Such notice must be received by the Secretary not later than the
following dates: (1) with respect to an annual meeting of stockholders, 60 days
in advance of such meeting if such meeting is to be held on a day which is
within 30 days preceding the anniversary of the previous year’s annual meeting
or 90 days in advance of such meeting if such meeting is to be held on or after
the anniversary of the previous year’s annual meeting; and (2) with respect to
any other annual meeting of stockholders or a special meeting of stockholders,
the close of business on the tenth day following the date of public disclosure
of the date of such meeting.  A
stockholder’s notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the meeting (a) a brief description of the
business desired to be brought before the meeting and the reasons for
conducting such business at the meeting, (b) the name and address, as they
appear on the Corporation’s books, of the stockholder proposing such business,
(c) the class and number of shares of the Corporation which are beneficially
owned by the stockholder, and (d) any material interest of the stockholder in
such business. Notwithstanding anything in these by-laws to the contrary, no
business shall be conducted at any meeting except in accordance with the
procedures set forth in this Section 2.13. 
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the
meeting and in accordance with the provisions of this Section 2.13, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.


 


ARTICLE III.  BOARD OF
DIRECTORS


 


Section 3.1.           General Powers.  The business and affairs of the Corporation shall be managed by
or under the direction of its Board of Directors.  In addition to the powers and authorities by these by-laws expressly
conferred upon them, the Board of Directors 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 by-laws required to be exercised or
done by the stockholders.


 


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Section 3.2.           Number and Tenure. 
The Board of Directors of the Corporation shall consist of
such number of directors, not less than six (6) nor more than nine (9), as
shall from time to time be fixed exclusively by resolution adopted by a
majority of the Board of Directors. The directors shall be divided into three
classes, as nearly equal as possible, known as Class I, Class II, and Class
III.  Directors in each class shall be
elected for a three (3) year term, with the term of office of Class I directors
expiring at the annual meeting of stockholders in 2005, the term of office of
Class II directors expiring at the annual meeting of stockholders in 2006, and
the term of office of Class III directors expiring at the annual meeting of
stockholders in 2007.  Directors shall
(except as hereinafter provided for the filling of vacancies and newly created
directorships) be elected by the holders of a plurality of the voting power
present in person or represented by proxy and entitled to vote.


 


Section 3.3.           Regular Meetings.  A regular meeting of the Board of Directors shall be held without
notice, immediately after, and at the same place as, each annual meeting of
stockholders.  The Board of Directors
may, by resolution, provide the time and place for the holding of additional
regular meetings without notice other than such resolution.


 


Section 3.4.           Special Meetings.  Special meetings of the Board of Directors shall be called at the
request of the Chairman of the Board, the Chief Executive Officer, the
President or two members of the Board of Directors.  The person or persons authorized to call special meetings of the
Board of Directors may fix the place and time of the meetings.


 


Section 3.5.           Notice. 
Notice of any special meeting shall be given to each director at his
business or residence.  If mailed, such
notice shall be deemed adequately delivered when deposited in the United States
mails so addressed, with postage thereon prepaid, at least five days before
such meeting. If by telegram, such notice shall be deemed adequately delivered
when the telegram is delivered to the telegraph company at least twenty-four
hours before such meeting.  If by
electronic transmission, such notice shall be transmitted at least twenty-four
hours before such meeting.  If by
telephone, the notice shall be given at least twelve hours prior to the time
set for the meeting. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the Board of Directors need be specified
in the notice of such meeting, except for amendments to these by-laws as
provided under Section 7.1 of these by-laws. 
A meeting may be held at any time without notice if all the directors
are present (except as otherwise provided by law) or if those not present waive
notice of the meeting in writing, either before or after such meeting.


 


Section 3.6.           Conference Telephone Meetings.  Members of the Board of Directors, or any
committee thereof, may participate in a meeting of the Board of Directors or
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute presence in
person at such meeting.


