\nARTICLE VI INDEMNITY…………………………………………………………………….. 15
\n 6.1 THIRD PARTY ACTIONS………………………………………………………… 15
\n 6.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION…………………………………. 15
\n 6.3 SUCCESSFUL DEFENSE…………………………………………………………. 16
\n 6.4 DETERMINATION OF CONDUCT……………………………………………………. 16
\n 6.5 PAYMENT OF EXPENSES IN ADVANCE………………………………………………. 16
\n 6.6 INDEMNITY NOT EXCLUSIVE…………………………………………………….. 16
\n 6.7 INSURANCE INDEMNIFICATION…………………………………………………… 17
\n 6.8 THE CORPORATION……………………………………………………………. 17
\n 6.9 EMPLOYEE BENEFIT PLANS……………………………………………………… 17
\n 6.10 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES…………………….. 17<\/p>\nARTICLE VII RECORDS AND REPORTS…………………………………………………………… 18
\n 7.1 MAINTENANCE AND INSPECTION OF RECORDS………………………………………… 18
\n 7.2 INSPECTION BY DIRECTORS…………………………………………………….. 18
\n 7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS………………………………… 18<\/p>\n
ARTICLE VIII GENERAL MATTERS……………………………………………………………… 19
\n 8.1 CHECKS……………………………………………………………………. 19
\n 8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS………………………………. 19
\n 8.3 STOCK CERTIFICATES; PARTLY PAID SHARES……………………………………….. 19
\n 8.4 SPECIAL DESIGNATION ON CERTIFICATES………………………………………….. 20
\n 8.5 LOST CERTIFICATES………………………………………………………….. 20
\n 8.6 CONSTRUCTION; DEFINITIONS…………………………………………………… 20
\n 8.7 DIVIDENDS…………………………………………………………………. 20
\n 8.8 FISCAL YEAR……………………………………………………………….. 21
\n 8.9 SEAL……………………………………………………………………… 21
\n 8.10 TRANSFER OF STOCK………………………………………………………….. 21
\n 8.11 STOCK TRANSFER AGREEMENTS…………………………………………………… 21
\n 8.12 REGISTERED STOCKHOLDERS…………………………………………………….. 21<\/p>\n
ARTICLE IX AMENDMENTS……………………………………………………………………. 22<\/p>\n
ARTICLE X DISSOLUTION……………………………………………………………………. 22<\/p>\n
ARTICLE XI CUSTODIAN…………………………………………………………………….. 22
\n 11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES…………………………………… 22
\n 11.2 DUTIES OF CUSTODIAN………………………………………………………… 23<\/p>\n
ARTICLE XII LOANS TO OFFICERS…………………………………………………………….. 23
\n<\/c><\/s><\/caption>\n<\/table>\n
3
\n 4<\/p>\n
AMENDED AND RESTATED<\/p>\n
BYLAWS<\/p>\n
OF<\/p>\n
JUNIPER NETWORKS, INC.<\/p>\n
ARTICLE I<\/p>\n
CORPORATE OFFICES<\/p>\n
1.1 REGISTERED OFFICE<\/p>\n
The registered office of the Corporation shall be 1209 Orange Street, in
\nthe City of Wilmington, County of New Castle, State of Delaware, 19801. The name
\nof the registered agent of the Corporation at such location is The Corporation
\nTrust Company.<\/p>\n
1.2 OTHER OFFICES<\/p>\n
The board of directors may at any time establish other offices at any
\nplace or places where the Corporation is qualified to do business.<\/p>\n
ARTICLE II<\/p>\n
MEETINGS OF STOCKHOLDERS<\/p>\n
2.1 PLACE OF MEETINGS<\/p>\n
Meetings of stockholders shall be held at any place, within or outside
\nthe State of Delaware, designated by the board of directors. In the absence of
\nany such designation, stockholders’ meetings shall be held at the registered
\noffice of the Corporation.<\/p>\n
2.2 ANNUAL MEETING<\/p>\n
The annual meeting of stockholders shall be held each year on a date and
\nat a time designated by the board of directors. At the meeting, directors shall
\nbe elected and any other proper business may be transacted.<\/p>\n
2.3 SPECIAL MEETING<\/p>\n
A special meeting of the stockholders may be called at any time by the
\n(i) board of directors, (ii) the chairman of the board, (iii) the president, or
\n(iv) the chief executive officer.<\/p>\n
Prior to such time as a Registration Statement regarding the sale of the
\nCorporation’s Common Stock to the public is declared effective by the Securities
\nand Exchange Commission, a special meeting of the stockholders may be called at
\nany time by one or more stockholders holding a majority of the outstanding
\nvoting shares.<\/p>\n
If a special meeting is called by any person other than the board of
\ndirectors, the request shall be in writing, specifying the time of such meeting
\nand the general nature of the business proposed to be transacted, and shall be
\ndelivered personally or sent by registered mail or by telegraphic or other
\nfacsimile transmission to the chairman of the board, the president, any vice
\npresident, or the secretary of the corporation. No business may be transacted at
\nsuch special meeting otherwise than specified in such notice. The officer
\nreceiving the request shall cause notice to be promptly given to the
\nstockholders entitled to vote, in accordance with the provisions of Sections 2.4
\nand 2.5 of this Article II, that a meeting will be held at the time requested by
\nthe person or persons who called the meeting, not less than thirty-five (35) nor
\nmore than sixty (60) days after the receipt of the request. If the notice is not
\ngiven within twenty (20) days after the receipt of the request, the person or
\npersons requesting the meeting may give the notice. Nothing contained in this
\nparagraph of this<\/p>\n
4
\n 5<\/p>\n
Section 2.3 shall be construed as limiting, fixing, or affecting the time when a
\nmeeting of stockholders called by action of the board of directors may be held.<\/p>\n
2.4 NOTICE OF STOCKHOLDERS’ MEETINGS<\/p>\n
All notices of meetings with stockholders shall be in writing and shall
\nbe sent or otherwise given in accordance with Section 2.6 of these Bylaws not
\nless than ten (10) nor more than sixty (60) days before the date of the meeting
\nto each stockholder entitled to vote at such meeting. The notice shall specify
\nthe place, date and hour of the meeting, and, in the case of a special meeting,
\nthe purpose or purposes for which the meeting is called.<\/p>\n
2.5 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS<\/p>\n
To be properly brought before an annual meeting or special meeting,
\nnominations for the election of director or other business must be (a) specified
\nin the notice of meeting (or any supplement thereto) given by or at the
\ndirection of the board of directors, (b) otherwise properly brought before the
\nmeeting by or at the direction of the board of directors, or (c) otherwise
\nproperly brought before the meeting by a stockholder. For such nominations or
\nother business to be considered properly brought before the meeting by a
\nstockholder, such stockholder must have given timely written notice and in
\nproper form of his intent to bring such business before such meeting. To be
\ntimely, such stockholder’s notice must be delivered to or mailed and received by
\nthe secretary of the Corporation not less than one hundred twenty (120) days
\nprior to the date of the Corporation’s proxy statement released to stockholders
\nin connection with the Corporation’s previous year’s annual meeting of
\nstockholders. To be in proper form, a stockholder’s notice to the secretary
\nshall set forth:<\/p>\n
(i) the name and address of the stockholder who intends to make
\n the nominations, propose the business, and, as the case may be, the name
\n and address of the person or persons to be nominated or the nature of the
\n business to be proposed;<\/p>\n
(ii) a representation that the stockholder is a holder of record
\n of stock of the Corporation entitled to vote at such meeting and, if
\n applicable, intends to appear in person or by proxy at the meeting to
\n nominate the person or persons specified in the notice or introduce the
\n business specified in the notice;<\/p>\n
(iii) if applicable, a description of all arrangements or
\n understandings between the stockholder and each nominee and any other
\n person or persons (naming such person or persons) pursuant to which the
\n nomination or nominations are to be made by the stockholder;<\/p>\n
(iv) such other information regarding each nominee or each matter
\n of business to be proposed by such stockholder as would be required to be
\n included in a proxy statement filed pursuant to the proxy rules of the
\n Securities and Exchange Commission had the nominee been nominated, or
\n intended to be nominated, or the matter been proposed, or intended to be
\n proposed by the board of directors; and<\/p>\n
(v) if applicable, the consent of each nominee to serve as
\n director of the Corporation if so elected.<\/p>\n
The chairman of the meeting may refuse to acknowledge the nomination of
\nany person or the proposal of any business not made in compliance with the
\nforegoing procedure.<\/p>\n
2.6 MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE<\/p>\n
Written notice of any meeting of stockholders, if mailed, is given when
\ndeposited in the United States mail, postage prepaid, directed to the
\nstockholder at his address as it appears on the records of the Corporation. An
\naffidavit of the secretary or an assistant secretary or of the transfer agent of
\nthe Corporation that the notice has been given shall, in the absence of fraud,
\nbe prima facie evidence of the facts stated therein.<\/p>\n
2.7 QUORUM<\/p>\n
The holders of a majority of the stock issued and outstanding and
\nentitled to vote thereat, present in person or represented by proxy, shall
\nconstitute a quorum at all meetings of the stockholders for the transaction of
\nbusiness except as otherwise provided by statute or by the Certificate of
\nIncorporation. If, however, such quorum is not present or<\/p>\n
5
\n 6<\/p>\n
represented at any meeting of the stockholders, then either (i) the chairman of
\nthe meeting, or (ii) the stockholders entitled to vote thereat, present in
\nperson or represented by proxy, shall have power to adjourn the meeting from
