**Exhibit 3.2**

 

AMENDED AND RESTATED BYLAWS

 

OF COLLEGE TONIGHT, INC.

 

(amended and restated on June 16,2008)

 

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TABLE OF CONTENTS

 
| ** **                                 | ** **                                                  | **Page** |
|--------------------------------------------|-------------------------------------------------------------|----------|
|                                       |                                                        |     |
| ARTICLE I — CORPORATE OFFICES         | 1                                                           |
|                                       |                                                        |     |
| 1.1                                        | REGISTERED  OFFICE                                          | 1        |
| 1.2                                        | OTHER  OFFICES                                              | 1        |
|                                       |                                                        |     |
| ARTICLE II — MEETINGS OF STOCKHOLDERS | 1                                                           |
|                                       |                                                        |     |
| 2.1                                        | PLACE OF  MEETINGS                                          | 1        |
| 2.2                                        | ANNUAL  MEETING                                             | 1        |
| 2.3                                        | SPECIAL  MEETING                                            | 1        |
| 2.4                                        | NOTICE OF  STOCKHOLDERS’ MEETINGS                      | 2        |
| 2.5                                        | MANNER OF  GIVING NOTICE; AFFIDAVIT OF NOTICE               | 2        |
| 2.6                                        | QUORUM                                                      | 3        |
| 2.7                                        | ADJOURNED  MEETING; NOTICE                                  | 3        |
| 2.8                                        | ADMINISTRATION  OF THE MEETING                              | 3        |
| 2.9                                        | VOTING                                                      | 4        |
| 2.10                                       | NO  STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING | 4        |
| 2.11                                       | RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS | 4        |
| 2.12                                       | PROXIES                                                     | 5        |
| 2.13                                       | LIST OF  STOCKHOLDERS ENTITLED TO VOTE                      | 5        |
| 2.14                                       | ADVANCE  NOTICE OF STOCKHOLDER BUSINESS                     | 6        |
| 2.15                                       | ADVANCE  NOTICE OF DIRECTOR NOMINATIONS                     | 7        |
|                                       |                                                        |     |
| ARTICLE III — DIRECTORS               | 8                                                           |
|                                       |                                                        |     |
| 3.1                                        | POWERS                                                      | 8        |
| 3.2                                        | NUMBER OF  DIRECTORS                                        | 8        |
| 3.3                                        | ELECTION,  QUALIFICATION AND TERM OF OFFICE OF DIRECTORS    | 8        |
| 3.4                                        | RESIGNATION  AND VACANCIES                                  | 8        |
| 3.5                                        | PLACE OF  MEETINGS; MEETINGS BY TELEPHONE                   | 8        |
| 3.6                                        | REGULAR  MEETINGS                                           | 9        |
| 3.7                                        | SPECIAL  MEETINGS; NOTICE                                   | 9        |
| 3.8                                        | QUORUM                                                      | 9        |
| 3.9                                        | WAIVER OF  NOTICE                                           | 9        |
| 3.10                                       | BOARD ACTION  BY WRITTEN CONSENT WITHOUT A MEETING          | 10       |
| 3.11                                       | ADJOURNED  MEETING; NOTICE                                  | 10       |
| 3.12                                       | FEES AND  COMPENSATION OF DIRECTORS                         | 10       |
| 3.13                                       | REMOVAL OF  DIRECTORS                                       | 10       |
| 3.14                                       | CORPORATE  GOVERNANCE COMPLIANCE                            | 10       |
|                                       |                                                        |     |
| ARTICLE IV — COMMITTEES               | 11                                                          |
|                                       |                                                        |     |
| 4.1                                        | COMMITTEES  OF DIRECTORS                                    | 11       |
| 4.2                                        | COMMITTEE  MINUTES                                          | 11       |
| 4.3                                        | MEETINGS AND  ACTION OF COMMITTEES                          | 11       |
| 4.4                                        | AUDIT  COMMITTEE                                            | 12       |
|                                            |                                                             |          |  |

 

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| ** **                                           | ** **                                        | **Page** |
|------------------------------------------------------|---------------------------------------------------|----------|
|                                                 |                                              |     |
| 4.5                                                  | CORPORATE  GOVERNANCE AND NOMINATING COMMITTEE    | 12       |
| 4.6                                                  | COMPENSATION  COMMITTEE                           | 12       |
|                                                 |                                              |     |
| ARTICLE V — OFFICERS                            | 12                                                |
|                                                 |                                              |     |
| 5.1                                                  | OFFICERS                                          | 12       |
| 5.2                                                  | APPOINTMENT  OF OFFICERS                          | 13       |
| 5.3                                                  | SUBORDINATE  OFFICERS                             | 13       |
| 5.4                                                  | REMOVAL AND  RESIGNATION OF OFFICERS              | 13       |
| 5.5                                                  | VACANCIES IN  OFFICES                             | 13       |
| 5.6                                                  | CHAIRMAN OF  THE BOARD                            | 13       |
| 5.7                                                  | CHIEF  EXECUTIVE OFFICER                          | 14       |
| 5.8                                                  | PRESIDENTS                                        | 14       |
| 5.9                                                  | VICE  PRESIDENTS                                  | 14       |
| 5.10                                                 | SECRETARY                                         | 14       |
| 5.11                                                 | CHIEF  FINANCIAL OFFICER                          | 15       |
| 5.12                                                 | TREASURER                                         | 15       |
| 5.13                                                 | ASSISTANT  SECRETARY                              | 15       |
| 5.14                                                 | ASSISTANT  TREASURER                              | 16       |
| 5.15                                                 | REPRESENTATION  OF SHARES OF OTHER CORPORATIONS   | 16       |
| 5.16                                                 | AUTHORITY  AND DUTIES OF OFFICERS                 | 16       |
|                                                 |                                              |     |
| ARTICLE VI — RECORDS AND REPORTS                | 16                                                |
|                                                 |                                              |     |
| 6.1                                                  | MAINTENANCE  AND INSPECTION OF RECORDS            | 16       |
| 6.2                                                  | INSPECTION  BY DIRECTORS                          | 17       |
|                                                 |                                              |     |
| ARTICLE VII — GENERAL MATTERS                   | 17                                                |
|                                                 |                                              |     |
| 7.1                                                  | CHECKS; DRAFTS;  EVIDENCES OF INDEBTEDNESS        | 17       |
| 7.2                                                  | EXECUTION OF  CORPORATE CONTRACTS AND INSTRUMENTS | 17       |
| 7.3                                                  | STOCK  CERTIFICATES; PARTLY PAID SHARES           | 17       |
| 7.4                                                  | SPECIAL  DESIGNATION ON CERTIFICATES              | 18       |
| 7.5                                                  | LOST  CERTIFICATES                                | 18       |
| 7.6                                                  | CONSTRUCTION;  DEFINITIONS                        | 18       |
| 7.7                                                  | DIVIDENDS                                         | 18       |
| 7.8                                                  | FISCAL YEAR                                       | 18       |
| 7.9                                                  | SEAL                                              | 19       |
| 7.10                                                 | TRANSFER OF  STOCK                                | 19       |
| 7.11                                                 | STOCK  TRANSFER AGREEMENTS                        | 19       |
| 7.12                                                 | REGISTERED  STOCKHOLDERS                          | 19       |
| 7.13                                                 | WAIVER OF  NOTICE                                 | 19       |
| 7.14                                                 | CHARITABLE  FOUNDATION                            | 20       |
|                                                 |                                              |     |
| ARTICLE VIII —NOTICE BY ELECTRONIC TRANSMISSION | 20                                                |
|                                                 |                                              |     |
| 8.1                                                  | NOTICE BY ELECTRONIC TRANSMISSION                 | 20       |

 

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| ** **                                                  | ** **                                                                                                  | **Page** |
|-------------------------------------------------------------|-------------------------------------------------------------------------------------------------------------|----------|
|                                                        |                                                                                                        |     |
| 8.2                                                         | DEFINITION  OF ELECTRONIC TRANSMISSION                                                                      | 21       |
| 8.3                                                         | INAPPLICABILITY                                                                                             | 21       |
|                                                        |                                                                                                        |     |
| ARTICLE IX — INDEMNIFICATION OF DIRECTORS AND OFFICERS | 21                                                                                                          |
|                                                        |                                                                                                        |     |
| 9.1                                                         | POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE  BY OR IN THE RIGHT OF THE CORPORATION | 21       |
| 9.2                                                         | POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE  RIGHT OF THE CORPORATION                  | 21       |
| 9.3                                                         | AUTHORIZATION  OF INDEMNIFICATION                                                                           | 22       |
| 9.4                                                         | GOOD FAITH DEFINED                                                                                          | 22       |
| 9.5                                                         | INDEMNIFICATION  BY A COURT                                                                                 | 23       |
| 9.6                                                         | EXPENSES  PAYABLE IN ADVANCE                                                                                | 23       |
| 9.7                                                         | NONEXCLUSIVITY  OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES                                              | 23       |
| 9.8                                                         | INSURANCE                                                                                                   | 23       |
| 9.9                                                         | CERTAIN  DEFINITIONS                                                                                        | 24       |
| 9.10                                                        | SURVIVAL OF  INDEMNIFICATION AND ADVANCEMENT OF EXPENSES                                                    | 24       |
| 9.11                                                        | LIMITATION  ON INDEMNIFICATION                                                                              | 24       |
| 9.12                                                        | INDEMNIFICATION  OF EMPLOYEES AND AGENTS                                                                    | 24       |
| 9.13                                                        | EFFECT OF  AMENDMENT OR REPEAL                                                                              | 24       |
|                                                        |                                                                                                        |     |
| ARTICLE X — AMENDMENTS                                 | 25                                                                                                          |

 

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**BYLAWS OFCOLLEGE TONIGHT, INC.**

 

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**ARTICLEI — CORPORATE OFFICES**

 

1.1                                   REGISTERED OFFICE.

 

The registered office of College Tonight, Inc.shall be fixed in the corporation’s certificate of incorporation, as the samemay be amended and/or restated from time to time (as so amended and/or restated,the “Certificate”).

