Bylaws

 

 

of

 

 

HEARTLAND

FINANCIAL USA, INC.

 

A

Delaware Corporation

 

 

 

ARTICLE

I
Offices


 

Section

1.1 The

corporation shall maintain a registered office in the State of Delaware as

required by law. The corporation may also have offices at other places, within

or without the State of Delaware, as the business of the corporation may

require.

 

ARTICLE

II
Stockholders


 

Section

2.1     ANNUAL MEETING.

An

annual meeting of the stockholders shall be held commencing in 1994 on the

Wednesday following the third Tuesday in May of each year, if not a legal

holiday, and if a legal holiday, then on the next succeeding business day, or on

such date as shall be determined by the board of directors, for the election of

directors and for the transaction of such other business as may come before the

meeting.

 

Section

2.2     SPECIAL MEETINGS.

Special

meetings of the stockholders may be called by the chairman of the board, the

vice chairman of the board, the president, the board of directors, or at the

request in writing of stockholders owning a majority of the issued and

outstanding voting stock of the corporation. Within ten days after the receipt

of such a written request, the president or another officer designated by the

president must send a notice of meeting in accordance with Section 2.5

hereof.

 

Section

2.3     ACTION BY

STOCKHOLDERS.

 

(a)  At

any annual or special meeting of stockholders, only such new business shall be

conducted, and only such proposals shall be acted upon, as shall have been

brought before the meeting by, or at the direction of, the board of directors,

or by any stockholder entitled to vote at such meeting, provided, however, that

such stockholder has complied with the procedures set forth in this

Section 2.3.

 

(b)  For

a proposal to be properly brought before a special or annual meeting by a

stockholder, the stockholder must have given timely notice thereof in writing to

the secretary of the corporation as set forth in this Section 2.3. To be timely,

a stockholder’s notice must be delivered, mailed or telegraphed to the principal

executive offices of the corporation not less than 30 days nor more than 75 days

prior to the date of the originally scheduled meeting, regardless of any

postponements, deferrals or adjournments of that meeting to a later date;

provided, however, that, if less than 40 days’ notice of the date of the

scheduled meeting is given or made by the corporation, notice by the

stockholder, to be timely, must be so delivered, mailed or telegraphed to the

corporation not later than the close of business on the 10th day following the

day on which notice of the date of the scheduled meeting was first mailed to

stockholders. Such stockholder’s notice shall set forth as to each matter the

stockholder proposes to bring before the meeting: (i) a brief description of the

proposal desired to be brought before the meeting and the reasons for conducting

such business at the meeting; (ii) the name and address, as they appear on the

corporation’s books, of the stockholder proposing such business; (iii) the

number of shares of the corporation’s common stock beneficially owned by such

stockholder on the date of such stockholder’s notice; and (iv) any financial or

other interest of such stockholder in the proposal.

 

(c)  The

board of directors may reject any stockholder proposal not timely made in

accordance with this Section 2.3. If the board of directors determines that the

information provided in a stockholder’s notice does not satisfy the

informational requirements hereof, the secretary of the corporation shall

promptly notify such stockholder of the deficiency in the notice. The

stockholder shall then have an opportunity to cure the deficiency by providing

additional information to the secretary within such period of time, not to

exceed 10 days from the date such deficiency notice is given to the stockholder,

as the board of directors shall determine. If the deficiency is not cured within

such period, or if the board of directors determines that the additional

information provided by the stockholder, together with the information

previously provided, does not satisfy the requirements of this Section 2.3, then

the board of directors may reject such stockholder’s proposal. The secretary of

the corporation shall notify a stockholder in writing whether his or her

proposal has been made in accordance with the time and information requirements

hereof.

 

(d)  This

Section 2.3 shall not prevent the consideration and approval or disapproval at a

special or annual meeting of reports of officers, directors and committees of

the board of directors, but in connection therewith no new business shall be

acted upon at any such meeting unless stated, filed and received as herein

provided.