\ntime to time, without notice other than announcement at the meeting, until a
\nquorum is present or represented. At such adjourned meeting at which a quorum is
\npresent or represented, any business may be transacted that might have been
\ntransacted at the meeting as originally noticed.<\/p>\n
When a quorum is present or represented at any meeting, the vote of the
\nholders of a majority of the stock having voting power present in person or
\nrepresented by proxy shall decide any question brought before such meeting,
\nunless the question is one upon which, by express provisions of the statutes or
\nof the Certificate of Incorporation, a different vote is required, in which case
\nsuch express provision shall govern and control the decision of the question.<\/p>\n
2.8 ADJOURNED MEETING; NOTICE<\/p>\n
When a meeting is adjourned to another time or place, unless these Bylaws
\notherwise require, notice need not be given of the adjourned meeting if the time
\nand place thereof are announced at the meeting at which the adjournment is
\ntaken. At the adjourned meeting the Corporation may transact any business that
\nmight have been transacted at the original meeting. If the adjournment is for
\nmore than 30 days, or if after the adjournment a new record date is fixed for
\nthe adjourned meeting, a notice of the adjourned meeting shall be given to each
\nstockholder of record entitled to vote at the meeting.<\/p>\n
2.9 VOTING<\/p>\n
The stockholders entitled to vote at any meeting of stockholders shall be
\ndetermined in accordance with the provisions of Sections 2.12 and 2.14 of these
\nBylaws, subject to the provisions of Sections 217 and 218 of the General
\nCorporation Law of Delaware (relating to voting rights of fiduciaries, pledgors
\nand joint owners of stock and to voting trusts and other voting agreements).<\/p>\n
Except as may be otherwise provided in the Certificate of Incorporation,
\neach stockholder shall be entitled to one vote for each share of capital stock
\nheld by such stockholder.<\/p>\n
2.10 WAIVER OF NOTICE<\/p>\n
Whenever notice is required to be given under any provision of the
\nGeneral Corporation Law of Delaware or of the Certificate of Incorporation or
\nthese Bylaws, a written waiver thereof, signed by the person entitled to notice,
\nwhether before or after the time stated therein, shall be deemed equivalent to
\nnotice. Attendance of a person at a meeting shall constitute a waiver of notice
\nof such meeting, except when the person attends a meeting for the express
\npurpose of objecting, at the beginning of the meeting, to the transaction of any
\nbusiness because the meeting is not lawfully called or convened. Neither the
\nbusiness to be transacted at, nor the purpose of, any regular or special meeting
\nof the stockholders need be specified in any written waiver of notice unless so
\nrequired by the Certificate of Incorporation or these Bylaws.<\/p>\n
2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING<\/p>\n
Notwithstanding the following provisions of this Section 2.11, effective
\nupon the listing of the Common Stock of the Corporation on the Nasdaq Stock
\nMarket and the registration of any class of securities of the Corporation
\npursuant to the requirements of the Securities Exchange Act of 1934, as amended,
\nthe stockholders of the Corporation may not take action by written consent
\nwithout a meeting but must take any such actions at a duly called annual or
\nspecial meeting.<\/p>\n
Except as otherwise provided in this Section 2.11, any action required by
\nthis chapter to be taken at any annual or special meeting of stockholders of a
\nCorporation, or any action that may be taken at any annual or special meeting of
\nsuch stockholders, may be taken without a meeting, without prior notice, and
\nwithout a vote if a consent in writing, setting forth the action so taken, is
\nsigned by the holders of outstanding stock having not less than the minimum
\nnumber of votes that would be necessary to authorize or take such action at a
\nmeeting at which all shares entitled to vote thereon were present and voted.<\/p>\n
Prompt notice of the taking of the corporate action without a meeting by
\nless than unanimous written consent shall be given to those stockholders who
\nhave not consented in writing. If the action which is consented to is such as
\nwould have<\/p>\n
6
\n 7<\/p>\n
required the filing of a certificate under any section of the General
\nCorporation Law of Delaware if such action had been voted on by stockholders at
\na meeting thereof, then the certificate filed under such section shall state, in
\nlieu of any statement required by such section concerning any vote of
\nstockholders, that written notice and written consent have been given as
\nprovided in Section 228 of the General Corporation Law of Delaware.<\/p>\n
2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS<\/p>\n
In order that the Corporation may determine the stockholders entitled to
\nnotice of or to vote at any meeting of stockholders or any adjournment thereof,
\nor entitled to express consent to corporate action in writing without a meeting,
\nor entitled to receive payment of any dividend or other distribution or
\nallotment of any rights, or entitled to exercise any rights in respect of any
\nchange, conversion or exchange of stock or for the purpose of any other lawful
\naction, the board of directors may fix, in advance, a record date, which shall
\nnot be more than 60 nor less than 10 days before the date of such meeting, nor
\nmore than 60 days prior to any other action.<\/p>\n
If the board of directors does not so fix a record date, the fixing of
\nsuch record date shall be governed by the provisions of Section 213 of the
\nGeneral Corporation Law of Delaware.<\/p>\n
A determination of stockholders of record entitled to notice of or to
\nvote at a meeting of stockholders shall apply to any adjournment of the meeting;
\nprovided, however, that the board of directors may fix a new record date for the
\nadjourned meeting.<\/p>\n
2.13 PROXIES<\/p>\n
Each stockholder entitled to vote at a meeting of stockholders or to
\nexpress consent or dissent to corporate action in writing without a meeting may
\nauthorize another person or persons to act for him by a written proxy, signed by
\nthe stockholder and filed with the secretary of the Corporation, but no such
\nproxy shall be voted or acted upon after 3 years from its date, unless the proxy
\nprovides for a longer period. A proxy shall be deemed signed if the
\nstockholder’s name is placed on the proxy (whether by manual signature,
\ntypewriting, telegraphic transmission or otherwise) by the stockholder or the
\nstockholder’s attorney-in-fact. The revocability of a proxy that states on its
\nface that it is irrevocable shall be governed by the provisions of Section
\n212(c) of the General Corporation Law of Delaware.<\/p>\n
2.14 LIST OF STOCKHOLDERS ENTITLED TO VOTE<\/p>\n
The officer who has charge of the stock ledger of a Corporation shall
\nprepare and make, at least 10 days before every meeting of stockholders, a
\ncomplete list of the stockholders entitled to vote at the meeting, arranged in
\nalphabetical order, and showing the address of each stockholder and the number
\nof shares registered in the name of each stockholder. Such list shall be open to
\nthe examination of any stockholder, for any purpose germane to the meeting,
\nduring ordinary business hours, for a period of at least 10 days prior to the
\nmeeting, either at a place within the city where the meeting is to be held,
\nwhich place shall be specified in the notice of the meeting, or, if not so
\nspecified, at the place where the meeting is to be held. The stock ledger shall
\nalso be produced and kept at the time and place of the meeting during the whole
\ntime thereof, and may be inspected by any stockholder who is present. The stock
\nledger shall be the only evidence as to who are the stockholders entitled to
\nexamine the stock ledger, the list of stockholders or the books of the
\nCorporation, or to vote in person or by proxy at any meeting of stockholders and
\nof the number of shares held by each such stockholder.<\/p>\n
2.15 CONDUCT OF BUSINESS<\/p>\n
Meetings of stockholders shall be presided over by the chairman of the
\nboard, if any, or in his absence by the president, or in his absence by a vice
\npresident, or in the absence of the foregoing persons by a chairman designated
\nby the board of directors, or in the absence of such designation by a chairman
\nchosen at the meeting. The secretary shall act as secretary of the meeting, but
\nin his absence the chairman of the meeting may appoint any person to act as
\nsecretary of the meeting. The chairman of any meeting of stockholders shall
\ndetermine the order of business and the procedures at the meeting, including
\nsuch matters as the regulation of the manner of voting and conduct of business.<\/p>\n
ARTICLE III<\/p>\n
7
\n 8<\/p>\n
DIRECTORS<\/p>\n
3.1 POWERS<\/p>\n
Subject to the provisions of the General Corporation Law of Delaware and
\nany limitations in the Certificate of Incorporation or these Bylaws relating to
\naction required to be approved by the stockholders or by the outstanding shares,
\nthe business and affairs of the Corporation shall be managed and all corporate
\npowers shall be exercised by or under the direction of the board of directors.<\/p>\n
3.2 NUMBER<\/p>\n
The authorized number of directors of the Corporation shall be seven (7).