 

1.2                                   OTHER OFFICES.

 

The corporation’s Board of Directors (the “Board”‘)may at any time establish other offices at any place or places where thecorporation is qualified to do business.

 

**ARTICLEII — MEETINGS OF STOCKHOLDERS**

 

2.1                                   PLACE OF MEETINGS.

 

Meetings of stockholders shall be held at anyplace within or outside the State of Delaware as designated by the Board. TheBoard may, in its sole discretion, determine that a meeting of stockholdersshall not be held at any place, but may instead be held solely by means ofremote communication as authorized by Section 21 l(a)(2) of theDelaware General Corporation Law (the “DGCL”). In the absence of any suchdesignation or determination, stockholders’ meetings shall be held at the corporation’sprincipal executive office.

 

2.2                                   ANNUAL MEETING.

 

The annual meeting of stockholders shall beheld each year on a date and at a time designated by the Board.  At the annual meeting, directors shall beelected and any other proper business may be transacted.

 

2.3                                   SPECIAL MEETING.

 

Unless otherwise required by law or theCertificate, special meetings of the stockholders may be called at any time,for any purpose or purposes, only by (i) the Board, (ii) the Chairmanof the Board, (iii) the chief executive officer (or, in the absence of achief executive officer, the president) of the corporation, or (iv) holdersof more than twenty percent (20%) of the total voting power of the outstandingshares of capital stock of the corporation then entitled to vote.

 

If any person(s) otherthan the Board calls a special meeting, the request shall:

 

(i)                                     be in writing;

 

(ii)                                  specify the generalnature of the business proposed to be transacted; and

 

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(iii)                               be delivered personallyor sent by registered mail or by facsimile transmission to the secretary of thecorporation.

 

Upon receipt of such a request, the Boardshall determine the date, time and place of such special meeting, which must bescheduled to be held on a date that is within ninety (90) days of receipt bythe secretary of the request therefor, and the secretary of the corporationshall prepare a proper notice thereof. No business may be transacted at such special meeting other than thebusiness specified in the notice to stockholders of such meeting.

 

2.4                                   NOTICE OFSTOCKHOLDERS’ MEETINGS.

 

All notices of meetings of stockholders shallbe sent or otherwise given in accordance with either Section 2.5 or Section 8.1of these bylaws not less than ten (10) nor more than sixty (60) daysbefore the date of the meeting to each stockholder entitled to vote at suchmeeting, except as otherwise required by applicable law. The notice shallspecify the place, if any, date and hour of the meeting, the means of remote communication,if any, by which stockholders and proxy holders may be deemed to be present inperson and vote at such meeting, and, in the case of a special meeting, thepurpose or purposes for which the meeting is called.  Any previously scheduled meeting ofstockholders may be postponed, and, unless the Certificate provides otherwise,any special meeting of the stockholders may be cancelled by resolution dulyadopted by a majority of the Board members then in office upon public noticegiven prior to the date previously scheduled for such meeting of stockholders.

 

Whenever notice is required to be given underthe DGCL, the Certificate or these bylaws, to any person with whomcommunication is unlawful, the giving of such notice to such person shall notbe required and there shall be no duty to apply to any governmental authorityor agency for a license or permit to give such notice to such person.  Any action or meeting which shall be taken orheld without notice to any such person with whom communication is unlawfulshall have the same force and effect as if such notice had been dulygiven.  In the event that the actiontaken by the corporation is such as to require the filing of a certificate withthe Secretary of State of Delaware, the certificate shall state, if such is thefact and if notice is required, that notice was given to all persons entitledto receive notice except such persons with whom communication is unlawful.

 

Whenever notice is required to be given,under any provision of the DGCL, the Certificate or these bylaws, to anystockholder to whom (a) notice of two (2) consecutive annualmeetings, or (b) all, and at least two (2) payments (if sent byfirst-class mail) of dividends or interest on securities during a twelve (12)month period, have been mailed addressed to such person at such person’saddress as shown on the records of the corporation and have been returnedundeliverable, the giving of such notice to such person shall not berequired.  Any action or meeting whichshall be taken or held without notice to such person shall have the same forceand effect as if such notice had been duly given.  If any such person shall deliver to thecorporation a written notice setting forth such person’s then current address,the requirement that notice be given to such person shall be reinstated.  In the event that the action taken by thecorporation is such as to require the filing of a certificate with theSecretary of State of Delaware, the certificate need not state that notice wasnot given to persons to whom notice was not required to be given pursuant to Section 230(b) ofthe DGCL.

 

The exception in subsection (a) of theabove paragraph to the requirement that notice be given shall not be applicableto any notice returned as undeliverable if the notice was given by electronictransmission.

 

2.5                                   MANNER OF GIVINGNOTICE; AFFIDAVIT OF NOTICE.

 

Notice of any meeting of stockholders shallbe given:

 

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(i)    if mailed, whendeposited in the United States mail, postage prepaid, directed to thestockholder at his or her address as it appears on the corporation’s records;

 

(ii)    if electronicallytransmitted, as provided in Section 8.1 of these bylaws; or (iii) otherwise,when delivered.

 

An affidavit of the secretary or an assistantsecretary of the corporation or of the transfer agent or any other agent of thecorporation that the notice has been given shall, in the absence of fraud, *beprimafacie*evidence of the facts statedtherein.

 

Notice may be waived in accordance with Section 7.13of these bylaws.

 

2.6                                   QUORUM.

 

Unless otherwise provided in the Certificateor required by law, stockholders representing a majority of the voting power ofthe issued and outstanding capital stock of the corporation, present in personor represented by proxy, shall constitute a quorum for the transaction ofbusiness at all meetings of the stockholders. If such quorum is not present or represented at any meeting of thestockholders, then the chairman of the meeting, or the stockholdersrepresenting a majority of the voting power of the capital stock at themeeting, present in person or represented by proxy, shall have power to adjournthe meeting from time to time until a quorum is present or represented.  At such adjourned meeting at which a quorumis present or represented, any business may be transacted that might have beentransacted at the meeting as originally noticed.  The stockholders present at a duly calledmeeting at which quorum is present may continue to transact business untiladjournment, notwithstanding the withdrawal of enough stockholders to leaveless than a quorum.

 

2.7                                   ADJOURNED MEETING;NOTICE.

 

When a meeting is adjourned to another timeor place, unless these bylaws otherwise require, notice need not be given ofthe adjourned meeting if the time, place if any thereof, and the means ofremote communications if any by which stockholders and proxy holders may bedeemed to be present in person and vote at such adjourned meeting are announcedat the meeting at which the adjournment is taken.  At the continuation of the adjourned meeting,the corporation may transact any business that might have been transacted atthe original meeting. If the adjournment is for more than thirty (30) days, orif after the adjournment a new record date is fixed for the adjourned meeting,a notice of the adjourned meeting shall be given to each stockholder of recordentitled to vote at the meeting in accordance with the provisions of Section 2.4and 2.5 of these bylaws.

 

2.8                                   ADMINISTRATION OFTHE MEETING.

 

Meetings of stockholders shall be presidedover by the chairman of the Board or, in the absence thereof, by such person asthe chairman of the Board shall appoint, or, in the absence thereof or in theevent that the chairman shall fail to make such appointment, any officer of thecorporation elected by the Board. In the absence of the secretary of thecorporation, the secretary of the meeting shall be such person as the chairmanof the meeting appoints.

 

The Board shall, in advance of any meeting ofstockholders, appoint one (1) or more inspector(s), who may includeindividual(s) who serve the corporation in other capacities, includingwithout limitation as officers, employees or agents, to act at the meeting ofstockholders and make a written report thereof. The Board may

 

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designate one (1) ormore persons as alternate inspector(s) to replace any inspector, who failsto act. If no inspector or alternate has been appointed or is able to act at ameeting of stockholders, the chairman of the meeting shall appoint one (1) ormore inspector(s) to act at the meeting. Each inspector, beforedischarging his or her duties, shall take and sign an oath to faithfullyexecute the duties of inspector with strict impartiality and according to thebest of his or her ability. The inspector(s) or alternate(s) shallhave the duties prescribed pursuant to Section 231 of the DGCL or otherapplicable law.

