**EXHIBIT3.1**

 

AMENDED AND RESTATEDBYLAWS

 

OF

 

BENTLEY PHARMACEUTICALS,INC.

(FORMERLY KNOWN ASBENTLEY PHARMA, INC.)

 

(as amended by the Boardof Directors on April 13, 2004)

 

The following arethe Bylaws of BENTLEY PHARMACEUTICALS, INC., a Delaware corporation, formerlyknown as Bentley Pharma, Inc. (the “Corporation”).

 

# **ARTICLE I**

 

# **OFFICES**

 

## Section 1.01.          Principal Executive Office.  The principal executive office of theCorporation shall be located at Bentley Park, 2 Holland Way, Exeter, NH  03833. The Board of Directors of the Corporation (the “Board of Directors”) maychange the location of said principal executive office.

 

## Section 1.02.          Other Offices.  The Corporation may also have an office oroffices at such other place or places, either within or without the State ofDelaware, as the Board of Directors may from time to time determine or as thebusiness of the Corporation may require.

 

# **ARTICLE II**

 

# **MEETINGS OF STOCKHOLDERS**

 

## Section 2.01.          Annual Meetings.  The annual meeting of stockholders of theCorporation shall be held at a date and at such time as the Board of Directorsshall determine.  At each annual meetingof stockholders, directors shall be elected in accordance with the provisionsof Section 3.03 hereof and any other proper business may be transacted.

 

## Section 2.02.          Special Meetings.  Special meetings of stockholders for anypurpose or purposes may be called at any time by the President or a majority ofthe Board of Directors.  Specialmeetings may not be called by any other person or persons.  Each special meeting shall be held at suchdate and time as is requested by the person or persons calling the meeting,within the limits fixed by law.

 

 

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## Section 2.03.          Place of Meetings.  Each annual or special meeting ofstockholders shall be held at such location as may be determined by the Boardof Directors or, if no such determination is made, at such place as may bedetermined by the Chairman of the Board. If no location is so determined, any annual or special meeting shall beheld at the principal executive office of the Corporation.

 

## Section 2.04.          Notice of Meetings.  Written notice of each annual or specialmeeting of stockholders stating the date and time when, and the piece where, itis to be held shall be delivered either personally or by mail to stockholdersentitled to vote at such meeting not less than ten (10) nor more than sixty(60) days before the date of the meeting. The purpose or purposes for which the meeting is called may, in the caseof an annual meeting, and shall, in the case of a special meeting, also bestated.  If mailed, such notice shall bedirected to a stockholder at his address as it shall appear on the stock booksof the Corporation, unless he shall have filed with the Secretary of theCorporation a written request that notices intended for him be mailed to someother address, in which case such notice shall be mailed to the addressdesignated in such request.

 

## Section 2.05.          Conduct of Meetings.  All annual and special meetings ofstockholders shall be conducted in accordance with such rules and procedures asthe Board of Directors may determine subject to the requirements of applicablelaw and, as to matters not governed by such rules and procedures, as thechairman of such meeting shall determine. The chairman of any annual or special meeting of stockholders shall bethe Chairman of the Board.  TheSecretary, or in the absence of the Secretary, a person designated by theChairman of the Board, shall act as Secretary of the meeting.

 

## Section 2.06.          Quorum.  At any meeting of stockholders of theCorporation, the presence, in person or by proxy, of the holders of record of amajority of the shares then issued and outstanding and entitled to vote at themeeting shall constitute a quorum for the transaction of business; provided,however, that this Section 2.06 shall not affect any differentrequirement which may exist under statute, pursuant to the rights of anyauthorized class or series of stock, or under the Certificate of Incorporationof the Corporation, as amended or restated from time to time (the“Certificate”), for the vote necessary for the adoption of any measure governedthereby.

 

In the absence of a quorum, the stockholders presentin person or by proxy, by majority vote and without further notice, may adjournthe meeting from time to time until a quorum is attained.  At any reconvened meeting following suchadjournment at which a quorum shall be present, any business may be transactedwhich might have been transacted at the meeting as originally notified.