\nNo reduction of the authorized number of directors shall have the effect of
\nremoving any director before that director’s term of office expires.<\/p>\n
3.3 CLASSES OF DIRECTORS<\/p>\n
At such time as a Registration Statement regarding the sale of the
\nCorporation’s Common Stock to the public is declared effective by the Securities
\nand Exchange Commission, the Directors shall be divided into three classes
\ndesignated as Class I, Class II and Class III, respectively. Directors shall be
\nassigned to each class in accordance with a resolution or resolutions adopted by
\nthe Board of Directors. At the first annual meeting of stockholders following
\nthe closing of the Initial Public Offering, the term of office of the Class I
\nDirectors shall expire and Class I Directors shall be elected for a full term of
\nthree years. At the second annual meeting of stockholders following the closing
\nof the Initial Public Offering, the term of office of the Class II Directors
\nshall expire and Class II Directors shall be elected for a full term of three
\nyears. At the third annual meeting of stockholders following the closing of the
\nInitial Public Offering, the term of office of the Class III Directors shall
\nexpire and Class III Directors shall be elected for a full term of three years.
\nAt each succeeding annual meeting of stockholders, Directors shall be elected
\nfor a full term of three years to succeed the Directors of the class whose terms
\nexpire at such annual meeting.<\/p>\n
Notwithstanding the foregoing provisions of this Article, each Director
\nshall serve until his successor is duly elected and qualified or until his
\nearlier death, resignation or removal. No decrease in the number of Directors
\nconstituting the Board of Directors shall shorten the term of any incumbent
\nDirector.<\/p>\n
3.4 RESIGNATION AND VACANCIES<\/p>\n
Any director may resign at any time upon written notice to the
\nCorporation. Stockholders may remove directors with or without cause. Any
\nvacancy occurring in the board of directors with or without cause may be filled
\nby a majority of the remaining members of the board of directors, although such
\nmajority is less than a quorum, or by a plurality of the votes cast at a meeting
\nof stockholders, and each director so elected shall hold office until the
\nexpiration of the term of office of the director whom he has replaced.<\/p>\n
Unless otherwise provided in the Certificate of Incorporation or these
\nBylaws:<\/p>\n
(i) Vacancies and newly created directorships resulting from any
\n increase in the authorized number of directors elected by all of the
\n stockholders having the right to vote as a single class may be filled by
\n a majority of the directors then in office, although less than a quorum,
\n or by a sole remaining director.<\/p>\n
(ii) Whenever the holders of any class or classes of stock or
\n series thereof are entitled to elect one or more directors by the
\n provisions of the Certificate of Incorporation, vacancies and newly
\n created directorships of such class or classes or series may be filled by
\n a majority of the directors elected by such class or classes or series
\n thereof then in office, or by a sole remaining director so elected.<\/p>\n
If at any time, by reason of death or resignation or other cause, the
\nCorporation should have no directors in office, then any officer or any
\nstockholder or an executor, administrator, trustee or guardian of a stockholder,
\nor other fiduciary entrusted with like responsibility for the person or estate
\nof a stockholder, may apply to the Court of Chancery for a decree summarily
\nordering an election as provided in Section 211 of the General Corporation Law
\nof Delaware.<\/p>\n
8
\n 9<\/p>\n
If, at the time of filling any vacancy or any newly created directorship,
\nthe directors then in office constitute less than a majority of the whole board
\n(as constituted immediately prior to any such increase), then the Court of
\nChancery may, upon application of any stockholder or stockholders holding at
\nleast 10% of the total number of the shares at the time outstanding having the
\nright to vote for such directors, summarily order an election to be held to fill
\nany such vacancies or newly created directorships, or to replace the directors
\nchosen by the directors then in office as aforesaid, which election shall be
\ngoverned by the provisions of Section 211 of the General Corporation Law of
\nDelaware as far as applicable.<\/p>\n
3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE<\/p>\n
The board of directors of the Corporation may hold meetings, both regular
\nand special, either within or outside the State of Delaware.<\/p>\n
Unless otherwise restricted by the Certificate of Incorporation or these
\nBylaws, members of the board of directors, or any committee designated by the
\nboard of directors, may participate in a meeting of the board of directors, or
\nany committee, by means of conference telephone or similar communications
\nequipment by means of which all persons participating in the meeting can hear
\neach other, and such participation in a meeting shall constitute presence in
\nperson at the meeting.<\/p>\n
3.6 REGULAR MEETINGS<\/p>\n
Regular meetings of the board of directors may be held without notice at
\nsuch time and at such place as shall from time to time be determined by the
\nboard.<\/p>\n
3.7 SPECIAL MEETINGS; NOTICE<\/p>\n
Special meetings of the board of directors for any purpose or purposes
\nmay be called at any time by the chairman of the board, the president, any vice
\npresident, the secretary or any two directors.<\/p>\n
Notice of the time and place of special meetings shall be delivered
\npersonally or by telephone to each director or sent by first-class mail or
\ntelegram, charges prepaid, addressed to each director at that director’s address
\nas it is shown on the records of the Corporation. If the notice is mailed, it
\nshall be deposited in the United States mail at least 4 days before the time of
\nthe holding of the meeting. If the notice is delivered personally or by
\ntelephone or by telegram, it shall be delivered personally or by telephone or to
\nthe telegraph company at least 48 hours before the time of the holding of the
\nmeeting. Any oral notice given personally or by telephone may be communicated
\neither to the director or to a person at the office of the director who the
\nperson giving the notice has reason to believe will promptly communicate it to
\nthe director. The notice need not specify the purpose or the place of the
\nmeeting, if the meeting is to be held at the principal executive office of the
\nCorporation.<\/p>\n
3.8 QUORUM<\/p>\n
At all meetings of the board of directors, a majority of the authorized
\nnumber of directors shall constitute a quorum for the transaction of business
\nand the act of a majority of the directors present at any meeting at which there
\nis a quorum shall be the act of the board of directors, except as may be
\notherwise specifically provided by statute or by the Certificate of
\nIncorporation.<\/p>\n
3.9 WAIVER OF NOTICE<\/p>\n
Whenever notice is required to be given under any provision of the
\nGeneral Corporation Law of Delaware or of the Certificate of Incorporation or
\nthese Bylaws, a written waiver thereof, signed by the person entitled to notice,
\nwhether before or after the time stated therein, shall be deemed equivalent to
\nnotice. Attendance of a person at a meeting shall constitute a waiver of notice
\nof such meeting, except when the person attends a meeting for the express
\npurpose of objecting, at the beginning of the meeting, to the transaction of any
\nbusiness because the meeting is not lawfully called or convened. Neither the
\nbusiness to be transacted at, nor the purpose of, any regular or special meeting
\nof the directors, or members of a committee of directors, need be specified in
\nany written waiver of notice unless so required by the Certificate of
\nIncorporation or these Bylaws.<\/p>\n
9
\n 10<\/p>\n
3.10 ADJOURNED MEETING; NOTICE<\/p>\n
If a quorum is not present at any meeting of the board of directors, then
\nthe directors present thereat may adjourn the meeting from time to time, without
\nnotice other than announcement at the meeting, until a quorum is present.<\/p>\n
3.11 CONDUCT OF BUSINESS<\/p>\n
Meetings of the board of directors shall be presided over by the chairman
