8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): December 2, 2008

ev3 Inc.

(Exact name of registrant as specified in its charter)

Delaware	000-51348	32-0138874
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification Number)

9600 54th Avenue North, Suite 100 Plymouth, Minnesota	55442
(Address of Principal Executive Offices)	(Zip Code)

(763) 398-7000
(Registrant’s telephone number, including area code)

Not Applicable
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o    Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o    Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o    Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o    Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

     (d) Election of John L. Miclot as ev3 Director

     On December 2, 2008, the Board of Directors of ev3 Inc., upon recommendation of the Nominating, Corporate Governance and Compliance Committee, elected John L. Miclot as an independent director of ev3 effective as of December 2, 2008.

     Mr. Miclot currently serves as President and Chief Executive Officer of CCS Medical, Inc., a privately held provider of home healthcare products, such as insulin pumps, incontinence products and respiratory equipment, a position he has held since November 2008. Prior to joining CCS Medical, Inc., Mr. Miclot served as Chief Executive Officer of Phillips Home Healthcare Solutions since March 2008, when Phillips acquired Respironics, Inc., a provider of sleep and respiratory products. From December 2003 to March 2008, Mr. Miclot served as President and Chief Executive Officer of Respironics, Inc. Prior to that position, Mr. Miclot served in various positions at Respironics, Inc. from 1998 to 2003, including Chief Strategic Officer and President of the Homecare Division. His previous employer, Healthdyne Technologies, Inc., a medical device company, was acquired by Respironics, Inc. in 1998. Mr. Miclot served in various positions at Healthdyne Technologies, Inc., including Senior Vice President, Sales and Marketing, from 1995 to 1998. He began his career at DeRoyal Industries, Inc. and Baxter International Inc. Mr. Miclot is a director of American Textiles Inc., Pittsburgh Zoo & PPG Aquarium, Burger King Cancer Caring Center, Allegheny Conference on Community Development, Washington & Jefferson College and the American Association for Homecare, all private companies, and is a director of Wright Medical Group, Inc., a public company.

     Pursuant to ev3’s Certificate of Incorporation, ev3’s Board of Directors is divided into three staggered classes of directors of the same or nearly the same number. Pursuant to ev3’s Certificate of Incorporation and Bylaws, ev3’s Board of Directors has the power to fill vacancies on the board and any director so elected by the board will hold office for the remainder of the full term of the class of directors in which the vacancy occurred, and until such director’s successor is elected and qualified. ev3’s Board of Directors elected Mr. Miclot as a Class I director to fill a vacancy on the board created when Richard N. Kender resigned in July 2008. Mr. Miclot’s term as a Class I director will expire upon election and qualification of a successor director at the annual meeting of stockholders to be held in 2009. Mr. Miclot was not appointed to any ev3 board committees.

     As a director of ev3, Mr. Miclot will receive an annual grant of stock options and restricted stock, be paid an annual cash retainer of $36,000 paid on a quarterly basis. ev3 also reimburses each director for out-of-pocket expenses incurred in connection with attending board meetings. Upon his initial election to ev3’s Board of Directors, Mr. Miclot received equity-based incentive awards with an aggregate fair value of $75,000 when granted, with one-half of the value consisting of a stock option and the remaining one-half consisting of restricted stock. Under the stock option, Mr. Miclot will have the right to purchase 19,334 shares of ev3 common stock at a per share exercise price equal to 100% of the fair market value of a share of ev3 common stock on the date of grant. The stock option will have a ten-year term and will vest and become exercisable in two annual installments, with 50% of the underlying shares vesting and becoming exercisable on the one-year anniversary of the date of grant and the remaining underlying shares becoming fully vested and exercisable on the two-year anniversary of the date of grant, in each case so long as Mr. Miclot is still a director of ev3 as of such date. The restricted stock grant covers 7,295 shares and will vest in two annual installments, with 50% of the underlying shares vesting and becoming non-forfeitable on the one-year anniversary of the date of grant and the remaining underlying shares becoming fully vested and non-forfeitable on the two-year anniversary of the date of grant, in each case so long as Mr. Miclot is still a director of ev3 as of such date.

     ev3 enters into agreements with its directors under which ev3 is required to indemnify them against expenses, judgments, penalties, fines, settlements and other amounts actually and reasonably incurred, including expenses of a derivative action, in connection with an actual or threatened proceeding if any of them may be made a party because he or she is or was one of ev3’s directors. ev3 will be obligated to pay these amounts only if the director acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to ev3’s best interests. With respect to any criminal proceeding, ev3 will be obligated to pay these amounts only if the director had no reasonable cause to believe his or her conduct was unlawful. The indemnification agreements also set forth procedures that will apply in the event of a claim for indemnification.

     There is no arrangement or understanding between Mr. Miclot and any other persons pursuant to which Mr. Miclot was selected as a director of ev3. Mr. Miclot does not have any direct or indirect material interest in any existing or currently proposed transaction to which ev3 is or may become a party.

