Exhibit
10.1


 


AMENDED AND RESTATED


 


BYLAWS


 


OF


 


VYYO INC.


 


(hereinafter called the “Corporation”)


 


Adopted as of November 15, 2007


 


ARTICLE I


 


OFFICES 


 


Section 1. Registered Office. The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.


 


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.


 


ARTICLE II


 


MEETINGS OF STOCKHOLDERS 


 


Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any
other purpose shall be held at such time and place, either within or without
the State of Delaware as shall be designated from time to time by the Board of
Directors.


 


Section 2. Annual Meetings. The Annual Meetings of Stockholders for the election of directors
shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors. Any other proper business may be transacted at
the Annual Meeting of Stockholders.


 


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Section 3. Nature of
Business at Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly brought before
the annual meeting by any stockholder of the Company (i) who is a stock­holder
of record on the date of the giving of the notice provided for in this Section
3 and on the record date for the determination of stockholders entitled to vote
at such annual meeting (ii) who complies with the notice procedures set forth
in this Section 3 and (iii) who otherwise meets the applicable require­ments of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the
rules and regulations promulgated thereunder.


 


In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary
or Assistant Secretary of the Company.


 


To be timely, a stockholder’s
notice to the Secretary or Assistant Secretary must be delivered to or mailed
and received at the principal executive offices of the Company not less than
sixty (60) days nor more than ninety (90) days prior to the anniversary date of
the immediately preceding annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs.


 


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To be in proper written
form, a stockholder’s notice to the Secretary or Assistant Secretary must set
forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the Company which are owned
beneficially or of record by such stockholder, (iv) a description of all
arrangements or under­standings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder and any material interest of such stockholder in
such business and (v) a representation that such stockholder intends to appear
in person or by proxy at the annual meeting to bring such business before the
meeting.


 


No business shall be
conducted at the annual meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set forth in this Section
3; provided,  however, that, once business has been properly
brought before the annual meeting in accordance with such procedures, nothing
in this Section 3 shall be deemed to preclude discussion by any stockholder of
any such business. If the chairman of an annual meeting determines that
business was not properly brought before the annual meeting in accordance with
the foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall
not be transacted.


 


Section 4. Nomination of
Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the Company, except as may be otherwise provided in
the Fifth Amended and Restated Certificate of Incorporation of the Corporation,
as amended or restated from time to time (the “Certificate of Incorporation”)
with respect to the right of holders of preferred stock of the Corporation to


 


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nominate
and elect a specified number of directors in certain circumstances. Nominations
of persons for election to the Board of Directors may be made at any annual meeting
of stockholders, or at any special meeting of stockholders called for the
purpose of electing directors, (a) by or at the direction of the Board of
Directors (or any duly autho­rized committee thereof) or (b) by any stockholder
of the Company (i) who is a stockholder of record on the date of the giving of
the notice provided for in this Section 4 and on the record date for the
determination of stockholders entitled to vote at such meeting, (ii) who
complies with the notice procedures set forth in this Section 4 and (iii) who
otherwise meets the applicable requirements of the Exchange Act and the rules
and regulations promulgated thereunder.


 


In
addition to any other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof in proper
written form to the Secretary or Assistant Secretary of the Company.


 


To be timely, a stockholder’s
notice to the Secretary or Assistant Secretary must be delivered to or mailed
and received at the principal executive offices of the Company (a) in the case
of an annual meeting, not less than sixty (60) days nor more than ninety (90)
days prior to the anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within thirty (30) days before or
after such anniversary date, notice by the stockholder in order to be timely
must be so received not later than the close of business on the tenth (10th) day
following the day on which such notice of the date of the annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs; and (b) in the case of a special meeting of
stockholders called for the purpose of electing directors, not later than the
close of business on the tenth (10th) day following the day on which notice of
the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever


 


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first
occurs.


 


To be in proper written
form, a stockholder’s notice to the Secretary or Assistant Secretary must set
forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment of the
person, (iii) the class or series and number of shares of capital stock of the
Company which are owned beneficially or of record by the person and (iv) any
other information relating to the person that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act, and the rules and regulations promulgated thereunder; and (b) as
to the stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Company which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected. No person shall be eligible for election as a
director of the Company unless nominated in accordance with the procedures set forth
in this Section 4. If the Chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the


 


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Chairman
shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.