 

The Board shall be entitled to make such rules orregulations for the conduct of meetings of stockholders as it shall deemnecessary, appropriate or convenient. Subject to such rules andregulations, if any, the chairman of the meeting shall have the right andauthority to prescribe such rules, regulations and procedures and to do allacts as, in the judgment of such chairman, are necessary, appropriate orconvenient for the proper conduct of the meeting, including without limitationestablishing an agenda of business of the meeting, rules or regulations tomaintain order, restrictions on entry to the meeting after the time fixed forcommencement thereof and the fixing of the date and time of the opening andclosing of the polls for each matter upon which the stockholders will vote at ameeting (and shall announce such at the meeting).

 

2.9                                   VOTING.

 

The stockholders entitled to vote at anymeeting of stockholders shall be determined in accordance with the provisionsof Section 2.11 of these bylaws, subject to Section 217 (relating tovoting rights of fiduciaries, pledgers and joint owners of stock) and Section 218(relating to voting trusts and other voting agreements) of the DGCL.

 

Except as otherwise provided in theprovisions of Section 213 of the DGCL (relating to the fixing of a datefor determination of stockholders of record) or these bylaws, each stockholdershall be entitled to that number of votes for each share of capital stock heldby such stockholder as set forth in the Certificate.

 

In all matters, other than the election ofdirectors and except as otherwise required by law, the Certificate or thesebylaws, the affirmative vote of a majority of the voting power of the sharespresent or represented by proxy at the meeting and entitled to vote on thesubject matter shall be the act of the stockholders. Directors shall be electedby a plurality of the voting power of the shares present in person orrepresented by proxy at the meeting and entitled to vote on the election ofdirectors.

 

The stockholders of the corporation shall nothave the right to cumulate their votes for the election of directors of thecorporation.

 

2.10                             NO STOCKHOLDER ACTION BYWRITTEN CONSENT WITHOUT A MEETING.

 

Any action required or permitted to be takenby the stockholders of the corporation (if the corporation has more than onestockholder at such time) must be effected at a duly called annual or specialmeeting of stockholders of the corporation and may not be effected by anyconsent in writing by such stockholders.

 

2.11                             RECORD DATE FORSTOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.

 

In order that the corporation may determinethe stockholders entitled to notice of or to vote at any meeting ofstockholders or any adjournment thereof, or entitled to receive payment of anydividend or other distribution or allotment of any rights, or entitled toexercise any rights in respect of any change, conversion or exchange of stockor for the purpose of any other lawful action, the Board may fix, in advance, arecord date, which record date shall not 

 

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precede thedate on which the resolution fixing the record date is adopted and which shallnot be more than sixty (60) nor less than ten (10) days before the date ofsuch meeting, nor more than sixty (60) days prior to any other such action.

 

If the Board does not fix a record date inaccordance with these bylaws and applicable law:

 

(i) The record date for determiningstockholders entitled to notice of or to vote at a meeting of stockholdersshall be at the close of business on the day next preceding the day on whichnotice is given, or, if notice is waived, at the close of business on the daynext preceding the day on which the meeting is held.

 

(ii) The record date for determiningstockholders entitled to consent to corporate action in writing without ameeting, when no prior action by the Board is necessary, shall be the first dayon which a signed written consent setting forth the action taken or proposed tobe taken is delivered to the corporation.

 

(iii) The record date for determiningstockholders for any other purpose shall be at the close of business on the dayon which the Board adopts the resolution relating thereto.

 

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 may fix a newrecord date for the adjourned meeting.

 

2.12                             PROXIES.

 

Each stockholder entitled to vote at ameeting of stockholders may authorize another person or persons to act for suchstockholder by proxy authorized by an instrument in writing or by atransmission permitted by law and filed with the secretary of the corporation,but no such proxy shall be voted or acted upon after three (3) years fromits date, unless the proxy provides for a longer period. A stockholder may alsoauthorize another person or persons to act for him, her or it as proxy in themanner(s) provided under Section 212(c) of the DGCL or asotherwise provided under Delaware law. The revocability of a proxy that stateson its face that it is irrevocable shall be governed by the provisions of Section 212of the DGCL.

 

2.13                             LIST OF STOCKHOLDERSENTITLED TO VOTE.

 

The officer who has charge of the stockledger of the corporation shall prepare and make, 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 showingthe address of each stockholder and the number of shares registered in the nameof each stockholder. The corporation shall not be required to includeelectronic mail addresses or other electronic contact information on such list.Such list shall be open to the examination of any stockholder, for any purposegermane to the meeting for a period of at least ten (10) days prior to themeeting: (i) on a reasonably accessible electronic network, provided thatthe information required to gain access to such list is provided with thenotice of the meeting, or (ii) during ordinary business hours, at thecorporation’s principal place of business.

 

In the event that the corporation determinesto make the list available on an electronic network, the corporation may takereasonable steps to ensure that such information is available only tostockholders of the corporation. If the meeting is to be held at a place, thenthe list shall be produced and kept at the time and place of the meeting duringthe whole time thereof, and may be inspected by any stockholder who ispresent.  If the

 

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meeting is tobe held solely by means of remote communication, then the list shall also beopen to the examination of any stockholder during the whole time of the meetingon a reasonably accessible electronic network, and the information required toaccess such list shall be provided with the notice of the meeting.

 

2.14                             ADVANCE NOTICE OFSTOCKHOLDER BUSINESS

 

Only such business shall be conducted asshall have been properly brought before a meeting of the stockholders of thecorporation. To be properly brought before an annual meeting, business must be (a) specifiedin the notice of meeting (or any supplement thereto) given by or at thedirection of the Board, (b) otherwise properly brought before the meetingby or at the direction of the Board, or (c) a proper matter forstockholder action under the DGCL that has been properly brought before themeeting by a stockholder (i) who is a stockholder of record on the date ofthe giving of the notice provided for in this Section 2.14 and on therecord date for the determination of stockholders entitled to vote at suchannual meeting and (ii) who complies with the notice procedures set forthin this Section 2.14. For such business to be considered properly broughtbefore the meeting by a stockholder such stockholder must, in addition to anyother applicable requirements, have given timely notice in proper form of suchstockholder’s intent to bring such business before such meeting. To be timely,such stockholder’s notice must be delivered to or mailed and received by thesecretary of the corporation at the principal executive offices of thecorporation not later than the close of business on the 90th day, nor earlier than the close ofbusiness on the 120th day, prior to the anniversary date of theimmediately preceding annual meeting; provided, however, that in the event thatno annual meeting was held in the previous year or the annual meeting is calledfor a date that is not within thirty (30) days before or after such anniversarydate, notice by the stockholder to be timely must be so received not later thanthe close of business on the tenth (10th) day following the day onwhich such notice of the date of the meeting was mailed or public disclosure ofthe date of the meeting was made, whichever occurs first.

 

To be in proper form, a stockholder’s noticeto the secretary shall be in writing and shall set forth:

 

(a)                                    the name and recordaddress of the stockholder who intends to propose the business and the class orseries and number of shares of capital stock of the corporation which are ownedbeneficially or of record by such stockholder;

 

(b)                                   a representationthat the stockholder is a holder of record of stock of the corporation entitledto vote at such meeting and intends to appear in person or by proxy at the meetingto introduce the business specified in the notice;

 

(c)                                    a brief descriptionof the business desired to be brought before the annual meeting and the reasonsfor conducting such business at the annual meeting;

 

(d)                                   any materialinterest of the stockholder in such business; and

 

(e)                                    any otherinformation that is required to be provided by the stockholder pursuant toRegulation 14A under the Securities Exchange Act of 1934, as amended (the “ExchangeAct”).

 

Notwithstanding the foregoing, in order toinclude information with respect to a stockholder proposal in the proxystatement and form of proxy for a stockholder’s meeting, 

 

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stockholdersmust provide notice as required by, and otherwise comply with the requirementsof, the Exchange Act and the regulations promulgated thereunder.

 

No business shall be conducted at the annualmeeting of stockholders except business brought before the annual meeting inaccordance with the procedures set forth in this Section. The chairman of themeeting may refuse to acknowledge the proposal of any business not made incompliance with the foregoing procedure.

 

2.15                             ADVANCE NOTICE OF DIRECTORNOMINATIONS

 

Only persons who are nominated in accordancewith the following procedures shall be eligible for election as directors ofthe corporation. To be properly brought before an annual meeting ofstockholders, or any special meeting of stockholders called for the purpose ofelecting directors, nominations for the election of director must be (a) specifiedin the notice of meeting (or any supplement thereto), (b) made by or atthe direction of the Board (or any duly authorized committee thereof) or (c) madeby any stockholder of the corporation (i) who is a stockholder of recordon the date of the giving of the notice provided for in this Section 2.15and on the record date for the determination of stockholders entitled to voteat such meeting and (ii) who complies with the notice procedures set forthin this Section 2.15.

 

In addition to any other applicablerequirements, for a nomination to be made by a stockholder, such stockholdermust have given timely notice thereof in proper written form to the secretaryof the corporation. To be timely, a stockholder’s notice to the secretary mustbe delivered to or mailed and received at the principal executive offices ofthe corporation, in the case of an annual meeting, in accordance with theprovisions set forth in Section 2.14, and, in the case of a specialmeeting of stockholders called for the purpose of electing directors, not laterthan the close of business on the tenth (10th) day following the day on whichnotice of the date of the special meeting was mailed or public disclosure ofthe date of the special meeting was made, whichever first occurs.