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

     On December 2, 2008, the Board of Directors of ev3, upon recommendation of the Nominating, Corporate Governance and Compliance Committee, approved and adopted amendments to ev3’s Bylaws, effective immediately, to, among other things, change the notice period and expand the information required to be provided by a stockholder who submits a nomination for election to ev3’s Board of Directors or other proposal for business to be brought before a meeting of ev3’s stockholders, other than a proposal properly made pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and included in ev3’s notice of meeting. The amendments change the standard advance notice period for stockholder nominations of directors or other proposals to not less than 90 days and not more than 120 days prior to the first anniversary of the preceding year’s annual meeting of stockholders, as compared to the prior advance notice period of not less than 90 days and not more than 120 days prior to the first anniversary of the date on which ev3 first mailed its proxy materials for the preceding year’s annual meeting of stockholders. In addition, the amendments require a stockholder who submits a director nomination or other proposal to disclose, among other things, information about the proposed nominee and his or her relationships with the stockholder submitting the nomination, information about any agreements, arrangements or understandings the stockholder may have with the proposed nominee or other parties relating to the nomination or other proposal, and information about the interests that the stockholder has related to ev3 and its shares, including as a result of, among other things, derivative securities, voting arrangements, short positions or other interests. A stockholder who submits a nomination or proposal is required to update the information previously disclosed as of the record date for the meeting of stockholders.

     ev3’s Board of Directors also amended ev3’s Bylaws to clarify ev3’s majority voting standard for uncontested director elections and provide for a new plurality standard in the event of a contested election, and adopted certain amendments to ev3’s corporate governance guidelines related to a conditional resignation policy for director nominees. A copy of ev3’s revised corporate governance guidelines will be posted to the Investor Relations—Corporate Governance section of ev3’s corporate website at www.ev3.net.

     The summary of the amendments to ev3’s Bylaws set forth above is qualified in its entirety by reference to the full text of ev3’s Third Amended and Restated Bylaws, a copy of which is filed as Exhibit 3.1 this report and is incorporated herein by reference.

     As described in ev3’s proxy statement for its 2008 Annual Meeting of Stockholders, which was filed with the SEC on April 15, 2008, if an ev3 stockholder wishes to make a proposal to be included in ev3’s proxy statement for its 2009 Annual Meeting of Stockholders, the proposal must be received by ev3 at its principal executive offices on or before December 16, 2008, unless the date of ev3’s 2009 Annual Meeting of Stockholders is delayed by more than 30 calendar days, and the proposal must satisfy the requirements of the

proxy rules promulgated by the Securities and Exchange Commission. ev3 anticipates that its 2009 Annual Meeting of Stockholders will be held on May 26, 2009.

     Under ev3’s Third Amended and Restated Bylaws, if a stockholder wishes to nominate a candidate for election to ev3’s Board of Directors at ev3’s 2009 Annual Meeting of Stockholders or to propose any other business to be brought before ev3’s 2009 Annual Meeting of Stockholders, the stockholder must give complete and timely written notice to ev3’s Senior Vice President, Secretary and Chief Legal Counsel not later than February 19, 2009 nor earlier than January 20, 2009. If the date of ev3’s 2009 Annual Meeting of Stockholders is advanced or delayed by more than 30 days from the anniversary date of ev3’s 2008 Annual Meeting of Stockholders, a stockholder’s notice must be delivered not later than the tenth day following the day on which ev3 first makes public announcement of the rescheduled meeting. A stockholder’s notice must contain specific information required by ev3’s Third Amended and Restated Bylaws. Copies of ev3’s Third Amended and Restated Bylaws are available upon request to ev3’s Senior Vice President, Secretary and Chief Legal Counsel at 9600 54^th Avenue North, Plymouth, Minnesota, 55442, by telephone at 763.398.7000 or may be obtained through the SEC’s website at www.sec.gov. If a stockholder’s nomination or proposal is not timely and properly made in accordance with the procedures set forth in ev3’s Third Amended and Restated Bylaws, it will be defective may not be brought before ev3’s 2009 Annual Meeting of Stockholders. If the nomination or proposal is nonetheless brought before ev3’s 2009 Annual Meeting of Stockholders and the chair of the meeting does not exercise the power and duty to declare that such nomination or proposal defective, the persons named in the proxy may use their discretionary voting with respect to the nomination or proposal.

Item 9.01 Financial Statements and Exhibits.

     (d) Exhibits.

Exhibit No.	Description
3.1	Third Amended and Restated Bylaws of ev3 Inc. (filed herewith)

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: December 3, 2008	ev3 INC.
	By:	/s/ Kevin M. Klemz
		Name:	Kevin M. Klemz
		Title:	Senior Vice President, Secretary and Chief Legal Officer

ev3 INC.

CURRENT REPORT ON FORM 8-K

EXHIBIT INDEX

Exhibit No.	Description	Method of Filing
3.1	Third Amended and Restated Bylaws of ev3 Inc.	Filed herewith

EX-3.1

Exhibit 3.1

ev3 Inc.

Incorporated under the laws
of the State of Delaware

THIRD AMENDED AND RESTATED

BYLAWS

As amended through December 2, 2008

ev3 Inc.