 


Section 5. Special Meetings. Unless otherwise required by law or by the Certificate of
Incorporation of the Corporation, Special Meetings of Stockholders, for any
purpose or purposes, may be called by either (i) the Chairman of the Board of
Directors, (ii) the Board of Directors or (iii) a committee of the Board of
Directors that has been duly designated by the Board of Directors and whose
powers and authority include the power to call such meetings. Any request for a
Special Meeting of Stockholders by any of the foregoing shall be directed in
writing to the (i) the Chairman, if there be one, (ii) the President or (iii)
the Secretary and shall state the purpose or purposes of the proposed meeting.
At a Special Meeting of Stockholders, only such business shall be conducted as
shall be specified in the notice of meeting (or any supplement thereto). The
ability of the stockholders to call a special meeting of stockholders is hereby
specifically denied.


 


Section
6. Notice.  Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given which 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 required by law,
the written notice of any meeting shall be given not less than ten nor more
than sixty days before the date of the meeting to each stockholder entitled to
vote at such meeting.


 


Section 7. Adjournments. Any meeting of the stockholders may be adjourned 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


 


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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 8. Quorum. Unless otherwise required by law or the Certificate of Incorpora­tion,
the holders of a majority of the capital stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum. If, however, such quorum shall not be
present or repre­sented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, in the manner provided in
Section 7, until a quorum shall be present or represented.


 


Section 9. Voting. Unless otherwise required
by law, the Certificate of Incorporation or these Bylaws, any question brought
before any meeting of stockholders, other than the election of directors, shall
be decided by the vote of the holders of a majority of the total number of
votes of the capital stock represented and entitled to vote thereat, voting as
a single class. Unless otherwise provided in the Certificate of Incorporation,
and subject to Section 1(b) of Article III and Section 5 of Article V hereof,
each stockholder represented at a meeting of stockholders shall be entitled to
cast one vote for each share of the capital stock entitled to vote thereat held
by such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in its discretion, or the
officer of the Corporation presiding at a meeting of stockholders, in such
officer’s discretion, may require that any votes cast at such meeting shall be
cast by written ballot.


 


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Section 10. Consent of
Stockholders in Lieu of Meeting. Any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation, and the ability of the stockholders to consent
in writing to the taking of any action is hereby specifically denied.


 


Section 11. List of
Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stock­holder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.


 


Section
12. Stock Ledger. The stock
ledger of the Corporation shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by Section 11 of this
Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.


 


Section
13. Conduct of Meetings. The Board of
Directors of the Corporation may adopt by resolution such rules and regulations
for the conduct of the meeting of the stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of any meeting of the
stockholders shall have the right and authority to prescribe such rule,
regulations and procedures and to do all such acts


 


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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 chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) the determination of when the polls shall open and close for any
given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv) limitations
on attendance at or participation in the meeting to stockholders of record of
the Corporation, their duly authorized and constituted proxies or such other
persons as the chairman of the meeting shall determine; (v) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and
(vi) limitations on the time allotted to questions or comments by participants.


 


ARTICLE
III


 


DIRECTORS


 


Section 1. Number and Election of Directors.


 


(a)               The Board of Directors shall
consist of not less than one nor more than twelve members, the exact number of
which shall be fixed from time to time by the Board of Directors. Except as
provided in Section 2 of this Article III, directors shall be elected by a
plurality of the votes cast at the Annual Meeting of Stockholders and each
director so elected shall hold office until the next Annual Meeting of
Stockholders and until such director’s successor is duly elected and qualified,
or until such director’s earlier death, resignation or removal. Any director
may resign at any time upon written notice to the Corporation. Directors need
not be stockholders.


 


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(b)             No person entitled to vote at an
election for directors may cumulate votes to which such person is entitled.