 


Section 3.7.           Quorum. 
A whole number of directors equal to at least a majority of the Board of
Directors shall constitute a quorum for the transaction of business, but if at
any meeting of the Board of Directors there shall be less than a quorum
present, a majority of the directors present may adjourn the meeting from time
to time without further notice.  The act
of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.


 


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Section 3.8.           Vacancies. 
Subject to the rights of the holders of any series of Preferred Stock,
or any other series or class of stock as set forth in the Certificate of
Incorporation, to elect additional directors under specified circumstances, and
unless the Board of Directors otherwise determines, vacancies resulting from
death, resignation, retirement, disqualification, removal from office or other
cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the Board of
Directors, and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to
which they have been elected expires and until such director’s successor shall
have been duly elected and qualified. 
No decrease in the number of authorized directors constituting the Board
of Directors shall shorten the term of any incumbent director.


 


Section 3.9.           Committees.


 


(A)          The
Board of Directors may designate one or more committees, each committee to
consist of one or more of the directors of the Corporation.  The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee.  In the absence or disqualification of a member
of the committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in place of any such absent or disqualified member.  Any such committee, to the extent permitted
by law and to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it.


 


(B)           Unless
the Board of Directors otherwise provides, each committee designated by the
Board of Directors may make, alter and repeal rules for the conduct of its
business. In the absence of such rules, each committee shall conduct its
business in the same manner as the Board of Directors conducts its business
pursuant to these by-laws.


 


Section 3.9.A.       Lead Independent Director.  If the Chairman of the Board is not independent, as
determined by the Board of Directors and in accordance with the listing
standards of the NASDAQ Stock Market, the independent directors of the Board
shall appoint on an annual basis a Lead Independent Director who shall be
chosen from among such independent directors. 
The Lead Independent Director shall (i) coordinate the activities of the
independent directors, including scheduling, developing the agenda for and
presiding at all meetings of the independent directors of the Board; (ii) act
as principal liaison between the independent directors and the Chairman of the
Board; and (iii) shall have such further powers and duties as determined from
time to time by a majority of the independent directors of the Board.


 


Section 3.10.        Action by Unanimous Consent of Directors.  Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a 


 


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meeting if all members of the Board of Directors or such committee, as
the case may be, consent thereto in accordance with applicable law.


 


Section 3.11.        Removal. 
Any member of the Board of Directors may be removed only for cause and
only by the affirmative vote of a majority of the shares then entitled to vote
for the election of directors.


 


Section 3.12.        Nominations for Election to Board; Notice of
Stockholder Nominees.  Only
persons who are nominated in accordance with the procedures set forth in this
Section 3.12 shall be eligible for election as Directors.  Nominations of persons for election to the
Board of Directors of the Corporation may be made at a meeting of stockholders
by or at the direction of the Board of Directors or by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 3.12.  Such nominations, other than those made by
or at the direction of the Board of Directors, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation.  Such notice must be received by the
Secretary not later than the following dates: (1) with respect to an annual
meeting of stockholders, 60 days in advance of such meeting if such meeting is
to be held on a day which is within 30 days preceding the anniversary of the
previous year’s annual meeting or 90 days in advance of such meeting if such
meeting is to be held on or after the anniversary of the previous year’s annual
meeting; and (2) with respect to any other annual meeting of stockholders or a
special meeting of stockholders, the close of business on the tenth day
following the date of public disclosure of the date of such meeting.  Such stockholder’s notice shall set forth
(a) as to each person whom the stockholder proposes to nominate for election or
re-election as a Director, (i) the name, age, business address and residence address
of such person, (ii) the principal occupation or employment of such person,
(iii) the class and number of shares of the Corporation which are beneficially
owned by such person and (iv) any other information relating to such person
that is required to be disclosed in solicitations of proxies for election of
Directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including without
limitation such persons’ written consent to being named in the proxy statement
as a nominee and to serving as a Director if elected); and (b) as to the
stockholder giving the notice (i) the name and address, as they appear on the
Corporation’s books, of such stockholder and (ii) the class and number of
shares of the Corporation which are beneficially owned by such
stockholder.  At the request of the
Board of Directors any person nominated by the Board of Directors for election
as a Director shall furnish to the Secretary of the Corporation that information
required to be set forth in a stockholder’s notice of nomination which pertains
to the nominee No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 3.12.  The Chairman of the
meeting shall, if the facts warrant, determine and declare to the meeting that
a nomination was not made in accordance with the procedures prescribed by these
by-laws, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.


