**Exhibit 3.2**

 

 

BY-LAWS

 

OF

 

GRAPHIC PACKAGINGCORPORATION

 

 

As Amended and Restatedon November 19, 2003

 

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GRAPHIC PACKAGINGCORPORATIONBY-LAWS

 

TABLE OF CONTENTS

 
| **SECTION**    | ** **                                            |
|----------------|-------------------------------------------------------|
|           |                                                  |   |
| ARTICLE  I     | STOCKHOLDERS                                          |   |
| Section  1.01. | Annual  Meetings                                      |   |
| Section  1.02. | Special  Meetings                                     |   |
| Section  1.03. | Notice  of Meetings; Waiver.                          |   |
| Section  1.04. | Quorum                                                |   |
| Section  1.05. | Voting                                                |   |
| Section  1.06. | Voting  by Ballot                                     |   |
| Section  1.07. | Adjournment                                           |   |
| Section  1.08. | Proxies                                               |   |
| Section  1.09. | Conduct  of Meetings                                  |   |
| Section  1.10. | Notice  of Stockholder Business and Nominations.      |   |
| Section  1.11. | Inspectors  of Elections                              |   |
| Section  1.12. | Opening  and Closing of Polls                         |   |
| Section  1.13. | No  Stockholder Action by Written Consent             |   |
|           |                                                  |   |
| ARTICLE  II    | BOARD  OF DIRECTORS                                   |   |
| Section  2.01. | General  Powers                                       |   |
| Section  2.02. | Number  of Directors                                  |   |
| Section  2.03. | Classified  Board of Directors; Election of Directors |   |
| Section  2.04. | Executive  Chairman of the Board                      |   |
| Section  2.05. | Annual  and Regular Meetings                          |   |
| Section  2.06. | Special  Meetings; Notice                             |   |
| Section  2.07. | Quorum;  Voting                                       |   |
| Section  2.08. | Adjournment                                           |   |
| Section  2.09. | Action  Without a Meeting                             |   |
| Section  2.10. | Regulations;  Manner of Acting                        |   |
| Section  2.11. | Action  by Telephonic Communications                  |   |
| Section  2.12. | Resignations                                          |   |
| Section  2.13. | Compensation                                          |   |
|           |                                                  |   |
| ARTICLE  III   | COMMITTEES  OF THE BOARD OF DIRECTORS                 |   |
| Section  3.01. | Committees                                            |   |
| Section  3.02. | Powers                                                |   |
| Section  3.03. | Proceedings                                           |   |
| Section  3.04. | Quorum  and Manner of Acting                          |   |

 

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| Section  3.05. | Action  by Telephonic Communications          |   |
|----------------|-----------------------------------------------|--------|
| Section  3.06. | Resignations                                  |   |
| Section  3.07. | Removal                                       |   |
| Section  3.08. | Vacancies                                     |   |
|           |                                          |   |
| ARTICLE  IV    | OFFICERS                                      |   |
| Section  4.01. | Number                                        |   |
| Section  4.02. | Election                                      |   |
| Section  4.03. | The  President and Chief Executive Officer    |   |
| Section  4.04. | The  Vice Presidents                          |   |
| Section  4.05. | The  Secretary                                |   |
| Section  4.06. | The  Chief Financial Officer                  |   |
| Section  4.07. | The  Treasurer                                |   |
| Section  4.08. | Other  Officers Elected by Board of Directors |   |
| Section  4.09. | Salaries                                      |   |
| Section  4.10. | Removal  and Resignation; Vacancies           |   |
| Section  4.11. | Authority  and Duties of Officers             |   |
|           |                                          |   |
| ARTICLE  V     | CAPITAL  STOCK                                |   |
| Section  5.01. | Certificates  of Stock, Uncertificated Shares |   |
| Section  5.02. | Signatures;  Facsimile                        |   |
| Section  5.03. | Lost,  Stolen or Destroyed Certificates       |   |
| Section  5.04. | Transfer  of Stock                            |   |
| Section  5.05. | Record  Date                                  |   |
| Section  5.06. | Registered  Stockholders                      |   |
| Section  5.07. | Transfer  Agent and Registrar                 |   |
|           |                                          |   |
| ARTICLE  VI    | INDEMNIFICATION                               |   |
| Section  6.01. | Nature  of Indemnity                          |   |
| Section  6.02. | Successful  Defense                           |   |
| Section  6.03. | Determination  that Indemnification is Proper |   |
| Section  6.04. | Advance  Payment of Expenses                  |   |
| Section  6.05. | Procedure  for Indemnification                |   |
| Section  6.06. | Survival;  Preservation of Other Rights       |   |
| Section  6.07. | Insurance                                     |   |
| Section  6.08. | Severability                                  |   |
|           |                                          |   |
| ARTICLE  VII   | OFFICES                                       |   |
| Section  7.01. | Registered  Office                            |   |
| Section  7.02. | Other  Offices                                |   |
|           |                                          |   |
| ARTICLE  VIII  | GENERAL  PROVISIONS                           |   |
| Section  8.01. | Dividends                                     |   |

 

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| Section  8.02.  | Reserves                            |   |
|-----------------|-------------------------------------|--------|
| Section  8.03.  | Execution  of Instruments           |   |
| Section  8.04.  | Corporate  Indebtedness             |   |
| Section  8.05.  | Deposits                            |   |
| Section  8.06.  | Checks                              |   |
| Section  8.07.  | Sale,  Transfer, etc. of Securities |   |
| Section  8.08.  | Voting  as Stockholder              |   |
| Section  8.09.  | Fiscal  Year                        |   |
| Section  8.10.  | Seal                                |   |
| Section  8.11.  | Books  and Records; Inspection      |   |
|            |                                |   |
| ARTICLE  IX     | AMENDMENT  OF BY-LAWS               |   |
| Section  9.01.  | Amendment                           |   |
|            |                                |   |
| ARTICLE  X      | CONSTRUCTION                        |   |
| Section  10.01. | Construction                        |   |

 

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GRAPHIC PACKAGING CORPORATION

 

BY-LAWS

 

As amended and restated effectiveas of November 19, 2003

 

 

# ARTICLE ISTOCKHOLDERS

 

## Section1.01.  Annual Meetings. The annual meeting of the stockholders of the Corporation for theelection of directors and for the transaction of such other business asproperly may come before such meeting shall be held at such place, eitherwithin or without the State of Delaware, or, within the sole discretion of theBoard of Directors, by means of remote communication, and at such date and atsuch time, as may be fixed from time to time by resolution of the Board ofDirectors and set forth in the notice or waiver of notice of the meeting.

##  

## Section1.02.  Special Meetings. A special meeting of the stockholders of the Corporation may be calledonly by or at the direction of the Board of Directors.  Such special meetings of the stockholdersshall be held at such place, within or without the State of Delaware, or,within the sole discretion of the Board of Directors, by means of remotecommunication, as shall be specified in the respective notices or waivers ofnotice thereof.  Any right of thestockholders of the Corporation to call a special meeting of the stockholdersis specifically denied.

##  

## Section1.03.  Notice of Meetings; Waiver.

##  

### (a)  The Secretary of the Corporation or anyAssistant Secretary shall cause notice of the place, if any, date and hour ofeach meeting of the stockholders, and, in the case of a special meeting, thepurpose or purposes for which such meeting is called, and the means of remotecommunication, if any, by which stockholders and proxyholders may be deemed tobe present in person and vote at such meeting, to be given personally or bymail or by electronic transmission, not fewer than ten (10) nor more than sixty(60) days prior to the meeting, to each stockholder of record entitled to voteat such meeting.  If such notice ismailed, it shall be deemed to have been given personally to a stockholder whendeposited in the United States mail, postage prepaid, directed to the stockholderat his or her address as it appears on the record of stockholders of theCorporation, or, if a stockholder shall have filed with the Secretary of theCorporation a written request that notices to such stockholder be mailed tosome other address, then directed to such stockholder at such otheraddress.  Such further notice shall begiven as may be required by law.

