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): January 30, 2009

DATASCOPE CORP.

(Exact name of registrant as specified in its charter)

Delaware	0-6516	13-2529596
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

14 Philips Parkway, Montvale, New Jersey, 07645-9998

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (201) 391-8100

N/A
(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 (see General Instruction A.2. below):

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))

TABLE OF CONTENTS

	Item 2.01. Completion of Acquisition or Disposition of Assets.
	Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
	Item 3.02. Unregistered Sales of Equity Securities.
	Item 3.03. Material Modification to Rights of Security Holders.
	Item 5.01. Changes in Control of the Registrant.
	Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
	Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
	Item 9.01. Financial Statements and Exhibits.
SIGNATURES
EXHIBIT INDEX
EX-3.1
EX-3.2

Item 2.01. Completion of Acquisition or Disposition of Assets.

          On January 30, 2009, Getinge AB, a Swedish Aktiebolag (“Getinge”), announced the successful completion of the tender offer by DaVinci Merger Sub, Inc., a Delaware corporation and an indirect wholly owned subsidiary of Getinge (“Merger Sub”), to acquire all of the outstanding shares of common stock, par value $0.01 per share (the “Shares”), of Datascope Corp., a Delaware corporation (the “Company”), together with the associated Rights (the “Rights”) issued pursuant to the Rights Agreement, dated May 22, 1991, as amended, by and between the Company and Continental Stock Transfer & Trust Company, a New York corporation, as rights agent (the “Rights Agreement”), and the acceptance for payment of the Shares validly tendered and not properly withdrawn prior to the expiration date of the tender offer. Also on January 30, 2009, pursuant to the terms and conditions of the Agreement and Plan of Merger, dated as of September 15, 2008, by and among Getinge, Merger Sub and the Company (the “Merger Agreement”), Merger Sub merged with and into the Company, with the Company as the surviving corporation (the “Merger”). As a result of the Merger, the Company became an indirect wholly owned subsidiary of Getinge.

          At the effective time of the Merger (the “Effective Time”), each Share issued and outstanding immediately prior to the Effective Time (other than (a) any Shares owned by the Company, Getinge or Merger Sub or their respective subsidiaries or affiliates and (b) any Shares held by a holder who is entitled to demand and has properly demanded appraisal of such Shares in accordance with Delaware law) was canceled and ceased to exist and was converted into the right to receive $53.00 in cash, without interest and less any applicable withholding taxes.

          At the Effective Time, each option to acquire Shares that was outstanding immediately prior to the Effective Time, whether or not then vested or exercisable, became fully vested and was canceled and converted into the right to receive an amount of cash, without interest, equal to the product of (a) the excess, if any, of the per share merger consideration of $53.00 over the exercise price per share for such stock option, multiplied by (b) the number of Shares for which such option had not theretofore been exercised. In addition, each restricted share subject to a restricted stock award outstanding immediately prior to the Effective Time became fully vested and transferable immediately prior to the Effective Time and was converted into the right to receive an amount in cash equal to the per share merger consideration of $53.00. Finally, each outstanding deferred share unit outstanding immediately prior to the Effective Time and held by current or former Company directors under the Company’s Amended and Restated Compensation Plan for Non-Employee Directors or the Company’s 2005 Equity Incentive Plan, was converted into the right to receive an amount in cash equal to the per share merger consideration of $53.00, to be distributed in accordance with such director’s prior distribution election and the terms and conditions of the applicable plan and agreement pursuant to which such share unit was issued.

     The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is attached as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on September 17, 2008 and incorporated herein by reference.

Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

          As a result of the Merger, the Company no longer fulfills the numerical listing requirements of the NASDAQ Global Select Market (“NASDAQ”). Accordingly, on January 30, 2009, at the Company’s request, NASDAQ filed with the SEC a Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on Form 25, thereby commencing the process of delisting the Shares from NASDAQ and the deregistration of the

Shares under the Exchange Act. The Company intends to file a Form 15 to suspend its reporting obligations under Sections 13(a) and 15(d) of the Exchange Act as soon as practicable.

Item 3.02. Unregistered Sales of Equity Securities.

          On January 30, 2009, Merger Sub, pursuant to the terms of the Merger Agreement, exercised its option to purchase directly from the Company 5,800,000 newly-issued Shares (the “Top-Up Shares”) for a purchase price equal to the number of Top-Up Shares multiplied by the per share merger consideration of $53.00. The purchase price was paid by delivery of a promissory note. The closing of the issuance of the Top-Up Shares occurred on January 30, 2009. The Top-Up Shares were issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption from registration set forth in Section 4(2) of the Securities Act as a transaction not involving a public offering.

Item 3.03. Material Modification to Rights of Security Holders.