 

Section

2.4     PLACE OF MEETING.

The

board of directors may designate any place, either within or without the State

of Delaware, as the place of meeting for any annual meeting or for any special

meeting called by the board of directors. If no designation is made or if a

special meeting is called otherwise than by the board of directors, the place of

meeting shall be the principal place of business of the corporation.

 

 

Section

2.5     NOTICE OF MEETING.

Written

notice stating the place, date and hour of the meeting, the place where the

stockholder list may be examined prior to the meeting, if different from the

place of the meeting and, in the case of a special meeting, the purpose or

purposes for which the meeting is called, shall be given in person or by mail or

telegram not less than ten nor more than sixty days before the date of the

meeting, or in the case of a merger or consolidation of the corporation

requiring stockholder approval or a sale, lease or exchange of all or

substantially all of the corporation’s property and assets, not less than twenty

nor more than sixty days before the date of meeting, by or at the direction of

the chairman of the board, the president, any executive vice president, the

secretary or the officer or persons calling the meeting, to each stockholder of

record entitled to vote at such meeting. If mailed, notice shall be deemed given

when deposited in the United States mail, postage prepaid, directed to the

stockholder at his or her address as it appears on the records of the

corporation. If notice is given by telegram, such notice shall be deemed to be

delivered when the telegram is delivered to the telegraph company. If notice is

given by overnight delivery service, such notice will be deemed delivered on the

next business day after the date of delivery to a nationally recognized

overnight delivery service. 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, unless

the adjournment is for more than thirty days, or unless, after adjournment, a

new record date is fixed for the adjourned meeting, in either of which cases

notice of the adjourned meeting shall be given to each stockholder of record

entitled to vote at the meeting. Notice need not be given to any stockholder who

submits a written waiver of notice signed by such stockholder either before or

after any meeting. Attendance by a stockholder at a meeting of stockholders

shall constitute a waiver of notice of such meeting, except when the stockholder

attends the 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. Neither the business to be transacted at, nor the

purpose of, any regular or special meeting need be specified in any waiver of

notice of such meeting.

 

Section

2.6     NOMINATIONS OF

DIRECTORS.

 

(a)  Nominations,

other than those made by, or at the direction of, a majority of the board of

directors or a committee thereof shall be made only if timely written notice of

such nomination or nominations has been given to the secretary of the

corporation. To be timely, such notice shall be delivered to or mailed and

received at the principal executive offices of the corporation not less than 30

days nor more than 75 days prior to the meeting irrespective of any deferrals,

postponements or adjournments thereof to a later date; provided, however, that

in the event that less than 40 days’ notice or prior public disclosure of the

date of the meeting is given or made to stockholders, notice by the stockholder

to be timely must be so received not later than the close of business on the

10th day following the day on which such notice of the date of meeting was

mailed or such public disclosure was made, whichever first occurs. Each such

notice to the secretary shall set forth: (i) the name and address of record of

the stockholder who intends to make the nomination; (ii) a representation that

the stockholder is a holder of record of shares of the corporation entitled to

vote at such meeting and intends to appear in person or by proxy at the meeting

to nominate the person or persons specified in the notice; (iii) the name, age,

business and residence addresses, and principal occupation or employment of each

nominee; (iv) a description of all arrangements or understandings between the

stockholder and each nominee and any other person or persons (naming such person

or person) pursuant to which the nomination or nominations are to be made by the

stockholder; (v) such other information regarding each nominee proposed by such

stockholder as would be required to be included in a proxy statement filed

pursuant to the proxy rules of the Securities and Exchange Commission, as then

in effect; and (vi) the consent of each nominee to serve as a director of the

corporation if so 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 a director of

the corporation.