THIRD AMENDED AND RESTATED BYLAWS

TABLE OF CONTENTS

		Page
ARTICLE I OFFICES			1
SECTION 1.01	Registered Office		1
SECTION 1.02	Other Offices		1
ARTICLE II MEETINGS OF STOCKHOLDERS			1
SECTION 2.01	Place of Meetings		1
SECTION 2.02	Annual Meeting		1
SECTION 2.03	Special Meetings		2
SECTION 2.04	Notice of Meetings		2
SECTION 2.05	Quorum		2
SECTION 2.06	Voting		3
SECTION 2.07	Consent of Stockholders in Lieu of Meeting		3
SECTION 2.08	List of Stockholders Entitled to Vote		3
SECTION 2.09	Stock Ledger		4
SECTION 2.10	Notice of Stockholder Proposed Business		4
SECTION 2.11	Notice of Stockholder Nominations of Directors		6
ARTICLE III DIRECTORS			8
SECTION 3.01	Number of Directors		8
SECTION 3.02	Vacancies		8
SECTION 3.03	Duties and Powers		8
SECTION 3.04	Meetings		9
SECTION 3.05	Quorum		9
SECTION 3.06	Actions of the Board of Directors in Lieu of a Meeting		9
SECTION 3.07	Meetings by Means of Conference Telephone		9
SECTION 3.08	Committees		9
SECTION 3.09	Compensation		11
SECTION 3.10	Interested Directors		11
SECTION 3.11	Removal of Directors		11
SECTION 3.12	Corporate Governance Compliance		11
SECTION 3.13	Audit Committee		12
SECTION 3.14	Compensation Committee		12
SECTION 3.15	Chairman of the Board of Directors		12
ARTICLE IV OFFICERS			12
SECTION 4.01	General		12
SECTION 4.02	Election		13
SECTION 4.03	Voting Securities Owned by the Corporation		13
SECTION 4.04	President and Chief Executive Officer		13

		Page
SECTION 4.05	Vice Presidents		13
SECTION 4.06	Secretary and Assistant Secretaries		14
SECTION 4.07	Chief Financial Officer		14
SECTION 4.08	Treasurer and Assistant Treasurers		15
SECTION 4.09	Other Officers		15
SECTION 4.10	Resignations		15
SECTION 4.11	Removal		15
SECTION 4.12	Authority and Duties of Officers		16
ARTICLE V STOCK			16
SECTION 5.01	Form of Certificates		16
SECTION 5.02	Signatures		16
SECTION 5.03	Lost Certificates		16
SECTION 5.04	Transfers		16
SECTION 5.05	Record Date		17
SECTION 5.06	Beneficial Owners		17
ARTICLE VI NOTICES			17
SECTION 6.01	Notices		17
SECTION 6.02	Waivers of Notice		17
ARTICLE VII GENERAL PROVISIONS			18
SECTION 7.01	Dividends		18
SECTION 7.02	Disbursements		18
SECTION 7.03	Fiscal Year		18
SECTION 7.04	Corporate Seal		18
ARTICLE VIII INDEMNIFICATION			18
SECTION 8.01	Insurance		18
ARTICLE IX AMENDMENTS			19
SECTION 9.01	Amendments		19

-ii-

THIRD AMENDED AND RESTATED

BYLAWS

OF

ev3 INC.

ARTICLE I
OFFICES

     SECTION 1.01 Registered Office.

     ev3 Inc. (the “Corporation”) shall at all times maintain a registered office in the State of Delaware. The registered office and registered agent of the Corporation shall be fixed in the Corporation’s Certificate of Incorporation and may be changed from time to time by the Corporation in the manner specified by law.

     SECTION 1.02 Other Offices.

     The Corporation may also have offices at such other places both within and without the State of Delaware as the board of directors of the Corporation (the “Board of Directors”) may from time to time determine or the business of the Corporation may require.

ARTICLE II
MEETINGS OF STOCKHOLDERS

     SECTION 2.01 Place of Meetings.

     Meetings of the stockholders for the election of directors or for any other purpose will be held at such time and place, either within or without the State of Delaware as designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board of Directors may, in its sole discretion, determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a) of the Delaware General Corporation Law (the “DGCL”).

     SECTION 2.02 Annual Meeting.

     Annual meetings of stockholders will be held each year on such date and at such time as designated by the Board of Directors. At the annual meeting, and in accordance with the Certificate of Incorporation, stockholders shall elect directors and transact such other business as may properly be brought before the meeting. Written notice of the annual meeting stating the place, date and hour of the meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting,

shall be given to each stockholder entitled to vote at such meeting not less than ten (10) days nor more than sixty (60) days before the date of the meeting.

     SECTION 2.03 Special Meetings.