\nof the board, if any, or in his absence by the chief executive officer, or in
\ntheir absence by a chairman chosen at the meeting. The secretary shall act as
\nsecretary of the meeting, but in his absence the chairman of the meeting may
\nappoint any person to act as secretary of the meeting. The chairman of any
\nmeeting shall determine the order of business and the procedures at the meeting.<\/p>\n
3.12 BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING<\/p>\n
Unless otherwise restricted by the Certificate of Incorporation or these
\nBylaws, any action required or permitted to be taken at any meeting of the board
\nof directors, or of any committee thereof, may be taken without a meeting if all
\nmembers of the board or committee, as the case may be, consent thereto in
\nwriting and the writing or writings are filed with the minutes of proceedings of
\nthe board or committee.<\/p>\n
3.13 FEES AND COMPENSATION OF DIRECTORS<\/p>\n
Unless otherwise restricted by the Certificate of Incorporation or these
\nBylaws, the board of directors shall have the authority to fix the compensation
\nof directors. The directors may be paid their expenses, if any, of attendance at
\neach meeting of the board of directors and may be paid a fixed sum for
\nattendance at each meeting of the board of directors or a stated salary as
\ndirector. No such payment shall preclude any director from serving the
\nCorporation in any other capacity and receiving compensation therefor. Members
\nof special or standing committees may be allowed like compensation for attending
\ncommittee meetings.<\/p>\n
3.14 REMOVAL OF DIRECTORS<\/p>\n
Unless otherwise restricted by statute, by the Certificate of
\nIncorporation or by these Bylaws, any director or the entire board of directors
\nmay be removed, with or without cause, by the holders of a majority of the
\nshares then entitled to vote at an election of directors. If at any time a class
\nor series of shares is entitled to elect one or more directors, the provisions
\nof this Article 3.14 shall apply to the vote of that class or series and not to
\nthe vote of the outstanding shares as a whole.<\/p>\n
ARTICLE IV<\/p>\n
COMMITTEES<\/p>\n
4.1 COMMITTEES OF DIRECTORS<\/p>\n
The board of directors may, by resolution passed by a majority of the
\nwhole board, designate one or more committees, with each committee to consist of
\none or more of the directors of the Corporation. The board may designate one or
\nmore directors as alternate members of any committee, who may replace any absent
\nor disqualified member at any meeting of the committee. In the absence or
\ndisqualification of a member of a committee, the member or members thereof
\npresent at any meeting and not disqualified from voting, whether or not he or
\nthey constitute a quorum, may unanimously appoint another member of the board of
\ndirectors to act at the meeting in the place of any such absent or disqualified
\nmember. Any such committee, to the extent provided in the resolution of the
\nboard of directors or in the Bylaws of the Corporation, shall have and may
\nexercise all the powers and authority of the board of directors in the
\nmanagement of the business and affairs of the Corporation, and may authorize the
\nseal of the Corporation to be affixed to all papers that may require it; but no
\nsuch committee shall have the power or authority to (i) amend the Certificate of
\nIncorporation (except that a committee may, to the extent authorized in the
\nresolution or resolutions providing for the issuance of shares of stock adopted
\nby the board of directors as provided in Section 151(a) of the General
\nCorporation Law of Delaware, fix any of the preferences or rights of such shares
\nrelating to dividends, redemption, dissolution, any distribution of assets of
\nthe Corporation or the conversion into, or the exchange of such shares for,
\nshares of any other class or classes or any other series of the same or any
\nother class or classes of stock of the Corporation), (ii) adopt an agreement of
\nmerger or consolidation under<\/p>\n
10
\n 11<\/p>\n
Sections 251 or 252 of the General Corporation Law of Delaware, (iii)
\nrecommend to the stockholders the sale, lease or exchange of all or
\nsubstantially all of the Corporation’s property and assets, (iv) recommend to
\nthe stockholders a dissolution of the Corporation or a revocation of a
\ndissolution, or (v) amend the Bylaws of the Corporation; and, unless the board
\nresolution establishing the committee, the Bylaws or the Certificate of
\nIncorporation expressly so provide, no such committee shall have the power or
\nauthority to declare a dividend, to authorize the issuance of stock, or to adopt
\na certificate of ownership and merger pursuant to Section 253 of the General
\nCorporation Law of Delaware.<\/p>\n
4.2 COMMITTEE MINUTES<\/p>\n
Each committee shall keep regular minutes of its meetings and report the
\nsame to the board of directors when required.<\/p>\n
4.3 MEETINGS AND ACTION OF COMMITTEES<\/p>\n
Meetings and actions of committees shall be governed by, and held and
\ntaken in accordance with, the provisions of Article III of these Bylaws, Section
\n3.5 (place of meetings and meetings by telephone), Section 3.6 (regular
\nmeetings), Section 3.7 (special meetings and notice), Section 3.8 (quorum),
\nSection 3.9 (waiver of notice), Section 3.10 (adjournment and notice of
\nadjournment), Section 3.11 (conduct of business) and 3.12 (action without a
\nmeeting), with such changes in the context of those Bylaws as are necessary to
\nsubstitute the committee and its members for the board of directors and its
\nmembers; provided, however, that the time of regular meetings of committees may
\nalso be called by resolution of the board of directors and that notice of
\nspecial meetings of committees shall also be given to all alternate members, who
\nshall have the right to attend all meetings of the committee. The board of
\ndirectors may adopt rules for the government of any committee not inconsistent
\nwith the provisions of these Bylaws.<\/p>\n
ARTICLE V<\/p>\n
OFFICERS<\/p>\n
5.1 OFFICERS<\/p>\n
The officers of the Corporation shall be a chief executive officer, one
\nor more vice presidents, a secretary and a chief financial officer. The
\nCorporation may also have, at the discretion of the board of directors, a
\nchairman of the board, a president, a chief operating officer, one or more
\nexecutive, senior or assistant vice presidents, assistant secretaries and any
\nsuch other officers as may be appointed in accordance with the provisions of
\nSection 5.2 of these Bylaws. Any number of offices may be held by the same
\nperson.<\/p>\n
5.2 APPOINTMENT OF OFFICERS<\/p>\n
Except as otherwise provided in this Section 5.2, the officers of the
\nCorporation shall be appointed by the board of directors, subject to the rights,
\nif any, of an officer under any contract of employment. The board of directors
\nmay appoint, or empower an officer to appoint, such officers and agents of the
\nbusiness as the Corporation may require (whether or not such officer or agent is
\ndescribed in this Article V), each of whom shall hold office for such period,
\nhave such authority, and perform such duties as are provided in these Bylaws or
\nas the board of directors may from time to time determine. Any vacancy occurring
\nin any office of the Corporation shall be filled by the board of directors or
\nmay be filled by the officer, if any, who appointed such officer.<\/p>\n
5.3 REMOVAL AND RESIGNATION OF OFFICERS<\/p>\n
Subject to the rights, if any, of an officer under any contract of
\nemployment, any officer may be removed, either with or without cause, by an
\naffirmative vote of the majority of the board of directors at any regular or
\nspecial meeting of the board or, except in the case of an officer chosen by the
\nboard of directors, by any officer upon whom such power of removal may be
\nconferred by the board of directors or, in the case of an officer appointed by
\nanother officer, by such other officer.<\/p>\n
Any officer may resign at any time by giving written notice to the
\nCorporation. Any resignation shall take effect at the date of the receipt of
\nthat notice or at any later time specified in that notice; and, unless otherwise
\nspecified in that notice,<\/p>\n
11
\n 12<\/p>\n
the acceptance of the resignation shall not be necessary to make it effective.