###  

### 

###  

### (b)  A waiver of any notice of any annual orspecial meeting signed by the person entitled thereto, or a waiver byelectronic transmission by the person entitled to notice, shall be deemedequivalent to notice.  Neither thebusiness to be transacted at, nor the purpose of, any annual or special meetingof the stockholders need be specified in a waiver of notice.  Attendance of a stockholder at a meeting ofstockholders shall constitute a waiver of notice of such meeting, except whenthe stockholder attends a meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business on the ground thatthe meeting is not lawfully called or convened.

###  

## Section1.04.  Quorum.  Exceptas otherwise required by law, applicable New York Stock Exchange rules or theRestated Certificate of Incorporation, the presence in person or by proxy ofthe holders of record of one-third (1/3) of the voting power of the sharesentitled to vote at a meeting of stockholders shall constitute a quorum for thetransaction of business at such meeting.

##  

## Section1.05.  Voting.  At allmeetings of stockholders for the election of directors, directors shall beelected by a plurality of the votes cast. All other elections and questions shall, unless otherwise provided bythe Restated Certificate of Incorporation, these By-Laws, the rules orregulations of any stock exchange applicable to the Corporation, applicable lawor any regulation applicable to the Corporation or its securities, be decidedby the affirmative vote of the holders of a majority in voting power of theshares of stock of the Corporation which are present in person or by proxy andentitled to vote thereon.

##  

## Section1.06.  Voting by Ballot. No vote of the stockholders on an election of directors need be taken bywritten ballot or by electronic transmission unless otherwise required bylaw.  Any vote not required to be taken byballot or by electronic transmission may be conducted in any manner approved bythe Board of Directors.

##  

## Section1.07.  Adjournment. Any meeting of stockholders, annual or special, may be adjourned fromtime to time to reconvene at the same or some other place, time or date, by thechairman of the meeting or by the stockholders present in person or byproxy.  If a quorum is not present at anymeeting of the stockholders, the chairman of the meeting or stockholderspresent in person or by proxy shall have the power to adjourn any such meetingfrom time to time until a quorum is present. Notice of any adjourned meeting of the stockholders of the Corporationneed not be given if the place, if any, date and hour thereof are announced atthe meeting at which the adjournment is taken, provided, however,that if the adjournment is for more than thirty (30) days, or if after theadjournment a new record date for the adjourned meeting is fixed pursuant toSection 5.05 of these By-Laws, a notice of the adjourned meeting,conforming to the requirements of Section 1.03 hereof, shall be given to eachstockholder of record entitled to vote at such meeting.  At any adjourned meeting at which a quorum ispresent, any

 

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## businessmay be transacted that might have been transacted on the original date of themeeting.

##  

## Section1.08.  Proxies.  Anystockholder entitled to vote at any meeting of the stockholders may authorizeanother person or persons to vote at any such meeting and express such consentor dissent for him or her by proxy.  Astockholder may authorize a valid proxy by executing a written instrumentsigned by such stockholder, or by causing his or her signature to be affixed tosuch writing by any reasonable means including, but not limited to, byfacsimile signature, or by transmitting or authorizing the transmission of atelegram, cablegram or other means of electronic transmission to the persondesignated as the holder of the proxy, a proxy solicitation firm or a likeauthorized agent.  No such proxy shall bevoted or acted upon after the expiration of three (3) years from the date ofsuch proxy, unless such proxy provides for a longer period. Every proxy shallbe revocable at the pleasure of the stockholder executing it, except in thosecases where the proxy states that it is irrevocable and the proxy is coupledwith an interest sufficient in law to support an irrevocable power.  A stockholder may revoke any proxy which isnot irrevocable by attending the meeting and voting in person or by filing withthe Secretary of the Corporation either an instrument revoking the proxy oranother duly executed proxy bearing a later date.  Proxies by telegram, cablegram or otherelectronic transmission must either set forth or be submitted with informationfrom which it can be determined that the telegram, cablegram or otherelectronic transmission was authorized by the stockholder.  Any copy, facsimile telecommunication orother reliable reproduction of a writing or transmission created pursuant tothis section may be substituted or used in lieu of the original writing ortransmission for any and all purposes for which the original writing ortransmission could be used, provided that such copy, facsimiletelecommunication or other reproduction shall be a complete reproduction of theentire original writing or transmission.

##  

## Section1.09.  Conduct of Meetings. The date and time of the opening and the closing of the polls for eachmatter upon which the stockholders will vote at a meeting shall be announced atthe meeting by the chairman of the meeting. The Board of Directors may adopt by resolution such rules andregulations for the conduct of the meeting of stockholders as it shall deemappropriate.  Except to the extentinconsistent with such rules and regulations as adopted by the Board ofDirectors, the chairman of any meeting of stockholders shall have the right andauthority to convene and to adjourn the meeting, to prescribe such rules,regulations and procedures and to do all such acts as, in the judgment of suchchairman, 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 themeeting, may include, without limitation, the following:  (i) the establishment of anagenda or order of business for the meeting; (ii) rules andprocedures for maintaining order at the meeting and the safety of thosepresent; (iii) limitations on attendance at or participation in themeeting to stockholders of record of the Corporation, their duly authorized andconstituted proxies or such other

 

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## personsas the chairman of the meeting shall determine; (iv) restrictionson entry to the meeting after the time fixed for the commencement thereof; and(v) limitations on the time allotted to questions or comments byparticipants.  The chairman of anymeeting of stockholders, in addition to making any other determinations thatmay be appropriate to the conduct of the meeting, shall, if the facts warrant,determine and declare to the meeting that a matter or business was not properlybrought before the meeting and if such presiding officer should so determine,such person shall so declare to the meeting and any such matter or business notproperly brought before the meeting shall not be transacted or considered.  Unless and to the extent determined by theBoard of Directors or the chairman of the meeting, meetings of stockholdersshall not be required to be held in accordance with the rules of parliamentaryprocedure.

##  

## Section1.10.  Notice of Stockholder Business and Nominations.

##  

### (a)  AnnualMeetings of Stockholders.

###  

#### (i)  Nominations of persons for election to theBoard of Directors of the Corporation and the proposal of business to beconsidered by the stockholders may be made at an annual meeting of stockholders(A) pursuant to the Corporation’s notice of the meeting (or anysupplement thereto), (B) by or at the direction of the Board ofDirectors or the Chairman of the Board, or (C) by any stockholderof the Corporation who is entitled to vote at the meeting, who complies withthe notice procedures set forth in clauses (ii) and (iii) of this paragraph andwho was a stockholder of record at the time such notice is delivered to theSecretary of the Corporation.

####  

#### (ii)  For nominations or other business to beproperly brought before an annual meeting by a stockholder, pursuant to clause(C) of paragraph (a)(i) of this Section 1.10, the stockholder must have giventimely notice thereof in writing to the Secretary of the Corporation.  To be timely, a stockholder’s notice shall bedelivered to the Secretary of the Corporation at the principal executiveoffices of the Corporation not fewer than ninety (90) days nor more than onehundred twenty (120) days prior to the first anniversary of the preceding year’sannual meeting (which anniversary date, in the case of the first annual meetingof stockholders following the closing of the transactions contemplated by theAgreement and Plan of Merger, dated as of March 25, 2003, among RiverwoodHolding, Inc., Riverwood Acquisition Sub LLC and Graphic PackagingInternational Corporation (the “Merger”), shall be deemed to be May 15,2003) and in any event at least forty-five (45) days prior to the firstanniversary of the date on which the Corporation first mailed its proxymaterials for the preceding year’s annual meeting of stockholders (whichanniversary date of such mailing, as it relates to the first annual meeting ofstockholders following the closing of the Merger, shall be deemed to be April15, 2003); provided that if the date of the

 