 

To be in proper written form, a stockholder’snotice to the secretary must set forth:

 

(a)                                    as to each personwhom the stockholder proposes to nominate for election as a director (i) thename, age, business address and residence address of the person, (ii) theprincipal occupation or employment of the person, (iii) the class orseries and number of shares of capital stock of the corporation which are ownedbeneficially or of record by the person, (iv) a description of allarrangements or understandings between the stockholder and each nominee and anyother person or persons (naming such person or persons) pursuant to which thenominations are to be made by the stockholder, and (v) any otherinformation relating to such person that is required to be disclosed insolicitations of proxies for elections of directors, or is otherwise required,in each case pursuant to Regulation 14A under the Exchange Act (includingwithout limitation such person’s written consent to being named in the proxystatement, if any, as a nominee and to serving as a director if elected); and

 

(b)                                   as to suchstockholder giving notice, the information required to be provided pursuant toSection 2.14.

 

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No person shall be eligible for election as a director of thecorporation unless nominated in accordance with the procedures set forth inthis Section 2.15. If the chairman of the meeting properly determines thata nomination was not made in accordance with the foregoing procedures, thechairman shall declare to the meeting that the nomination was defective andsuch defective nomination shall be disregarded.

 

**ARTICLEIII — DIRECTORS**

 

3.1                                   POWERS.

 

Subject to the provisions of the DGCL and any limitations in theCertificate, the business and affairs of the corporation shall be managed andall corporate powers shall be exercised by or under the direction of the Board.

 

3.2                                   NUMBEROF DIRECTORS.

 

The authorized number of directors shall be determined from time totime by resolution of the Board, provided the Board shall consist of at leastthree (3) members. No reduction of the authorized number of directorsshall have the effect of removing any director before that director’s term ofoffice expires.

 

3.3                                   ELECTION,QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.

 

Except as provided in Section 3.4 and Section 3.13 of thesebylaws, directors shall be elected at each annual meeting of stockholders tohold office until the next annual meeting. Directors need not be stockholders unless so required by the Certificateor these bylaws. The Certificate or these bylaws may prescribe otherqualifications for directors. Each director, including a director elected tofill a vacancy, shall hold office until such director’s successor is electedand qualified or until such director’s earlier death, resignation or removal.

 

All elections of directors shall be by written ballot, unless otherwiseprovided in the Certificate. If authorized by the Board, such requirement of awritten ballot shall be satisfied by a ballot submitted by electronictransmission, provided that any such electronic transmission must be either setforth or be submitted with information from which it can be determined that theelectronic transmission was authorized.

 

3.4                                   RESIGNATIONAND VACANCIES.

 

Any director may resign at any time upon written notice or byelectronic transmission to the corporation.

 

Unless the Board otherwise determines, newly created directorshipsresulting from any increase in the authorized number of directors, or anyvacancies on the Board resulting from the death, resignation, retirement,disqualification, removal from office or other cause shall, unless otherwiserequired by law, be filled by the affirmative vote of a majority of the remainingdirectors then in office, even though less than a quorum of the Board, or by asole remaining director. When one or more directors resigns and the resignationis effective at a future date, a majority of the directors then in office,including those who have so resigned, shall have power to fill such vacancy orvacancies, the vote thereon to take effect when such resignation orresignations shall become effective, and each director so chosen shall holdoffice as provided in this section in the filling of other vacancies.

 

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3.5                                   PLACEOF MEETINGS; MEETINGS BY TELEPHONE.

 

The Board may hold meetings, both regular and special, either within oroutside the State of Delaware.

 

Unlessotherwise restricted by the Certificate or these bylaws, members of the Board,or any committee designated by the Board, may participate in a meeting of theBoard, or any committee, by means of conference telephone or othercommunications equipment by means of which all persons participating in themeeting can hear each other, and such participation in a meeting shallconstitute presence in person at the meeting.

 

3.6                                   REGULARMEETINGS.

 

Regular meetings of the Board may be held with at least five businessdays prior notice at such time and at such place as shall from time to time bedetermined by the Board.

 

3.7                                   SPECIALMEETINGS; NOTICE.

 

Special meetings of the Board for any purpose or purposes may be calledat any time by the chairman of the Board, the chief executive officer, apresident, the secretary or any two directors. The person(s) authorized tocall special meetings of the Board may fix the place and time of the meeting.

 

Notice of the time and place of special meetings shall be:

 

(i)                                     deliveredpersonally by hand, by courier or by telephone;

 

(ii)                                  sent by United Statesfirst-class mail, postage prepaid;

 

(iii)                               sent by facsimile; or

 

(iv)                              sent by electronic mail,

 

directed toeach director at that director’s address, telephone number, facsimile number orelectronic mail address, as the case may be, as shown on the corporation’srecords.

 

If the notice is (i) delivered personally by hand, by courier orby telephone, (ii) sent by facsimile or (iii) sent by electronicmail, it shall be delivered or sent at least twenty-four (24) hours before thetime of the holding of the meeting. If the notice is sent by United Statesmail, it shall be deposited in the United States mail at least four days beforethe time of the holding of the meeting. Any oral notice may be communicated eitherto the director or to a person at the office of the director who the persongiving notice has reason to believe will promptly communicate such notice tothe director. The notice need not specify the place of the meeting if themeeting is to be held at the corporation’s principal executive office nor thepurpose of the meeting.

 

3.8                                   QUORUM.

 

Except as otherwise required by law or the Certificate, at all meetingsof the Board, a majority of the authorized number of directors (as determinedpursuant to Section 3.2 of these bylaws) shall constitute a quorum for thetransaction of business, except to adjourn as provided in Section 3.11 ofthese bylaws. The vote of a majority of the directors present at any meeting atwhich a quorum is present shall be the act of the Board, except as may beotherwise specifically provided by statute, the Certificate or these bylaws.

 

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3.9                                   WAIVEROF NOTICE

 

Whenever notice is required to be given under any provisions of theDGCL, the Certificate or these bylaws, a written waiver thereof, signed by theperson entitled to notice, or a waiver by electronic transmission by the personentitled to notice, whether before or after the time stated therein, shall bedeemed equivalent to notice.

 

Attendance of a person at a meeting shall constitute a waiver of noticeof such meeting, except when the person attends a meeting solely for theexpress purpose of objecting, at the beginning of the meeting, to thetransaction of any business because the meeting is not lawfully called orconvened. Neither the business to be transacted at, nor the purpose of, anyregular or special meeting of the directors, or members of a committee ofdirectors, need be specified in any written waiver of notice or any waiver byelectronic transmission unless so required by the Certificate or these bylaws.

 

3.10                             BOARDACTION BY WRITTEN CONSENT WITHOUT A MEETING.

 

Unless otherwise restricted by the Certificate or these bylaws, anyaction required or permitted to be taken at any meeting of the Board, or of anycommittee thereof, may be taken without a meeting if all members of the Boardor committee, as the case may be, consent thereto in writing or by electronictransmission and the writing or writings or electronic transmission ortransmissions are filed with the minutes of proceedings of the Board orcommittee. Such filing shall be in paper form if the minutes are maintained inpaper form and shall be in electronic form if the minutes are maintained inelectronic form.

 

3.11                             ADJOURNEDMEETING; NOTICE.

 

If a quorum is not present at any meeting of the Board, then a majorityof the directors present thereat may adjourn the meeting from time to time,without notice other than announcement at the meeting, until a quorum is present.

 

3.12                             FEESAND COMPENSATION OF DIRECTORS.

 

Unless otherwise restricted by the Certificate or these bylaws, theBoard shall have the authority to fix the compensation of directors.

 

3.13                             REMOVALOF DIRECTORS.

 

Any director or the entire Board may be removed from office at anytime, with or without cause, by the affirmative vote of the holders of at leasta majority of the voting power of the issued and outstanding shares of capitalstock of the corporation then entitled to vote in the election of directors.

 

3.14                             CORPORATEGOVERNANCE COMPLIANCE.

 

Without otherwise limiting the powers of the Board set forth in Section 3.1and provided that shares of capital stock of the corporation are listed fortrading on either The Nasdaq National Market (“NASDAQ”) or the New YorkStock Exchange (“NYSE”), the corporation shall comply with the corporategovernance rules and requirements of the NASDAQ or the NYSE, asapplicable.

 

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**ARTICLEIV-COMMITTEES**

 

4.1                                     COMMITTEES OF DIRECTORS.

 

The Board maydesignate one or more committees, each committee to consist of one or more ofthe directors of the corporation.  TheBoard may designate one or more directors as alternate members of any committee, who may replace any absentor disqualified member at any meeting of the committee. In the absence ordisqualification of a member of a committee, the member or members thereofpresent at any meeting and not disqualified from voting, whether or not suchmember or members constitute a quorum, may unanimously appoint another memberof the Board to act at the meeting in the place of any such absent ordisqualified member. Any such committee, to the extent provided in theresolution of the Board or in these bylaws, shall have and may exercise suchlawfully delegable powers and duties as the Board may confer. Each committeewill comply with all applicable provisions of: the Sarbanes-Oxley Act of 2002,the rules and regulations of the Securities and Exchange Commission, andthe rules and requirements of NASDAQ or NYSE, as applicable, and will havethe right to retain independent legal counsel and other advisers at thecorporation’s expense.