\nAny resignation is without prejudice to the rights, if any, of the Corporation
\nunder any contract to which the officer is a party.<\/p>\n
5.4 CHAIRMAN OF THE BOARD<\/p>\n
The chairman of the board, if such an officer be elected, shall, if
\npresent, preside at meetings of the board of directors and exercise and perform
\nsuch other powers and duties as may from time to time be assigned to him by the
\nboard of directors or as may be prescribed by these Bylaws. If there is no chief
\nexecutive officer, then the chairman of the board shall also be the chief
\nexecutive officer of the Corporation and shall have the powers and duties
\nprescribed in Section 5.5 of these Bylaws.<\/p>\n
5.5 CHIEF EXECUTIVE OFFICER<\/p>\n
The Chief Executive Officer of the Corporation shall, subject to the
\ncontrol of the Board of Directors, have general supervision, direction and
\ncontrol of the business and the officers of the Corporation. He or she shall
\npreside at all meetings of the stockholders and, in the absence or nonexistence
\nof a Chairman of the Board at all meetings of the Board of Directors. He or she
\nshall have the general powers and duties of management usually vested in the
\nchief executive officer of a Corporation, including general supervision,
\ndirection and control of the business and supervision of other officers of the
\nCorporation, and shall have such other powers and duties as may be prescribed by
\nthe Board of Directors or these Bylaws.<\/p>\n
The Chief Executive Officer shall, without limitation, have the authority
\nto execute bonds, mortgages and other contracts requiring a seal, under the seal
\nof the Corporation, except where required or permitted by law to be otherwise
\nsigned and executed and except where the signing and execution thereof shall be
\nexpressly delegated by the Board of Directors to some other officer or agent of
\nthe Corporation.<\/p>\n
5.6 PRESIDENT<\/p>\n
Subject to such supervisory powers as may be given by these Bylaws or the
\nBoard of Directors to the Chairman of the Board or the Chief Executive Officer,
\nif there be such officers, the president shall have general supervision,
\ndirection and control of the business and supervision of other officers of the
\nCorporation, and shall have such other powers and duties as may be prescribed by
\nthe Board of Directors or these Bylaws. In the event a Chief Executive Officer
\nshall not be appointed, the President shall have the duties of such office.<\/p>\n
5.7 VICE PRESIDENT<\/p>\n
In the absence or disability of the president, the vice presidents, if
\nany, in order of their rank as fixed by the board of directors or, if not
\nranked, a vice president designated by the board of directors, shall perform all
\nthe duties of the chief executive officer and when so acting shall have all the
\npowers of, and be subject to all the restrictions upon, the chief executive
\nofficer. The vice presidents shall have such other powers and perform such other
\nduties as from time to time may be prescribed for them respectively by the board
\nof directors, these Bylaws, the chief executive officer or the chairman of the
\nboard.<\/p>\n
5.8 SECRETARY<\/p>\n
The secretary shall keep or cause to be kept, at the principal executive
\noffice of the Corporation or such other place as the board of directors may
\ndirect, a book of minutes of all meetings and actions of directors, committees
\nof directors, and stockholders. The minutes shall show the time and place of
\neach meeting, whether regular or special (and, if special, how authorized and
\nthe notice given), the names of those present at directors’ meetings or
\ncommittee meetings, the number of shares present or represented at stockholders’
\nmeetings, and the proceedings thereof.<\/p>\n
The secretary shall keep, or cause to be kept, at the principal executive
\noffice of the Corporation or at the office of the Corporation’s transfer agent
\nor registrar, as determined by resolution of the board of directors, a share
\nregister, or a duplicate share register, showing the names of all stockholders
\nand their addresses, the number and classes of shares held by each, the number
\nand date of certificates evidencing such shares, and the number and date of
\ncancellation of every certificate surrendered for cancellation.<\/p>\n
12
\n 13<\/p>\n
The secretary shall give, or cause to be given, notice of all meetings of
\nthe stockholders and of the board of directors required to be given by law or by
\nthese Bylaws. He shall keep the seal of the Corporation, if one be adopted, in
\nsafe custody and shall have such other powers and perform such other duties as
\nmay be prescribed by the board of directors or by these Bylaws.<\/p>\n
5.9 CHIEF FINANCIAL OFFICER<\/p>\n
The chief financial officer shall keep and maintain, or cause to be kept
\nand maintained, adequate and correct books and records of accounts of the
\nproperties and business transactions of the Corporation, including accounts of
\nits assets, liabilities, receipts, disbursements, gains, losses, capital,
\nretained earnings and shares. The books of account shall at all reasonable times
\nbe open to inspection by any director.<\/p>\n
The chief financial officer shall deposit all money and other valuables
\nin the name and to the credit of the Corporation with such depositaries as may
\nbe designated by the board of directors. He shall disburse the funds of the
\nCorporation as may be ordered by the board of directors, shall render to the
\nchief executive officer and directors, whenever they request it, an account of
\nall of his transactions as treasurer and of the financial condition of the
\nCorporation, and shall have such other powers and perform such other duties as
\nmay be prescribed by the board of directors or these Bylaws.<\/p>\n
5.10 ASSISTANT SECRETARY<\/p>\n
The assistant secretary, or, if there is more than one, the assistant
\nsecretaries in the order determined by the stockholders or board of directors
\n(or if there be no such determination, then in the order of their election)
\nshall, in the absence of the secretary or in the event of his or her inability
\nor refusal to act, perform the duties and exercise the powers of the secretary
\nand shall perform such other duties and have such other powers as the board of
\ndirectors or the stockholders may from time to time prescribe.<\/p>\n
5.11 AUTHORITY AND DUTIES OF OFFICERS<\/p>\n
In addition to the foregoing authority and duties, all officers of the
\nCorporation shall respectively have such authority and perform such duties in
\nthe management of the business of the Corporation as may be designated from time
\nto time by the board of directors or the stockholders.<\/p>\n
ARTICLE VI<\/p>\n
INDEMNITY<\/p>\n
6.1 THIRD PARTY ACTIONS<\/p>\n
The Corporation shall indemnify any person who was or is a party or is
\nthreatened to be made a party to any threatened, pending, or completed action,
\nsuit or proceeding, whether civil, criminal, administrative or investigative
\n(other than an action by an agent of the Corporation), or is or was serving at
\nthe request of the Corporation, any predecessor of the Corporation, or any
\nsubsidiary of the Corporation, as a director or officer of another corporation,
\npartnership, joint venture trust or other enterprise, against expenses
\n(including attorneys’ fees), judgments, fines and amounts paid in settlement
\nactually and reasonably incurred by him in connection with such action, suit or
\nproceeding if he acted in good faith and in a manner he reasonably believed to
\nbe in or not opposed to the best interests of the Corporation, any predecessor
\nof the Corporation, or any subsidiary of the Corporation, and, with respect to
\nany criminal action or proceeding, had no reasonable cause to believe his
\nconduct was unlawful. The termination of any action, suit or proceeding by
\njudgment, order, settlement, conviction, or upon a plea of nolo contendere or
\nits equivalent, shall not, of itself, create a presumption that the person did
\nnot act in good faith and in a manner which he reasonably believed to be in or
\nnot opposed to the best interest of the Corporation, any predecessor of the
\nCorporation, or any subsidiary of the Corporation, and, with respect to any