 

## Section 2.07.          Votes Required.  When a quorum is present at any meeting, amajority of the votes properly cast shall, except where a different vote isrequired by law, by the Certificate of Incorporation or by these bylaws, decideany question brought before such meeting. Any election by stockholders shall be determined by a plurality of thevote cast by the stockholders entitled to vote at the election.

 

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Unless the Certificate or a resolution of the Board ofDirectors adopted in connection with the issuance of shares of any class orseries of stock provides for a greater or lesser number of votes per share, orlimits or denies voting rights, each outstanding share of stock, regardless ofclass or series, shall be entitled to one (1) vote on each matter submitted toa vote at a meeting of stockholders.

 

## Section 2.08.          Proxies.  A stockholder may vote the shares owned ofrecord by him either in person or by proxy executed in writing (which shallinclude writings sent by telex, telegraph, cable or facsimile transmission) bythe stockholder himself or by his duly authorized attorney-in-fact.  No proxy shall be valid after three (3)years from its date, unless the proxy provides for a longer period.  Each proxy shall be in writing, subscribedby the stockholder or his duly authorized attorney-in-fact, and dated, but itneed not be sealed, witnessed or acknowledged.

 

## Section 2.09.          List of Stockholders.  The Secretary of the Corporation shallprepare and make (or cause to be prepared and made), at least ten (10) daysbefore every meeting of stockholders, a complete list of the stockholdersentitled to vote at the meeting, arranged in alphabetical order and showing theaddress of, and the number of shares registered in the name of, eachstockholder.  Such list shall be open tothe examination of any stockholder, for any purpose germane to the meeting,during ordinary business hours, for a period of at least ten (10) days prior tothe meeting, either at a place within the city where the meeting is to be held,which place shall be specified in the notice of the meeting, or, if not sospecified, at the place where the meeting is to be held.  The list shall also be produced and kept atthe time and place of the meeting during the duration thereof, and may beinspected by any stockholder who is present.

 

## Section 2.10.          Inspectors of Election.  In advance of any meeting of stockholders,the Board of Directors may appoint Inspectors of Election to act at suchmeeting or at any adjournment or adjournments thereof.  If such Inspectors are not so appointed orfail or refuse to act, the chairman of any such meeting may (and, upon thedemand of any stockholder or stockholder’s proxy, shall) make such anappointment.

 

The number of Inspectors of Election shall be one (1)or three (3).  If there are three (3)Inspectors of Election, the decision, act or certificate of a majority shall beeffective and shall represent the decision, act or certificate of all.  No such Inspector need be a stockholder ofthe Corporation.

 

Subject to any provisions of the Certificate ofIncorporation, the Inspectors of Election shall determine the number of sharesoutstanding, the voting power of each, the shares represented at the meeting,the existence of a quorum and the authenticity, validity and effect of proxies;they shall receive votes, ballots or consents, hear and determine allchallenges and questions in any way arising in connection with the right tovote, count and tabulate all votes or consents, determine when the polls shallclose and determine the result; and finally, they shall do such acts as may beproper to conduct the election or vote with fairness to all stockholders.  On request, the Inspectors shall make areport in writing to the secretary of the meeting concerning any challenge,question or other matter as may have been determined by them and shall executeand deliver to such secretary a certificate of any fact found by them.

 

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## Section 2.11.          Nomination of Directors.  Any nomination for the election of adirector by a stockholder shall be delivered to the Secretary of theCorporation no less than seventy-five (75) days in advance of the first anniversaryof the Corporation’s annual meeting held in the prior year.  Such stockholder nominations must contain(a) as to each person whom the stockholder proposes to nominate for election orreelection as a director at the annual meeting: (w) the name, age, businessaddress and residence address of the proposed nominee, (x) the principaloccupation or employment or the proposed nominee, (y) the class and number ofshares of capital stock of the Corporation which are beneficially owned by theproposed nominee, and (z) any other information relating to the proposednominee that is required to be disclosed in solicitations for proxies forelection of directors pursuant to Rule 14a under the Securities Exchange Act of1934, as amended; and (b) as to the stockholder giving notice of nominees forelection at the annual meeting, (x) the name and record address of thestockholder, and (y) the class and number of shares of capital stock of theCorporation which are beneficially owned by the stockholder.  The chairman of the meeting shall, if, inhis or her judgment, the facts warrant, determine and declare to the meetingthat a nomination was not made in accordance with the foregoing procedure, andif the chairman should so determine, he or she shall so declare to the meetingand the defective nomination shall be disregarded.