 

4.2                                   COMMITTEEMINUTES.

 

Each committee shall keep regular minutes of its meetings and report tothe Board when required.

 

4.3                                   MEETINGSAND ACTION OF COMMITTEES.

 

Meetings and actions of committees shall be governed by, and held andtaken in accordance with, the provisions of:

 

(i)                                     Section 3.5(place of meetings and meetings by telephone);

 

(ii)                                  Section 3.6(regular meetings);

 

(iii)                               Section 3.7(special meetings and notice);

 

(iv)                              Section 3.8(quorum);

 

(v)                                 Section 3.9(waiver of notice);

 

(vi)                              Section 3.10(action without a meeting); and

 

(vii)                           Section 3.11(adjournment and notice of adjournment).

 

with such changesin the context of those bylaws as are necessary to substitute the committee andits members for the Board and its members.

 

Notwithstanding the foregoing:

 

(i)                                             the timeof regular meetings of committees may be determined either by resolution of theBoard or by resolution of the committee;

 

(ii)                                          specialmeetings of committees may also be called by resolution of the Board; and

 

(iii)                                       notice ofspecial meetings of committees shall also be given to all alternate members,who shall have the right to attend all meetings of the committee. The Board mayadopt rules for the government of any committee not inconsistent with theprovisions of these bylaws.

 

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4.4                                   AUDITCOMMITTEE

 

The Board shall, if and when the Board of Directors deems prudent inlight of the Board of Directors’ fiduciary duties to act on behalf of theCorporation and other relevant circumstances, establish an Audit Committeewhose principal purpose will be to oversee the corporation’s and its subsidiaries’accounting and financial reporting processes, internal systems of control,independent auditor relationships and audits of consolidated financialstatements of the corporation and its subsidiaries. The Audit Committee willalso determine the appointment of the independent auditors of the corporationand any change in such appointment and ensure the independence of thecorporation’s auditors. In addition, the Audit Committee will assume such otherduties and responsibilities as the Board may confer upon the committee fromtime to time.

 

4.5                                   CORPORATEGOVERNANCE AND NOMINATING COMMITTEE

 

The Board shall, if and when the Board of Directors deems prudent inlight of the Board of Directors’ fiduciary duties to act on behalf of theCorporation and other relevant circumstances, establish a Corporate Governanceand Nominating Committee whose principal duties will be to assist the Board byidentifying individuals qualified to become Board members consistent withcriteria approved by the Board, to recommend to the Board for its approval theslate of nominees to be proposed by the Board to the stockholders for electionto the Board, to develop and recommend to the Board the governance principlesapplicable to the corporation, as well as such other duties and responsibilitiesas the Board may confer upon the committee from time to time. In the event theCorporate Governance and Nominating Committee will not be recommending a thenincumbent director for inclusion in the slate of nominees to be proposed by theBoard to the stockholders for election to the Board, and provided suchincumbent director has not notified the Committee that he or she will beresigning or that he or she does not intend to stand for re-election to theBoard, then, in the case of an election to be held at an annual meeting ofstockholders, the Committee will recommend the slate of nominees to the Boardat least thirty (30) days prior to the latest date required by the provisionsof Sections 2.14 and 2.15 of these bylaws for stockholders to submitnominations for directors at such annual meeting, or in the case of an electionto be held at a special meeting of stockholders, at least ten (10) daysprior to the latest date required by the provisions of Sections 2.14 and 2.15of these bylaws for stockholders to submit nominations for directors at suchspecial meeting.

 

4.6                                   COMPENSATIONCOMMITTEE

 

The Board shall, if and when the Board of Directors deems prudent inlight of the Board of Directors’ fiduciary duties to act on behalf of theCorporation and other relevant circumstances, establish a CompensationCommittee whose principal duties will be to review employee compensationpolicies and programs as well as the compensation of the chief executiveofficer and other executive officers of the corporation, to recommend to theBoard a compensation program for outside Board members, as well as such otherduties and responsibilities as the Board may confer upon the committee fromtime to time.

 

**ARTICLEV — OFFICERS**

 

5.1                                   OFFICERS.

 

The officers of the corporation shall be a chief executive officer, oneor more presidents (at the discretion of the Board), a chairman of the Boardand a secretary. The corporation may also have, at the discretion of the Board,a vice chairman of the Board, a chief financial officer, a treasurer, one ormore vice presidents, one or more assistant vice presidents, one or moreassistant treasurers, one or more assistant secretaries, and any such otherofficers as may be appointed in accordance with the provisions ofthese bylaws.

 

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Any number of offices may be held by the same person, provided,however, that, except as provided in Section 5.6 below, the chairman ofthe Board shall not hold any other office of the corporation.

 

5.2                                   APPOINTMENTOF OFFICERS.

 

The Board shall appoint the officers of the corporation, except suchofficers as may be appointed in accordance with the provisions of Sections 5.3of these bylaws, subject to the rights, if any, of an officer under anycontract of employment. Each officer shall hold office until his or hersuccessor is elected and qualified or until his or her earlier resignation orremoval. A failure to elect officers shall not dissolve or otherwise affect thecorporation.

 

5.3                                   SUBORDINATEOFFICERS.

 

The Board may appoint, or empower the chief executive officer and/orone or more presidents of the corporation, to appoint, such other officers andagents as the business of the corporation may require. Each of such officersand agents shall hold office for such period, have such authority, and performsuch duties as are provided in these bylaws or as the Board may from time totime determine.

 

5.4                                   REMOVALAND RESIGNATION OF OFFICERS.

 

Any officer may be removed, either with or without cause, by an affirmativevote of the majority of the Board at any regular or special meeting of theBoard or, except in the case of an officer appointed by the Board, by anyofficer upon whom such power of removal may be conferred by the Board.

 

Any officer may resign at any time by giving written notice to thecorporation. Any resignation shall take effect at the date of the receipt ofthat notice or at any later time specified in that notice. Unless otherwisespecified in the notice of resignation, the acceptance of the resignation shallnot be necessary to make it effective. Any resignation is without prejudice tothe rights, if any, of the corporation under any contract to which the officeris a party.

 

5.5                                   VACANCIESIN OFFICES.

 

Any vacancy occurring in any office of the corporation shall be filledby the Board or as provided in Section 5.2.

 

5.6                                   CHAIRMANOF THE BOARD.

 

The chairman of the Board shall be a member of the Board and, ifpresent, preside at meetings of the Board and exercise and perform such otherpowers and duties as may from time to time be assigned to him or her by theBoard or as may be prescribed by these bylaws.

 

The chairman shall be an Outside Director (as defined in theCertificate) and shall not hold any other office of the corporation unless theappointment of the chairman is approved by two-thirds of the members of theBoard then in office, provided, however, that if there is no chief executiveofficer or president of the corporation as a result of the death, resignationor removal of such officer, then the chairman of the Board may also serve in aninterim capacity as the chief executive officer of the corporation until theBoard shall appoint a new chief executive officer and, while serving in suchinterim capacity, shall have the powers and duties prescribed in Section 5.7of these bylaws.

 

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5.7                                   CHIEFEXECUTIVE OFFICER.

 

Subject to the control of the Board and any supervisory powers theBoard may give to the chairman of the Board, the chief executive officer shall,together with the president or presidents of the corporation, have generalsupervision, direction, and control of the business and affairs of thecorporation and shall see that all orders and resolutions of the Board arecarried into effect. The chief executive officer shall, together with thepresident or presidents of the corporation, also perform all duties incidentalto this office that may be required by law and all such other duties as areproperly required of this office by the Board of Directors. The chief executiveofficer shall serve as chairman of and preside at all meetings of thestockholders. In the absence of the chairman of the Board, the chief executiveofficer shall preside at all meetings of the Board.

 

5.8                                   PRESIDENTS.

 

Subject to the control of the Board and any supervisory powers theBoard may give to the chairman of the Board, the president or presidents of thecorporation shall, together with the chief executive officer, have generalsupervision, direction, and control of the business and affairs of thecorporation and shall see that all orders and resolutions of the Board arecarried into effect. A president shall have such other powers and perform suchother duties as from time to time may be prescribed for him or her by theBoard, these bylaws, or the chairman of the Board.

 

5.9                                   VICEPRESIDENTS.

 

In the absence or disability of any president, the vice presidents, ifany, in order of their rank as fixed by the Board or, if not ranked, a vicepresident designated by the Board, shall perform all the duties of a president.When acting as a president, the appropriate vice president shall have all thepowers of, and be subject to all the restrictions upon, that president. Thevice presidents shall have such other powers and perform such other duties asfrom time to time may be prescribed for them respectively by the Board, thesebylaws, the chairman of the Board, the chief executive officer or, in theabsence of a chief executive officer, one of more of the presidents.

 

5.10                             SECRETARY.

 

The secretary shall keep or cause to be kept, at the principalexecutive office of the corporation or such other place as the Board maydirect, a book of minutes of all meetings and actions of directors, committeesof directors, and stockholders. The minutes shall show:

 

(i)                                     thetime and place of each meeting;

 

(ii)                                  whetherregular or special (and, if special, how authorized and the notice given);

 

(iii)                               thenames of those present at directors’ meetings or committee meetings;

 

(iv)                              thenumber of shares present or represented at stockholders’ meetings; and

 

(v)                                 theproceedings thereof.