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#### annual meeting is advanced by more than thirty (30)days or delayed by more than seventy (70) days from such anniversary date ofthe preceding year’s annual meeting, notice by the stockholder to be timelymust be so delivered not earlier than one hundred twenty (120) days prior tosuch annual meeting and not later than the close of business on the later ofthe ninetieth (90th) day prior to such annual meeting or the tenth(10th) day following the day on which public announcement of thedate of such meeting is first made.  Inno event shall the adjournment of an annual meeting commence a new time periodfor the giving of a stockholder’s notice as described above.  Such stockholder’s notice shall set forth (A) asto each person whom the stockholder proposes to nominate for election orreelection as a director all information relating to such person that isrequired to be disclosed in solicitations of proxies for election of directors,or is otherwise required, in each case pursuant to Regulation 14A under theSecurities Exchange Act of 1934, as amended (the “Exchange Act”), andRule 14a-11 thereunder, or any successor provisions, including such person’swritten consent to being named in the proxy statement as a nominee and to servingas a director if elected; (B) as to any other business that thestockholder proposes to bring before the meeting, a brief description of thebusiness desired to be brought before the meeting (including the text of anyresolution proposed for consideration), the reasons for conducting suchbusiness at the meeting and any material interest in such business of suchstockholder and of any beneficial owner on whose behalf the proposal is made;and (C) as to the stockholder giving the notice and any beneficialowner on whose behalf the nomination or proposal is made (1) thename and address of such stockholder, as they appear on the Corporation’sbooks, and of such beneficial owner, (2) the class and number ofshares of the Corporation which are owned beneficially and of record by suchstockholder and such beneficial owner, (3) a representation thatthe stockholder is a holder of record of stock of the Corporation entitled tovote at such meeting and intends to appear in person or by proxy at the meetingto propose such business or nomination, and (4) a representationwhether the stockholder or the beneficial owner, if any, intends or is part ofa group which intends (a) to deliver a proxy statement and/or formof proxy to holders of at least the percentage of the Corporation’s outstandingcapital stock required to approve or adopt the proposal or elect the nomineeand/or (b) otherwise to solicit proxies from stockholders insupport of such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by astockholder if the stockholder has notified the Corporation of his or herintention to present a proposal at an annual meeting in compliance with Rule14a-8 (or any successor thereof) promulgated under the Exchange Act and suchstockholder’s proposal has been included in a proxy statement that has beenprepared by the Corporation to solicit proxies for such annual meeting.  The Corporation may require any proposednominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee toserve as a director of the Corporation.

 

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#### (iii)  Notwithstanding anything in the secondsentence of paragraph (a)(ii) of this Section 1.10 to the contrary, in theevent that the number of directors to be elected to the Board of Directors ofthe Corporation is increased and there is no public announcement naming all ofthe nominees for director or specifying the size of the increased Board ofDirectors made by the Corporation at least one hundred (100) days prior to thefirst anniversary of the preceding year’s annual meeting (which anniversarydate, in the case of the first annual meeting of stockholders following theclosing of the Merger, shall be deemed to be May 15, 2003), a stockholder’snotice under this paragraph shall also be considered timely, but only withrespect to nominees for any new positions created by such increase, if it shallbe delivered to the Secretary of the Corporation at the principal executiveoffices of the Corporation not later than the close of business on the tenthday following the day on which such public announcement is first made by theCorporation.

####  

### (b)  Special Meetings of Stockholders.  Only such business as shall have been broughtbefore the special meeting of the stockholders pursuant to the Corporation’snotice of meeting pursuant to Section 1.03 of these By-Laws shall be conductedat such meeting.  Nominations of personsfor election to the Board of Directors may be made at a special meeting ofstockholders at which directors are to be elected pursuant to the Corporation’snotice of meeting (1) by or at the direction of the Board of Directorsor (2) by any stockholder of the Corporation who is entitled tovote at the meeting, who complies with the notice procedures set forth in thisSection 1.10 and who is a stockholder of record at the time such notice isdelivered to the Secretary of the Corporation. Nominations by stockholders of persons for election to the Board ofDirectors may be made at such special meeting of stockholders if thestockholder’s notice as required by paragraph (a)(ii) of this Section 1.10shall be delivered to the Secretary of the Corporation at the principalexecutive offices of the Corporation not earlier than the one hundred andtwentieth (120th) day prior to such special meeting and not laterthan the close of business on the later of the ninetieth (90th) dayprior to such special meeting or the tenth (10th) day following theday on which public announcement is first made of the date of the specialmeeting and of the nominees proposed by the Board of Directors to be elected atsuch meeting.  In no event shall theadjournment of a special meeting commence a new time period (or extend any timeperiod) for the giving of a stockholder’s notice as described above.

###  

### (c)  General.

###  

#### (i)  Only persons who are nominated in accordancewith the procedures set forth in this Section 1.10 shall be eligible to beelected as directors and only such business shall be conducted at a meeting ofstockholders as shall have been brought before the meeting in accordance withthe procedures set forth in this Section 1.10. Except as otherwise provided by law, the Restated Certificate of

 

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#### Incorporation or these By-Laws, the Chairman of themeeting shall have the power and duty to determine whether a nomination or anybusiness proposed to be brought before the meeting was made or proposed inaccordance with the procedures set forth in this Section 1.10 and, if anyproposed nomination or business is not made or proposed in compliance with thisSection 1.10 (including whether the stockholder or beneficial owner, if any, onwhose behalf the nomination or proposal is made solicited (or is part of agroup which solicited) or did not so solicit, as the case may be, proxies in supportof such stockholder’s nominee or proposal in compliance with such stockholder’srepresentation as required by clause (a)(ii)(C)(4) of this Section 1.10), todeclare that such defective proposal or nomination shall be disregarded.  Notwithstanding the foregoing provision ofthis Section 1.10, if the stockholder (or a qualified representative of thestockholder) does not appear at the annual or special meeting of stockholdersof the Corporation to present a nomination or business, such proposed nominationor business shall be disregarded, notwithstanding that proxies in respect ofsuch vote may have been received by the Corporation.

####  

#### (ii)  For purposes of this Section 1.10, the term “publicannouncement” shall mean disclosure in a press release reported by the DowJones News Service, Associated Press or comparable national news service or ina document publicly filed by the Corporation with the Securities and ExchangeCommission pursuant to Section 13, 14, or 15(d) of the Exchange Act.

####  

#### (iii)  Notwithstanding the foregoing provisions ofthis Section 1.10, a stockholder shall also comply with all applicablerequirements of the Exchange Act and the rules and regulations thereunder withrespect to the matters set forth in this Section 1.10.  Nothing in this Section 1.10 shall be deemedto affect any rights (A) of stockholders to request inclusion ofproposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under theExchange Act, or (B) of the holders of any series of PreferredStock, if any, to elect directors if so provided under any applicable PreferredStock Certificate of Designation (as defined in the Restated Certificate ofIncorporation).

####  

## Section1.11.  Inspectors of Elections.  Preceding any meeting of the stockholders,the Board of Directors shall appoint one (1) or more persons to act asInspectors of Elections, and may designate one (1) or more alternateinspectors.  In the event no inspector oralternate is able to act, the person presiding at the meeting shall appoint one(1) or more inspectors to act at the meeting. No person who is a candidate for an office at an election may serve asan inspector at such election.  Eachinspector, before entering upon the discharge of the duties of an inspector,shall take and sign an oath faithfully to execute the duties of inspector withstrict impartiality and according to the best of his or her ability.  The inspector shall:

##  

## 

##  

### (a)  ascertain the numberof shares outstanding and the voting power of each;

###  

### (b)  determine the sharesrepresented at a meeting and the validity of proxies and ballots;

###  

### (c)  specify theinformation relied upon to determine the validity of electronic transmissionsin accordance with Section 1.08 hereof;

###  

### (d)  count all votes andballots;

###  

### (e)  determine and retainfor a reasonable period a record of the disposition of any challenges made toany determination by the inspectors;

###  

### (f)  certify his or herdetermination of the number of shares represented at the meeting, and his orher count of all votes and ballots;

###  

### (g)  appoint or retainother persons or entities to assist in the performance of the duties ofinspector; and

###  

### (h)  when determining the shares represented andthe validity of proxies and ballots, be limited to an examination of theproxies, any envelopes submitted with those proxies, any information providedin accordance with Section 1.08 of these By-Laws, ballots and the regular booksand records of the Corporation.  Theinspector may consider other reliable information for the limited purpose ofreconciling proxies and ballots submitted by or on behalf of banks, brokers ortheir nominees or a similar person which represent more votes than the holderof a proxy is authorized by the record owner to cast or more votes than thestockholder holds of record.  If the inspectorconsiders other reliable information as outlined in this section, theinspector, at the time of his or her certification pursuant to paragraph (f) ofthis section, shall specify the precise information considered, the person orpersons from whom the information was obtained, when this information wasobtained, the means by which the information was obtained, and the basis forthe inspector’s belief that such information is accurate and reliable.