 


Section
2. Vacancies. Unless otherwise
required by law or the Certificate of Incorporation, vacancies resulting from
death, resignation, disqualification, removal, or other causes shall be filled
by either (i) the affirmative vote of the holders of a majority of the voting
power of the then-outstanding shares of voting stock of this Corporation
entitled to vote generally in the election of directors, voting together as a
single class; or (ii) by the affirmative vote of a majority of the remaining
directors then in office, even though less than a quorum. Newly created
directorships resulting from any increase in the number of
directors shall, unless the Board of Directors determines by resolution that
any such newly-created directorship shall be filled by the stockholders, be
filled only by the affirmative vote of the directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or the vacancy occurred and until such director’s successor shall have
been elected and qualified.


 


Section 3. Duties and
Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as
are not by statute or by the Certificate of Incorporation or by these Bylaws
required to be exercised or done by the stockholders.


 


Section 4. Meetings. The Board of
Directors may hold meetings, both regular and special, either within or without
the State of Delaware. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from time to time be


 


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determined by the Board
of Directors. Special meetings of the Board of Directors may be called by the
Chairman, if there be one, or the President. Notice thereof stating the place,
date and hour of the meeting shall be given to each director either by mail not
less than forty-eight (48) hours before the date of the meeting, by telephone
or telegram on twenty-four (24) hours’ notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary or appropriate in the
circumstances.


 


Section 5. Quorum. Except as
otherwise required by law or the Certificate of Incorporation, at all meetings
of the Board of Directors, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors. If a quorum shall not be 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 of the time and place of the adjourned meeting, until a quorum shall be
present.


 


Section 6. Actions by Written Consent. Unless
otherwise provided in the Certificate of Incorporation, or these Bylaws, 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 meeting, if all
the members of the Board of Directors or committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.


 


Section 7. Meetings by Means of Conference Telephone. Unless
otherwise provided in the Certificate of Incorporation, members of the Board of
Directors of the Corporation, or any committee thereof, may participate in a
meeting of the Board of Directors or such committee by means of a conference
telephone or similar communications equipment by


 


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means of which all
persons participating in the meeting can hear each other, and participation in
a meeting pursuant to this Section 7 shall constitute presence in person at
such meeting.


 


Section 8.
Committees. 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 any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any absent or disqualified member. Any
committee, to the extent permitted by law and provided in the resolution
establishing such committee, 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. Each committee shall keep regular
minutes and report to the Board of Directors when required.


 


Section 9. Compensation. The
directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors or a stated salary as director, payable in
cash or securities. No such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefore.
Members of special or standing committees may be allowed like compensation for
attending committee meetings.


 


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Section 10. 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 its directors or
officers are directors or officers or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because the director or officer’s vote is counted for such purpose if (i) the
material facts as to the director or officer’s 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 votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to the director or officer’s 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 which authorizes the contract or transaction.


 


ARTICLE IV


 


OFFICERS


 


Section 1.
General. The officers of the Corporation shall be chosen by
the Board of Directors and shall be a President, a Secretary or Assistant
Secretary and a Treasurer. The Board of Directors, in its discretion, also may
choose a Chairman of the Board of Directors (who


 


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must be a director) and
one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and
other officers. Any number of offices may be held by the same person, unless
otherwise prohibited by law or the Certificate of Incorporation. The officers
of the Corporation need not be stockholders of the Corporation nor, except in
the case of the Chairman of the Board of Directors, need such officers be
directors of the Corporation.


 


Section 2. Election.  The Board of Directors, at its first meeting held after each Annual
Meeting of Stockholders, shall elect the
officers of the Corporation who shall hold their offices for such terms and
shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and all officers of the Corporation
shall hold office until their successors are chosen and qualified, or until
their earlier death, resignation or removal. Any officer elected by the Board
of Directors may be removed at any time by the affirmative vote of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.


 


Section 3. Voting
Securities Owned by the Corporation. Powers of attorney,
proxies, waivers of notice of meeting, consents
and other instruments relating to securities owned by the Corporation may be
executed in the name of and on behalf of the Corporation by the President or
any Vice President or any other officer authorized to do so by the Board of
Directors and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such meeting
shall possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed if present. The Board of Directors may, by
resolution, from time to time confer like powers upon


 


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any
other person or persons.