 


ARTICLE IV.  OFFICERS


 


Section
4.1.           Elected
Officers.  The elected
officers of the Corporation shall be a Chairman of the Board, either a Chief
Executive Officer or a President (or both), a Secretary, a Treasurer, and such
other officers as the Board of Directors from time to time may deem
proper.  


 


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The Chairman of the Board shall be chosen from the directors.  All officers chosen by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV.  Such officers shall also have powers and
duties as from time to time may be conferred by the Board of Directors or by
any committee thereof.


 


Section 4.2.           Election and Term of Office.  The elected officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of
the Board of Directors held after each annual meeting of the stockholders held
pursuant to Section 3.3 of these by-laws. 
If the election of officers shall not be held at such meeting, such
election shall be held as soon thereafter as convenient.  Subject to Section 4.8 of these by-laws,
each officer shall hold office until his successor shall have been duly elected
and shall have qualified or until his death or until he shall resign.


 


Section 4.3.           Chairman of the Board.  The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors.  The Chairman of the Board shall have such
powers and perform such duties as directed by the Board of Directors.


 


Section 4.4.           Chief Executive Officer.  The Chief Executive Officer shall be
responsible for the general management of the affairs of the Corporation and
shall perform all duties incidental to his office which may be required by law
and all such other duties as are properly required of him by the Board of
Directors.  Except where by law the
signature of the Chairman of the Board is required, the Chief Executive Officer
shall possess the power to sign all certificates, contracts, and other
instruments of the Corporation which may be authorized by the Board of
Directors.


 


Section 4.5.           President. 
The President shall act in a general executive capacity and shall assist
the Chairman of the Board and Chief Executive Officer in the administration and
operation of the Corporation’s business and general supervision of its policies
and affairs.  Unless the Board of
Directors shall determine otherwise, the President shall, in the absence of or
because of the inability to act of the Chairman of the Board and Chief
Executive Officer, perform all duties of the Chairman of the Board and Chief
Executive Officer and preside at all meetings of stockholders and of the Board
of Directors.   The President may
sign, alone or with the Secretary, or an Assistant Secretary, or any other
proper officer of the Corporation authorized by the Board of Directors,
certificates, contracts, and other instruments of the Corporation which may be
authorized by the Board of Directors.


 


Section 4.6.           Secretary. 
The Secretary shall give, or cause to be given, notice of all meetings
of stockholders and directors and all other notices required by law or by these
by-laws, and in case of his absence or refusal or neglect so to do, any such
notice may be given by any person thereunto directed by the Chairman of the
Board or the Chief Executive Officer, or the President, or by the Board of
Directors, upon whose request the meeting is called as provided in these
by-laws.  He shall record all the
proceedings of the meetings of the Board of Directors and the stockholders of
the Corporation in a book to be kept for that purpose, and shall perform such
other duties as may be assigned to him by the Board of Directors, the Chairman of
the Board, the Chief Executive Officer, or the President.  He shall have the custody of the seal of the
Corporation and shall affix the same to all instruments requiring it, when
authorized by the Board of Directors, the Chairman of the Board, Chief Executive
Officer or the President, and attest to the same.


 


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Section 4.7.           Treasurer.  The
Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate receipts and disbursements in books belonging to
the Corporation.  The Treasurer shall
deposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositaries as may be designated by the Board of
Directors.  The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, the
Chairman of the Board, Chief Executive Officer or the President, taking proper
vouchers for such disbursements.  The
Treasurer shall render to the Chairman of the Board, Chief Executive Officer,
the President and the Board of Directors, whenever requested, an account of all
his transactions as Treasurer and of the financial condition of the
Corporation.  If required by the Board
of Directors, the Treasurer shall give the Corporation a bond for the faithful
discharge of his duties in such amount and with such surety as the Board of
Directors may prescribe.