 

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The secretary shall keep, or cause to be kept, at the principalexecutive office of the corporation or at the office of the corporation’stransfer agent or registrar, as determined by resolution of the Board, a shareregister, or a duplicate share register showing:

 

(i)                                     thenames of all stockholders and their addresses;

 

(ii)                                  thenumber and classes of shares held by each;

 

(iii)                               thenumber and date of certificates evidencing such shares; and

 

(iv)                              thenumber and date of cancellation of every certificate surrendered forcancellation.

 

The secretary shall give, or cause to be given, notice of all meetingsof the stockholders and of the Board required to be given by law or by thesebylaws. The secretary shall keep the seal of the corporation, if one beadopted, in safe custody and shall have such other powers and perform suchother duties as may be prescribed by the Board or by these bylaws.

 

5.11                             CHIEFFINANCIAL OFFICER.

 

The chief financial officer shall keep and maintain, or cause to bekept and maintained, adequate and correct books and records of accounts of theproperties and business transactions of the corporation, including accounts ofits assets, liabilities, receipts, disbursements, gains, losses, capital,retained earnings and shares. The books of account shall at all reasonabletimes be open to inspection by any director.

 

The chief financial officer shall deposit all moneys and othervaluables in the name and to the credit of the corporation with suchdepositories as the Board may designate. The chief financial officer shalldisburse the funds of the corporation as may be ordered by the Board, shallrender to the chief executive officer or, in the absence of a chief executiveofficer, any president and directors, whenever they request it, an account ofall his or her transactions as chief financial officer and of the financialcondition of the corporation, and shall have other powers and perform suchother duties as may be prescribed by the Board or these bylaws.

 

The chief financial officer may be the treasurer of the corporation.

 

5.12                             TREASURER.

 

The treasurer shall keep and maintain, or cause to be kept andmaintained, adequate and correct books and records of accounts of theproperties and business transactions of the corporation, including accounts ofits assets, liabilities, receipts, disbursements, gains, losses, capital,retained earnings and shares. The books of account shall at all reasonabletimes be open to inspection by any director.

 

The treasurer shall deposit all moneys and other valuables in the nameand to the credit of the corporation with such depositories as the Board maydesignate. The treasurer shall disburse the funds of the corporation as may beordered by the Board, shall render to the chief executive officer or, in theabsence of a chief executive officer, one or more of the presidents anddirectors, whenever they request it, an account of all his or her transactionsas treasurer and of the financial condition of the corporation, and shall haveother powers and perform such other duties as may be prescribed by the Board orthese bylaws.

 

5.13                             ASSISTANTSECRETARY.

 

The assistantsecretary, or, if there is more than one, the assistant secretaries in theorder determined by the Board (or if there be no such determination, then inthe order of their election) shall, in the absence of the secretary or in theevent of the secretary’s inability or refusal to act, perform the duties andexercise the powers of the secretary and shall perform 

 

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such otherduties and have such other powers as may be prescribed by the Board or thesebylaws.

 

5.14                             ASSISTANTTREASURER.

 

The assistant treasurer, or, if there is more than one, the assistanttreasurers, in the order determined by the Board (or if there be no suchdetermination, then in the order of their election), shall, in the absence ofthe chief financial officer or treasurer or in the event of the chief financialofficer’s or treasurer’s inability or refusal to act, perform the duties andexercise the powers of the chief financial officer or treasurer, as applicable,and shall perform such other duties and have such other powers as may beprescribed by the Board or these bylaws.

 

5.15                             REPRESENTATIONOF SHARES OF OTHER CORPORATIONS.

 

The chairman of the Board, the chief executive officer, any president,any vice president, the treasurer, the secretary or assistant secretary of thiscorporation, or any other person authorized by the Board, the chief executiveofficer, a president or a vice president, is authorized to vote, represent, andexercise on behalf of this corporation all rights incident to any and allshares or other equity interests of any other corporation or entity standing inthe name of this corporation. The authority granted herein may be exercisedeither by such person directly or by any other person authorized to do so byproxy or power of attorney duly executed by such person having the authority.

 

5.16                             AUTHORITYAND DUTIES OF OFFICERS.

 

In addition to the foregoing authority and duties, all officers of thecorporation shall respectively have such authority and perform such duties inthe management of the business of the corporation as may be designated fromtime to time by the Board.

 

**ARTICLEVI - RECORDS AND REPORTS**

 

6.1                                   MAINTENANCEAND INSPECTION OF RECORDS.

 

The corporation shall, either at its principal executive office or atsuch place or places as designated by the Board, keep a record of itsstockholders listing their names and addresses and the number and class ofshares held by each stockholder, a copy of these bylaws, as may be amended todate, minute books, accounting books and other records.

 

Any such records maintained by the corporation may be kept on, or bymeans of, or be in the form of, any information storage device or method,provided that the records so kept can be converted into clearly legible paperform within a reasonable time. The corporation shall so convert any records sokept upon the request of any person entitled to inspect such records pursuantto the provisions of the DGCL. When records are kept in such manner, a clearlylegible paper form produced from or by means of the information storage deviceor method shall be admissible in evidence, and accepted for all other purposes,to the same extent as an original paper form accurately portrays the record.

 

Any stockholder of record, in person or by attorney or other agent,shall, upon written demand under oath stating the purpose thereof, have theright during the usual hours for business to inspect for any proper purpose thecorporation’s stock ledger, a list of its stockholders, and its other books andrecords and to make copies or extracts therefrom. A proper purpose shall 

 

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mean a purposereasonably related to such person’s interest as a stockholder. In everyinstance where an attorney or other agent is the person who seeks the right toinspection, the demand under oath shall be accompanied by a power of attorneyor such other writing that authorizes the attorney or other agent to so act onbehalf of the stockholder. The demand under oath shall be directed to thecorporation at its registered office in Delaware or at its principal executiveoffice.

 

6.2                                   INSPECTIONBY DIRECTORS.

 

Any director shall have the right to examine the corporation’s stockledger, a list of its stockholders, and its other books and records for apurpose reasonably related to his or her position as a director.

 

ARTICLE VII — GENERAL MATTERS

 

7.1                                   CHECKS;DRAFTS; EVIDENCES OF INDEBTEDNESS.

 

From time to time, the Board shall determine by resolution which personor persons may sign or endorse all checks, drafts, other orders for payment ofmoney, notes or other evidences of indebtedness that are issued in the name ofor payable to the corporation, and only the persons so authorized shall sign orendorse those instruments.

 

7.2                                   EXECUTIONOF CORPORATE CONTRACTS AND INSTRUMENTS.

 

Except as otherwise provided in these bylaws, the Board, or anyofficers of the corporation authorized thereby, may authorize any officer orofficers, or agent or agents, to enter into any contract or execute anyinstrument in the name of and on behalf of the corporation; such authority maybe general or confined to specific instances.

 

7.3                                   STOCKCERTIFICATES; PARTLY PAID SHARES.

 

The shares of the corporation shall be represented by certificates,provided that the Board may provide by resolution or resolutions that some orall of any or all classes or series of its stock shall be uncertificatedshares. Any such resolution shall not apply to shares represented by acertificate until such certificate is surrendered to the corporation.Notwithstanding the adoption of such a resolution by the Board, every holder ofstock 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 chairman or vice-chairman of the Board, or apresident or vice-president, and by the treasurer or an assistant treasurer, orthe secretary or an assistant secretary of such corporation representing thenumber of shares registered in certificate form. Any or all of the signatureson the certificate may be a facsimile. In case any officer, transfer agent orregistrar who has signed or whose facsimile signature has been placed upon acertificate has ceased to be such officer, transfer agent or registrar beforesuch certificate is issued, it may be issued by the corporation with the sameeffect as if he or she were such officer, transfer agent or registrar at thedate of issue.

 

The corporation may issue the whole or any part of its shares as partlypaid and subject to call for the remainder of the consideration to be paidtherefor. Upon the face or back of each stock certificate issued to representany such partly paid shares, and upon the books and records of the corporationin the case of uncertificated partly paid shares, the total amount of theconsideration to be paid therefor and the amount paid thereon shall be stated.Upon the declaration of any dividend on fully paid shares, the corporationshall declare adividend upon partly paid shares of the same class, but onlyupon the basis of the percentage of the consideration actually paid thereon.

 

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7.4                                   SPECIALDESIGNATION ON CERTIFICATES.

 

If the corporation is authorized to issuemore than one class of stock or more than one series of any class, then thepowers, designations, preferences, and relative, participating, optional orother special rights of each class of stock or series thereof and thequalifications, limitations or restrictions of such preferences and/or rightsshall be set forth in full or summarized on the face or back of the certificatethat the corporation shall issue to represent such class or series of stock; provided,however, that, except as otherwise provided in Section 202 of theDGCL, in lieu of the foregoing requirements there may be set forth on the faceor back of the certificate that the corporation shall issue to represent suchclass or series of stock a statement that the corporation will furnish withoutcharge to each stockholder who so requests the powers, designations,preferences, and relative, participating, optional or other special rights ofeach class of stock or series thereof and the qualifications, limitations orrestrictions of such preferences and/or rights.