 

## Section 2.12.          Advance Notice of Business atAnnual Meetings.  At any annualmeeting of the stockholders, only such business shall be conducted as shallhave been properly brought before the meeting. To be properly brought before an annual meeting, business must be either(a) specified in the notice of meeting (or any supplement thereto) given by orat the direction of the President or the Board of Directors, (b) otherwiseproperly brought before the meeting by or at the direction of the Board ofDirectors, or (c) properly brought before the meeting by a stockholder.  In addition to any other applicablerequirements, for business to be brought properly before an annual meeting by astockholder, the stockholder must have given timely notice thereof in writingto the Chairman of the Board, if any, the President or the Secretary.  To be timely, a stockholder’s notice must bedelivered to or mailed and received at the principal executive offices of theCorporation by the close of business on the date not less than seventy-five(75) days in advance of the first anniversary of the Corporation’s annualmeeting held in the prior year.  Astockholder’s notice shall set forth as to each matter the stockholder proposesto bring before the annual meeting (a) a brief description of the businessdesired to be brought before the annual meeting and the reasons for conductingsuch business at the annual meeting, (b) the name and record address of thestockholder proposing such business, (c) the class and number of shares of theCorporation that are beneficially owned by the stockholder and (d) any materialinterest of the stockholder in such business.

 

Notwithstanding anything in these bylaws to thecontrary, no business shall be conducted at the annual meeting except inaccordance with the procedures set forth in this Section 2.12, provided,however, that nothing in this Section 2.12 shall be deemed to precludediscussion by any stockholder of any business properly brought before theannual meeting in accordance with said procedure.

 

The chairman of an annual meeting shall, if, in his orher judgment, the facts warrant,

 

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determine and declare to the meeting that business wasnot properly brought before the meeting in accordance with the foregoingprocedure, and if the chairman should so determine, he or she shall so declareto the meeting and any such business not properly brought before the meetingshall not be transacted.

 

# **ARTICLE III**

 

### DIRECTORS

 

## Section 3.01.          Powers.  The business and affairs of the corporationshall be managed by and be under the direction of the Board of Directors.  The Board of Directors shall exercise allthe powers of the Corporation, except those that are conferred upon or reservedto the stockholders by statute, the Certificate of Incorporation or theseBylaws.

 

## Section 3.02.          Number.  The number of directors shall be fixed fromtime to time by resolution of the Board of Directors but shall not be less thanone (1) nor more than thirteen (13).

 

## Section 3.03.          Election and Term of Office.  Each director shall serve until hissuccessor is elected and qualified or until his death, resignation or removal,no decrease in the authorized number of directors shall shorten the term of anyincumbent director, and additional directors elected in connection with rightsto elect such additional directors under specified circumstances which may begranted to the holders of any series of Preferred Stock shall not be includedin any class, but shall serve for such term or terms and pursuant to such otherprovisions as are specified in the resolution of the Board of Directorsestablishing such series.

 

## Section 3.04.          Election of Chairman of the Board.  At the Board of Directors meetingimmediately following the annual meeting of stockholders, the directors shallelect a Chairman of the Board from among the directors who shall hold officeuntil the corresponding meeting of the Board of Directors in the next year anduntil his successor shall have been elected or until his earlier resignation orremoval.  Any vacancy in such office maybe fitted for the unexpired portion of the term in the same manner by the Boardof Directors at any regular or special meeting.

 

## Section 3.05.          Removal.  Any director may be removed from office onlyas provided in the Certificate of Incorporation.

 

## Section 3.06.          Vacancies and AdditionalDirectorships.  Newly createddirectorships resulting from death, resignation, disqualification, removal or othercause shall be filled solely by the affirmative vote of a majority of theremaining directors then in office, even though less than a quorum of the Boardof Directors.  Any director elected inaccordance with the preceding sentence shall hold office for the remainder ofthe full term of the class of directors in which the new directorship wascreated or the vacancy occurred and until such director’s successor shall

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## have been elected and qualified.  No decrease in the number of directorsconstituting the Board of Directors shall shorten the term of any incumbentdirector.