     Subject to the rights of the holders of any series of preferred stock and except as otherwise provided by applicable law or by the Certificate of Incorporation, special meetings of stockholders, for any purpose or purposes, may be called by (i) the Board of Directors of the Corporation, (ii) the Chairman of the Board of Directors or (iii) the President and Chief Executive Officer and shall be called by the President and Chief Executive Officer at the request of one or more stockholders holding shares of common stock representing more than 50% of the combined voting power of the outstanding common stock then entitled to vote. Such request will state the purpose or purposes of the proposed meeting. Written notice of a special meeting stating the place, 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 in person and vote at such meeting, and the purpose or purposes for which the meeting is called will be given not less than ten (10) days nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.

     SECTION 2.04 Notice of Meetings.

     Notice of any meeting of stockholders shall be given in accordance with Section 6.01 of these Bylaws. Notice of any meeting of stockholders may be waived in accordance with Section 6.02 of these Bylaws.

     SECTION 2.05 Quorum.

     Subject to the rights of the holders of any series of preferred stock and except as otherwise provided by applicable law or by the Certificate of Incorporation, the holders representing a majority of the combined voting power of the capital stock issued and outstanding and entitled to vote at a meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum is not present or represented at any meeting of the stockholders, the Chairman of the meeting or stockholders representing a majority of the capital stock entitled to vote at the meeting, present in person or by proxy, shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting will be given to each stockholder entitled to vote at the meeting. The stockholders present at a duly called meeting at which a quorum was originally present may continue to transact business until adjourned, notwithstanding the withdrawal of enough stockholders to leave less than a quorum present.

2

     SECTION 2.06 Voting.

     Subject to the rights of the holders of any series of preferred stock and except as otherwise required by applicable law, the Certificate of Incorporation or these Bylaws, any question brought before any meeting of stockholders, except the election of a nominee as a director, as provided below, will be decided by the vote of the holders of at least a majority of the voting power of the capital stock represented and entitled to vote thereat. The election of a nominee as a director will be decided by a majority vote, where the number of shares voted “for” a director must exceed the number of votes cast “against” that director; provided, however, that if the number of nominees exceeds the number of directors to be elected, the nominees receiving the greatest number of “for” votes shall be the directors. Except as otherwise provided in the Certificate of Incorporation, each stockholder represented at a meeting of stockholders is entitled to cast one vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy, but no proxy will be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting be cast by written ballot.

     SECTION 2.07 Consent of Stockholders in Lieu of Meeting.

     Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.

     SECTION 2.08 List of Stockholders Entitled to Vote.

     The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder (but not the electronic mail address or other electronic contact information, unless the Board of Directors so directs) and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place will be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. This list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.

3

     SECTION 2.09 Stock Ledger.

     The stock ledger of the Corporation is the only evidence as to the stockholders who are entitled to examine the stock ledger, the list required by Section 2.08, or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

     SECTION 2.10 Notice of Stockholder Proposed Business.

     At any annual meeting of stockholders, only such business shall be conducted, and only such proposals shall be acted on, as are properly brought before the meeting. In order for business to be properly brought before the meeting, the business must be either (a) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors; (b) otherwise properly brought before the meeting by or at the direction of the Board of Directors or (c) otherwise properly brought before the meeting by any stockholder of record of the Corporation who (i) was a stockholder of record at the time of the giving of the notice provided for in this Section 2.10 and at the time of the annual meeting, (ii) is entitled to vote at such meeting and (iii) has complied with the procedures set forth in this Section 2.10 as to such business. Except for proposals properly made pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and included in the Corporation’s notice of meeting, the foregoing clause (c) shall be the exclusive means for a stockholder to propose business to be considered by the stockholders at an annual meeting of stockholders. For business to be properly brought before an annual meeting of stockholders by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting; provided, however, that in the event that the annual meeting with respect to which such notice is to be tendered is not held within thirty (30) days before or after such anniversary date, to be timely, notice by the stockholder must be received not later than the close of business on the 10th day following the date on which the first public announcement of the date of the annual meeting was made. In no event shall the adjournment or postponement of an annual meeting or the public announcement of any adjournment or postponement commence a new time period for the giving of a stockholder’s notice as described above.

     For purposes of Section 2.10 and 2.11 of these Bylaws, “public announcement” shall mean disclosure (a) in a press release released by the Corporation, provided such press release is released by the Corporation following its customary procedures, is reported by the Dow Jones News Service, Associated Press or comparable national news service, or is generally available on internet news sites, or (b) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

     To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each matter such stockholder proposes to bring before the annual meeting a brief description of the business desired to be brought before the annual meeting, the text of any resolution proposed to be adopted at the meeting and the reasons for conducting such business at the annual meeting and as to the stockholder giving the notice and any Stockholder Associated Person (as defined

4

below) (i) the name and record address of such person, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such person, (iii) the nominee holder for, and number of, shares owned beneficially but not of record by such person, (iv) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any derivative or short positions, profit interests, options or borrowed or loaned shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or benefit of share price changes for, or to increase or decrease the voting power of, such person with respect to any share of stock of the Corporation, (v) to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the proposal of other business on the date of such stockholder’s notice, (vi) a description of all arrangements or understandings between or among such persons in connection with the proposal of such business by such stockholder and any material interest in such business and (vii) a representation that the stockholder giving the notice intends to appear in person or by proxy at the annual meeting to bring such business before the meeting. Any ownership information shall be supplemented by the stockholder giving the notice not later than ten (10) days after the record date for the meeting as of the record date.

     Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.10; provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.10 shall be deemed to preclude discussion by any stockholder of any such business. The chairman of the annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 2.10, and if the chairman should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.

     For purposes of Section 2.10 and 2.11 of these Bylaws, “Stockholder Associated Person” of any stockholder shall mean (i) any person acting in concert, directly or indirectly, with such stockholder and (ii) any person controlling, controlled by or under common control with such stockholder or any Stockholder Associated Person.

     At any special meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting by or at the direction of the Board of Directors.

     Notwithstanding the foregoing provisions of this Section 2.10, (i) stockholder nominations of persons for election to the Board of Directors shall be governed by Section 2.11 of these Bylaws; (ii) a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.10; provided, however, that any reference in this Section 2.10 to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to proposals of business to be considered pursuant to Section 2.10(c) and nothing in this Section 2.10 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

5

     SECTION 2.11 Notice of Stockholder Nominations of Directors.

     Only persons who are nominated in accordance with the procedures set forth in this Section 2.11 shall be eligible to serve as directors of the Corporation, except as may be otherwise provided in the Certificate of Incorporation with respect to the rights of holders of preferred stock of the Corporation to nominate and elect a specified number of directors, if any. Nominations of persons for election to the Board of Directors of the Corporation to be made at any annual meeting of stockholders or any special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting must be made (a) by or at the direction of the Board of Directors or (b) provided that the Board of Directors has determined that directors shall be elected at such meeting, as indicated in the notice, by any stockholder of the Corporation who (i) is a stockholder of record at the time of giving the notice provided for in this Section 2.11 and at the time of the meeting, (ii) is entitled to vote for the election of directors at the meeting and (iii) complies with the procedures set forth in this Section 2.11 as to such nominations. Except for proposals properly made pursuant to Rule 14a-8 under the Exchange Act, and included in the Corporation’s notice of meeting, the foregoing clause (b) shall be the exclusive means for a stockholder to make nominations of persons for election to the Board of Directors at an annual meeting of stockholders or a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting. Any such nominations (other than those made by or at the direction of the Board of Directors) must be made pursuant to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice in the case of a special meeting of stockholders called for the purpose of electing directors, must be delivered to or mailed and received at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the date on which the first public announcement of the date of the special meeting was made, and, in the case of any annual meeting, must be delivered to or mailed and received at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting; provided, however, that in the event that the annual meeting with respect to which such notice is to be tendered is not held within thirty (30) days before or after such anniversary date, to be timely, notice by the stockholder must be received no later than the close of business on the 10th day following the date on which the first public announcement of the date of the annual meeting was made. In no event shall the adjournment or postponement of an annual or special meeting or the public announcement of any adjournment or postponement commence a new time period for the giving of a stockholder’s notice as described above.

     To be in proper written form, a stockholder’s notice to the Secretary must set forth as to each person whom the stockholder proposes to nominate for election as a director and as to the stockholder giving the notice and any Stockholder Associated Person (as defined in Section 2.10 of these Bylaws) (i) the name, age, business address, residence address and record address of such person, (ii) the principal occupation or employment of such person, (iii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially or of record by such person, (iv) any information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated thereunder, (v) the nominee holder for, and number of, shares owned beneficially but not of record by such person, (vi) whether and the extent to which

6

any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including any derivative or short positions, profit interests, options or borrowed or loaned shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or benefit of share price changes for, or to increase or decrease the voting power of, such person with respect to any share of stock of the Corporation, (vii) to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the nominee for election or reelection as a director on the date of such stockholder’s notice, (viii) a description of all arrangements or understandings between or among such persons pursuant to which the nomination(s) are to be made by the stockholder and (ix) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice. Any ownership information shall be supplemented by the stockholder giving the notice not later than ten (10) days after the record date for the meeting as of the record date. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. The Corporation may require any proposed nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.

     No person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in this Section 2.11. If the chairman of the meeting determines that a nomination was not made in accordance with the foregoing procedures, the chairman shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded.

     Notwithstanding anything in the first paragraph of this Section 2.11 to the contrary, in the event that the number of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Bylaw shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such public announcement is first made by the Corporation.

     Notwithstanding the foregoing provisions of this Section 2.11, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.11; provided, however, that any reference in this Section 2.11 to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations to be considered pursuant to Section 2.11(b) and nothing in this Section 2.11 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

7

ARTICLE III
DIRECTORS

     SECTION 3.01 Number of Directors.

     Subject to any rights of holders of preferred stock to elect directors under specified circumstances, the number of directors which shall constitute the whole Board of Directors shall be fixed from time to time solely pursuant to a resolution adopted by a majority of the Corporation’s directors then in office; provided that the Board of Directors shall consist of at least five members. No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires. The Board of Directors shall be divided into three classes to be designated as Class I, Class II and Class III. In the event of any increase or decrease in the authorized number of directors, the newly created or eliminated directorships resulting from such increase or decrease shall be apportioned by the Board of Directors among the three classes of directors so as to maintain such classes as nearly equal in number as possible. The directors, other than the first Board of Directors, chosen to succeed those whose terms are expiring shall be elected at the annual meeting of stockholders, shall be identified as being of the same class as the directors whom they succeed, and shall be elected for a term ending at the time of the third succeeding annual meeting of stockholders, or thereafter in each case when their respective successors are duly elected and qualified.