###  

## Section1.12.  Opening and Closing of Polls.  The date and time for the opening and theclosing of the polls for each matter to be voted upon at a stockholder meetingshall be announced at the meeting.  Theinspector shall be prohibited from accepting any ballots, proxies or votes orany revocations thereof or changes thereto after the closing of the polls,unless the Delaware Court of Chancery upon application by a stockholder shalldetermine otherwise.

##  

## Section1.13.  NoStockholder Action by Written Consent. Any action required or permitted to be taken by the stockholders of theCorporation must be effected at a duly called annual or special meeting of thestockholders of the Corporation, and the ability of the stockholders to consentin writing to the taking of any action is specifically denied.

 

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# ARTICLE IIBOARD OF DIRECTORS

 

## Section2.01.  GeneralPowers.  Except as may otherwise beprovided by law, the Restated Certificate of Incorporation or these By-Laws,the property, affairs and business of the Corporation shall be managed by orunder the direction of the Board of Directors and the Board of Directors mayexercise all the powers of the Corporation.

##  

## Section2.02.  Number of Directors. The authorized number of directors constituting the entire Board ofDirectors shall be fixed from time to time by resolution of the Board ofDirectors, provided that such number shall not be less than three (3).

##  

## Section2.03.  Classified Board of Directors; Election of Directors.  Subject to the rights, if any, of the holdersof any series of Preferred Stock to elect directors pursuant to the provisionsof a Preferred Stock Certificate of Designation (which directors shall not beclassified pursuant to this sentence (unless so provided in the Preferred StockCertificate of Designation)), the directors of the Corporation shall beclassified with respect to the time for which they severally hold office intothree classes, as nearly equal in number as possible:  one class (“Class I”), the initialterm of which shall expire at the first annual meeting of stockholders followingthe time of effectiveness of the Restated Certificate of Incorporation (the “EffectiveTime”); a second class (“Class II”), the initial term of which shallexpire at the second annual meeting of stockholders following the EffectiveTime; and a third class (“Class III”), the initial term of which shallexpire at the third annual meeting of stockholders following the EffectiveTime, with each class to hold office until its successors are elected andqualified.  At each annual meeting ofstockholders of the Corporation, the successors of the members of the class ofdirectors whose term expires at that meeting shall be elected to hold officefor a term expiring at the third succeeding annual meeting ofstockholders.  The holders of a majorityof shares then entitled to vote at an election of directors may remove anydirector or the entire Board of Directors, but only for cause.

##  

## Section2.04.  Executive Chairman of the Board.  The directors shall elect from among themembers of the Board of Directors a Chairman of the Board (the “ExecutiveChairman”).  The Executive Chairmanshall be deemed an officer of the Corporation and shall have such duties andpowers as set forth in these By-Laws or as shall otherwise be conferred uponthe Executive Chairman from time to time by the Board of Directors.  The Executive Chairman shall, if present,preside over all meetings of the stockholders of the Corporation and of theBoard of Directors.  The Board ofDirectors shall by resolution establish a procedure to provide for an actingExecutive Chairman in the event the current Executive Chairman is unable toserve or act in that capacity.

 

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## Section2.05.  Annual and Regular Meetings.  The annual meeting of the Board of Directorsfor the purpose of electing officers and for the transaction of such otherbusiness as may come before the meeting shall be held as soon as reasonablypracticable following adjournment of the annual meeting of the stockholders atthe place of such annual meeting of the stockholders.  Notice of such annual meeting of the Board ofDirectors need not be given.  The Boardof Directors from time to time may by resolution provide for the holding ofregular meetings and fix the place (which may be within or without the State ofDelaware) and the date and hour of such meetings.  Notice of regular meetings need not be given;provided, however, that if the Board of Directors shall fix orchange the time or place of any regular meeting, notice of such action shall bemailed promptly, or sent by telephone, including a voice messaging system orother system or technology designed to record and communicate messages,telegraph, facsimile, electronic mail or other electronic means, to eachdirector who shall not have been present at the meeting at which such action wastaken, addressed to him or her at his or her usual place of business, or shallbe delivered to him or her personally. Notice of such action need not be given to any director who submits awaiver of notice, whether before or after such meeting.

##  

## Section2.06.  Special Meetings; Notice.  Special meetings of the Board of Directorsshall be held whenever called by the Executive Chairman or the President andChief Executive Officer, at such place (within or without the State ofDelaware), date and hour as may be specified in the respective notices orwaivers of notice of such meetings. Special meetings of the Board of Directors also may be held whenevercalled pursuant to a resolution approved by a majority of the entire Board ofDirectors.  Special meetings of the Boardof Directors may be called on twenty-four (24) hours’ notice, if notice isgiven to each Director personally or by telephone, including a voice messagingsystem, or other system or technology designed to record and communicatemessages, telegraph, facsimile, electronic mail or other electronic means, oron five (5) days’ notice, if notice is mailed to each director, addressed tohim or her at his or her usual place of business or to such other address asany director may request by notice to the Secretary.  Notice of any special meeting need not begiven to any director who attends such meeting without protesting the lack ofnotice to him or her, prior to or at the commencement of such meeting, or toany director who submits a waiver of notice, whether before or after suchmeeting, and any business may be transacted thereat.

##  

## Section2.07.  Quorum; Voting. At all meetings of the Board of Directors, the presence of at least amajority of the total authorized number of directors shall constitute a quorumfor the transaction of business.  Exceptas otherwise required by the Restated Certificate of Incorporation, theseBy-Laws or by law, the vote of at least a majority of the directors present atany meeting at which a quorum is present shall be the act of the Board ofDirectors.

##  

## 

##  

## Section2.08.  Adjournment.  Amajority of the directors present, whether or not a quorum is present, mayadjourn any meeting of the Board of Directors to another time or place.  No notice need be given of any adjourned meetingunless the time and place of the adjourned meeting are not announced at thetime of adjournment, in which case notice conforming to the requirements ofSection 2.05 of these By-Laws shall be given to each director.

##  

## Section2.09.  ActionWithout a Meeting. Any action required or permitted to be taken at any meeting of the Boardof Directors may be taken without a meeting if all members of the Board ofDirectors consent thereto in writing or by electronic transmission, and suchwriting, writings or electronic transmission or transmissions are filed withthe minutes of proceedings of the Board of Directors.  Such filing shall be in paper form if theminutes are maintained in paper form and shall be in electronic form if theminutes are maintained in electronic form.

##  

## Section2.10.  Regulations; Manner of Acting.  To the extent consistent with applicable law,the Restated Certificate of Incorporation and these By-Laws, the Board ofDirectors may adopt by resolution such rules and regulations for the conduct ofmeetings of the Board of Directors and for the management of the property,affairs and business of the Corporation as the Board of Directors may deemappropriate.  The directors shall actonly as a Board of Directors or a duly appointed committee thereof and theindividual directors shall have no power in their individual capacities.

##  

## Section2.11.  Action by Telephonic Communications.  Members of the Board of Directors mayparticipate in a meeting of the Board of Directors by means of conference telephoneor other communications equipment by means of which all persons participatingin the meeting can hear each other, and participation in a meeting pursuant tothis provision shall constitute presence in person at such meeting.

##  

## Section2.12.  Resignations. Any director may resign at any time by submitting an electronictransmission or by delivering a written notice of resignation, signed by suchdirector, to the Executive Chairman or the Secretary of the Corporation.  Unless otherwise specified therein, suchresignation shall take effect upon delivery.