 

## Section 3.07.          Regular and Special Meetings.  Regular meetings of the Board of Directorsshall be held immediately following the annual meeting of the stockholders;without call at such time as shall from time to time be fixed by the Board ofDirectors; and as called by the Chairman of the Board in accordance withapplicable law.

 

Special meetings of the Board of Directors shall beheld upon call by or at the direction of the Chairman of the Board, thePresident or any two (2) directors, except that when the Board of Directorsconsists of one (1) director, then the one director may call a special meeting.  Except as otherwise required by law, noticeof each special meeting shall be mailed to each director, addressed to him athis residence or usual place of business, at least three days before the day onwhich the meeting is to be held, or shall be sent to him at such place bytelex, telegram, cable, facsimile transmission or telephoned or delivered tohim personally, not later than the day before the day on which the meeting isto be held.  Such notice shall state thetime and place of such meeting, but need not state the purpose or purposesthereof, unless otherwise required by law, the Certificate of Incorporation orthese Bylaws.

 

Notice of any meeting need not be given to anydirector who shall attend such meeting in person (except when the personattends a meeting for the express purpose of objecting, at the beginning of themeeting, to the transaction of any business because the meeting is not lawfullycalled or convened) or who shall waive notice thereof, before or after suchmeeting, in a signed writing.

 

## Section 3.08.          Quorum.  At all meetings of the Board of Directors, amajority of the fixed number of directors shall constitute a quorum for thetransaction of business, except that when the Board of Directors consists ofone (1) director, then the one director shall constitute a quorum.

 

In the absence of a quorum, the directors present, bymajority vote and without notice other than by announcement, may adjourn themeeting from time to time until a quorum shall be present.  At any reconvened meeting following such anadjournment at which a quorum shall be present, any business may be transactedwhich might have been transacted at the meeting as originally notified.

 

## Section 3.09.          Votes Required.  Except as otherwise provided by applicablelaw or by the Certificate of Incorporation, the vote of a majority of thedirectors present at a meeting duly held at which a quorum is present shall besufficient to pass any measure.

 

## Section 3.10.          Place and Conduct of Meetings.  Each regular meeting and special meeting ofthe Board of Directors shall be held at a location determined as follows: theBoard of Directors may designate any place, within or without the State ofDelaware, for the holding of any meeting. If no such designation is made: (a) any meeting called by a majority ofthe directors shall be held at such location, within the county of theCorporation’s principal executive

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## office, as the directors calling the meeting shalldesignate; and (b) any other meeting shall be held at such location, within thecounty of the Corporation’s principal executive office, as the Chairman of theBoard may designate or, in the absence of such designation, at theCorporation’s principal executive office. Subject to the requirements of applicable law, all regular and specialmeetings of the Board of Directors shall be conducted in accordance with suchrules and procedures as the Board of Directors may approve and, as to mattersnot governed by such rules and procedures, as the chairman of such meeting shalldetermine.  The chairman of any regularor special meeting shall be the Chairman of the Board, or, in his absence, aperson designated by the Board of Directors. The Secretary, or, in the absence of the Secretary, a person designatedby the chairman of the meeting, shall act as secretary of the meeting.

 

## Section 3.11.          Fees and Compensation.  Directors shall be paid such compensation asmay be fixed from time to time by resolution of the Board of Directors: (a) fortheir usual and contemplated services as directors; (b) for their services asmembers of committees appointed by the Board of Directors, including attendanceat committee meetings as well as services which may be required when committeemembers must consult with management staff; and (c) for extraordinary servicesas directors or as members of committees appointed by the Board of Directors,over and above those services for which compensation is fixed pursuant to items(a) and (b) in this Section 3.11. Compensation may be in the form of an annual retainer fee or a fee forattendance at meetings, or both, or in such other form or on such basis as theresolutions of the Board of Directors shall fix.  Directors shall be reimbursed for all reasonable expensesincurred by them in attending meetings of the Board of Directors and committeesappointed by the Board of Directors and in performing compensable extraordinaryservices.  Nothing contained hereinshall be construed to preclude any director from serving the Corporation in anyother capacity, such as an officer, agent, employee, consultant or otherwise,and receiving compensation therefor.