 


Section 4.8.           Removal. 
Any officer elected by the Board of Directors may be removed by the
Board of Directors whenever, in their judgement, the best interests of the
Corporation would be served thereby.  No
elected officer shall have any contractual rights against the Corporation for
compensation by virtue of such election beyond the date of the election of his
successor, his death, his resignation or his removal, whichever event shall
first occur, except as otherwise provided in an employment contract or an
employee plan.


 


Section 4.9.           Vacancies. 
A newly created office and a vacancy in any office because of death,
resignation, or removal may be filled by the Board of Directors for the
unexpired portion of the term at any meeting of the Board of Directors.


 


ARTICLE V.  STOCK
CERTIFICATES AND TRANSFERS


 


Section 5.1.           Stock Certificates and Transfers.


 


(A)          The
interest of each stockholder of the Corporation shall be evidenced by
certificates for shares of stock in such form as the appropriate officers of
the Corporation may from time to time prescribe.  The shares of the stock of the Corporation shall be transferred
on the books of the Corporation by the holder thereof in person or by his
attorney, upon surrender for cancellation of certificates for the same number
of shares, with an assignment and power of transfer endorsed thereon or
attached thereto, duly executed, and with such proof of the authenticity of the
signature as the Corporation or its agents may reasonably require.


 


(B)           The
certificates of stock shall be signed, countersigned and registered in such
manner as the Board of Directors may by resolution prescribe, which resolution
may permit all or any of the signatures on such certificates to be in
facsimile.  In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate has ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue.


 


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ARTICLE VI.  MISCELLANEOUS PROVISIONS


 


Section 6.1.           Fiscal Year.  The fiscal year of the Corporation shall be determined by
resolution of the Board of Directors.


 


Section 6.2.           Dividends. 
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law and its Certificate of Incorporation.


 


Section 6.3.           Seal. 
The corporate seal shall have inscribed the name of the Corporation
thereon and shall be in such form as may be approved from time to time by the
Board of Directors.


 


Section 6.4.           Manner of Notice.  Except as otherwise provided herein or permitted by applicable
law, notices to directors and stockholders shall be in writing and delivered
personally or mailed to the directors or stockholders at their addresses
appearing on the books of the Corporation. 
Notice to directors may be given by telegram, telecopier, telephone or
other means of electronic transmission.


 


Section 6.5.           Waiver of Notice.  Whenever any notice is required to be given to any stockholder or
director of the Corporation under the provisions of the General Corporation Law
of the State of Delaware, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice.  Neither the business to be transacted at,
nor the purpose of, any annual or special meeting of the stockholders of the
Board of Directors need be specified in any waiver of notice of such
meeting.  Attendance of a person, either
in person or by proxy, at any meting shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting was not lawfully called or convened


 


Section 6.6.           Audits. 
The accounts, books and records of the Corporation shall be audited upon
the conclusion of each fiscal year by an independent certified public
accountant selected by the Board of Directors, and it shall be the duty of the
Board of Directors to cause such audit to be made annually.


 


Section 6.7.           Resignations.  Any director or any officer, whether elected or appointed, may resign
at any time by serving notice, either in writing or by electronic
communication, of such resignation on the Chairman of the Board, the Chief
Executive Officer, President or the Secretary, and such resignation shall be
deemed to be effective as of the close of business on the date said notice is
received by the Chairman of the Board, the Chief Executive Officer, the
President, or the Secretary or at such later date as is stated therein.  No formal action shall be required of the
Board of Directors or the stockholders to make any such resignation effective.