          At the Effective Time, each Share issued and outstanding immediately prior to the Effective Time (other than (a) any Shares owned by the Company, Getinge or Merger Sub or their respective subsidiaries or affiliates and (b) any Shares held by a holder who is entitled to demand and has properly demanded appraisal of such Shares in accordance with Delaware law) was canceled and ceased to exist and was converted into the right to receive $53.00 in cash, without interest and less any applicable withholding taxes.

          At the Effective Time, each option to acquire Shares that was outstanding immediately prior to the Effective Time, whether or not then vested or exercisable, became fully vested and was canceled and converted into the right to receive an amount of cash, without interest, equal to the product of (a) the excess, if any, of the per share merger consideration of $53.00 over the exercise price per share for such stock option, multiplied by (b) the number of Shares for which such option had not theretofore been exercised. In addition, each restricted share subject to a restricted stock award outstanding immediately prior to the Effective Time became fully vested and transferable immediately prior to the Effective Time and was converted into the right to receive an amount in cash equal to the per share merger consideration of $53.00. Finally, each outstanding deferred share unit outstanding immediately prior to the Effective Time and held by current or former Company directors under the Company’s Amended and Restated Compensation Plan for Non-Employee Directors or the Company’s 2005 Equity Incentive Plan, was converted into the right to receive an amount in cash equal to the per share merger consideration of $53.00, to be distributed in accordance with such director’s prior distribution election and the terms and conditions of the applicable plan and agreement pursuant to which such share unit was issued.

          After the Effective Time, on January 30, 2009, the Company amended the Rights Agreement to provide that the Rights Agreement may be terminated by resolution of the Board of Directors. Immediately thereafter, the Board of Directors terminated the Rights Agreement. The Company intends to deregister the Rights under the Exchange Act as soon as practicable.

Item 5.01. Changes in Control of the Registrant.

          On January 30, 2009, as a result of Merger Sub’s acceptance of all outstanding Shares of the Company validly tendered and not properly withdrawn prior to the expiration date of the tender offer, there was a change in control of the Company. On January 30, 2009, pursuant to the terms of the Merger Agreement, Merger Sub was merged with and into the Company, with the Company continuing as the surviving corporation in the Merger. As a result of the Merger, the Company became an indirect wholly owned subsidiary of Getinge.

          The total purchase price paid by Getinge and Merger Sub for this acquisition, excluding fees and expenses, was approximately $865 million, which Getinge and Merger Sub paid in cash. Getinge and Merger Sub funded the acquisition through a combination of cash-on-hand and proceeds of Getinge’s senior unsecured term credit facility with SEB.

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

          At the Effective Time, in accordance with the Merger Agreement, Johan Malmquist, Ulf Grunander, Heribert Ballhaus, Michael Rieder and Reinhard Mayer, as directors of Merger Sub immediately prior to the effective time of the Merger, replaced Alan B. Abramson, David Altschiller, David R. Dantzker M.D., Robert E. Klatell, James J. Loughlin, Lawrence Saper and William Wyman as the members of the Board of Directors of the Company.

          At the Effective Time, Lawrence Saper resigned as Chief Executive Officer of the Company. Immediately thereafter, on January 30, 2009, the Company’s Board of Directors appointed Christian Keller as the President and Chief Executive Officer of the Company. Mr. Keller, age 43, has been employed by Getinge since November 2001, and he has served as President of Maquet Cardiopulmonary AG since December 2005. Mr. Keller also served as the Managing Director of Medikomp GmbH from May 2000 to December 2004, President and Chief Executive Officer of Maquet Critical Care AB from January 2005 to August 2005, and Managing Director of Medikomp GmbH from September 2005 to November 2005.

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

          Pursuant to Merger Agreement, immediately after the Effective Time, the Company’s Certificate of Incorporation and Bylaws were amended and restated in their entirety to conform to the Certificate of Incorporation and Bylaws of Merger Sub as in effect immediately prior to the Effective Time. The Second Amended and Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company are filed as Exhibits 3.1 and 3.2 hereto, respectively, and are incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits.

     (d) Exhibits

          The following exhibits are filed with this Current Report on Form 8-K:

Exhibit
Number	Description
3.1	Second Amended and Restated Certificate of Incorporation of Datascope Corp.
3.2	Amended and Restated Bylaws of Datascope Corp.

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.

	DATASCOPE CORP. (Registrant)
February 5, 2009	/s/ Christian Keller
	By: Christian Keller
	Its: Chief Executive Officer

EXHIBIT INDEX

Exhibit
Number	Description
3.1	Second Amended and Restated Certificate of Incorporation of Datascope Corp.
3.2	Amended and Restated Bylaws of Datascope Corp.

EX-3.1

Exhibit 3.1

SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DATASCOPE CORP.