     SECTION 3.02 Vacancies.

     Any director may resign at any time upon written notice to the Corporation. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by an affirmative vote of the majority of the directors then in office, though less than a quorum, or by a sole remaining director and the director so chosen shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred or to which the new directorship is apportioned, and until such director’s successor shall have been duly elected and qualified. If there are no directors in office, then an election of directors may be held in the manner provided by law.

     When one or more directors resigns and the resignation is effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have the power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this Section 3.02 in the filling of other vacancies.

     SECTION 3.03 Duties and Powers.

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

8

     SECTION 3.04 Meetings.

     The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, if there is one, the President and Chief Executive Officer, or a majority of directors. Notice thereof stating the place, date and hour of the meeting will be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, telegraph, cable, wireless or other form of electronic communication with twenty-four (24) hours notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.

     SECTION 3.05 Quorum.

     Except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum is an act of the Board of Directors. If a quorum is not present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.

     SECTION 3.06 Actions of the Board of Directors in Lieu of a Meeting.

     Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors of the Corporation or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

     SECTION 3.07 Meetings by Means of Conference Telephone.

     Unless otherwise provided by the Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 3.07 shall constitute presence in person at such meeting.

     SECTION 3.08 Committees.

     The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as

9

alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent permitted by applicable law and provided in the resolution of the Board of Directors or these Bylaws establishing such committee, shall have and may exercise all the lawfully delegable powers, duties and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee will keep regular minutes and report to the Board of Directors when required. Each committee will comply with all applicable provisions of the Sarbanes-Oxley Act of 2002, the rules and regulations of the Securities and Exchange Commission and the rules and requirements of the NASDAQ Stock Market (“NASDAQ”) or the New York Stock Exchange (“NYSE”), as applicable, and will have the right to retain independent legal counsel and advisors at the Corporation’s expense.

     Each member of a committee of the Board of Directors shall serve a term on the committee coexistent with such member’s term on the Board of Directors. The Board of Directors, subject to the provisions of Section 3.12, may at any time increase or decrease the number of members of a committee or terminate the existence of a committee. The membership of a committee member shall terminate on the date of such member’s death, resignation or removal. The Board of Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or increase in the number of members of the committee.

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

(i)	Section 3.04 (Meetings);
(ii)	Section 3.05 (Quorum);
(iii)	Section 3.06 (Actions in Lieu of a Meeting); and
(iv)	Section 3.07 (Meetings by Means of Conference Telephone)

with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the Board and its members. Notwithstanding the foregoing:

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

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

     (iii) notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The

10

Board may adopt rules for the government if any committee is not consistent with the provisions of these bylaws.

     SECTION 3.09 Compensation.

     The directors shall have authority to fix the compensation of directors for services to the Corporation in any capacity and no such payment will preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

     SECTION 3.10 Interested Directors.

     No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, will be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because the votes of the director are counted for such purpose if (i) the material facts as to the relationship or interest of the director or officer and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to the relationship or interest of the director or officer and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

     SECTION 3.11 Removal of Directors.

     Any or all of the directors (other than the directors elected by the holders of any class or classes of preferred stock of the Corporation, voting separately as a class or classes, as the case may be) may be removed at any time only for cause by the affirmative vote of a majority in voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting as a single class.

     SECTION 3.12 Corporate Governance Compliance.

     Without otherwise limiting the powers of the Board of Directors and provided that shares of capital stock of the Corporation are listed for trading on either the NYSE or the NASDAQ, the Corporation shall comply with the corporate governance rules and requirements of the NYSE and the NASDAQ, as applicable.

11

     SECTION 3.13 Audit Committee.

     The Board of Directors shall establish an Audit Committee whose 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 financial statements of the Corporation and its subsidiaries. The Audit Committee will also determine the appointment of the independent auditors of the Corporation and any change in such appointment and ensure the independence of the Corporation’s auditors. In addition, the Audit Committee will assume such other duties and responsibilities as the Board of Directors may confer upon the committee from time to time. In the event of any inconsistency between this Section 3.13 and the Certificate of Incorporation, the terms of the Certificate of Incorporation will govern.

     SECTION 3.14 Compensation Committee.

     The Board of Directors shall establish a Compensation Committee whose principal duties will be to review employee compensation policies and programs as well as the compensation of the President and Chief Executive Officer and other executive officers of the Corporation, to recommend to the Board of Directors a compensation program for outside members of the Board of Directors, as well as such other duties and responsibilities as the Board of Directors may confer upon the committee from time to time. In the event of any inconsistency between this Section 3.14 and the Certificate of Incorporation, the terms of the Certificate of Incorporation shall govern.