 

(b)  The

nominating and compensation committee may reject any nomination by a stockholder

not timely made or otherwise not in accordance with the terms of this Section

2.6. If the nominating and compensation committee reasonably determines that the

information provided in a stockholder’s notice does not satisfy the

informational requirements of this Section 2.6 in any material respect, the

secretary of the corporation shall promptly notify such stockholder of the

deficiency in writing. The stockholder shall have an opportunity to cure the

deficiency by providing additional information to the secretary within such

period of time, not to exceed 10 days from the date such deficiency notice is

given to the stockholder, as the nominating and compensation committee shall

reasonably determine. If the deficiency is not cured within such period, or if

the nominating and compensation committee reasonably determines that the

additional information provided by the stockholder, together with the

information previously provided, does not satisfy the requirements of this

Section 2.6 in any material respect, then the nominating and compensation

committee may reject such stockholder’s nomination. The secretary of the

corporation shall notify a stockholder in writing whether his or her nomination

has been made in accordance with the time and information requirements of this

Section 2.6.

 

Section

2.7     FIXING OF RECORD DATE.

 

 

(a)  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, 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 sixty nor less than ten

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 at 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;

provided, however, that the board of directors may fix a new record date for the

adjourned meeting.

 

(b)  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 sixty 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.

 

Section

2.8     VOTING LISTS.

The

officer or agent who has charge of the stock ledger of the corporation shall

prepare and make, at least ten 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 and number of

shares registered in his or her name, which list, for a period of ten days prior

to such meeting, shall be kept on file either at a place within the city where

the meeting is to be held and which place shall be specified in the notice of

the meeting, or, if not so specified, at the place where the meeting is to be

held, and shall be open to the examination of any stockholder, for any purpose

germane to the meeting, at any time during ordinary business hours. Such 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 who is

present.

 

Section

2.9     STOCK LEDGER.

The

stock ledger shall be the only evidence as to who are the stockholders entitled

to examine the stock ledger or the books of the corporation, or to vote in

person or by proxy at any meeting of stockholders.

 

Section

2.10     QUORUM. A

majority of the outstanding shares of voting stock of the corporation,

represented in person or by proxy, shall constitute a quorum at any meeting of

stockholders; provided, however, that if less than a majority of the outstanding

shares of voting stock are represented at said meeting, a majority of the shares

of voting stock so represented may adjourn the meeting. If a quorum is present,

the affirmative vote of a majority of the shares of voting stock represented at

the meeting shall be the act of the stockholders in all matters other than the

election of directors, who shall be elected by a plurality of the votes of the

shares present in person or by proxy and entitled to vote on the election of

directors, unless the vote of a greater number or voting by classes is required

by the General Corporation Law of the State of Delaware, the certificate of

incorporation or these bylaws. At any adjourned meeting at which a quorum shall

be present, any business may be transacted which might have been transacted at

the original meeting. Withdrawal of stockholders from any meeting shall not

cause failure of a duly constituted quorum at that meeting.

 

Section

2.11     PROXIES. Each

stockholder entitled to vote at a meeting of stockholders or to express consent

or dissent to corporate action in writing without a meeting may authorize

another person or persons to act for such stockholder by proxy, but no such

proxy shall be voted or acted upon after three years from its date, unless the

proxy provides for a longer period. Every proxy must be signed by the

stockholder or his or her attorney-in-fact. A duly executed proxy shall be

irrevocable if it 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. A

proxy may be made irrevocable regardless of whether the interest with which it

is coupled is an interest in the stock itself or an interest in the corporation

generally.

 

Section

2.12     VOTING OF STOCK.

Subject

to the provisions of the certificate of incorporation, each stockholder shall at

every meeting of the stockholders be entitled to one vote for each share of the

voting stock held by such stockholder.

 

Section

2.13     VOTING OF STOCK BY

CERTAIN HOLDERS.

 

(a)  Persons

holding stock in a fiduciary capacity shall be entitled to vote the shares so

held. Persons whose stock is pledged shall be entitled to vote, unless in the

transfer by the pledgor on the books of the corporation he or she has expressly

empowered the pledgee to vote thereon, in which case only the pledgee or his or

her proxy may represent such stock and vote thereon. Shares of its own stock

belonging to the corporation or to another corporation, if a majority of the

shares entitled to vote in the election of directors of such other corporation

is held by the corporation, shall neither be entitled to vote nor counted for

quorum purposes, but shares of its stock held, directly or indirectly, by the

corporation in a fiduciary capacity may be voted by it and counted for quorum

purposes.