ARTICLE 1
NAME

The name of the corporation is Datascope Corp. (the “Corporation”).

ARTICLE 2
REGISTERED OFFICE AND AGENT

     The registered office of the Corporation in the State of Delaware is located at 160 Greentree Drive, Suite 101, City of Dover, County of Kent. The registered agent of the Corporation at such address is National Registered Agents, Inc.

ARTICLE 3
PURPOSE AND POWERS

     The purpose of this Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “Delaware General Corporation Law”). The Corporation shall have all powers that may now or hereafter be lawful for a corporation to exercise under the Delaware General Corporation Law.

ARTICLE 4
CAPITAL STOCK

     4.1 Authorized Shares

     The total number of shares of all classes of stock that the Corporation shall have the authority to issue is one thousand (1,000), all of which shall be Common Stock, par value $0.01 per share (“Common Stock”).

     4.2 Common Stock

          4.2.1 Relative Rights

          Each share of Common Stock shall have the same relative rights as and be identical in all respects to all other shares of Common Stock.

          4.2.2 Dividends

          Dividends may be paid on Common Stock out of any assets legally available for the payment of dividends thereon, but only when and as declared by the Board of Directors of the Corporation.

          4.2.3 Dissolution, Liquidation or Winding Up

          In the event of any dissolution, liquidation or winding up of the Corporation, whether voluntary or involuntary, the holders of Common Stock shall be entitled to participate in the distribution of any assets of the Corporation remaining after the Corporation shall have paid, or provided for payment of, all debts and liabilities of the Corporation.

          4.2.4 Voting Rights

          The holders of Common Stock shall be entitled to vote on each matter on which the stockholders of the Corporation shall be entitled to vote (including, without limitation, the election of one or more directors), and each such holder shall be entitled to one vote for each share of Common Stock held by such holder.

ARTICLE 5
BOARD OF DIRECTORS

     5.1 Number; Election

     The number of directors of the Corporation shall be such number as from time to time shall be fixed by, or in the manner provided in, the bylaws of the Corporation. Unless and except to the extent that the bylaws of the Corporation shall otherwise require, the election of directors of the Corporation need not be by written ballot. Except as otherwise provided in this Certificate of Incorporation, each director of the Corporation shall be entitled to one vote per director on all matters voted or acted upon by the Board of Directors.

     5.2 Management of Business and Affairs of the Corporation

     The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.

     5.3 Limitation of Liability

     No director of the Corporation shall be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that this provision shall not eliminate or limit the liability of a director (a) for any breach of the director’s duty of loyalty to the Corporation or its stockholders; (b) for acts or

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omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) under Section 174 of the Delaware General Corporation Law; or (d) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended Delaware General Corporation Law. Any repeal or modification of this Article 5.3 shall be prospective only and shall not adversely affect any right or protection of, or any limitation on the liability of, a director of the Corporation existing at, or arising out of the facts or incidents occurring prior to, the effective date of such repeal or modification. For purposes of this Article 5.3, “fiduciary duty as a director” also shall include any fiduciary duty arising out of serving at the Corporation’s request as a director of another corporation, partnership, limited liability company, joint venture or other enterprise, and “liable to the Corporation or its stockholders” also shall include any liability to such other corporation, partnership, limited liability company, joint venture, trust or other enterprise, and any liability to the Corporation in its capacity as a security holder, joint venturer, partner, member, beneficiary, creditor or investor of or in any such other corporation, partnership, limited liability company, joint venture, trust or other enterprise.

ARTICLE 6
AMENDMENT OF BYLAWS

     In furtherance and not in limitation of the powers conferred by the Delaware General Corporation Law, the Board of Directors of the Corporation is expressly authorized and empowered to adopt, amend and repeal the bylaws of the Corporation.

ARTICLE 7
RESERVATION OF RIGHT TO AMEND CERTIFICATE OF
INCORPORATION

     The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of any nature conferred upon stockholders, directors, or any other persons by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the rights reserved in this Article 7.

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ARTICLE 8
SEVERABILITY

     In the event that any provision of this Certificate of Incorporation (including any provision within a single Article, paragraph or sentence) is held by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, the remaining provisions are severable and shall remain enforceable to the full extent permitted by law.

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EX-3.2

Exhibit 3.2

AMENDED AND RESTATED BYLAWS

OF

DATASCOPE CORP.

1. OFFICES

     1.1. Registered Office and Agent

     The initial registered office of the Corporation shall be in Dover, Delaware, and the initial registered agent in charge thereof shall be National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware.

     1.2. 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 may from time to time determine or as may be necessary or useful in connection with the business of the Corporation.