     SECTION 3.15 Chairman of the Board of Directors.

     The Board of Directors, in its discretion, may elect a Chairman of the Board of Directors. The Chairman of the Board of Directors, if there is one, will preside at all meetings of the stockholders and of the Board of Directors. The Chairman of the Board of Directors also will perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors. The Chairman of the Board of Directors must be a director but need not be a stockholder or officer of the Corporation.

ARTICLE IV
OFFICERS

     SECTION 4.01 General.

     The officers of the Corporation will be elected by the Board of Directors. The Board of Directors, in its discretion, may elect a President and Chief Executive Officer, a Secretary, a Chief Financial Officer, Vice Presidents or Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers as determined by the Board of Directors from time to time in accordance with Section 4.11 of these Bylaws. Any number of offices may be held by the same person, unless otherwise prohibited by applicable law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders or directors of the Corporation.

12

     SECTION 4.02 Election.

     At least annually, the Board of Directors will elect the officers of the Corporation and at any time thereafter the Board of Directors may elect additional officers of the Corporation who will hold their offices for such terms and will exercise such powers and perform such duties as determined from time to time by the Board of Directors. All officers of the Corporation will hold office until their successors are chosen and qualified, or until their earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation will be filled by the Board of Directors.

     SECTION 4.03 Voting Securities Owned by the Corporation.

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

     SECTION 4.04 President and Chief Executive Officer.

     Subject to the control of the Board of Directors and any supervisory powers the Board of Directors may give to the Chairman of the Board of Directors, the President and Chief Executive Officer shall, together with the Vice Presidents of the Corporation, have general supervision, direction, and control of the business and affairs of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President and Chief Executive Officer shall execute all bonds, mortgages, contracts and other instruments of the Corporation except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these Bylaws or the Board of Directors. The President and Chief Executive Officer shall, together with the Vice Presidents of the Corporation, also perform all duties incidental to this office that may be required by law and all such other duties as are properly required of this office by the Board of Directors or assigned to him by the Bylaws. In the absence of the Chairman of the Board of Directors, the President and Chief Executive Officer shall preside at all meetings of the Board of Directors and of stockholders.

     SECTION 4.05 Vice Presidents.

     At the request of the President and Chief Executive Officer or in the event of a vacancy or in the event of his or her inability to act (and if there be no Chairman of the Board of Directors), the Vice President or the Vice Presidents if there is more than one (in the order

13

designated by the Board of Directors) will perform the duties of the President and Chief Executive Officer, and when so acting, will have all the powers of and be subject to all the restrictions upon the President and Chief Executive Officer. Each Vice President will perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there is no Chairman of the Board of Directors and no Vice President, the Board of Directors will designate the officer of the Corporation who, in the event of a vacancy or in the event of the inability of the President and Chief Executive Officer to act, will perform the duties of the President and Chief Executive Officer, and when so acting, will have all the powers of and be subject to all the restrictions upon the President and Chief Executive Officer.

     SECTION 4.06 Secretary and Assistant Secretaries.

     The Secretary will attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary also will perform like duties for the standing committees when required. The Secretary will give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and will perform such other duties as may be prescribed by the Board of Directors or President and Chief Executive Officer, under whose supervision he or she will be. If there is no Secretary, or the Secretary is unable or refuses to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President and Chief Executive Officer may choose another officer to cause such notice to be given. The Secretary will see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.

     The Assistant Secretary, if there is one, or if there is more than one, the Assistant Secretaries in the order determined by the Board of Directors, shall in the absence of the Secretary or in the event of his or her disability or refusal to act, perform the duties of the Secretary, and when so acting, have all the powers of and be subject to all the restrictions upon the Secretary, and perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President and Chief Executive Officer and the Secretary.

     SECTION 4.07 Chief Financial Officer.

     The Chief Financial Officer, subject to the order of the Board of Directors, shall have the care and custody of the moneys, funds, valuable papers and documents of the Corporation (other than his or her own bond, if any, which shall be in the custody of the President and Chief Executive Officer), and shall have, under the supervision of the Board of Directors, all the powers and duties commonly incident to his or her office. The Chief Financial Officer shall deposit all funds of the Corporation in such bank or banks, trust company or trust companies, or with such firm or firms doing a banking business as may be designated by the Board of Directors or the President and Chief Executive Officer if the Board does not do so. The Chief Financial Officer may endorse for deposit or collection all checks, notes, and similar instruments payable to the Corporation or to its order. The Chief Financial Officer shall keep accurate books of account of the Corporation’s transactions, which shall be the property of the Corporation, and together with all of the property of the Corporation in his or her possession, shall be subject at all

14

times to the inspection and control of the Board of Directors. The Chief Financial Officer shall be subject in every way to the order of the Board of Directors, and shall render to the Board of Directors and/or the President and Chief Executive Officer of the Corporation, whenever they may require it, an account of all his or her transactions and of the financial condition of the Corporation. In addition to the foregoing, the Chief Financial Officer shall have such duties as may be prescribed or determined from time to time by the Board of Directors or by the President and Chief Executive Officer if the Board of Directors does not do so.