 

(b)  Subject

always to the specific directions of the board of directors, any share or shares

of stock issued by any other corporation and owned or controlled by the

corporation may be voted at any stockholders’ meeting of such other corporation

by the chairman of the board or the president, if he or she be present, or in

his or her absence by any executive vice president. Whenever, in the judgment of

the chairman of the board or the president, or in his or her absence, any

executive vice president, it is desirable for the corporation to execute a proxy

or give a stockholders’ consent in respect to any share or shares of stock

issued by any other corporation and owned by the corporation, such proxy or

consent shall be executed in the name of the corporation by the chairman of the

board or the president and shall be attested by the secretary without necessity

of any authorization by the board of directors. Any person or persons designated

in the manner above stated as the proxy or proxies of the corporation shall have

full right, power and authority to vote the share or shares of stock issued by

such other corporation and owned by the corporation the same as such share or

shares might be voted by the corporation.

 

Section

2.14     VOTING BY BALLOT.

Voting

in any election of directors may, if permitted by the certificate of

incorporation, be by voice vote, and voting on any other questions shall be by

voice vote unless, in each case, the presiding officer shall order or any

stockholder shall demand that voting be by ballot.

 

Section

2.15     INSPECTORS.

The

board of directors, in advance of any meeting, may, but need not, appoint one or

more inspectors of election to act at the meeting or any adjournment thereof. If

an inspector or inspectors are not appointed, the person presiding at the

meeting may, or upon the request of any stockholder shall, appoint one or more

inspectors. In case any person who may be appointed as an inspector fails to

appear or act, the vacancy may be filled by appointment made by the directors in

advance of the meeting or at the meeting by the person presiding thereat. Each

inspector, if any, before entering upon the discharge of his or her duties,

shall take and sign an oath faithfully to execute the duties of inspector at

such meeting with strict impartiality and according to the best of his or her

ability. The inspectors, if any, shall determine the number of shares of stock

outstanding and the voting power of each, the shares of stock represented at the

meeting, the existence of a quorum, the validity and effect of proxies, and

shall receive votes or ballots, hear and determine all challenges and questions

arising in connection with the right to vote, count and tabulate all votes or

ballots, determine the results, and do such acts as are proper to conduct the

election or vote with fairness to all stockholders. On request of the person

presiding at the meeting, the inspector or inspectors, if any, shall make a

report in writing of any challenge, question or matter determined by the

inspector or inspectors and execute a certificate of any fact found by the

inspector or inspectors.

 

ARTICLE

III
Directors

 

 

Section

3.1     GENERAL POWERS.

The

business of the corporation shall be managed by or under the direction of its

board of directors, except as otherwise provided in the certificate of

incorporation.

 

Section

3.2     NUMBER AND

QUALIFICATIONS.

 

(a)  The

number of directors of the corporation shall be not less than three nor more

than nine or such other number as may be determined from time to time as

provided in the certificate of incorporation.

 

(b)  No

person shall be eligible for election to the board of directors if such person

has attained the age of seventy (70) years prior to the date of the

stockholders’ meeting at which directors are to be elected; provided, however,

that this provision will not apply to any of the current incumbent directors who

have attained the age of sixty-five (65) years prior to January 1, 1993.

Directors need not be stockholders of the corporation, citizens of the United

States or residents of the State of Delaware.