##  

## Section2.13.  Compensation. The amount, if any, which each director shall be entitled to receive ascompensation for such director’s services as such shall be fixed from time totime by resolution of the Board of Directors, provided that no directorwho is an officer or employee of the Corporation, shall be entitled to receiveany compensation for his or her services as a director (although such directorshall be entitled to be reimbursed for any reasonable out-of-pocket expensesincurred in connection with his or her services as a director).

 

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# ARTICLE IIICOMMITTEES OF THE BOARD OF DIRECTORS

 

## Section3.01.  Committees. The Board of Directors, by resolution adopted by the affirmative vote ofa majority of directors then in office, (a) shall designate anAudit Committee, a Compensation and Benefits Committee and a Nominating andCorporate Governance Committee and (b) may establish one (1) ormore other committees of the Board of Directors; each committee to consist ofsuch number of Directors as from time to time may be fixed by resolution of theBoard of Directors.  Any such committeeshall serve at the pleasure of the Board of Directors.  Each such committee shall have the powers andduties delegated to it by the Board of Directors, subject to the limitationsset forth in the applicable provisions of the General Corporation Law of theState of Delaware (the “DGCL”). The Board of Directors may elect one (1) or more of its members asalternate members of any such committee who may take the place of any absent ordisqualified member or members at any meeting of such committee, upon requestof the Executive Chairman or the Chairman of such committee.  The Board of Directors shall not form anExecutive Committee.

##  

## Section3.02.  Powers.  Eachcommittee, except as otherwise provided in this section, shall have and mayexercise such powers of the Board of Directors as may be provided by resolutionor resolutions of the Board of Directors. No committee shall have the power or authority:

##  

##### (a)  to approve or adopt, or recommend to thestockholders, any action or matter expressly required by the DGCL to besubmitted to the stockholders for approval; or

#####  

##### (b)  to adopt, amend orrepeal the By-Laws of the Corporation.

#####  

## Section3.03.  Proceedings. Each such committee may fix its own rules of procedure and may meet atsuch place (within or without the State of Delaware), at such time and uponsuch notice, if any, as it shall determine from time to time.  Each such committee shall keep minutes of itsproceedings and shall report such proceedings to the Board of Directors at themeeting of the Board of Directors next following any such proceedings.

##  

## Section3.04.  Quorum and Manner of Acting.  Except as may be otherwise provided in theresolution creating such committee, at all meetings of any committee, thepresence of members (or alternate members) constituting a majority of the totalauthorized membership of such committee shall constitute a quorum for thetransaction of

 

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## business.  The act of the majority of the memberspresent at any meeting at which a quorum is present shall be the act of suchcommittee.  Any action required orpermitted to be taken at any meeting of any such committee may be taken withouta meeting, if all members of such committee shall consent to such action inwriting or by electronic transmission and such writing,writings or electronic transmission or transmissions are filed with the minutesof the proceedings of the committee. Such filing shall be in paper form if the minutes are in paper form andshall be in electronic form if the minutes are maintained in electronicform.  The members of any such committeeshall act only as a committee, and the individual members of such committeeshall have no power in their individual capacities unless expressly authorizedby the Board of Directors.

##  

## Section3.05.  Action by Telephonic Communications.  Unless otherwise provided by the Board ofDirectors, members of any committee may participate in a meeting of suchcommittee by means of conference telephone or other communications equipment bymeans of which all persons participating in the meeting can hear each other,and participation in a meeting pursuant to this provision shall constitutepresence in person at such meeting.

##  

## Section3.06.  Resignations. Any member (and any alternate member) of any committee may resign at anytime by delivering a notice of resignation by such member to the Board ofDirectors or the Executive Chairman. Unless otherwise specified therein, such resignation shall take effectupon delivery.

##  

## Section3.07.  Removal.  Anymember (and any alternate member) of any committee may be removed at any time,either for or without cause, by resolution adopted by a majority of the entireBoard of Directors.

##  

## Section3.08.  Vacancies.  Ifany vacancy shall occur in any committee, by reason of disqualification, death,resignation, removal or otherwise, the remaining members (and any alternatemembers) shall continue to act, and any such vacancy may be filled by the Boardof Directors.

##  

# ARTICLE IVOFFICERS

 

## Section4.01.  Number.  Theofficers of the Corporation shall be elected by the Board of Directors andshall include a President and Chief Executive Officer, a Chief FinancialOfficer, one or more Vice Presidents, a Secretary and a Treasurer.  The Board of Directors also may elect one ormore Assistant Secretaries and Assistant Treasurers in such numbers as theBoard of Directors may determine and appoint such other officers as

 

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## theBoard of Directors deems desirable.  Anynumber of offices may be held by the same person.  No officer need be a director of theCorporation.

##  

## Section4.02.  Election. Unless otherwise determined by the Board of Directors, the officers ofthe Corporation shall be elected by the Board of Directors at the annualmeeting of the Board of Directors, and shall be elected to hold office untilthe next succeeding annual meeting of the Board of Directors.  In the event of the failure to elect officersat such annual meeting, officers may be elected at any regular or specialmeeting of the Board of Directors.  Eachofficer shall hold office until his or her successor has been elected andqualified, or until his or her earlier death, resignation or removal.  In the event of a vacancy in the office ofVice President, Secretary, Assistant Secretary, Treasurer or AssistantTreasurer, the President and Chief Executive Officer may appoint a replacementto serve until the next meeting of the Board of Directors where a successor iselected and qualified.

##  

## Section4.03.  The President and Chief Executive Officer.  The President and Chief Executive Officershall, subject to the direction of, and subject to general or specificresolutions approved by, the Board of Directors, (a) have generalcontrol and supervision of the policies and operations of the Corporation, seethat all orders and resolutions of the Board of Directors are carried intoeffect, and report to the Board of Directors, (b) manage andadminister the Corporation’s business and affairs and perform all duties andexercise all powers usually pertaining to the office of a chief executiveofficer of a corporation, (c) have the authority to sign, in thename and on behalf of the Corporation, checks, orders, contracts, leases,notes, drafts and other documents and instruments in connection with thebusiness of the Corporation, and together with the Secretary or an AssistantSecretary, conveyances of real estate and other documents and instruments towhich the seal of the Corporation is affixed, (d) have theauthority to cause the employment or appointment of such employees and agentsof the Corporation as the conduct of the business of the Corporation mayrequire, to fix their compensation, and to remove or suspend any employee oragent elected or appointed by the President and Chief Executive Officer, and (e) havesuch other powers as are contemplated by the other provisions of these By-Laws.  The President and Chief Executive Officershall perform such other duties and have such other powers as the Board ofDirectors or the Executive Chairman may from time to time prescribe.

##  

## Section4.04.  The Vice Presidents. Each Vice President shall perform such duties and exercise such powersas may be assigned to him from time to time by the President and ChiefExecutive Officer.

##  

## Section4.05.  The Secretary. The Secretary shall have the following powers and duties:

 

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### (a)  He or she shall keep or cause to be kept arecord of all the proceedings of the meetings of the stockholders and of theBoard of Directors in books provided for that purpose.

###  

### (b)  He or she shall cause all notices to be dulygiven in accordance with the provisions of these By-Laws and as required bylaw.

###  

### (c)  Whenever any Committee shall be appointedpursuant to a resolution of the Board of Directors, he or she shall furnish acopy of such resolution to the members of such Committee.

###  

### (d)  He or she shall be the custodian of therecords and of the seal of the Corporation and cause such seal (or facsimilethereof) to be affixed, if required, to all certificates representing shares ofthe Corporation prior to the issuance thereof and to all instruments theexecution of which on behalf of the Corporation under its seal shall have beenduly authorized in accordance with these By–Laws, and when so affixed he mayattest the same.

###  

### (e)  He or she shall properly maintain and fileall books, reports, statements, certificates and all other documents andrecords required by law, the Restated Certificate of Incorporation or these By-Laws.