2. MEETINGS OF STOCKHOLDERS

     2.1. Annual Meetings

     Unless directors are elected by written consent in lieu of an annual meeting as permitted by Section 211(b) of the Delaware General Corporation Law, the Corporation shall hold annual meetings of stockholders on such date and at such time as shall be designated from time to time by the Board of Directors, the Chairman of the Board or the President, at which stockholders shall elect directors and transact such other business as may properly be brought before the meeting.

     2.2. Special Meetings

     Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute, may be called by the Board of Directors, the Chairman of the Board or the President, and shall be called by the President or the Secretary at the request in writing of stockholders possessing at least a majority of the voting power of the issued and outstanding voting stock of the Corporation entitled to vote generally for the election of directors. Such request shall include a statement of the purpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice (except to the extent that such notice is waived or is not required as provided in the Delaware General Corporation Law or these Bylaws).

     2.3. Place of Meetings

     All meetings of the stockholders shall be held at such place as may be fixed from time to time by the Board of Directors, the Chairman of the Board or the President.

     2.4. Notice of Meetings

     Notice of any meeting of stockholders, stating the place, date and hour of the meeting, and (if it is a special meeting) the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting (except to the extent that such notice is waived or is not required by the Delaware General Corporation Law or these Bylaws). Such notice shall be given in accordance with, and shall be deemed effective as set forth in, Section 222 (or any successor section) of the Delaware General Corporation Law.

     2.5. List of Stockholders

     After the record date for a meeting of stockholders has been fixed, at least 10 days before such meeting, the officer who has charge of the stock ledger of the Corporation shall make a list of all stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder 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 days prior to the meeting, either at a place in the city where the meeting is to be held, which place is to be specified in the notice of the meeting, or at the place where the meeting is to be held. Such list shall also, for the duration of the meeting, be produced and kept open to the examination of any stockholder who is present at the time and place of the meeting.

     2.6. Quorum at Meetings

     Stockholders may take action on a matter at a meeting only if a quorum exists with respect to that matter. Except as otherwise provided by statute or by the Certificate of Incorporation, the holders of a majority of the shares entitled to vote at the meeting, and who are present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. Where a separate vote by a class or classes is required, the holders of a majority of the outstanding shares of such class or classes, who are present in person or represented by proxy, shall constitute a quorum entitled to take action on that matter. Once a share is represented for any purpose at a meeting (other than solely to object (a) to holding the meeting or transacting business at the meeting, or (b) (if it is a special meeting) to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice), it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for the adjourned meeting. The holders of a majority of the voting shares represented at a

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meeting, whether or not a quorum is present, may adjourn such meeting from time to time.

     2.7. Voting and Proxies

     Unless otherwise provided in the Delaware General Corporation Law or in the Certificate of Incorporation, and subject to the other provisions of these Bylaws, each stockholder shall be entitled to one vote on each matter, in person or by proxy, for each share of the Corporation’s capital stock that has voting power and that is held by such stockholder. No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A duly executed appointment of proxy shall be irrevocable if the appointment form states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.

     2.8. Required Vote

     When a quorum is present at any meeting of stockholders, all matters shall be determined, adopted and approved by the affirmative vote (which need not be by ballot) of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote with respect to the matter, unless the proposed action is one upon which, by express provision of statute or the Certificate of Incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question. Where a separate vote by a class or classes is required and a quorum exists with respect to such class or classes, the affirmative vote of the holders of a majority of the shares of such class or classes present in person or represented by proxy at the meeting shall be the act of such class, unless the proposed action is one upon which, by express provision of statute or the Certificate of Incorporation, a different vote is specified and required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing, directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Stockholders may, unless the Certificate of Incorporation provides otherwise, act by written consent to elect directors in accordance with the provisions of Section 211(b) of the Delaware General Corporation Law.

     2.9. Organization and Procedure

     The Chairman of the Board of the Corporation shall preside over every stockholders’ meeting unless the Board of Directors elects another person to preside. The presiding officer will appoint any persons he or she deems necessary to help with the meeting. The corporate secretary shall have responsibility for preparing minutes of stockholders’ meetings and for authenticating records of the Corporation.

     2.10. Adjournments

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     When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days, or if after adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

     2.11. Action Without a Meeting

     Any action required or permitted to be taken at a stockholders’ meeting may be taken without a meeting, without prior notice and without a vote, if the action is taken by persons who would be entitled to vote at a meeting and who hold shares having voting power not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all stockholders entitled to vote were present or represented by proxy and voted. The action must be evidenced by one or more written consents describing the action taken, signed by the stockholders entitled to take action without a meeting, and delivered to the Corporation in the manner prescribed by the Delaware General Corporation Law for inclusion in the minute book. No consent shall be effective to take the corporate action specified unless the number of consents required to take such action are delivered to the Corporation within 60 days of the delivery of the earliest-dated consent. All stockholders entitled to vote on the record date of such written consent who do not participate in taking the action shall be given written notice thereof in accordance with the Delaware General Corporation Law.