 

(c)  The

directors of the corporation shall be divided into three classes, Class I, Class

II and Class III, as nearly equal in number as the then total number of

directors constituting the entire board permits with the term of office of one

class expiring each year. At the annual meeting of stockholders in 1993,

directors of Class I shall be elected to hold office for a term expiring at the

1994 annual meeting, directors of Class II shall be elected to hold office for a

term expiring at the 1995 annual meeting and directors of Class III shall be

elected to hold office for a term expiring at the 1996 annual meeting. Any

vacancies in the board of directors for any reason, and any directorships

resulting from any increase in the number of directors, may be filled by the

board of directors, acting by a majority of the directors then in office,

although less than a quorum, and any directors so chosen shall hold office until

the next election of the class for which such directors shall have been chosen

and until their successors shall be elected and qualified. If the number of

directors is changed, any increase or decrease in the number of directors shall

be apportioned among the classes so as to maintain all classes as equal in

number as possible. At each annual meeting of stockholders, the successors to

the class of directors whose term shall then expire shall be elected to hold

office for a term expiring at the third succeeding annual meeting.

 

(d)  Notwithstanding

any other provisions of the certificate of incorporation of the corporation or

these bylaws (and notwithstanding the fact that some lesser percentage may be

specified by law, the certificate of incorporation or these bylaws of the

corporation), any director or the entire board of directors of the corporation

may be removed at any time, but only for cause and only by the affirmative vote

of the holders of not less than 70% of the outstanding shares of stock of the

corporation entitled to vote generally in the election of directors (considered

for this purpose as one class) cast at an annual meeting of stockholders or at a

meeting of the stockholders called for that purpose.

 

Section

3.3     ELECTION AND VACANCIES.

Each

class of directors to be elected shall be elected at the annual meeting of the

stockholders of the corporation and shall hold office until their successors are

elected and qualified or until their earlier death, resignation or removal. Any

director may resign at any time upon written notice to the corporation.

Thereafter, directors who are elected at an annual meeting of stockholders, and

directors who are elected in the interim to fill vacancies and newly created

directorships, shall hold office until the next annual meeting of stockholders

at which directors of such class are to be elected and until their successors

are elected and qualified or until their earlier death, resignation or removal.

In the interim between annual meetings of stockholders or of special meetings of

stockholders called for the election of directors and/or for the removal of one

or more directors and for the filling of any vacancy in that connection, newly

created directorships and any vacancies in the board of directors, including

vacancies resulting from the removal of directors, may be filled by the vote of

a majority of the remaining directors then in office, although less than a

quorum, by the nominating and compensation committee, or by the sole remaining

director.

 

Section

3.4     ASSOCIATE

DIRECTORS .

The board of directors, from time to time, may appoint one or more non-voting

associate directors. The associate directors, who would not be members of the

board of directors, shall serve in a non-voting advisory capacity with respect

to the board of directors of the corporation, and may be invited, without

obligation, to attend the meetings of the board of directors of the corporation,

without the power of final decision in matters concerning the business of the

corporation. Any listing of the associate directors shall distinguish between

them and the corporation’s board of directors or indicate their associate

status. Associate directors may receive such fees as may be determined by the

board of directors.

 

Section

3.5     REGULAR MEETINGS.

A

regular meeting of the board of directors shall be held without other notice

than this bylaw, immediately after, and at the same place as, the annual meeting

of stockholders. The board of directors may provide, by resolution, the time and

place, either within or without the State of Delaware, for the holding of

additional regular meetings without other notice than such resolution.

 

 

Section

3.6     SPECIAL MEETINGS.

Special

meetings of the board of directors may be called by or at the request of the

president or any director. The person or persons calling such special meeting of

the board of directors shall fix a place, either within or without the State of

Delaware, as the place for holding any special meeting of the board of

directors.