###  

### (f)  He or she shall have charge of the stockbooks and ledgers of the Corporation.

###  

### (g)  He or she shall sign (unless the Treasurer,an Assistant Treasurer or Assistant Secretary shall have signed) certificatesrepresenting shares of the Corporation the issuance of which shall have beenauthorized by the Board of Directors.

###  

### (h)  He or she shall perform, in general, allduties incident to the office of secretary and such other duties as may bespecified in these By-Laws or as may be assigned to him or her from time totime by the Board of Directors or the President and Chief Executive Officer.

###  

## Section4.06.  The Chief Financial Officer.  The Chief Financial Officer shall be thechief financial officer of the Corporation and shall have the following powersand duties:

##  

### (a)  He or she shall have charge and supervisionover and be responsible for the moneys, securities, receipts and disbursementsof the Corporation, and shall keep or cause to be kept full and accuraterecords of all receipts of the Corporation.

###  

### (b)  He or she shall render to the Board ofDirectors or the Audit Committee, whenever requested, a statement of thefinancial condition of the Corporation and of all

 

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### histransactions as Chief Financial Officer, and render a full financial report atthe annual meeting of the stockholders, if called upon to do so.

###  

### (c)  He or she shall be empowered from time totime to require from all officers or agents of the Corporation reports orstatements giving such information as he or she may desire with respect to anyand all financial transactions of the Corporation.

###  

### (d)  He or she shall perform, in general, allduties incident to the office of chief financial officer and such other dutiesas may be specified in these By-Laws or as may be assigned to him or her fromtime to time by the Board of Directors or the Executive Chairman.

###  

### (e)  The Chief Financial Officer shall report tothe President and Chief Executive Officer.

###  

## Section4.07.  The Treasurer. The Treasurer shall be the treasurer of the Corporation and shall havethe following powers and duties:

##  

### (a)  He or she shall cause the moneys and othervaluable effects of the Corporation to be deposited in the name and to thecredit of the Corporation in such banks or trust companies or with such bankersor other depositaries as shall be selected in accordance with Section 8.05 ofthese By-Laws.

###  

### (b)  He or she shall cause the moneys of theCorporation to be disbursed by check or drafts (signed as provided in Section8.06 of these By-Laws) upon the authorized depositaries of the Corporation andcause to be taken and preserved proper vouchers for all moneys disbursed.

###  

### (c)  He or she may sign (unless an AssistantTreasurer or the Secretary or an Assistant Secretary shall have signed)certificates representing stock of the Corporation the issuance of which shallhave been authorized by the Board of Directors.

###  

### (d)  He or she shall perform, in general, allduties incident to the office of treasurer and such other duties as may bespecified in these By-Laws or as may be assigned to him or her from time totime by the Board of Directors or the Chief Financial Officer, to whom he shallreport.

###  

## Section4.08.  OtherOfficers Elected by Board of Directors. At any meeting of the Board of Directors, the Board of Directors mayelect such other officers of the Corporation as the Board of Directors may deemappropriate, and such other officers and agents shall hold their offices forsuch terms and shall exercise such powers and perform such duties as may be assignedto such officers by or pursuant to authorization of the Board of Directors orby the President and Chief Executive Officer. The Board of Directors from time to time may delegate to any officer thepower to appoint subordinate

 

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## officersand to prescribe their respective rights, terms of office, authorities andduties.  Any such officer may remove anysuch subordinate officer appointed by him or her, for or without cause.

##  

## Section4.09.  Salaries.  Thesalaries of all officers and agents of the Corporation shall be fixed by orpursuant to authorization of the Board of Directors.

##  

## Section4.10.  Removal and Resignation; Vacancies.  Any officer may be removed for or withoutcause at any time by the Board of Directors. Any officer may resign at any time by delivering a written notice ofresignation, signed by such officer, to the Board of Directors or the Presidentand Chief Executive Officer.  Unlessotherwise specified therein, such resignation shall take effect upondelivery.  Any vacancy occurring in anyoffice of the Corporation by death, resignation, removalor otherwise, shall be filled by or pursuant to authorization of the Board ofDirectors.

##  

## Section4.11.  Authority and Duties of Officers.  The officers of the Corporation shall havesuch authority and shall exercise such powers and perform such duties as may bespecified in these By-Laws or as may be determined from time to time by theBoard of Directors, except that in any event each officer shall exercise suchpowers and perform such duties as may be required by law.

##  

# ARTICLE VCAPITAL STOCK

 

## Section5.01.  Certificates of Stock, Uncertificated Shares.  The shares of the Corporation shall berepresented by certificates, provided that the Board of Directors may provideby resolution or resolutions that some or all of any or all classes or seriesof the stock of the Corporation shall be uncertificated shares.  Any such resolution shall not apply to sharesrepresented by a certificate until each such certificate is surrendered to theCorporation.  Notwithstanding theadoption of such a resolution by the Board of Directors, every holder of stockin the Corporation represented by certificates and upon request every holder ofuncertificated shares shall be entitled to have a certificate signed by, or inthe name of, the Corporation, by the Executive Chairman or the President andChief Executive Officer, and by the Treasurer or an Assistant Treasurer, or theSecretary of the Corporation or an Assistant Secretary, representing the numberof shares registered in certificate form. Such certificate shall be in such form as the Board of Directors maydetermine, to the extent consistent with applicable law, the RestatedCertificate of Incorporation and these By-Laws.

##  

## Section5.02.  Signatures; Facsimile.  All signatures on the certificate referred toin Section 5.01 of these By-Laws may be in facsimile, engraved or printed form,to the

 

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## extentpermitted by law.  In case any officer,transfer agent or registrar who has signed, or whose facsimile, engraved orprinted signature has been placed upon a certificate shall have ceased to besuch officer, transfer agent or registrar before such certificate is issued, itmay be issued by the Corporation with the same effect as if he or she were suchofficer, transfer agent or registrar at the date of issue.

##  

## Section5.03.  Lost,Stolen or Destroyed Certificates. The Board of Directors may direct that a new certificate be issued inplace of any certificate theretofore issued by the Corporation alleged to havebeen lost, stolen or destroyed, upon delivery to the Corporation of anaffidavit of the owner or owners of such certificate, setting forth suchallegation.  The Corporation may requirethe owner of such lost, stolen or destroyed certificate, or his or her legalrepresentative, to give the Corporation a bond sufficient to indemnify itagainst any claim that may be made against it on account of the alleged loss,theft or destruction of any such certificate or the issuance of any such newcertificate.

##  

## Section5.04.  Transfer of Stock. Upon surrender to the Corporation or the transfer agent of theCorporation of a certificate for shares, duly endorsed or accompanied byappropriate evidence of succession, assignment or authority to transfer, the Corporationshall, subject to any applicable restrictions on transfer conspicuously notedthereon, issue a new certificate to the person entitled thereto, cancel the oldcertificate and record the transaction upon its books.  Within a reasonable time after the transferof uncertificated stock, the Corporation shall send to the registered ownerthereof a written notice containing the information required to be set forth orstated on certificates pursuant to the laws of the DGCL.  Subject to the provisions of the RestatedCertificate of Incorporation and these By-Laws, the Board of Directors mayprescribe such additional rules and regulations as it may deem appropriaterelating to the issue, transfer and registration of shares of the Corporation.

##  

## Section5.05.  Record Date. In order to determine the stockholders entitled to notice of or to voteat any meeting of stockholders or any adjournment thereof, the Board ofDirectors may fix, in advance, a record date, which record date shall notprecede the date on which the resolution fixing the record date is adopted bythe Board of Directors, and which record date shall not be more than sixty (60)nor fewer than ten (10) days before the date of such meeting.  A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply toany adjournment of the meeting, provided, however, that the Board of Directorsmay fix a new record date for the adjourned meeting.

##  

Inorder that the Corporation may determine the stockholders entitled to receivepayment of any dividend or other distribution or allotment of any rights of thestockholders 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 notprecede the date upon which the

 

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resolution fixing the record dateis adopted, and which record date shall be not more than sixty (60) days priorto such action.  If no record date isfixed, the record date for determining stockholders for any such purpose shallbe at the close of business on the day on which the Board of Directors adoptsthe resolution relating thereto.