3. DIRECTORS

     3.1. Powers

     The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things, subject to any limitation set forth in the Certificate of Incorporation or as otherwise may be provided in the Delaware General Corporation Law. The Board of Directors may elect a Chairman of the Board from among its members and shall designate, when present, either the Chairman of the Board (if any) or the President to preside at its meetings. If neither the Chairman of the Board nor the President is present, the Board of Directors may designate another director to preside at such meeting. The Chairman of the Board and the President may be the same person. The Board of Directors may also elect one or more Vice Chairmen from among its members, with such duties as the Board of Directors shall from time to time prescribe.

     3.2. Number, Election and Term of Office

     The number of directors constituting the Board of Directors shall be as authorized from time to time by resolution of the stockholders or of the Board of Directors. Directors shall be elected at annual meetings of the stockholders or pursuant to a written consent of stockholders in lieu of an annual meeting as permitted by Section 211(b) of

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the Delaware General Corporation Law and each director elected shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. Directors need not be stockholders. Directors shall have the number of votes per director as specified in the Certificate of Incorporation.

     3.3. Resignation

     A director may resign at any time by giving written notice to the Chairman of the Board, the President or the Secretary. Unless otherwise stated in such notice of resignation, the acceptance thereof shall not be necessary to make it effective; and such resignation shall take effect at the time specified therein or, in the absence of such specification, it shall take effect upon the receipt thereof.

     3.4. Removal

     Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.

     3.5. Vacancies

     Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the affirmative vote of directors having a majority of the total votes of the directors then in office, although fewer than a quorum, or by a sole remaining director. Each director so chosen shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. In the event that one or more directors resigns from the Board, effective at a future date, directors having a majority of the total votes of directors then in office, including those who have so resigned, shall have 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 until his or her successor is elected and qualified or until his or her earlier death, resignation or removal.

     3.6. Compensation of Directors

     The Board of Directors shall have the authority to fix the compensation of directors. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

     3.7. Committees of Directors

     The Board of Directors may, by resolution passed by the affirmative vote of directors having a majority of the total votes of the total number of directors constituting 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 alternate members of any committee, who may replace

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any absent or disqualified member at any meeting of the committee. If a member of a committee shall be absent from any meeting, or disqualified from voting thereat, the remaining member or members present and not disqualified from voting, whether or not such member or members constitute a quorum, may, by unanimous vote, appoint another member of the Board of Directors to act at the meeting in the place of such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or the Bylaws, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the Delaware General Corporation Law; or (ii) adopting, amending or repealing the Bylaws of the Corporation. The provisions of Section 4 regarding meetings of the Board of Directors and its deliberations shall apply to all committees of the Board of Directors.

4. MEETINGS OF THE BOARD OF DIRECTORS

     4.1. Regular Meetings

     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. A meeting of the Board of Directors for the election of officers and the transaction of such other business as may come before it may be held without notice immediately following the annual meeting of stockholders.

     4.2. Special Meetings

     Special meetings of the Board may be called by the Chairman of the Board or the President on one day’s notice to each director, either personally or by telephone, express delivery service (so that the scheduled delivery date of the notice is at least one day in advance of the meeting), telegram or facsimile transmission, or on five days’ notice by mail (effective upon deposit of such notice in the mail). The notice need not describe the purpose of the special meeting but shall indicate the date, time and place of the special meeting.

     4.3. Place of Meetings

     The Board of Directors may hold their meetings and have an office or offices inside or outside of the State of Delaware. Regular meetings shall be held at the place established from time to time for regular meetings. Special meetings shall be held at the place set forth in the notice of the meeting or, if the special meeting is held in accordance with a waiver of notice of the meeting, at the place set forth in the waiver of notice.

     4.4. Notice of Meetings

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     Regular meetings of the Board of Directors may be held without further notice at such time and at such place as shall from time to time be determined by the Board of Directors. A meeting of the Board of Directors for the election of officers and the transaction of such other business as may come before it may be held without notice immediately following the annual meeting of stockholders. The Corporation shall, however, give at least one day’s prior notice of the date, time, and place of a special meeting of the Board of Directors. The notice of the special meeting shall state the general purpose of the meeting, but other routine business may be conducted at the special meeting without such matter being stated in the notice.

     4.5. Quorum

     At all meetings of the Board of Directors, a quorum of the Board of Directors consists of the presence of directors having at least a majority of the total votes of the total number of directors constituting the entire Board of Directors.

     4.6. Required Vote

     The affirmative vote of directors having a majority of the total votes of directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute, the Certificate of Incorporation or these Bylaws.

     4.7. Participation by Conference Telephone

     Members of the Board of Directors may participate in a meeting of the Board of Directors by any communication by means of which all participating directors can hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting.