 

Section

3.7     NOTICE. Notice

of any special meeting of the board of directors stating the time and place of

such meeting shall be given by delivery of notice not less than forty-eight

hours prior to the time of such proposed meeting by: (a) written notice

delivered personally or by mail, recognized overnight delivery service,

telegraph or telecopy to each director at his or her business or residence

address or telecopy number or at any other address or telecopy number provided

by a director to the corporation; or (b) oral notice given in person or provided

to such director by telephone wherever he or she may be located. If mailed, such

notice shall be deemed to be delivered when deposited in the United States mail,

on a business day before 5:00 p.m. local time, so addressed, with postage

thereon prepaid. If notice is given by overnight delivery service, such notice

will be deemed delivered on the next business day after the date of delivery to

a nationally recognized overnight delivery service. If notice is given by

telegram, such notice shall be deemed to be delivered when the telegram is

delivered to the telegraph company. If notice is given by telecopy, such notice

shall be deemed to be delivered when sent to the telecopy number provided to the

corporation by any director and receipt is confirmed by telephone with such

director, or any adult family member, employee or agent of such director.

Written notice delivered personally and oral notice given in person or by

telephone shall be deemed delivered when so delivered or given to such director.

Notice need not be given to any director who submits a written waiver of notice

signed by him or her either before or after any meeting. The attendance of a

director at any meeting shall constitute a waiver of notice of such meeting,

except where a director 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. Neither the business to be

transacted at, nor the purpose of, any regular or special meeting of the board

of directors need be specified in the notice or waiver of such meeting.

 

 

Section

3.8     QUORUM. A

majority of the number of directors fixed by or determined in accordance with

these bylaws shall constitute a quorum for the transaction of business at any

meeting of the board of directors, provided, however, that if less than a

majority of such number of directors are present at said meeting, a majority of

the directors present may adjourn the meeting from time to time without further

notice. A majority of the number of directors serving on a committee of the

board shall constitute a quorum for the transaction of business at any meeting

of the committee. Interested directors may be counted in determining the

presence of a quorum at a meeting of the board of directors or of any committee

thereof.

 

Section

3.9     MANNER OF ACTING.

The

vote of a majority of the directors present at a meeting at which a quorum is

present shall be the act of the board of directors or of a committee of the

board, as the case may be.

 

Section

3.10     ACTION WITHOUT A

MEETING. Any

action required or permitted to be taken at any meeting of the board of

directors or of any committee thereof may be taken without a meeting if all the

members of the board or committee, as the case may be, consent thereto in

writing, and the writing or writings are filed with the minutes of proceedings

of the board or committee.

 

Section

3.11     COMPENSATION.

The

board of directors shall have authority to establish reasonable compensation of

all directors for services to the corporation as directors, officers or

otherwise.

 

Section

3.12     LIABILITY FOR UNLAWFUL

PAYMENT OF DIVIDEND. In

case of any willful or negligent violation of the provisions of sections 160 or

173 of the Delaware General Corporation Law regarding the payment of dividends,

any director who may have been absent when the same was done, or who may have

dissented from the act or resolution by which the same was done, may exonerate

himself or herself from such liability by causing his or her dissent to be

entered on the books containing the minutes of the proceedings of the directors

at the time the same was done, or immediately after he or she has notice of the

same.

 

Section

3.13     TELEPHONE MEETINGS.

Members

of the board of directors, or of any committee thereof, may participate in a

meeting of the board or committee, as the case may be, by means of a conference

telephone or similar communications equipment by means of which all persons

participating in the meeting can hear each other, and such participation shall

constitute presence in person at the meeting.

 

ARTICLE

IV
Committees

 

 

Section

4.1     COMMITTEES.

The

board of directors may, by resolution passed by a majority of the whole board,

designate one or more committees, each committee to consist of one or more of

the directors of the corporation. Any such committee, to the extent provided in

the resolution of the board of directors, 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, to the extent permitted under the Delaware

General Corporation Law. The designation of any such committee and the

delegation thereto of authority shall not operate to relieve the board of

directors, or any member thereof, of any responsibility imposed by law.

 

 

Section

4.2     EXECUTIVE

COMMITTEE. The

board of directors by resolution adopted by a majority of the full board of

directors, may designate two or more of its members to constitute an executive

committee. The executive committee, when the board of directors is not in

session, shall have and may exercise all of the authority of the board of

directors except to the extent, if any, that such authority shall be limited by

the resolution appointing the executive committee and except also that the

executive committee shall not have the authority of the board of directors in

reference to any action for which the certificate of incorporation or the bylaws

would require approval by the vote of greater than a majority of the number of

directors as may be fixed from time to time, in the manner prescribed in the

certificate of incorporation, by the board of directors of the

corporation.