 

## Section5.06.  Registered Stockholders.  Prior to due surrender of a certificate forregistration of transfer, the Corporation may treat the registered owner as theperson exclusively entitled to receive dividends and other distributions, tovote, to receive notice and otherwise to exercise all the rights and powers ofthe owner of the shares represented by such certificate, and the Corporationshall not be bound to recognize any equitable or legal claim to or interest insuch shares on the part of any other person, whether or not the Corporationshall have notice of such claim or interests. Whenever any transfer of shares shall be made for collateral security,and not absolutely, it shall be so expressed in the entry of the transfer if,when the certificates are presented to the Corporation for transfer oruncertificated shares are requested to be transferred, both the transferor andtransferee request the Corporation to do so.

##  

## Section5.07.  TransferAgent and Registrar.  The Board ofDirectors may appoint one (1) or more transfer agents and one (1) or moreregistrars, and may require all certificates representing shares to bear thesignature of any such transfer agents or registrars.

##  

# ARTICLE VIINDEMNIFICATION

 

## Section6.01.  Nature of Indemnity. The Corporation shall indemnify any person who was or is a party, or isthreatened to be made a party, to any threatened, pending or completed action,suit or proceeding (a “Proceeding”), whether civil, criminal,administrative or investigative, by reason of the fact that he or she is or wasor has agreed to become a director, officer or employee of the Corporation, orwhile a director, officer or employee of the Corporation is or was serving orhas agreed to serve at the request of the Corporation as a director, officer,employee or agent of another corporation, partnership, joint venture, trust orother enterprise, or by reason of any action alleged to have been taken oromitted in such capacity, and may indemnify any person who was or is a party oris threatened to be made a party to such a Proceeding by reason of the factthat he or she is or was or has agreed to become an agent of the Corporation,or while an agent of the Corporation is or was serving or has agreed to serveat the request of the Corporation as a director, officer, employee or agent ofanother corporation, partnership, joint venture, trust or other enterprise,against expenses (including attorneys’ fees), judgments, fines and amounts paidin settlement actually and reasonably incurred by him or her or on his or herbehalf in connection with such Proceeding and any appeal

 

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## therefrom, if heor she acted in good faith and in a manner he or she reasonably believed to bein or not opposed to the best interests of the Corporation, and, with respectto any criminal Proceeding, had no reasonable cause to believe his or herconduct was unlawful; provided that in the case of a Proceeding by or inthe right of the Corporation to procure a judgment in its favor,  (a) such indemnification shall belimited to expenses (including attorneys’ fees) actually and reasonablyincurred by such person in the defense or settlement of such Proceeding, and (b) noindemnification shall be made in respect of any claim, issue or matter as towhich such person shall have been adjudged to be liable to the Corporationunless and only to the extent that the Delaware Court of Chancery or the courtin which such Proceeding was brought shall determine upon application that,despite the adjudication of liability but in view of all the circumstances ofthe case, such person is fairly and reasonably entitled to indemnity for suchexpenses which the Delaware Court of Chancery or such other court shall deemproper.  Notwithstanding the foregoing,but subject to Section 6.05 of these By-Laws, the Corporation shall not beobligated to indemnify a director, officer or employee of the Corporation inrespect of a Proceeding (or part thereof) instituted by such person, unlesssuch Proceeding (or part thereof) has been authorized by the Board ofDirectors.

##  

Thetermination of any Proceeding by judgment, order settlement, conviction, orupon a plea of nolocontendere or its equivalent, shall not, ofitself, create a presumption that the person did not act in good faith and in amanner which he or she reasonably believed to be in or not opposed to the bestinterests of the Corporation, and, with respect to any criminal Proceeding, hadreasonable cause to believe that his or her conduct was unlawful.

 

## Section6.02.  Successful Defense. To the extent that a present or former director,  officer or employee of the Corporationhas been successful on the merits or otherwise in defense of any Proceedingreferred to in Section 6.01 hereof or in defense of any claim, issue or mattertherein, such person shall be indemnified against expenses (including attorneys’fees) actually and reasonably incurred by such person in connection therewith.

##  

## Section6.03.  Determinationthat Indemnification is Proper.  Anyindemnification of a present or former director, officer or employee of theCorporation under Section 6.01 hereof (unless ordered by a court) shall be madeby the Corporation upon a determination that indemnification of the present orformer director, officer or employee is proper in the circumstances because heor she has met the applicable standard of conduct set forth in Section 6.01hereof.  Any indemnification of a presentor former agent of the Corporation under Section 6.01 hereof (unless ordered bya court) may be made by the Corporation upon a determination thatindemnification of the present or former agent is proper in the circumstancesbecause he or she has met the applicable standard of conduct set forth inSection 6.01 hereof.  Any suchdetermination shall be made, with respect to a person who is a director orofficer at the time of such determination, (a) by a majority voteof the directors who are not parties to such Proceeding, even though less thana quorum, (b) by

 

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## a committee ofsuch directors designated by majority vote of such directors, even though lessthan a quorum, (c) if there are no such directors, or if suchdirectors so direct, by independent legal counsel in a written opinion, or (d) bythe stockholders of the Corporation.

##  

## Section6.04.  AdvancePayment of Expenses.  Expenses(including attorneys’ fees) incurred by a current or former director or officerin defending any civil, criminal, administrative or investigative Proceedingshall be paid by the Corporation in advance of the final disposition of suchProceeding upon receipt of an undertaking by or on behalf of the director orofficer to repay such amount if it shall ultimately be determined that suchperson is not entitled to be indemnified by the Corporation as authorized inthis Article.  Such expenses (includingattorneys’ fees) incurred by other employees and agents may be so paid uponsuch terms and conditions, if any, as the Corporation deems appropriate.  The Board of Directors may authorize theCorporation’s counsel to represent such director, officer, employee or agent inany Proceeding, whether or not the Corporation is a party to such Proceeding.

##  

## Section6.05.  Procedure for Indemnification.  Any indemnification of a director, officer oremployee under Sections 6.01 and 6.02, or advance of costs, charges andexpenses to a director or officer under Section 6.04 of these By-Laws, shall bemade promptly, and in any event within thirty (30)days, upon the written request of such person. If the Corporation denies a written request for indemnity or advancementof expenses, in whole or in part, or if payment in full pursuant to suchrequest is not made within thirty (30) days, the right to indemnification oradvances as granted by this Article VI shall be enforceable by the director,officer or employee in any court of competent jurisdiction.  Such person’s costs and expenses incurred inconnection with successfully establishing his or her right to indemnification,in whole or in part, in any such Proceeding shall also be indemnified by theCorporation.  It shall be a defense toany such Proceeding (other than an action brought to enforce a claim for theadvancement of costs, charges and expenses under Section 6.04 of these By-Lawswhere the required undertaking, if any, has been received by the Corporation)that the claimant has not met the standard of conduct set forth in Section 6.01of these By-Laws, but the burden of proving such defense shall be on theCorporation.  Neither the failure of theCorporation (including its disinterested directors, its independent legalcounsel, or its stockholders) to have made a determination prior to thecommencement of such action that indemnification of the claimant is proper inthe circumstances because he or she has met the applicable standard of conductset forth in Section 6.01 of these By-Laws, nor the fact that there has been anactual determination by the Corporation (including its disinterested directors,its independent legal counsel, or its stockholders) that the claimant has notmet such applicable standard of conduct, shall be a defense to the action orcreate a presumption that the claimant has not met the applicable standard ofconduct.

 

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## Section6.06.  Survival; Preservation of Other Rights.  The foregoing indemnification provisionsshall be deemed to be a contract between the Corporation and each director,officer and employee who serves in any such capacity at any time while theseprovisions as well as the relevant provisions of the DGCL are in effect and anyrepeal or modification thereof shall not affect any right or obligation thenexisting with respect to any state of facts then or previously existing or anyProceeding previously or thereafter brought or threatened based in whole or inpart upon any such state of facts.  Sucha “contract right” may not be modified retroactively without the consent ofsuch director, officer or employee.