 

## Section 3.12.          Committees of the Board ofDirectors.  To the full extentpermitted by applicable law, the Board of Directors may from time to timeestablish committees, including, but not limited to, standing or specialcommittees and an executive committee with authority and responsibility forbookkeeping, with authority to act as signatories on Corporation bank orsimilar accounts and with authority to choose attorneys for the Corporation anddirect litigation strategy, which shall have such duties and powers as areauthorized by these Bylaws or by the Board of Directors.  Committee members, and the chairman of eachcommittee, shall be appointed by the Board of Directors.  The Chairman of the Board, in conjunctionwith the several committee chairmen, shall make recommendations to the Board ofDirectors for its final action concerning members to be appointed to the severalcommittees of the Board of Directors.  Anymember of any committee may be removed at any time with or without cause by theBoard of Directors.  Vacancies whichoccur on any committee shall be filled by a resolution of the Board ofDirectors.  If any vacancy shall occurin any committee by reason of death, resignation, disqualification, removal orotherwise, the remaining members of such committee, so long as a quorum ispresent, may continue to act until such vacancy is filled by the Board ofDirectors.  The Board of Directors may,by resolution, at any time deemed desirable, discontinue any standing orspecial committee.  Members of standingcommittees, and their chairmen, shall be elected yearly at the regular meetingof the Board of Directors which is held immediately

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## following the annual meeting of stockholders.  The provisions of Sections 3.07, 3.08, 3.09and 3.10 of these Bylaws shall apply, mutatis mutandis, to any suchCommittee of the Board of Directors.

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# **ARTICLE IV**

 

### OFFICERS

 

## Section 4.01.          Designation, Election and Term ofOffice.  The Corporation shall havea Chairman of the Board, a President, Treasurer, such senior vice presidentsand vice presidents as the Board of Directors deems appropriate, a Secretaryand such other officers as the Board of Directors may deem appropriate.  These officers shall be elected annually bythe Board of Directors at the Board of Directors meeting immediately followingthe annual meeting of stockholders, and each such officer shall hold officeuntil the corresponding meeting of the Board of Directors in the next year anduntil his successor shall have been elected and qualified or until his earlierresignation, death or removal.  Anyvacancy in any of the above offices may be filled for the unexpired portion ofthe term by the Board of Directors at any regular or special meeting.

 

## Section 4.02.          Chairman of the Board.  The Chairman of the Board of Directors shallpreside at all meetings of the directors and shall have such other powers andduties as may from time to time be assigned to him by the Board of Directors.

 

## Section 4.03.          President.  The President shall be the chief executiveofficer of the Corporation and shall, subject to the power of the Board ofDirectors, have general supervision, direction and control of the business andaffairs of the Corporation.  He shallpreside at all meetings of the stockholders and,  in the absence of the Chairman of the Board, at all meetings ofthe directors.  He shall have thegeneral powers and duties of management usually vested in the office ofpresident of a corporation, and shall have such other duties as may be assignedto him from time to time by the Board of Directors.

 

## Section 4.04.          Treasurer.  The Treasurer shall keep and maintain, orcause to be kept and maintained, adequate and correct books and records ofaccount of the properties and business transactions of the Corporation,including accounts of its assets, liabilities, receipts, disbursements, gains,losses, capital, retained earnings and shares. The books of account shall at all reasonable times be open to inspectionby the directors.

 

The Treasurer shall deposit all moneys and othervaluables in the name and to the credit of the Corporation with suchdepositories as may be designated by the Board of Directors.  He shall disburse the funds of theCorporation as may be ordered by the Board of Directors, shall render to thePresident and directors, whenever they request it, an account of all of histransactions as the Treasurer and of the financial condition of theCorporation, and shall have such other powers and perform such other duties asmay be prescribed by the Board of Directors or the Bylaws.

 

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## Section 4.05.          Secretary.  The Secretary shall keep the minutes of themeetings of the stockholders, the Board of Directors and all committees.  He shall be the custodian of the corporateseat and shall affix it to all documents which he is authorized by law or theBoard of Directors to sign and seal.  Healso shall perform such other duties as may be assigned to him from time totime by the Board of Directors or the Chairman of the Board or President.