 


Section 4.
Chairman of the Board of Directors. The Chairman of the Board
of Directors, if there be one, shall preside
at all meetings of the stockholders and of the Board of Directors. The Chairman
of the Board of Directors shall be the Chief Executive Officer of the Corporation, unless the Board of Directors designates the President as
the Chief Executive Officer, and, except where by law the signature of the
President is required, the Chairman of the Board of Directors shall possess the
same power as the President to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board of Directors. During
the absence or disability of the President, the Chairman of the Board of
Directors shall exercise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as may from time to time be assigned
by these Bylaws or by the Board of Directors.


 


Section 5. President. The
President shall, subject to the control of the Board of Directors and, if there
be one, the Chairman of the Board of Directors, have general supervision of the
business of the Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. The President shall execute all
bonds, mortgages, contracts and other instruments of the Corporation requiring
a seal, under the seal of the Corporation, except where required or permitted
by law to be otherwise signed and executed and except that the other officers
of the Corporation may sign and execute documents when so authorized by these
Bylaws, the Board of Directors or the President. In the absence or disability
of the Chairman of the Board of Directors, or if there be none, the President
shall preside at all meetings of the stockholders and the Board of Directors.
If there be no Chairman of the Board of Directors, or if the Board of Directors
shall otherwise designate, the President shall be the Chief Executive


 


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Officer of the
Corporation. The President shall also perform such other duties and may
exercise such other powers as may from time to time be assigned to such officer
by these Bylaws or by the Board of Directors.


 


Section 6. Vice Presidents.  At the request of the President or in the
President’s absence or in the event of the President’s inability or refusal to
act (and if there be no Chairman of the Board of Directors), the Vice
President, or the Vice Presidents if there is more than one (in the order
designated by the Board of Directors), shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Each Vice President shall perform such
other duties and have such other powers as the Board of Directors from time to
time may prescribe. If there be no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the
Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to
all the restrictions upon the President.


 


Section 7. Secretary. The
Secretary shall attend all meetings of the Board of Directors and all meetings
of stockholders and record all the proceedings thereat in a book or books to be
kept for that purpose; the Secretary shall also perform like duties for
committees of the Board of Directors when required. The Secretary shall give,
or cause to be given, notice of all meetings of the stockhold­ers and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors, the Chairman of the Board of Directors
or the President, under whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board of Directors,
and if there be no Assistant Secretary, then either the Board of Directors or
the President may choose another officer to


 


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cause such notice to be
given. The Secretary shall have custody of the seal of the Corporation and the
Secretary or any Assistant Secretary, if there be one, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may be
attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest to the
affixing by such officer’s signature. The Secretary shall see that all books,
reports, statements, certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as the case may be.


 


Section 8. Treasurer. The
Treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit 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 shall disburse
the funds of the Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all 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 in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of the office of the Treasurer and for
the restoration to the Corporation, in case of the Treasurer’s death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Treasurer’s possession or
under the Treasurer’s control belonging to the Corpora­tion.


 


Section 9. Assistant Secretaries. Assistant
Secretaries, if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the


 


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Board of Directors, the
President, any Vice President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of the Secretary’s disability or
refusal to act, shall perform the duties of the Secretary, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Secretary.


 


Section 10. Assistant Treasurers.  Assistant Treasurers, if there be any, shall
perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if there
be one, or the Treasurer, and in the absence of the Treasurer or in the event
of the Treasurer’s disability or refusal to act, shall perform the duties of
the Treasurer, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of the office of Assistant Treasurer and for
the restoration to the Corporation, in case of the Assistant Treasurer’s death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in the Assistant Treasurer’s
possession or under the Assistant Treasurer’s control belonging to the
Corporation.


 


Section 11. Other
Officers. Such other officers as the Board of Directors may
choose shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors. The Board of Directors may delegate
to any officer of the Corporation the power to choose such other officers and
to prescribe their respective duties and powers.


 


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ARTICLE V


 


STOCK


 


Section 1. Issuance of
Shares Without Certificates.  The Corporation may issue some or all of the
shares of any or all of its classes or series without certificates.  Within a reasonable time after issuance or
transfer of uncertificated stock, the Corporation shall send or shall cause to
be sent to the registered owner thereof: (i) a written statement that the
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights and (ii) written
notice containing the information required to be set forth on certificates
pursuant to Section 156, 202(a) or 218(a) of General Corporation Law of the
State of Delaware (the “DGCL”).