\ncriminal action or proceeding, had reasonable cause to believe that his conduct
\nwas unlawful.<\/p>\n
The Corporation may indemnify any person who was or is a party or is
\nthreatened to be made a party to any threatened, pending, or completed action,
\nsuit or proceeding, whether civil, criminal, administrative or investigative
\n(other<\/p>\n
13
\n 14<\/p>\n
than an action by an agent of the Corporation), or is or was serving at the
\nrequest of the Corporation, any predecessor of the Corporation, or any
\nsubsidiary of the Corporation, as an employee or agent of another corporation,
\npartnership, joint venture trust or other enterprise, against expenses
\n(including attorney’s fees), judgments, fines and amounts paid in settlement
\nactually and reasonably incurred by him in connection with such action, suit or
\nproceeding if he acted in good faith and in a manner he reasonably believed to
\nbe in or not opposed to the best interests of the Corporation, any predecessor
\nof the Corporation, or any subsidiary of the Corporation, and, with respect to
\nany criminal action or proceeding, had no reasonable cause to believe his
\nconduct was unlawful. The termination of any action, suit or proceeding by
\njudgment, order, settlement, conviction, or upon a plea of nolo contendere or
\nits equivalent, shall not, of itself, create a presumption that the person did
\nnot act in good faith and in a manner which he reasonably believed to be in or
\nnot opposed to the best interest of the Corporation, any predecessor of the
\nCorporation, or any subsidiary of the Corporation, and, with respect to any
\ncriminal action or proceeding, had reasonable cause to believe that his conduct
\nwas unlawful.<\/p>\n
6.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION<\/p>\n
The Corporation shall indemnify any person who was or is a party or is
\nthreatened to be made a party to any threatened, pending or completed action or
\nsuit by or in the right of the Corporation, any predecessor of the Corporation,
\nor any subsidiary of the Corporation, to procure a judgment in its favor by
\nreason of the fact that he is or was a director or officer of Corporation, any
\npredecessor of the Corporation, or any subsidiary of the Corporation, or is or
\nwas serving at the request of the Corporation, any predecessor of the
\nCorporation, or any subsidiary of the Corporation, as a director, officer,
\nemployee or agent of another corporation, partnership, joint venture, trust or
\nother enterprise against expenses (including attorneys’ fees) actually and
\nreasonably incurred by him in connection with the defense or settlement of such
\naction or suit if he acted in good faith and in manner he reasonably believed to
\nbe in or not opposed to the best interests of the Corporation, any predecessor
\nof the Corporation, or any subsidiary of the Corporation, and except that no
\nindemnification shall be made in respect of any claim, issue or matter as to
\nwhich such person shall have been adjudged to be liable to the Corporation, any
\npredecessor of the Corporation, or any subsidiary of the Corporation, unless and
\nonly to the extent that the Delaware Court of Chancery or the court in which
\nsuch action or suit was brought shall determine upon application that, despite
\nthe adjudication of liability but in view of all the circumstances of the case,
\nsuch person is fairly and reasonably entitled to indemnity for such expenses
\nwhich the Delaware Court of Chancery or such other court shall deem proper.<\/p>\n
The Corporation may indemnify any person who was or is a party or is
\nthreatened to be made a party to any threatened, pending or completed action or
\nsuit by or in the right of the Corporation, any predecessor of the Corporation,
\nor any subsidiary of the Corporation, to procure a judgment in its favor by
\nreason of the fact that he is or was an employee or agent of the Corporation,
\nany predecessor of the Corporation, or any subsidiary of the Corporation, or is
\nor was serving at the request of the Corporation, any predecessor of the
\nCorporation, or any subsidiary of the Corporation, as a director, officer,
\nemployee or agent of another corporation, partnership, joint venture, trust or
\nother enterprise against expenses (including attorney’s fees) actually and
\nreasonably incurred by him in connection with the defense or settlement of such
\naction or suit if he acted in good faith and in manner he reasonably believed to
\nbe in or not opposed to the best interests of the Corporation, any predecessor
\nof the Corporation, or any subsidiary of the Corporation, and except that no
\nindemnification shall be made in respect of any claim, issue or matter as to
\nwhich such person shall have been adjudged to be liable to the Corporation, any
\npredecessor of the Corporation, or any subsidiary of the Corporation, unless and
\nonly to the extent that the Delaware Court of Chancery or the court in which
\nsuch action or suit was brought shall determine upon application that, despite
\nthe adjudication of liability but in view of all the circumstances of the case,
\nsuch person is fairly and reasonably entitled to indemnity for such expenses
\nwhich the Delaware Court of Chancery or such other court shall deem proper.<\/p>\n
6.3 SUCCESSFUL DEFENSE<\/p>\n
To the extent that a director, officer, employee or agent of the
\nCorporation, any predecessor of the Corporation, or any subsidiary of the
\nCorporation, has been successful on the merits or otherwise in defense of any
\naction, suit or proceeding referred to in Sections 6.1 and 6.2, or in defense of
\nany claim, issue or matter therein, he shall be indemnified against expenses
\n(including attorneys’ fees) actually and reasonably incurred by him in
\nconnection therewith.<\/p>\n
6.4 DETERMINATION OF CONDUCT<\/p>\n
14
\n 15<\/p>\n
Any indemnification under Sections 6.1 and 6.2 (unless ordered by a
\ncourt) shall be made by the Corporation only as authorized in the specific case
\nupon a determination that the indemnification of the director, officer, employee
\nor agent is proper in the circumstances because he has met the applicable
\nstandard of conduct set forth in Sections 6.1 and 6.2. Such determination shall
\nbe made (1) by the board of Directors or the Executive Committee by a majority
\nvote of a quorum consisting of directors who were not parties to such action,
\nsuit or proceeding, or (2) or if such quorum is not obtainable or, even if
\nobtainable, a quorum of disinterested directors so directs, by independent legal
\ncounsel in a written opinion, or (3) by the stockholders.<\/p>\n
6.5 PAYMENT OF EXPENSES IN ADVANCE<\/p>\n
Expenses incurred in defending a civil or criminal action, suit or
\nproceeding shall be paid by the Corporation in advance of the final disposition
\nof such action, suit or proceeding upon receipt of an undertaking by or on
\nbehalf of the director, officer, employee or agent to repay such amount if it
\nshall ultimately be determined that he is not entitled to be indemnified by the
\nCorporation as authorized in this Article VI.<\/p>\n
6.6 INDEMNITY NOT EXCLUSIVE<\/p>\n
The indemnification and advancement of expenses provided or granted
\npursuant to the other subsections of this section shall not be deemed exclusive
\nof any other rights or limiting any other rights to which those seeking
\nindemnification or advancement of expenses may be entitled under any by-law,
\ncertificate of incorporation, agreement, vote of stockholders or disinterested
\ndirectors or otherwise, both as to action in his official capacity and as to
\naction in another while holding such office.<\/p>\n
6.7 INSURANCE INDEMNIFICATION<\/p>\n
The Corporation shall have the power to purchase and maintain insurance
\non behalf of any person who is or was a director, officer, employee or agent of
\nthe Corporation, any predecessor of the Corporation, or any subsidiary of the
\nCorporation, or is or was serving at the request of the Corporation, as a
\ndirector, officer, employee or agent of another corporation, partnership, joint
\nventure, trust or other enterprise against any liability asserted against him
\nand incurred by him in any such capacity, or arising out of his status as such,