     4.8. Adjournments

     Whether or not a quorum is present to conduct a meeting, any meeting of the Board of Directors (including an adjourned meeting) may be adjourned by a majority of the directors present, to reconvene at a specific time and place. It shall not be necessary to give to the directors present at the adjourned meeting notice of the reconvened meeting or of the business to be transacted, other than by announcement at the meeting that was adjourned; provided, however, notice of such reconvened meeting, stating the date, time, and place of the reconvened meeting, shall be given to the directors not present at the adjourned meeting in accordance with the requirements of Section 4.4 hereof.

     4.9. Action Without Meeting

     Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all members of the Board of Directors. The action must be evidenced by one or more written consents

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describing the action taken, signed by each director, and delivered to the Corporation for filing with the minutes of proceedings of the Board of Directors of the Corporation.

5. MANNER OF NOTICE TO AND WAIVER OF NOTICE BY STOCKHOLDERS AND DIRECTORS

     5.1. Manner of Notice

     If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address, or to the director at the director’s address, as it appears on the records of the Corporation. An affidavit of the Secretary or Assistant Secretary or of the transfer agent of the Corporation that notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

     5.2. Waiver of Notice

     (a) Stockholders. Whenever the giving of any notice is required by statute, the Certificate of Incorporation of the Corporation (which shall include any amendments thereto) or these Bylaws, a waiver thereof, in writing and delivered to the Corporation, signed by the person or persons entitled to said notice, whether before or after the event as to which such notice is required, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice (i) of such meeting, except when the stockholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (ii) (if it is a special meeting) of consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the stockholder objects to considering the matter at the beginning of the meeting.

     (b) Board of Directors. A director may waive any notice required by statute, the Certificate of Incorporation or these Bylaws before or after the date and time stated in the notice. Except as set forth below, the waiver must be in writing, signed by the director entitled to the notice, and delivered to the Corporation for filing with the minutes of proceedings of the Board of Directors of the Corporation. Notwithstanding the foregoing, a director’s attendance at or participation in a meeting waives any required notice to the director of the meeting unless the director at the beginning of the meeting objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting.

6. OFFICERS

     6.1. Number and Duties

     The officers of the Corporation will consist of a President, a Secretary and a Treasurer. The Board of Directors may elect or appoint, or provide for the appointment of, such other officers (including a Chairman of the Board, one or more Vice Chairmen, a

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Chief Financial Officer, one or more Vice Presidents in such gradation as the Board of Directors may determine, one or more Assistant Secretaries and one or more Assistant Treasurers) or agents as may from time to time appear necessary or advisable in the conduct of the business and affairs of the Corporation. Each such officer shall exercise such powers and perform such duties as shall be set forth below and such other powers and duties as from time to time may be specified by the Board of Directors or by any officer(s) authorized by the Board of Directors to prescribe the duties of such other officers. Any number of offices may be held by the same person. Each of the Chairman of the Board (if any), the President, the Chief Financial Officer (if any), and/or any Vice President may execute bonds, mortgages, notes, contracts and other documents on behalf of the Corporation, except as otherwise required by law and except where the execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.

     6.2. Chairman of the Board

     The Chairman of the Board, if any, shall (when present) preside at all meetings of the Board of Directors and stockholders and shall ensure that all orders and resolutions of the Board of Directors are carried into effect. The Chairman of the Board, if any, shall in general perform all duties incident to such office, including those duties customarily performed by persons holding such office, and shall perform such other duties as, from time to time, may be assigned to him or her by the Board of Directors.

     6.3. President

     The President shall be the chief executive officer of the Corporation and as such shall have overall executive responsibility and authority for management of the business, affairs and operations of the Corporation (subject to the authority of the Board of Directors), and, in general, shall perform all duties incident to the office of a president and chief executive officer of a corporation, including those duties customarily performed by persons holding such offices, and shall perform such other duties as, from time to time, may be assigned to him or her by the Board of Directors.

     6.4. Chief Financial Officer

     The Chief Financial Officer of the Corporation, if any, shall have general charge and supervision of the financial affairs of the Corporation, including budgetary, accounting and statistical methods, and shall approve for payment, or designate others serving under him or her to approve for payment, all vouchers and warrants for disbursements of funds, and, in general, shall perform such other duties as are incident to the office of a chief financial officer of a corporation, including those duties customarily performed by persons occupying such office, and shall perform such other duties as, from time to time, may be assigned to him or her by the Board of Directors or the President.