 


Section 2. Signatures. Any or all of the signatures on a certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have 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 such person were such
officer, transfer agent or registrar at the date of issue.


 


Section 3. Lost
Certificates. The Board of Directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the Corporation alleged to have been lost, stolen or destroyed, upon
the making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or the owner’s legal representative, to advertise the
same in such manner as the Board of Directors shall require


 


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and/or
to give the Corporation a bond in such sum 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, stolen or destroyed or the issuance of
such new certificate.


 


Section 4. Transfers. Stock of the Corporation shall be transferable in the manner
prescribed by law and in these Bylaws. Transfers of stock shall be made on the
books of the Corporation only by the person named in the certificate or by such
person’s attorney lawfully consti­tuted in writing and upon the surrender of
the certificate therefore, which shall be cancelled before a new certificate
shall be issued. No transfer of stock shall be valid as against the Corporation
for any purpose until it shall have been entered in the stock records of the
Corporation by an entry showing from and to whom transferred.


 


Section 5. Record Date.


 


(a)       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, 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 shall not be more than
sixty nor less than ten days before the date of such meeting. If no record date
is fixed by the Board of Directors, 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. 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; providing, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.


 


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(b)      In order that the Corporation may
determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders 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, and which record date shall be not more than sixty days prior
to such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.


 


Section 6. Record Owners. The Corporation shall be entitled to recognize the exclusive right of
a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a
person registered on its books as the owner of shares, and shall not be bound
to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise required by law.


 


ARTICLE VI


 


NOTICES


 


Section 1. Notices. Whenever written notice is required by law, the Certificate of
Incorporation or these Bylaws, to be given to any director, member of a
committee or stockholder, such notice may be given by mail, addressed to such
director, member of a committee or stockholder, at such person’s address as it
appears on the records of the Corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be
given by facsimile, telex, telegram to the extent permitted by law.


 


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Section 2. Waivers of
Notice. Whenever any notice is
required by law, the Certificate of Incorporation or these Bylaws, to be given
to any director, member of a committee or stockholder, a waiver thereof in
writing, signed, by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
Attendance of a person at a meeting, present in person or represented by proxy,
shall constitute a waiver of notice of such meeting, except where the person
attends the meeting for the express purpose of objecting at the beginning of
the meeting to the transaction of any business because the meeting is not
lawfully called or convened.


 


ARTICLE
VII


 


GENERAL PROVISIONS


 


Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the
provisions of the Certificate of Incorporation, if any, the requirements of the
DGCL, may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors (or any action by written consent in lieu
thereof in accordance with Section 6 of Article III hereof), and may be paid in
cash, in property, or in shares of the Corporation’s capital stock. Before
payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for any proper purpose, and the Board of Directors may modify or abolish any
such reserve.


 


Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be
signed by such officer or officers or such other person or persons as the Board
of Directors may from time to time designate.


 


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Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.


 


Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words “Corporate Seal,
Delaware”. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.


 


Section 5. Annual Report. The Board of Directors shall cause an annual report to be sent to each
stockholder of the Corporation not later than one hundred twenty (120) days
after the close of the Corporation’s fiscal year. Such report shall include a
balance sheet as of the end of such fiscal year and an income statement and
statement of changes in financial position for such fiscal year, accompanied by
any report thereon of independent accounts or, if there is no such report, the
certificate of an authorized officer of the Corporation that such statements
were prepared without audit from the books and records of the Corporation.


 


ARTICLE VIII


 


INDEMNIFICATION


 


Section
I. Power to Indemnify in Actions, Suits or Proceedings other than Those by or
in the Right of the Corporation. Subject to Section 3 of this Article VIII, the Corporation shall
indemnify 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 such person is or was
a director or officer of the Corporation, or is or was a director or officer of
the Corporation serving at the request of the Corporation as a director or
officer, employee or agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against expenses (including
attorneys’ fees), judgments, fines


 


23





















 


and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person’s conduct was
unlawful. The termination of any action, suit or proceeding 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 such person 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 such person’s
conduct was unlawful.