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Theindemnification provided by this Article VI shall not be deemed exclusive ofany other rights to which those indemnified may be entitled under any by-law,agreement, vote of stockholders or disinterested directors or otherwise, bothas to action in such person’s official capacity and as to action in anothercapacity while holding such office, and shall continue as to a person who hasceased to be a director, officer or employee and shall inure to the benefit ofthe heirs, executors and administrators of such a person.

 

## Section6.07.  Insurance.  TheCorporation may purchase and maintain insurance on behalf of any person who isor was or has agreed to become a director, officer, employee or agent of theCorporation, or is or was serving at the request of the Corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust or other enterprise against any liability asserted against suchperson and incurred by such person or on such person’s behalf in any suchcapacity, or arising out of such person’s status as such, whether or not theCorporation would have the power to indemnify him or her against such liabilityunder the provisions of this Article VI.

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## Section6.08.  Severability. If this Article VI or any portion hereof shall be invalidated on anyground by any court of competent jurisdiction, then the Corporation shallnevertheless indemnify each director, officer or employee and may indemnifyeach agent of the Corporation as to costs, charges and expenses (includingattorneys’ fees), judgments, fines and amounts paid in settlement with respectto a Proceeding, whether civil, criminal, administrative or investigative,including a Proceeding by or in the right of the Corporation, to the fullestextent permitted by any applicable portion of this Article VI that shall nothave been invalidated and to the fullest extent permitted by applicable law.

 

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# ARTICLE VIIOFFICES

 

## Section7.01.  Registered Office. The registered office of the Corporation in the State of Delaware shallbe located at Delaware Corporate Management, Inc., 1105 North Market Street,Suite 1300, in the City of Wilmington, County of New Castle.

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## Section7.02.  Other Offices. The Corporation may maintain offices or places of business at such otherlocations within or without the State of Delaware as the Board of Directors mayfrom time to time determine or as the business of the Corporation may require.

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# ARTICLE VIIIGENERAL PROVISIONS

 

## Section8.01.  Dividends. Subject to any applicable provisions of law and the Restated Certificateof Incorporation, dividends upon the shares of the Corporation may be declaredby the Board of Directors at any regular or special meeting of the Board ofDirectors and any such dividend may be paid in cash, property, or shares of theCorporation’s capital stock.

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Amember of the Board of Directors, or a member of any committee designated bythe Board of Directors shall be fully protected in relying in good faith uponthe records of the Corporation and upon such information, opinions, reports orstatements presented to the Corporation by any of its officers or employees, orcommittees of the Board of Directors, or by any other person as to matters suchdirector reasonably believes are within such other person’s professional orexpert competence and who has been selected with reasonable care by or onbehalf of the Corporation, as to the value and amount of the assets,liabilities and/or net profits of the Corporation, or any other facts pertinentto the existence and amount of surplus or other funds from which dividendsmight properly be declared and paid.

 

## Section8.02.  Reserves. There may be set aside out of any funds of the Corporation available fordividends such sum or sums as the Board of Directors from time to time, in itsabsolute discretion, thinks proper as a reserve or reserves to meetcontingencies, or for equalizing dividends, or for repairing or maintaining anyproperty of the Corporation or for such other purpose as the Board of Directorsshall think conducive to the interest of the Corporation, and the Board ofDirectors may similarly modify or abolish any such reserve.

 

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## Section8.03.  Execution of Instruments.  The Board of Directors may authorize, orprovide for the authorization of, officers, employees or agents to enter intoany contract or execute and deliver any instrument in the name and on behalf ofthe Corporation.  Any such authorizationmust be in writing or by electronic transmission and may be general or limitedto specific contracts or instruments.

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## Section8.04.  Corporate Indebtedness.  No loan shall be contracted on behalf of theCorporation, and no evidence of indebtedness shall be issued in its name,unless authorized by the Board of Directors. Such authorization may be general or confined to specific instances.  Loans so authorized may be effectedat any time for the Corporation from any bank, trust company or otherinstitution, or from any firm, corporation or individual.  All bonds, debentures, notes and otherobligations or evidences of indebtedness of the Corporation issued for suchloans shall be made, executed and delivered as the Board of Directors shallauthorize.  When so authorized by theBoard of Directors, any part of or all the properties, including contractrights, assets, business or good will of the Corporation, whether then owned orthereafter acquired, may be mortgaged, pledged, hypothecated or conveyed orassigned in trust as security for the payment of such bonds, debentures, notesand other obligations or evidences of indebtedness of the Corporation, and ofthe interest thereon, by instruments executed and delivered in the name of theCorporation.

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## Section8.05.  Deposits.  Anyfunds of the Corporation may be deposited from time to time in such banks,trust companies or other depositaries as may be determined by (a) theBoard of Directors or the President and Chief Executive Officer or (b) suchofficers or agents as may be authorized to make such determination by the Boardof Directors or the President and Chief Executive Officer.

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## Section8.06.  Checks.  Allchecks or demands for money and notes of the Corporation shall be signed bysuch officer or officers or such agent or agents of the Corporation, and insuch manner, as the Board of Directors or the President and Chief ExecutiveOfficer from time to time may determine.

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## Section8.07.  Sale, Transfer, etc. of Securities.  To the extent authorized by the Board ofDirectors, the President and Chief Executive Officer, any Vice President, theSecretary of the Corporation, the Chief Financial Officer or the Treasurer orany other officers designated by the Board of Directors may sell, transfer,endorse, and assign any shares of stock, bonds or other securities owned by orheld in the name of the Corporation, and may make, execute and deliver in thename of the Corporation, under its corporate seal, any instruments that may beappropriate to effect any such sale, transfer, endorsement or assignment.

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## Section8.08.  Voting as Stockholder.  Unless otherwise determined by resolution ofthe Board of Directors, the President and Chief Executive Officer or any Vice

 

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## President shallhave full power and authority on behalf of the Corporation to attend anymeeting of stockholders of any corporation in which the Corporation may holdstock, and to act, vote (or execute proxies to vote) and exercise in person orby proxy all other rights, powers and privileges incident to the ownership ofsuch stock.  Such officers acting onbehalf of the Corporation shall have full power and authority to execute anyinstrument expressing consent to or dissent from any action of any suchcorporation without a meeting.  The Boardof Directors may by resolution from time to time confer such power andauthority upon any other person or persons.

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## Section8.09.  Fiscal Year.  Thefiscal year of the Corporation shall commence on the first day of January ofeach year (except for the Corporation’s first fiscal year which shall commenceon the date of incorporation) and shall terminate in each case on December 31.

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## Section8.10.  Seal.  The sealof the Corporation shall be circular in form and shall contain the name of theCorporation, the year of its incorporation and the words “Corporate Seal” and “Delaware.”  The form of such seal shall be subject toalteration by the Board of Directors. The seal may be used by causing it or a facsimile thereof to beimpressed, affixed or reproduced, or may be used in any other lawful manner.

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## Section8.11.  Books and Records; Inspection.  Except to the extent otherwise required bylaw, the books and records of the Corporation shall be kept at such place orplaces within or without the State of Delaware as may be determined from timeto time by the Board of Directors.

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# ARTICLE IXAMENDMENT OF BY-LAWS

 

## Section9.01.  Amendment. These By-Laws may be amended, altered or repealed:

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##### (a)  by resolution adopted by a majority of theentire Board of Directors at any special or regular meeting of the Board ofDirectors; or

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##### (b)  at any regular or special meeting of thestockholders upon the affirmative vote of the holders of three-fourths (3⁄4) ormore of the combined voting power of the outstanding shares of the Corporationentitled to vote generally in the election of directors if, in the case of suchspecial meeting only, notice of such amendment, alteration or repeal iscontained in the notice or waiver of notice of such meeting.

 

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# ARTICLE X

# CONSTRUCTION

 

## Section10.01.  Construction. In the event of any conflict between the provisions of these By-Laws asin effect from time to time and the provisions of the Restated Certificate ofIncorporation of the Corporation as in effect from time to time, the provisionsof such Restated Certificate of Incorporation shall be controlling.

 

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