 

## Section 4.06.          Assistant Officers.  The President may appoint one or moreassistant secretaries and such other assistant officers as the business of theCorporation may require, each of whom shall hold office for such period, havesuch authority and perform such duties as may be specified from time to time bythe President.

 

## Section 4.07.          When Duties of an Officer May BeDelegated.  In the case of absenceor disability of an officer of the Corporation or for any other reason that mayseem sufficient to the Board of Directors, the Board of Directors or anyofficer designated by it, or the President, may, for the time of the absence ordisability, delegate such officer’s duties and powers to any other officer ofthe Corporation.

 

## Section 4.08.          Officers Holding Two or MoreOffices.  The same person may holdany two (2) or more of the above-mentioned offices.

 

## Section 4.09.          Compensation.  The Board of Directors shall have the powerto fix the compensation of all officers and employees of the Corporation.

 

## Section 4.10.          Resignations.  Any officer may resign at any time by givingwritten notice to the Board of Directors, to the President, or to the Secretaryof the Corporation.  Any suchresignation shall take effect at the time specified therein unless otherwisedetermined by the Board of Directors. The acceptance of a resignation by the Corporation shall not benecessary to make it effective.

 

## Section 4.11.          Removal.  Any officer of the Corporation may beremoved, with or without cause, by the affirmative vote of a majority of theentire Board of Directors.  Anyassistant officer of the Corporation may be removed, with or without cause, bythe President or by the Board of Directors.

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# **ARTICLE V**

 

### INDEMNIFICATION OFDIRECTORS, OFFICERS,EMPLOYEES AND OTHER CORPORATE AGENTS

 

## Section 5.01.          Action, Etc. Other Than by or inthe Right of the Corporation.  TheCorporation shall, to the extent legally permissible, indemnify any person whowas 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

 

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## the right of the Corporation) by reason of the factthat he is or was a director or officer of the Corporation, or while a directoror officer, is or was serving at the request of the Corporation as a director,officer, employee, trustee or agent of another corporation, partnership, jointventure, trust or other enterprise (all such persons being referred hereinafteras an “Agent”), against expenses (including attorneys’ fees), judgments, finesand amounts paid in settlement actually and reasonably incurred by him inconnection with such action, suit or proceeding if he acted in good faith andin a manner he reasonably believed to be in or not opposed to the bestinterests of the Corporation, and with respect to any criminal action orproceeding, had no reasonable cause to believe his conduct was unlawful.  The termination of any action, suit orproceeding by judgment, order, settlement, conviction, or upon a plea of nolocontendere or its equivalent, shall not, of itself, create a presumptionthat the person did not act in good faith and in a manner which he reasonablybelieved to be in or not opposed to the best interests of the Corporation, and,with respect to any criminal action or proceeding, that he had reasonable causeto believe that his conduct was unlawful. The Corporation shall not indemnifyany such person seeking indemnification in connection with a proceeding (orpart thereof) initiated by such person unless the initiation thereof was approvedor ratified by the Board of Directors of the Corporation.

 

## Section 5.02.          Action, Etc. by or in the Right ofthe Corporation.  The Corporationshall indemnify any person who was or is a party or is threatened to be made aparty to any threatened, pending or completed action or suit by or in the rightof the Corporation to procure a judgment in its favor by reason of the factthat he is or was an Agent against expenses (including attorneys’ fees)actually and reasonably incurred by him in connection with the defense orsettlement of such action or suit if he acted in good faith and in a manner hereasonably believed to be in or not opposed to the best interests of theCorporation, except that no indemnification shall be made in respect of anyclaim, issue or matter as to which such person shall have been adjudged to beliable to the Corporation by a court of competent jurisdiction, afterexhaustion of all appeals therefrom, unless and only to the extent that thecourt in which such action or suit was brought shall determine upon applicationthat, despite the adjudication of liability but in view of all thecircumstances of the case, such person is fairly and reasonably entitled toindemnity for such expenses which such court shall deem proper.