\nwhether or not the Corporation would have the power to indemnify him against
\nsuch liability under the provisions of this Article VI.<\/p>\n
6.8 THE CORPORATION<\/p>\n
For purposes of this Article VI, references to “the Corporation” shall
\ninclude, in addition to the resulting Corporation, any constituent corporation
\n(including any constituent of a constituent) absorbed in a consolidation or
\nmerger which, if its separate existence had continued, would have had power and
\nauthority to indemnify its directors, officers, and employees or agents, so that
\nany person who is was a director, officer, employee or agent of such constituent
\ncorporation, or is or was serving at the request of such constituent corporation
\nas a director, officer, employee or agent of another corporation, partnership,
\njoint venture, trust or other enterprise, shall stand in the same position under
\nand subject to the provisions of this Article VI (including, without limitation
\nthe provisions of Section 6.4) with respect to the resulting or surviving
\ncorporation as he would have with respect to such constituent corporation if its
\nseparate existence had continued.<\/p>\n
6.9 EMPLOYEE BENEFIT PLANS<\/p>\n
For purposes of this Article VI, references to “other enterprises” shall
\ninclude employee benefit plans; references to “fines” shall include any excise
\ntaxes assessed on a person with respect to an employee benefit plan; and
\nreferences to “serving at the request of the Corporation” shall include any
\nservice as a director, officer, employee or agent of the Corporation which
\nimposes duties on, or involves services by, such director, officer, employee, or
\nagent with respect to an employee benefit plan, its participants, or
\nbeneficiaries; and a person who acted in good faith and in a manner he
\nreasonably deemed to have acted in a manner “not opposed to the best interests
\nof the Corporation” as referred to in this Article VI.<\/p>\n
6.10 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES<\/p>\n
15
\n 16<\/p>\n
The indemnification and advanced of expenses provided by, or granted
\npursuant to, this Article VI shall, unless otherwise provided when authorized or
\nratified, continue as to a person who has ceased to be a director, officer,
\nemployee or agent and shall inure to the benefit of the heirs, executors and
\nadministrators of such a person.<\/p>\n
ARTICLE VII<\/p>\n
RECORDS AND REPORTS<\/p>\n
7.1 MAINTENANCE AND INSPECTION OF RECORDS<\/p>\n
The Corporation shall, either at its principal executive office or at
\nsuch place or places as designated by the board of directors, keep a record of
\nits stockholders listing their names and addresses and the number and class of
\nshares held by each stockholder, a copy of these Bylaws as amended to date,
\naccounting books, and other records.<\/p>\n
Any stockholder of record, in person or by attorney or other agent,
\nshall, upon written demand under oath stating the purpose thereof, have the
\nright during the usual hours for business to inspect for any proper purpose the
\nCorporation’s stock ledger, a list of its stockholders, and its other books and
\nrecords and to make copies or extracts therefrom. A proper purpose shall mean a
\npurpose reasonably related to such person’s interest as a stockholder. In every
\ninstance where an attorney or other agent is the person who seeks the right to
\ninspection, the demand under oath shall be accompanied by a power of attorney or
\nsuch other writing that authorizes the attorney or other agent to so act on
\nbehalf of the stockholder. The demand under oath shall be directed to the
\nCorporation at its registered office in Delaware or at its principal place of
\nbusiness.<\/p>\n
7.2 INSPECTION BY DIRECTORS<\/p>\n
Any director shall have the right to examine the Corporation’s stock
\nledger, a list of its stockholders and its other books and records for a purpose
\nreasonably related to his position as a director. The Court of Chancery is
\nhereby vested with the exclusive jurisdiction to determine whether a director is
\nentitled to the inspection sought. The Court may summarily order the Corporation
\nto permit the director to inspect any and all books and records, the stock
\nledger, and the stock list and to make copies or extracts therefrom. The Court
\nmay, in its discretion, prescribe any limitations or conditions with reference
\nto the inspection, or award such other and further relief as the Court may deem
\njust and proper.<\/p>\n
7.3 REPRESENTATION OF SHARES OF OTHER CORPORATIONS<\/p>\n
The chairman of the board, the chief executive officer, any vice
\npresident, the chief financial officer, the secretary or assistant secretary of
\nthis Corporation, or any other person authorized by the board of directors or
\nthe chief executive officer or a vice president, is authorized to vote,
\nrepresent, and exercise on behalf of this Corporation all rights incident to any
\nand all shares of any other corporation or corporations standing in the name of
\nthis Corporation. The authority granted herein may be exercised either by such
\nperson directly or by any other person authorized to do so by proxy or power of
\nattorney duly executed by such person having the authority.<\/p>\n
ARTICLE VIII<\/p>\n
GENERAL MATTERS<\/p>\n
8.1 CHECKS<\/p>\n
From time to time, the board of directors shall determine by resolution
\nwhich person or persons may sign or endorse all checks, drafts, other orders for
\npayment of money, notes or other evidences of indebtedness that are issued in
\nthe name of or payable to the Corporation, and only the persons so authorized
\nshall sign or endorse those instruments.<\/p>\n
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS<\/p>\n
The board of directors, except as otherwise provided in these Bylaws, may
\nauthorize any officer or officers, or agent or agents, to enter into any
\ncontract or execute any instrument in the name of and on behalf of the
\nCorporation; such authority may be general or confined to specific instances.
\nUnless so authorized or ratified by the board of directors or<\/p>\n
16
\n 17<\/p>\n
within the agency power of an officer, no officer, agent or employee shall have
\nany power or authority to bind the Corporation by any contract or engagement or
\nto pledge its credit or to render it liable for any purpose or for any amount.<\/p>\n
8.3 STOCK CERTIFICATES; PARTLY PAID SHARES<\/p>\n
The shares of a corporation shall be represented by certificates,
\nprovided that the board of directors of the Corporation may provide by
\nresolution or resolutions that some or all of any or all classes or series of
\nits stock shall be uncertificated shares. Any such resolution shall not apply to
\nshares represented by a certificate until such certificate is surrendered to the
\nCorporation. Notwithstanding the adoption of such a resolution by the board of
\ndirectors, every holder of stock represented by certificates and upon request
\nevery holder of uncertificated shares shall be entitled to have a certificate
\nsigned by, or in the name of the Corporation by the chairman or vice-chairman of
\nthe board of directors, or the president or vice-president, and by the treasurer
\nor an assistant treasurer, or the secretary or an assistant secretary of such
\nCorporation representing the number of shares registered in certificate form.
\nAny or all of the signatures on the certificate may be a facsimile. In case any
\nofficer, transfer agent or registrar who has signed or whose facsimile signature
\nhas been placed upon a certificate has to be such officer, transfer agent or
\nregistrar before such certificate is issued, it may be issued by the Corporation
\nwith the same effect as if he were such officer, transfer agent or registrar at
\nthe date of issue.<\/p>\n
The Corporation may issue the whole or any part of its shares as partly
\npaid and subject to call for the remainder of the consideration to be paid
\ntherefor. Upon the face or back of each stock certificate issued to represent
\nany such partly paid shares, upon the books and records of the Corporation in
\nthe case of uncertificated partly paid shares, the total amount of the
\nconsideration to be paid therefor and the amount paid thereon shall be stated.