 

7.5                                   LOST CERTIFICATES.

 

Except as provided in this Section 7.6,no new certificates for shares shall be issued to replace a previously issuedcertificate unless the latter is surrendered to the corporation and cancelledat the same time. The corporation may issue a new certificate of stock oruncertificated shares in the place of any certificate theretofore issued by it,alleged to have been lost, stolen or destroyed, and the corporation may requirethe owner of the lost, stolen or destroyed certificate, or such owner’s 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 such newcertificate or uncertificated shares.

 

7.6                                   CONSTRUCTION;DEFINITIONS.

 

Unless the context requires otherwise, thegeneral provisions, rules of construction, and definitions in the DGCLshall govern the construction of these bylaws. Without limiting the generalityof this provision, the singular number includes the plural, the plural numberincludes the singular, and the term “person” includes both a corporation and anatural person.

 

7.7                                   DIVIDENDS.

 

The Board, subject to any restrictionscontained in either (i) the DGCL, or (ii) the Certificate, maydeclare and pay dividends upon the shares of its capital stock. Dividends maybe paid in cash, in property, or in shares of the corporation’s capital stock.

 

The Board may set apart out of any of thefunds of the corporation available for dividends a reserve or reserves for anyproper purpose and may abolish any such reserve.

 

7.8                                   FISCAL YEAR.

 

The fiscal year of the corporation shall befixed by resolution of the Board and may be changed by the Board.

 

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7.9                                   SEAL.

 

The corporation may adopt a corporate seal,which shall be adopted and which may be altered by the Board. The corporationmay use the corporate seal by causing it or a facsimile thereof to be impressedor affixed or in any other manner reproduced.

 

7.10                             TRANSFER OF STOCK.

 

Transfers of stock shall be made only uponthe transfer books of the corporation kept at an office of the corporation orby transfer agents designated to transfer shares of the stock of thecorporation. Except where a certificate is issued in accordance with Section 7.5of these bylaws, an outstanding certificate for the number of shares involvedshall be surrendered for cancellation before a new certificate is issuedtherefore. Upon surrender to the corporation or the transfer agent of thecorporation of a certificate for shares duly endorsed or accompanied by properevidence of succession, assignation or authority to transfer, it shall be theduty of the corporation to issue a new certificate to the person entitledthereto, cancel the old certificate, and record the transaction in its books.

 

7.11                             STOCK TRANSFER AGREEMENTS.

 

The corporation shall have power to enterinto and perform any agreement with any number of stockholders of any one ormore classes or series of stock of the corporation to restrict the transfer ofshares of stock of the corporation of any one or more classes or series ownedby such stockholders in any manner not prohibited by the DGCL.

 

7.12                             REGISTERED

 

STOCKHOLDERS.

 

The corporation:

 

(i) shall be entitled to recognize theexclusive right of a person registered on its books as the owner of shares toreceive dividends and to vote as such owner;

 

(ii) shall be entitled to hold liablefor calls and assessments on partly paid shares the person registered on itsbooks as the owner of shares; and

 

(iii) shall not be bound to recognizeany equitable or other claim to or interest in such share or shares on the partof another person, whether or not it shall have express or other noticethereof, except as otherwise provided by the laws of Delaware.

 

7.13                             WAIVER OF NOTICE.

 

Whenever notice is required to be given underany provision of the DGCL, the Certificate or these bylaws, a written waiver,signed by the person entitled to notice, or a waiver by electronic transmissionby the person entitled to notice, whether before or after the time of the eventfor which notice is to be given, shall be deemed equivalent to notice.Attendance of a person at a meeting shall constitute a waiver of notice of suchmeeting, except when the person attends a meeting solely for the expresspurpose of objecting at the beginning of the meeting, to the transaction of anybusiness because the meeting is not lawfully called or convened. Neither thebusiness to be transacted at, nor the purpose of, any regular or specialmeeting of the stockholders need be

 

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specified inany written waiver of notice or any waiver by electronic transmission unless sorequired by the Certificate or these bylaws.

 

7.14                             CHARITABLE FOUNDATION.

 

The establishment by the corporation of acharitable foundation will require Board approval, as will contributions by thecorporation to the foundation and disbursements by the foundation. The Boardmay delegate authority over the foundation to one or more persons who are notdirectors of the corporation with the approval of two-thirds of the members ofthe Board.

 

**ARTICLEVIII-NOTICE BY ELECTRONIC TRANSMISSION**

 

8.1                                   NOTICE BY ELECTRONICTRANSMISSION.

 

Without limiting the manner by which noticeotherwise may be given effectively to stockholders pursuant to the DGCL, theCertificate or these bylaws, any notice to stockholders given by thecorporation under any provision of the DGCL, the Certificate or these bylawsshall be effective if given by a form of electronic transmission consented toby the stockholder to whom the notice is given. Any such consent shall berevocable by the stockholder by written notice to the corporation. Any suchconsent shall be deemed revoked if:

 

(i)                                             thecorporation is unable to deliver by electronic transmission two consecutivenotices given by the corporation in accordance with such consent; and

 

(ii)                                          suchinability becomes known to the secretary or an assistant secretary of thecorporation or to the transfer agent, or other person responsible for thegiving of notice.

 

However, theinadvertent failure to treat such inability as a revocation shall notinvalidate any meeting or other action.

 

Any notice given pursuant to the precedingparagraph shall be deemed given:

 

(i)                                             if byfacsimile telecommunication, when directed to a number at which the stockholderhas consented to receive notice;

 

(ii)                                          if byelectronic mail, when directed to an electronic mail address at which thestockholder has consented to receive notice;

 

(iii)                                       if by a postingon an electronic network together with separate notice to the stockholder ofsuch specific posting, upon the later of (A) such posting and (B) thegiving of such separate notice; and

 

(iv)                                      if by any otherform of electronic transmission, when directed to the stockholder.

 

An affidavit of the secretary or an assistantsecretary or of the transfer agent or other agent of the corporation that thenotice has been given by a form of electronic transmission shall, in theabsence of fraud, be prima facie evidence of the facts stated therein.

 

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8.2                                   DEFINITION OFELECTRONIC TRANSMISSION.

 

An “electronic transmission” means any formof communication, not directly involving the physical transmission of paper,that creates a record that may be retained, retrieved, and reviewed by arecipient thereof, and that may be directly reproduced in paper form by such arecipient through an automated process.

 

8.3                                   INAPPLICABILITY.

 

Notice by a form of electronic transmissionshall not apply to Section 164 (failure to pay for stock; remedies), Section 296(adjudication of claims; appeal), Section 311 (revocation of voluntarydissolution), Section 312 (renewal, revival, extension and restoration ofcertificate of incorporation) or Section 324 (attachment of shares ofstock) of the DGCL.

 

**ARTICLEIX - INDEMNIFICATION OF DIRECTORS AND OFFICERS**

 

9.1                                   POWER TO INDEMNIFYIN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF THECORPORATION

 

Subject to Section 9.3 of this Article IX,the corporation shall indemnify, to the fullest extent permitted by the DGCL,as now or hereafter in effect, 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, whether civil, criminal, administrative or investigative(other than an action by or in the right of the corporation) by reason of thefact that such person (or the legal representative of such person) is or was adirector or officer of the corporation or any predecessor of the corporation,or is or was a director or officer of the corporation serving at the request ofthe corporation as a director or officer, employee or agent of anothercorporation, partnership, joint venture, trust, employee benefit plan or otherenterprise, against expenses (including attorneys’ fees), judgments, fines andamounts paid in settlement actually and reasonably incurred by such person inconnection with such action, suit or proceeding if such person acted in goodfaith and in a manner such person reasonably believed to be in or not opposedto the best interests of the corporation, and, with respect to any criminalaction or proceeding, had no reasonable cause to believe such person’s conductwas unlawful. The termination of any action, suit or proceeding by judgment,order, settlement, conviction, or upon a plea of nolo contendere or itsequivalent, shall not, of itself, create a presumption that the person did notact in good faith and in a manner which such person reasonably believed to bein or not opposed to the best interests of the corporation, and, with respectto any criminal action or proceeding, had reasonable cause to believe that suchperson’s conduct was unlawful.

 

9.2                                   POWER TO INDEMNIFYIN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION

 

Subject to Section 9.3 of this Article IX,the corporation shall indemnify, to the fullest extent permitted by the DGCL,as now or hereafter in effect, any person who was or is a party or isthreatened to be made a party to any threatened, pending or completed action orsuit by or in the right of the corporation to procure a judgment in its favorby reason of the fact that such person (or the legal representative of suchperson) is or was a director or officer of the corporation or any predecessorof the corporation, or is or was a director or officer of the corporationserving at the request of the corporation as a director, officer, employee oragent of another corporation, partnership, joint venture, trust, employeebenefit plan or other enterprise against expenses (including attorneys’ fees) actuallyand reasonably incurred by such person in connection with the defense orsettlement of such action or suit if such person acted in good faith and in amanner such person reasonably believed to be in or not opposed 

 

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to the bestinterests of the corporation; except that no indemnification shall be made inrespect of any claim, issue or matter as to which such person shall have beenadjudged to be liable to the corporation unless and only to the extent that theCourt of Chancery or the court in which such action or suit was brought shalldetermine upon application that, despite the adjudication of liability but inview of all the circumstances of the case, such person is fairly and reasonablyentitled to indemnity for such expenses which the Court of Chancery or suchother court shall deem proper.