 

## Section 5.03.          Determination of Right ofIndemnification.  Anyindemnification under Sections 5.01 or 5.02 (unless ordered by a court) shallbe made by the Corporation only as authorized in the specific case upon adetermination that indemnification of the Agent is proper in the circumstancesbecause the Agent has met the applicable standard of conduct set forth inSections 5.01 and 5.02 hereof, which determination is made (a) by the Board ofDirectors, by a majority vote of directors who were not parties to such action,suit or proceeding, even though less than a quorum, or (b) by a committee ofsuch directors designated by a majority vote of such directors, even thoughless than a quorum, or (c) if there are no such directors, or if such directorsso direct, by independent legal counsel in a written opinion, or (d) by thestockholders.

 

## Section 5.04.          Indemnification Against Expenses ofSuccessful Party.  Notwithstandingthe other provisions of this Article V, to the extent that an Agent has beensuccessful on the merits or otherwise, including the dismissal of an actionwithout prejudice or the settlement of an action without admission ofliability, in defense of any action, suit or proceeding referred to in

 

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## Sections 5.01 or 5.02 hereof, or in defense of anyclaim, issue or matter therein, such Agent shall be indemnified againstexpenses, including attorneys’ fees actually and reasonably incurred by suchAgent in connection therewith.

 

## Section 5.05.          Advances of Expenses.  Except as limited by Section 5.06 of thisArticle V, expenses incurred by an Agent in defending any civil or criminalaction, suit, or proceeding shall be paid by the Corporation in advance of thefinal disposition of such action, suit or proceeding, if the Agent shallundertake to repay such amount if it shall ultimately be determined that suchperson is not entitled to be indemnified as authorized in this Article V.

 

## Section 5.06.          Right of Agent to Indemnificationupon Application; Procedure Upon Application.  Any indemnification or advance under this Article V shall be madepromptly, and in any event within ninety days, upon the written request of theAgent, unless a determination shall be made in the manner set forth in thesecond sentence of Subsection 5.05 hereof that such Agent acted in a manner setforth therein so as to justify the Corporation’s not indemnifying or making anadvance to the Agent.  The right toindemnification or advances as granted by this Article V shall be enforceableby the Agent in any court of competent jurisdiction, if the Board of Directorsor independent legal counsel denies the claim, in whole or in part, or if nodisposition of such claim is made within ninety (90) days.  The Agent’s expenses incurred in connectionwith successfully establishing his right to indemnification, in whole or inpart, in any such proceeding shall also be indemnified by the Corporation.

 

## Section 5.07.          Other Rights and Remedies.  The indemnification and advancement ofexpenses provided by, or granted pursuant to, this Article V shall not bedeemed exclusive of any other rights to which an Agent seeking indemnificationor advancement of expenses may be entitled under any Bylaw, agreement, vote ofstockholders or disinterested directors or otherwise, both as to action in hisofficial capacity and as to action in another capacity while holding suchoffice, and shall, unless otherwise provided when authorized or ratified,continue as to a person who has ceased to be an Agent and shall inure to the benefitof the heirs, executors and administrators of such a person.  All rights to indemnification under thisArticle V shall be deemed to be provided by a contract between the Corporationand the Agent who serves in such capacity at any time while these Bylaws andother relevant provisions of the Delaware General Corporation Law and otherapplicable law, if any, are in effect. Any repeal or modification thereof shall not affect any rights orobligations then existing.

 

## Section 5.08.          Insurance.  Upon resolution passed by the Board ofDirectors, the Corporation may purchase and maintain insurance on behalf of anyperson who is or was an Agent against any liability asserted against him andincurred 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 againstsuch liability under the provisions of this Article V or the Delaware GeneralCorporation Law.

 

## Section 5.09.          Constituent Corporations.  For the purposes of this Article V,references to “the Corporation” shall include, in addition to the resulting orsurviving corporation, all constituent corporations (including all constituentsof constituents) absorbed in a consolidation

 

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## or merger, which, if the separate existence of suchconstituent corporation had continued, would have had power and authority toindemnify its Agents, so that any Agent of such constituent corporation shallstand in the same position under the provisions of the Article V with respectto the resulting or surviving corporation as that Agent would have with respectto such constituent corporation if its separate existence had continued.