 


Section
2. Power to Indemnify in Actions, Suits or Proceedings by or in the Right of
the Corporation. Subject to
Section 3 of this Article VIII, the Corporation shall indemnify 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 such person is or
was a director or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit if such person
acted in good faith and in a manner such person reasonably believed to be in
the best interests of the Corporation; provided, 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 or the court in which such action or suit was
brought shall


 


24





















 


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 3. Authorization of
Indemnification. Any
indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because such person has met the applicable standard of conduct
set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Such determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (i) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (ii) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders. Such
determination shall be made, with respect to former directors and officers, by
any person or persons having the authority to act on the matter on behalf of
the Corporation. To the extent, however, that a present or former director or
officer of the Corpora­tion has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of any
claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection therewith, without the necessity of authorization in the
specific case.


 


Section 4. Good Faith Defined. For purposes of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal action or proceeding, to have had
no reasonable cause to


 


25





















 


believe
such person’s conduct was unlawful, if such person’s action is based on the
records or books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or 2 of this Article
VIII, as the case may be.


 


Section
5. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under
Section 3 of this Article VIII, and notwithstanding the absence of any determi­nation
thereunder, any director or officer may apply to the Court of Chancery in the
State of Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because such person has met
the applicable standards of conduct set forth in Section 1 or 2 of this Article
VIII, as the case may be. Neither a contrary determination in the specific case
under Section 3 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that
the director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to
this Section 5 shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the director or officer
seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.


 


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Section 6. Expenses Payable
in Advance. Expenses incurred by a
director or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid 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 such director or officer to repay
such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII.


 


Section 7. Nonexclusivity of
Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under the Certificate of Incorporation, any Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person’s official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that
indemnification of the persons specified in Sections 1 and 2 of this Article
VIII shall be made to the fullest extent permitted by law. The provisions of
this Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Section 1 or 2 of this Article VIII but whom the
Corporation has the power or obligation to indemnify under the provisions of
the DGCL.


 


Section 8. Insurance. The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director or officer 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, employee
benefit plan or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person’s status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the
provisions of this Article


 


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VIII.


 


Section 9. Certain Definitions. For purposes of this Article VIII, references to “the Corporation”
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors or officers, so that
any person who is or was a director or officer of such constituent corporation,
or is or was a director or officer of such constituent corporation serving at
the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, shall stand in the same position
under the provisions of this Article VIII with respect to the resulting or
surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued. For purposes
of this Article VIII, references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; and references
to “serving at the request of the Corporation” shall include any service as a
director, officer, employee or agent of the Corporation which imposes duties
on, or involves services by, such director or officer with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner “not opposed to the best interests of
the Corporation” as referred to in this Article VIII.


 


Section 10. Survival of Indemnification and Advancement of Expenses. The indemnifi­cation and advancement of
expenses provided by, or granted pursuant to, this Article VIII shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director or officer and shall inure to the benefit of the heirs,
executors and


 


28





















 


administrators
of such a person.


 


Section 11. Limitation on Indemnification. Notwithstanding anything contained in this
Article VIII to the contrary, except for proceedings to enforce rights to
indemnification (which shall be governed by Section 5 hereof), the Corporation
shall not be obligated to indemnify any director or officer in connection with
a proceeding (or part thereof) initiated by such person unless such proceeding
(or part thereof) was authorized or consented to by the Board of Directors of
the Corporation.


 


Section 12. Indemnification of Employees and Agents. The Corporation may, to the extent
authorized from time to time by the Board of Directors, provide rights to
indemnification and to the advancement of expenses to employees and agents of
the Corporation similar to those conferred in this Article VIII to directors
and officers of the Corporation.


 


ARTICLE IX


 


AMENDMENTS


 


Section 1. Amendments. These Bylaws may be altered, amended or repealed, in whole or in part,
or new Bylaws may be adopted by the stockholders or by the Board of Directors,
provided, however, that notice of such alteration, amendment, repeal or
adoption of new Bylaws be contained in the notice of the meeting of
stockholders or Board of Directors, as the case may be. All amendments must be
approved by either sixty-six and two-thirds percent (66 2/3%) of the
outstanding capital stock entitled to vote thereon or by a majority of the
entire Board of Directors then in office.


 


Section 2. Entire Board of Directors. As used in this Article IX and in these
Bylaws generally, the term “entire Board of Directors” means the total number
of directors which the Corpora­tion would have if there were no vacancies.


 


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