 


Section 6.8.           Contracts. 
Except as otherwise required by law, the Certificate of Incorporation or
these by-laws, any contracts or other instruments may be executed and delivered
in the name and on the behalf of the Corporation by such officer or officers of
the Corporation as the Board of Directors may from time to time direct.  Such authority may be general or confined to



 


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specific instances as the Board may determine.  The Chairman of the Board, the Chief
Executive Officer, the President or any Vice President may execute bonds,
contracts, deeds, leases and other instruments to be made or executed for or on
behalf of the Corporation.  Subject to
any restrictions imposed by the Board of Directors or the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President of the
Corporation may delegate contractual powers to others under his jurisdiction,
it being understood, however, that any such delegation of power shall not
relieve such officer of responsibility with respect to the exercise of such
delegated power.


 


Section 6.9.           Proxies. 
Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to
cast as the holder of stock or other securities in any other corporation or
other entity, any of whose stock or other securities may be held by the
Corporation, at meetings of the holders of the stock or other securities of
such other corporation or other entity, or to consent in writing, in the name
of the Corporation as such holder, to any action by such other corporation or
other entity, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause
to be executed in the name and on behalf of the Corporation and under its
corporate seal or otherwise, all such written proxies or other instruments as
he may deem necessary or proper in the premises.


 


ARTICLE VII.  AMENDMENTS


 


Section 7.1.           Amendments.  These by-laws may be amended, altered, added to, rescinded or
repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given no
less than twenty-four hours prior to the meeting; provided, however, that,
notwithstanding any other provisions of these by-laws or any provision of law
which might otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of the holders of any particular class or series of the stock
required by law, the Certificate of Incorporation or these by-laws, the
affirmative vote of the holders of a majority of the voting power of the shares
of stock of the Corporation, voting together as a single class, shall be
required in order for stockholders to alter, amend or repeal any provision of
these by-laws or to adopt any additional by-law.


 


ARTICLE VIII.  INDEMNIFICATION


 


Section 8.1.           Third Party Actions.  Any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the Corporation
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit, or


 


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proceeding if he acted in good faith and 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 action or proceedings, had no reasonable
cause to believe his conduct was unlawful. 
The termination of any action, suit or proceedings by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.


 


Section 8.2.           Derivative Actions.  Any person who was or is a party, or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that he is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall be indemnified by the Corporation
against expenses (including attorneys’ fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation; except, however, that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the county in which
the registered office of the Corporation is located or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.


 


Section 8.3.           Mandatory Indemnification.  To the extent that a present or former
director, officer, employee or agent as above described has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in Sections 8.1 or 8.2 of these by-laws or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred by him in connection therewith.


 


Section 8.4.           Procedure for Effecting Indemnification.  Any indemnification under Sections 8.1 or
8.2 of these by-laws (unless ordered by a court) shall be made only as
authorized in the specific case upon a determination by the Corporation that
indemnification of the present or former director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in such subsection. 
Such determination shall be made:


 


a.             by the vote of the
Board of Directors consisting of directors who were not parties to such action,
suit, or proceedings; or


 


b.             if such action is not
obtainable, or even if obtainable the vote of the disinterested directors so
directs, by independent legal counsel in a written opinion; or


 


c.             by the stockholders.


 


Section 8.5.           Advancement of Expenses.  Expenses (including attorneys’ fees)
incurred in defending a civil, criminal, administrative or investigative
action, suit or proceeding shall be paid 


 


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by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the Corporation as authorized in this
Article.  Such expenses (including
attorneys’ fees) incurred by former directors and officers and other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.


 


Section 8.6.           Supplementary Coverage.  The indemnification and advancement of
expenses provided by, or granted pursuant to, the other paragraphs of this
Article shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.


 


Section 8.7.           Power to Purchase Insurance.  The Corporation may, by action of the Board
of Directors, purchase and maintain insurance on behalf of any person who is or
was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this Article.


 


Section 8.8.           Extension of Coverage.  The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.


 


Section 8.9.           Scope of Indemnification.  It is intended that the rights of
indemnification and to advancement of expenses may be granted to the fullest
extent authorized under the Delaware General Corporation Law as the same exists
or may be hereafter amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto).


 


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