 

## Section 5.10.          Other Enterprises, Fines, andServing at Corporation’s Request. For purposes of this Article V, references to “other enterprises” shallinclude employee benefit plans; references to “fines” shall include any excisetaxes assessed on a person with respect to any employee benefit plan; andreferences to “serving at the request of the Corporation” shall include anyservice as a director, officer, employee or agent of the Corporation whichimposes duties on, or involves services by, such director, officer, employee oragent with respect to any employee benefit plan, its participants orbeneficiaries; and a person who acted in good faith and in a manner hereasonably believed to be in the interest of the participants and beneficiariesof an employee benefit plan shall be deemed to have acted in a manner “notopposed to the best interests of the Corporation” as referred to in thisArticle V.

 

## Section 5.11.          Savings Clause.  If this Article V or any portion thereofshall be invalidated on any ground by any court of competent jurisdiction, thenthe Corporation shall nevertheless indemnify each Agent as to expenses(including attorneys’ fees), judgments, fines and amounts paid in settlementwith respect to any action, suit or proceeding, whether civil, criminal,administrative or investigative, and whether internal or external, including agrand jury proceeding and an action or suit brought by or in the right of theCorporation, to the full extent permitted by any applicable portion of thisArticle V that shall not have been invalidated, or by any other applicable law.

###  

# **ARTICLE VI**

 

### STOCK

 

## Section 6.01.          Certificates.  Except as otherwise provided by law, eachstockholder shall be entitled to a certificate or certificates which shallrepresent and certify the number and class (and series, if appropriate) ofshares of stock owned by him in the Corporation.  Each certificate shall be signed in the name of the Corporationby the Chairman of the Board or a Vice-Chairman of the Board or the Presidentor a Vice President, together with the Treasurer or an Assistant Treasurer, orthe Secretary or an Assistant Secretary. Any or all of the signatures on any certificate may be a facsimile.  In case any officer, transfer agent orregistrar who has signed or whose facsimile signature has been placed upon acertificate shall have ceased to be such officer, transfer agent or registrarbefore such certificate is issued, it may be issued by the Corporation with thesame effect as if such person were such officer, transfer agent or registrar atthe date of issue.

 

## Section 6.02.          Transfer of Shares.  Shares of stock shall be transferable on thebooks of the Corporation only by the holder thereof, in person or by his dulyauthorized attorney, upon the

 

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## surrender of the certificate representing the sharesto be transferred, property endorsed, to the Corporation’s transfer agent, ifthe Corporation has a transfer agent, or to the Corporation’s registrar, if theCorporation has a registrar, or to the Secretary, if the Corporation hasneither a transfer agent nor a registrar. The Board of Directors shall have power and authority to make such otherrules and regulations concerning the issue, transfer and registration ofcertificates of the Corporation’s stock as it may deem expedient.

 

## Section 6.03.          Transfer Agents and Registrars.  The Corporation may have one or moretransfer agents and one or more registrars of its stock whose respective dutiesthe Board of Directors or the Secretary may, from time to time, define.  No certificate of stock shall be valid untilcountersigned by a transfer agent, if the Corporation has a transfer agent, oruntil registered by a registrar, if the Corporation has a registrar.  The duties of transfer agent and registrarmay be combined.

 

## Section 6.04.          Stock Ledgers.  Original or duplicate stock ledgers,containing the names and addresses of the stockholders of the Corporation andthe number of shares of each class of stock held by them, shall be kept at theprincipal executive office of the Corporation or at the office of its transferagent or registrar.

 

## Section 6.05.          Record Dates.  The Board of Directors may fix, in advance,a date as the record date for the purpose of determining stockholders entitledto notice of, or to vote at, any meeting of stockholders or any adjournmentthereof, or stockholders entitled to receive payment of any dividend or otherdistribution or allotment of any rights, or entitled to exercise any rights inrespect of any change, conversion or exchange of stock, or in order to make adetermination of stockholders for any other proper purpose.  Such date in any case shall be not more thansixty (60) days, and in case of a meeting of stockholders, not less than ten(10) days, prior to the date on which the particular action requiring suchdetermination of stockholders is to be taken. Only those stockholders of record on the date so fixed shall be entitledto any of the foregoing rights, notwithstanding the transfer of any such stockon the books of the Corporation after any such record date fixed by the Boardof Directors.

 

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