 

9.3                                   AUTHORIZATION OFINDEMNIFICATION

 

Any indemnification under this Article IX(unless ordered by a court) shall be made by the corporation only as authorizedin the specific case upon a determination that indemnification of the directoror officer is proper in the circumstances because such person has met theapplicable standard of conduct set forth in Section 9.1 or Section 9.2of this Article IX, as the case may be. Such determination shall be made,with respect to a person who is a director or officer at the time of suchdetermination, (i) by a majority vote of the directors who are not partiesto such action, suit or proceeding, even though less than a quorum, or (ii) bya committee of such directors designated by a majority vote of such directors,even though less than a quorum, or (iii) if there are no such directors,or if such directors so direct, by independent legal counsel in a writtenopinion or (iv) by the stockholders (but only if a majority of thedirectors who are not parties to such action, suit or proceeding, if theyconstitute a quorum of the board of directors, presents the issue ofentitlement to indemnification to the stockholders for their determination).Such determination shall be made, with respect to former directors andofficers, by any person or persons having the authority to act on the matter onbehalf of the corporation. To the extent, however, that a present or formerdirector or officer of the corporation has been successful on the merits orotherwise in defense of any action, suit or proceeding described above, or indefense of any claim, issue or matter therein, such person shall be indemnifiedagainst expenses (including attorneys’ fees) actually and reasonably incurredby such person in connection therewith, without the necessity of authorizationin the specific case.

 

9.4                                   GOOD FAITH DEFINED

 

For purposes of any determination under Section 9.3of this Article IX, to the fullest extent permitted by applicable law, aperson shall be deemed to have acted in good faith and in a manner such personreasonably believed to be in or not opposed to the best interests of thecorporation, or, with respect to any criminal action or proceeding, to have hadno reasonable cause to believe such person’s conduct was unlawful, if suchperson’s action is based on the records or books of account of the corporationor another enterprise, or on information supplied to such person by theofficers of the corporation or another enterprise in the course of theirduties, or on the advice of legal counsel for the corporation or anotherenterprise or on information or records given or reports made to thecorporation or another enterprise by an independent certified public accountantor by an appraiser or other expert selected with reasonable care by thecorporation or another enterprise. The term “another enterprise” as used inthis Section 9.4 shall mean any other corporation or any partnership,joint venture, trust, employee benefit plan or other enterprise of which suchperson is or was serving at the request of the corporation as a director,officer, employee or agent. The provisions of this Section 9.4 shall notbe deemed to be exclusive or to limit in any way the circumstances in which aperson may be deemed to have met the applicable standard of conduct set forthin Section 9.1 or 9.2 of this Article IX, as the case may be.

 

9.5                                   INDEMNIFICATION BY ACOURT

 

Notwithstanding any contrary determination inthe specific case under Section 9.3 of this Article IX, andnotwithstanding the absence of any determination thereunder, any director orofficer may apply to the Court of Chancery in the State of Delaware forindemnification to the extent otherwise permissible under Sections 9.1 and 9.2of this Article 

 

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IX. The basisof such indemnification by a court shall be a determination by such court thatindemnification of the director or officer is proper in the circumstancesbecause such person has met the applicable standards of conduct set forth in Section 9.1or 9.2 of this Article IX, as the case may be. Neither a contrarydetermination in the specific case under Section 9.3 of this Article IXnor the absence of any determination thereunder shall be a defense to suchapplication or create a presumption that the director or officer seekingindemnification has not met any applicable standard of conduct. Notice of anyapplication for indemnification pursuant to this Section 9.5 shall begiven to the corporation promptly upon the filing of such application. Ifsuccessful, in whole or in part, the director or officer seekingindemnification shall also be entitled to be paid the expense of prosecutingsuch application.

 

9.6                                   EXPENSES PAYABLE INADVANCE

 

To the fullest extent not prohibited by theDGCL, or by any other applicable law, expenses incurred by a person who is orwas a director or officer in defending any civil, criminal, administrative orinvestigative action, suit or proceeding shall be paid by the corporation inadvance of the final disposition of such action, suit or proceeding; provided,however, that if the DGCL requires, an advance of expenses incurred by anyperson in his or her capacity as a director or officer (and not in any othercapacity) shall be made only upon receipt of an undertaking by or on behalf ofsuch person 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 IX.

 

9.7                                   NONEXCLUSIVITY OFINDEMNIFICATION AND ADVANCEMENT OF EXPENSES

 

The indemnification and advancement ofexpenses provided by or granted pursuant to this Article IX shall not bedeemed exclusive of any other rights to which those seeking indemnification oradvancement of expenses may be entitled under the Certificate, any bylaw,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, it being the policy of the corporation thatindemnification of the persons specified in Sections 9.1 and 9.2 of this Article IXshall be made to the fullest extent permitted by law. The provisions of this Article IXshall not be deemed to preclude the indemnification of any person who is notspecified in Section 9.1 or 9.2 of this Article IX but whom thecorporation has the power or obligation to indemnify under the provisions ofthe DGCL, or otherwise. The corporation is specifically authorized to enterinto individual contracts with any or all of its directors, officers, employeesor agents respecting indemnification and advances, to the fullest extent notprohibited by the DGCL, or by any other applicable law.

 

9.8                                   INSURANCE

 

To the fullest extent permitted by the DGCLor any other applicable law, the corporation may purchase and maintaininsurance on behalf of any person who is or was a director, officer, employeeor agent of the corporation, or is or was a director, officer, employee oragent of the corporation serving at the request of the corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust, employee benefit plan or other enterprise against any liabilityasserted against such person and incurred by such person in any such capacity,or arising out of such person’s status as such, whether or not the corporationwouldhave the power or the obligation to indemnify such person against suchliability under the provisions of this Article IX.

 

9.9                                   CERTAIN DEFINITIONS

 

For purposes of this Article IX,references to “the corporation” shall include, in addition to the resultingcorporation, any constituent corporation (including any constituent of 

 

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a constituent)absorbed in a consolidation or merger which, if its separate existence hadcontinued, would have had power and authority to indemnify its directors orofficers, so that any person who is or was a director or officer of suchconstituent corporation, or is or was a director or officer of such constituentcorporation serving at the request of such constituent corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust, employee benefit plan or other enterprise, shall stand in thesame position under the provisions of this Article IX with respect to theresulting or surviving corporation as such person would have with respect tosuch constituent corporation if its separate existence had continued. Forpurposes of this Article IX, references to “fines” shall include anyexcise taxes assessed on a person with respect to an 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 or officer withrespect to an employee benefit plan, its participants or beneficiaries; and aperson who acted in good faith and in a manner such person reasonably believedto be in the interest of the participants and beneficiaries of an employeebenefit plan shall be deemed to have acted in a manner “not opposed to the bestinterests of the corporation” as referred to in this Article IX.

 

9.10                             SURVIVAL OFINDEMNIFICATION AND ADVANCEMENT OF EXPENSES

 

The rights to indemnification and advancementof expenses conferred by this Article IX shall continue as to a person whohas ceased to be a director or officer and shall inure to the benefit of theheirs, executors, administrators and other personal and legal representativesof such a person.

 

9.11                             LIMITATION ONINDEMNIFICATION

 

Notwithstanding anything contained in this Article IXto the contrary, except for proceedings to enforce rights to indemnification(which shall be governed by Section 9.5 hereof), the corporation shall notbe obligated to indemnify any director or officer in connection with aproceeding (or part thereof) initiated by such person unless such proceeding (orpart thereof) was authorized or consented to by the board of directors of thecorporation.

 

9.12                             INDEMNIFICATION OFEMPLOYEES AND AGENTS

 

The corporation may, to the extent authorizedfrom time to time by the board of directors, provide rights to indemnificationand to the advancement of expenses to employees and agents of the corporationsimilar to those conferred in this Article IX to directors and officers ofthe corporation.

 

9.13                             EFFECT OF AMENDMENT ORREPEAL

 

Neither any amendment or repeal of any Section ofthis Article IX, nor the adoption of any provision of the Certificate orthe bylaws inconsistent with this Article IX, shall adversely affect anyright or protection of any director, officer, employee or other agentestablished pursuant to this Article IX existing at the time of suchamendment, repeal or adoption of an inconsistent provision, including withoutlimitation by eliminating or reducing the effect of this Article IX, foror in respect of any act, omission or other matter occurring, or any action

 

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or proceedingaccruing or arising (or that, but for this Article IX, would accrue orarise), prior to such amendment, repeal or adoption of an inconsistentprovision.

 

**ARTICLEX — AMENDMENTS**

 

The bylaws of the corporation may be adopted,amended or repealed by a majority of the voting power of the stockholdersentitled to vote; provided, however, that the corporation may, in itsCertificate, also confer the power to adopt, amend or repeal bylaws upon theBoard. The fact that such power has been so conferred upon the Board shall notdivest the stockholders of the power, nor limit their power to adopt, amend orrepeal bylaws.

 

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