     SECTION 4.08 Treasurer and Assistant Treasurers.

     The Treasurer shall perform such duties and have such powers as the Board of Directors may from time to time prescribe. The Assistant Treasurer, if there is one, or if there is more than one, the Assistant Treasurers in the order determined by the Board of Directors, shall in the absence of the Treasurer or in the event of his or her disability or refusal to act, perform the duties of the Treasurer, and when so acting, have all the powers of and be subject to all the restrictions upon the Treasurer, and perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President and Chief Executive Officer, the Chief Financial Officer and the Treasurer.

     SECTION 4.09 Other Officers.

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

     SECTION 4.10 Resignations.

     Any officer many resign at any time by giving written notice to the Board of Directors or to the President and Chief Executive Officer or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective.

     SECTION 4.11 Removal.

     Any officer may be removed from office at any time, with or without cause, by the vote or written consent of a majority of the directors in office at the time, or by any committee or superior officers upon whom such power of removal may have been conferred by the Board of Directors. In addition, any officer appointed by the President and Chief Executive Officer may be removed from office at any time, with or without cause, by the President and Chief Executive Officer.

15

     SECTION 4.12 Authority and Duties of Officers.

     In addition to the foregoing authority and duties, all officers of the Corporation shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be designated from time to time by the Board of Directors.

ARTICLE V
STOCK

     SECTION 5.01 Form of Certificates.

     The Corporation may issue certificates to evidence the shares of its stock, if and to the extent such certificates are issued, they will be signed, in the name of the Corporation by (i) the Chairman of the Board of Directors, the President and Chief Executive Officer, or a Vice President and (ii) the Chief Financial Officer, the Treasurer or an Assistant Treasurer, the Secretary, or an Assistant Secretary, of the Corporation or other officer designated by the Board of Directors.

     SECTION 5.02 Signatures.

     Where a stock certificate is countersigned by (i) a transfer agent other than the Corporation or its employee, or (ii) a registrar other than the Corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

     SECTION 5.03 Lost Certificates.

     The Board of Directors may direct a new certificate or uncertificated shares to be issued in place of any stock certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the stock certificate to be lost, stolen or destroyed. When authorizing such issue of a new certificate or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his or her legal representative, to advertise the same in such manner as the Board of Directors shall require or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.

     SECTION 5.04 Transfers.

     Stock of the Corporation is transferable in the manner prescribed by law, the Certificate of Incorporation of the Corporation and in these Bylaws. If shares intended to be transferred are represented by stock certificates, transfers of stock will be made on books of the Corporation only by the person named in the certificate or by his or her attorney lawfully constituted in

16

writing and upon the surrender of the certificate therefor, which will be canceled before a new certificate or uncertificated shares are issued.

     SECTION 5.05 Record Date.

     In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders will apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

     SECTION 5.06 Beneficial Owners.

     The Corporation is entitled to recognize the exclusive right of a person registered on its books as the owner of shares or owner-in-trust of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and is not bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it has express or other notice thereof, except as otherwise provided by law.

ARTICLE VI
NOTICES

     SECTION 6.01 Notices.

     Whenever written notice is required to be given under applicable provisions of the DGCL, the Certificate of Incorporation or these Bylaws, to any director, member of a committee or stockholder, except as otherwise provided in these Bylaws, such notice may be given personally, or by mailing a copy of such notice, postage prepaid, directly to such director, member of a committee or stockholder to his or her address as it appears in the records of the Corporation or by transmitting such notice thereof to him or her by facsimile, cable or, to the extent permissible under Section 232 of the DGCL, other electronic transmission to the number or address specified in the records of the Corporation.

     SECTION 6.02 Waivers of Notice.

     Whenever any notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event for which notice is given, will be deemed equivalent thereto. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person

17

attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

ARTICLE VII
GENERAL PROVISIONS

     SECTION 7.01 Dividends.

     Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.

     SECTION 7.02 Disbursements.

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

     SECTION 7.03 Fiscal Year.

     Unless otherwise fixed by resolution of the Board of Directors, the fiscal year of the Corporation will begin on January 1st and end on December 31^st in each calendar year.

     SECTION 7.04 Corporate Seal.

     The Corporation does not have a corporate seal.

ARTICLE VIII
INDEMNIFICATION

     SECTION 8.01 Insurance.

     To the fullest extent permitted by applicable law, the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions its Certificate of Incorporation or otherwise.

18

ARTICLE IX
AMENDMENTS

     SECTION 9.01 Amendments.

     These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted, in each case, by the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote for the Board of Directors, provided that an amendment to Sections 2.03, 2.06, 2.10, 2.11, 3.01 and 3.11 herein and this Section 9.01 shall require the consent of the holders of at least two-thirds of the outstanding shares entitled to vote for the Board of Directors, or by a majority of the Board of Directors. The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal the Bylaws. Notice of such alteration, amendment, repeal or adoption of new Bylaws will be contained in the notice of such meeting of stockholders or Board of Directors.

19