\nUpon the declaration of any dividend on fully paid shares, the Corporation shall
\ndeclare a dividend upon partly paid shares of the same class, but only upon the
\nbasis of the percentage of the consideration actually paid thereon.<\/p>\n
8.4 SPECIAL DESIGNATION ON CERTIFICATES<\/p>\n
If the Corporation is authorized to issue more than one class of stock or
\nmore than one series of any class, then the powers, the designations, the
\npreferences, and the relative, participating, optional or other special rights
\nof each class of stock or series thereof and the qualifications, limitations or
\nrestrictions of such preferences and”or rights shall be set forth in full or
\nsummarized on the face or back of the certificate that the Corporation shall
\nissue to represent such class or series of stock; provided, however, that,
\nexcept as otherwise provided in Section 202 of the General Corporation Law of
\nDelaware, in lieu of the foregoing requirements there may be set forth on the
\nface or back of the certificate that the Corporation shall issue to represent
\nsuch class or series of stock a statement that the Corporation will furnish
\nwithout charge to each stockholder who so requests the powers, the designations,
\nthe preferences, and the relative, participating, optional or other special
\nrights of each class of stock or series thereof and the qualifications,
\nlimitations or restrictions of such preferences and”or rights.<\/p>\n
8.5 LOST CERTIFICATES<\/p>\n
Except as provided in this Section 8.5, no new certificates for shares
\nshall be issued to replace a previously issued certificate unless the latter is
\nsurrendered to the Corporation and cancelled at the same time. The Corporation
\nmay issue a new certificate of stock or uncertificated shares in the place of
\nany certificate theretofore issued by it, alleged to have been lost, stolen or
\ndestroyed, and the Corporation may require the owner of the lost, stolen or
\ndestroyed certificate, or his legal representative, to give the Corporation a
\nbond sufficient to indemnify it against any claim that may be made against it on
\naccount of the alleged loss, theft or destruction of any such certificate or the
\nissuance of such new certificate or uncertificated shares.<\/p>\n
8.6 CONSTRUCTION; DEFINITIONS<\/p>\n
Unless the context requires otherwise, the general provisions, rules of
\nconstruction, and definitions in the Delaware General Corporation Law shall
\ngovern the construction of these Bylaws. Without limiting the generality of this
\nprovision, the singular number includes the plural, the plural number includes
\nthe singular, and the term “person” includes both a Corporation and a natural
\nperson.<\/p>\n
8.7 DIVIDENDS<\/p>\n
17
\n 18<\/p>\n
The directors of the Corporation, subject to any restrictions contained
\nin the Certificate of Incorporation, may declare and pay dividends upon the
\nshares of its capital stock pursuant to the General Corporation Law of Delaware.
\nDividends may be paid in cash, in property, or in shares of the Corporation’s
\ncapital stock.<\/p>\n
The directors of the Corporation may set apart out of any of the funds of
\nthe Corporation available for dividends a reserve or reserves for any proper
\npurpose and may abolish any such reserve. Such purposes shall include but not be
\nlimited to equalizing dividends, repairing or maintaining any property of the
\nCorporation, and meeting contingencies.<\/p>\n
8.8 FISCAL YEAR<\/p>\n
The fiscal year of the Corporation shall be fixed by resolution of the
\nboard of directors and may be changed by the board of directors.<\/p>\n
8.9 SEAL<\/p>\n
The Corporation may adopt a corporate seal, which may be altered at
\npleasure, and may use the same by causing it or a facsimile thereof to be
\nimpressed or affixed or in any other manner reproduced.<\/p>\n
8.10 TRANSFER OF STOCK<\/p>\n
Upon surrender to the Corporation or the transfer agent of the
\nCorporation of a certificate for shares duly endorsed or accompanied by proper
\nevidence of succession, assignation or authority to transfer, it shall be the
\nduty of the Corporation to issue a new certificate to the person entitled
\nthereto, cancel the old certificate, and record the transaction in its books.<\/p>\n
8.11 STOCK TRANSFER AGREEMENTS<\/p>\n
The Corporation shall have power to enter into and perform any agreement
\nwith any number of stockholders of any one or more classes of stock of the
\nCorporation to restrict the transfer of shares of stock of the Corporation of
\nany one or more classes owned by such stockholders in any manner not prohibited
\nby the General Corporation Law of Delaware.<\/p>\n
8.12 REGISTERED STOCKHOLDERS<\/p>\n
The Corporation shall be entitled to recognize the exclusive right of a
\nperson registered on its books as the owner of shares to receive dividends and
\nto vote as such owner, shall be entitled to hold liable for calls and
\nassessments the person registered on its books as the owner of shares, and shall
\nnot be bound to recognize any equitable or other claim to or interest in such
\nshare or shares on the part of another person, whether or not it shall have
\nexpress or other notice thereof, except as otherwise provided by the laws of
\nDelaware.<\/p>\n
ARTICLE IX<\/p>\n
AMENDMENTS<\/p>\n
The original or other Bylaws of the Corporation may be adopted, amended
\nor repealed by the stockholders entitled to vote; provided, however, that the
\nCorporation may, in its Certificate of Incorporation, confer the power to adopt,
\namend or repeal Bylaws upon the directors. The fact that such power has been so
\nconferred upon the directors shall not divest the stockholders of the power, nor
\nlimit their power to adopt, amend or repeal Bylaws.<\/p>\n
ARTICLE X<\/p>\n
DISSOLUTION<\/p>\n
If it should be deemed advisable in the judgment of the board of
\ndirectors of the Corporation that the Corporation should be dissolved, the
\nboard, after the adoption of a resolution to that effect by a majority of the
\nwhole board at any meeting called for that purpose, shall cause notice to be
\nmailed to each stockholder entitled to vote thereon of the adoption of the
\nresolution and of a meeting of stockholders to take action upon the resolution.<\/p>\n
18
\n 19<\/p>\n
At the meeting a vote shall be taken for and against the proposed
\ndissolution. If a majority of the outstanding stock of the Corporation entitled
\nto vote thereon votes for the proposed dissolution, then a certificate stating
\nthat the dissolution has been authorized in accordance with the provisions of
\nSection 275 of the General Corporation Law of Delaware and setting forth the
\nnames and residences of the directors and officers shall be executed,
\nacknowledged, and filed and shall become effective in accordance with Section
\n103 of the General Corporation Law of Delaware. Upon such certificate’s becoming
\neffective in accordance with Section 103 of the General Corporation Law of
\nDelaware, the Corporation shall be dissolved.<\/p>\n
ARTICLE XI<\/p>\n
CUSTODIAN<\/p>\n
11.1 APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES<\/p>\n
The Court of Chancery, upon application of any stockholder, may appoint
\none or more persons to be custodians and, if the Corporation is insolvent, to be
\nreceivers, of and for the Corporation when:<\/p>\n
(i) at any meeting held for the election of directors the
\n stockholders are so divided that they have failed to elect successors to
\n directors whose terms have expired or would have expired upon
\n qualification of their successors; or<\/p>\n
(ii) the business of the Corporation is suffering or is threatened
\n with irreparable injury because the directors are so divided respecting
\n the management of the affairs of the Corporation that the required vote
\n for action by the board of directors cannot be obtained and the
\n stockholders are unable to terminate this division; or<\/p>\n
(iii) the Corporation has abandoned its business and has failed
\n within a reasonable time to take steps to dissolve, liquidate or
\n distribute its assets.<\/p>\n
11.2 DUTIES OF CUSTODIAN<\/p>\n
The custodian shall have all the powers and title of a receiver appointed
\nunder Section 291 of the General Corporation Law of Delaware, but the authority
\nof the custodian shall be to continue the business of the Corporation and not to
\nliquidate its affairs and distribute its assets, except when the Court of
\nChancery otherwise orders and except in cases arising under Sections 226(a)(3)
\nor 352(a)(2) of the General Corporation Law of Delaware.<\/p>\n
ARTICLE XII<\/p>\n
LOANS TO OFFICERS<\/p>\n
The Corporation may lend money to, or guarantee any obligation of, or
\notherwise assist any officer or other employee of the Corporation or of its
\nsubsidiaries, including any officer or employee who is a Director of the
\nCorporation or its subsidiaries, whenever, in the judgment of the Board of
\nDirectors, such loan, guarantee or assistance may reasonably be expected to
\nbenefit the Corporation. The loan, guarantee or other assistance may be with or
\nwithout interest and may be unsecured, or secured in such manner as the Board of
\nDirectors shall approve, including, without limitation, a pledge of shares of
\nstock of the Corporation. Nothing in this Bylaw shall be deemed to deny, limit
\nor restrict the powers of guaranty or warranty of the Corporation at common law
\nor under any statute.<\/p>\n
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