 

Section

4.3     AUDIT AND CORPORATE

GOVERNANCE COMMITTEE .

The board of directors by a resolution adopted by a majority of the full board

of directors, may designate three or more outside directors to constitute an

audit and corporate governance committee. The audit and corporate governance

committee shall have, to the extent provided in the resolution of the board of

directors or in these bylaws, the authority to retain the independent auditor

for the corporation, and to conduct discussions with such auditor concerning the

financial statements, operations, internal controls and other related matters

and such other authority as may be provided to the audit and corporate

governance committee by the board of directors.

 

Section

4.4     NOMINATING AND

COMPENSATION COMMITTEE .

The board of directors by a resolution adopted by a majority of the full board

of directors, may designate three or more directors to constitute a nominating

and compensation committee. The nominating and compensation committee shall

have, to the extent provided in the resolution of the board of directors or in

these bylaws, the authority to establish the compensation, benefits and

perquisites for the executive officers, directors and other employees of the

corporation, identify and select qualified individuals to serve as directors of

the corporation and nominate such individuals for election as directors at the

corporation’s annual meeting of stockholders, and such other authority as may be

provided to the nominating and compensation committee by the board of

directors.

 

Section

4.5     TENURE AND

QUALIFICATION. Each

member of each committee shall hold office until the next regular annual meeting

of the board of directors following his or her designation and until his or her

successor is designated as a member of such committee and is elected and

qualified.

 

Section

4.6     MEETINGS. Regular

meetings of each committee may be held without notice at such times and places

as such committee may fix from time to time by resolution. Special meetings of

each committee may be called by any member thereof by notice stating the place,

date and hour of the meeting which is delivered not less than twenty-four hours

prior to the time of such proposed meeting by: (a) written notice delivered

personally or by mail, recognized overnight delivery service, telegraph or

telecopy to such committee member at his or her business or residence address or

telecopy number or at any other address or telecopy number provided by such

committee member to the corporation; or (b) oral notice given in person or

provided to such committee member by telephone wherever he or she may be

located. If mailed, such notice shall be deemed to be delivered when deposited

in the United States mail, on a business day before 5:00 p.m. local time, so

addressed, with postage thereon prepaid. If notice is given by overnight

delivery service, such notice will be deemed delivered on the next business day

after the date of delivery to a nationally recognized overnight delivery

service. If notice is given by telegram, such notice shall be deemed to be

delivered when the telegram is delivered to the telegraph company. If notice is

given by telecopy, such notice shall be deemed to be delivered when sent to the

telecopy number provided to the corporation by any such committee member and

receipt is confirmed by telephone with such committee member, or any adult

family member, employee or agent of such committee member. Written notice

delivered personally and oral notice given in person or by telephone shall be

deemed delivered when so delivered or given to any committee members. Any member

of a committee may waive notice of any meeting and no notice of any meeting need

be given to any member thereof who attends in person. The notice of a meeting of

any committee need not state the business proposed to be transacted at the

meeting.

 

Section

4.7     QUORUM. A

majority of the members of a committee shall constitute a quorum for the

transaction of business at any meeting thereof and action of such committee must

be authorized by the affirmative vote of a majority of the members present at a

meeting at which a quorum is present.

 

Section

4.8     ACTION WITHOUT A

MEETING. Any

action that may be taken by a committee at a meeting may be taken without a

meeting if a consent in writing, setting forth the action so to be taken, shall

be signed by all of the members of such committee before such action is

taken.

 

Section

4.9     VACANCIES. Any

vacancy on a committee may be filled by a resolution adopted by a majority of

the full board of directors.