     6.5. Vice President

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     In the absence of the President or in the event of the President’s inability or refusal to act, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President. The Vice President or Vice Presidents, in general, shall perform such other duties as are incident to the office of a vice president of a corporation, including those duties customarily performed by persons occupying such office, and shall perform such other duties as, from time to time, may be assigned to him or her or them by the Board of Directors or the President. The Board of Directors may designate one or more Vice Presidents as Executive Vice Presidents or Senior Vice Presidents.

     6.6. Secretary

     The Secretary, or an Assistant Secretary, shall attend all meetings of the Board of Directors and all meetings of the stockholders, and shall record all the proceedings of the meetings of the stockholders and of the Board of Directors in a book to be kept for that purpose, and shall perform like duties for the standing committees, when required. The Secretary shall have custody of the corporate seal of the Corporation, and the Secretary, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed it may be attested by the signature of the Secretary or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by such officer’s signature. The Secretary or an Assistant Secretary may also attest all instruments signed by the President, the Chief Financial Officer or any Vice President. The Secretary, or an Assistant Secretary, shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and, in general, shall perform all duties as are incident to the office of a secretary of a corporation, including those duties customarily performed by persons occupying such office, and shall perform such other duties as, from time to time, may be assigned to him or her by the Board of Directors, the President, the Chief Financial Officer or any Vice President.

     6.7. Assistant Secretary

     The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act or when requested by the Chairman of the Board, the President, the Chief Financial Officer or any Vice President, perform the duties and exercise the powers of the Secretary, and, in general, shall perform all duties as are incident to the office of an assistant secretary of a corporation, including those duties customarily performed by persons holding such office, and shall perform such other duties as, from time to time, may be assigned to him or her or them by the Board of Directors, the President, the Chief Financial Officer, any Vice President or

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the Secretary. An Assistant Secretary may or may not be an officer, as determined by the Board of Directors.

     6.8. Treasurer

     The Treasurer shall have responsibility for the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall also render to the President, upon request, and to the Board of Directors at its regular meetings, or when the Board of Directors so requires, an account of all financial transactions and of the financial condition of the Corporation and, in general, shall perform such duties as are incident to the office of a treasurer of a corporation, including those customarily performed by persons occupying such office, and shall perform all other duties as, from time to time, may be assigned to him or her by the Board of Directors, the President, the Chief Financial Officer or any Vice President.

     6.9. Assistant Treasurer

     The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there shall have been no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, perform the duties and exercise the powers of the Treasurer, and, in general, shall perform all duties as are incident to the office of an assistant treasurer of a corporation, including those duties customarily performed by persons occupying such office, and shall perform such other duties as, from time to time, may be assigned to him or her or them by the Board of Directors, the President, the Chief Financial Officer, any Vice President or the Treasurer. An Assistant Treasurer may or may not be an officer, as determined by the Board of Directors.

     6.10. Term of Office

     The officers of the Corporation shall hold office until their successors are chosen and qualify or until their earlier death, resignation or removal. Any officer may resign at any time upon written notice to the Corporation. Any officer elected or appointed by the Board of Directors may be removed at any time, with or without cause, by the affirmative vote of directors having a majority of the total votes of the total number of directors constituting the entire Board of Directors.

     6.11. Compensation

     The compensation of officers of the Corporation shall be fixed by the Board of Directors or by any officer(s) authorized by the Board of Directors to prescribe the compensation of such other officers.

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     6.12. Fidelity Bonds

     The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise.

7. CAPITAL STOCK

     7.1. Authorization and Issuance of Shares

     The directors may, at any time and from time to time, if all of the shares of capital stock which the Corporation is authorized by its certificate of incorporation to issue have not been issued, subscribed for, or otherwise committed to be issued, issue or take subscriptions for additional shares of its capital stock up to the amount authorized in its certificate of incorporation.

     7.2. Stock Certificates

     The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock represented by certificates, and upon request every holder of uncertificated shares, shall be entitled to have a certificate (representing the number of shares registered in certificate form) signed in the name of the Corporation by the Chairman of the Board, the President or any Vice President, and by the Treasurer, the Secretary or any Assistant Treasurer or Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar whose signature or facsimile signature appears on a certificate shall have 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 such person were such officer, transfer agent or registrar at the date of issue.

     7.3. Registered Owner

     The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner. The Corporation shall not be 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 shall have express or other notice thereof, except as otherwise may be required by the Delaware General Corporation Law.

     7.4. Transfer of Shares

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     The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and one or more registrars. The Board of Directors shall make such further rules and regulations as it may deem expedient concerning the issue, transfer and registration of stock certificates of the Corporation.

     7.5. Lost, Stolen or Destroyed Certificates

     The Board of Directors, the Chairman of the Board, the President, the Chief Financial Officer or the Secretary may direct a new certificate of stock to be issued in place of any certificate theretofore issued by the Corporation and alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate of stock has been lost, stolen or destroyed. When authorizing such issuance of a new certificate, the Board of Directors or any such officer may, as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or such owner’s legal representative, to advertise the same in such manner as the Board of Directors or such officer shall require and/or to give the Corporation a bond or indemnity, in such sum or on such terms and conditions as the Board of Directors or such officer may direct, as indemnity against any claim that may be made against the Corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate.

     7.6. Record Date

          7.6.1. Actions by Stockholders

          In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 days nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting, unless the Board of Directors fixes a new record date for the adjourned meeting.

          In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 10 days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is

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required by the Delaware General Corporation Law, shall be at the close of business on the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Section 213(b) of the Delaware General Corporation Law. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

          7.6.2. Payments

          In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

     7.7. Stockholders of Record

     The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and to exercise all the rights and powers of an owner. The Corporation shall not be 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 shall have express or other notice thereof, except as otherwise may be required by the Delaware General Corporation Law.

8. INDEMNIFICATION

     (a) The Corporation shall indemnify its directors and officers to the full extent required or permitted by the Delaware General Corporation Law, as such Delaware General Corporation Law now or hereafter exists.

     (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, any director or officer who is or was serving at the request of the Corporation as a director, officer, partner or employee of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and

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except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

     (c) To the extent that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b), or in defense of any clam, issue or matter therein, he shall be indemnified against expense (including attorneys’ fees) actually and reasonably incurred by him in connection therewith, notwithstanding that he has not been successful on any other claim, issue or matter in any such action, suit or proceeding.

     (d) Any indemnification under subsections (a) and (b) (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b). (If such applicable standard of conduct has been met, then indemnification shall be provided.) Such determination shall be made promptly following a request made to the Corporation by any person requesting indemnification (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion.

     (e) Expenses (including attorneys’ fees) incurred in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding under receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this section. Such expenses incurred by other employees may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

     (f) The indemnification and advancement of expenses provided for, or granted pursuant to, other subsections of this section shall not be deemed exclusive of and may be in addition to any other rights to which those seeking indemnification or advancement of expenses may be entitled under any statute, rule of law, provision of bylaw, agreement, vote of disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office.

     (g) The Corporation may, in management’s discretion and in a manner and upon terms deemed appropriate by management, indemnify its agents and employees who are not officers or directors, to the extent permitted by law.

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     (h) For purposes of this section, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers or employees so that any person who is or was a director, officer or employee of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued.

     (i) The Corporation shall have the power but not be obligated to purchase and maintain insurance on behalf of any person who is or was a director, officer or employee of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner or employee of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Section.

     (j) For purposes of this Section, references to “other enterprises” shall include employee benefit plans; and references to “serving at the request of the Corporation” shall include any service as a director, officer or employee of the Corporation which imposes duties on, or involves services by, such director, officer or employee with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he or she reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Section.

     (k) The indemnification and advancement of expenses provided by or granted pursuant to this Section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer or employee and shall inure to the benefit of the heirs, executors and administrators of such person.

     (l) The right to be indemnified or to the advancement or reimbursement of expenses (i) is a contract right based upon good and valuable considerations, pursuant to which the person entitled thereto may sue as if these provisions were set forth in a separate written contract between such person and the Corporation, and (ii) is and is intended to be retroactive and shall be available as to events occurring prior to the adoption of these provisions, and (iii) shall continue after any rescission or restrictive modification of such provisions as to events occurring prior thereto.

     (m) To the extent any provision, clause or paragraph of this Section shall be deemed by any court to be invalid or unenforceable, such invalidity or unenforceability shall not impair the validity or enforceability of the remainder of this Section.

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     (n) Notwithstanding anything to the contrary contained herein, this indemnity shall be excess as to all insurance coverages available to such director, officer or employee.

9. GENERAL PROVISIONS

     9.1. Inspection of Books and Records

     Any stockholder, in person or by attorney or other agent, shall upon written demand under oath stating the purpose thereof, have the right during usual business hours to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person’s interest as a stockholder. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing which authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered office or at its principal place of business.

     9.2. Dividends

     The Board of Directors may declare dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation and the laws of the State of Delaware.

     9.3. Reserves

     The directors of the Corporation may set apart, out of the funds of the Corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve.

     9.4. Execution of Instruments

     All checks, drafts or other orders for the payment of money, and promissory notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

     9.5. Fiscal Year

     The fiscal year of the Corporation shall initially be the calendar year ending June 30 but may be changed at any time and from time to time by resolution of the Board of Directors.

     9.6. Corporate Seal

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     The corporate seal shall be in such form as the Board of Directors shall approve. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

     9.7. Pronouns

     All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require .

     9.8. Amendments

     These Bylaws may be altered, amended or repealed and new Bylaws may be adopted by the stockholders or the Board of Directors.

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