 

Section

4.10     RESIGNATIONS AND

REMOVAL. Any

member of any committee may be removed at any time with or without cause by

resolution adopted by a majority of the full board of directors. Any member of a

committee may resign from such committee at any time by giving written notice to

the president or secretary, and unless otherwise specified therein, the

acceptance of such resignation shall not be necessary to make it

effective.

 

Section

4.11     PROCEDURE.

Each

committee shall elect a presiding officer from its members and may fix its own

rules or procedures which shall not be inconsistent with these bylaws."

 

 

ARTICLE

V
Officers

 

 

Section

5.1     NUMBER. The

officers of the corporation shall be a chairman of the board, a vice chairman, a

president, one or more executive vice presidents, a secretary and a treasurer,

each of whom shall be elected by the board of directors. Such other officers

(including one or more vice presidents or senior vice presidents, besides any

executive vice presidents), assistant officers and acting officers as may be

deemed necessary may be elected or appointed by the board of directors. Any two

or more offices may be held by the same person.

 

Section

5.2     ELECTION AND TERM OF

OFFICE. The

officers of the corporation to be elected by the board of directors shall be

elected annually by the board of directors at the first meeting of the board of

directors held after each annual meeting of the stockholders. If the election of

officers shall not be held at such meeting, such election shall be held as soon

thereafter as conveniently may be. Vacancies may be filled or new offices

created and filled at any meeting of the board of directors. Each officer shall

hold office until his or her successor shall have been duly elected and

qualified or until his or her death or until he or she shall resign or shall

have been removed in the manner hereinafter provided. Election or appointment of

an officer or agent shall not of itself create contract rights.

 

Section

5.3     REMOVAL. Any

officer or agent elected or appointed by the board of directors may be removed

by the board of directors whenever in its judgment the best interests of the

corporation would be served thereby, but such removal shall be without prejudice

to the contract rights, if any, of the person so removed.

 

Section

5.4     VACANCIES. A

vacancy in any office because of death, removal, disqualification or otherwise,

may be filled by the board of directors for the unexpired portion of the term of

such office.

 

Section

5.5     THE CHAIRMAN OF THE

BOARD. The

chairman of the board shall act as the chief executive officer of the

corporation and shall preside at all meetings of the stockholders and of the

board of directors and exercise such other powers and perform such duties as the

board of directors shall lawfully authorize.

 

Section

5.6     VICE CHAIRMAN OF THE

BOARD. In

the absence of the chairman of the board, the vice chairman of the board shall

preside at all meetings of the stockholders and of the board of directors and

exercise such other powers and perform such duties as the board of directors

shall lawfully authorize.

 

Section

5.7     THE PRESIDENT.

In

the absence of the chairman of the board and vice chairman of the board, the

president shall preside at all meetings of the stockholders and of the board of

directors. He or she shall, with the secretary, execute all contracts and

instruments which the board of directors shall lawfully authorize. The president

shall exercise a general supervision and direction of the affairs of the

corporation.

 

Section

5.8     EXECUTIVE VICE

PRESIDENTS. Each

executive vice president shall assist the president as he or she may direct in

exercising general supervision and direction of the affairs of the corporation.

Any executive vice president shall, with the secretary, in the absence of the

president, execute all contracts and instruments which the board of directors

shall lawfully authorize.

 

Section

5.9     THE SECRETARY.

The

secretary shall: (a) keep the minutes of the stockholders’ and of the board of

directors’ meetings in one or more books provided for that purpose; (b) see that

all notices are duly given in accordance with the provisions of these bylaws or

as required by law; (c) be custodian of the corporate records; (d) keep a

register of the post office address of each stockholder which shall be furnished

to the secretary by such stockholder; (e) have general charge of the stock

transfer books of the corporation; and (f) in general, perform all duties

incident to the office of secretary and such other duties as from time to time

may be assigned to the secretary by the president or by the board of

directors.

 

Section

5.10     THE TREASURER.

If

required by the board of directors, the treasurer shall give a bond for the

faithful discharge of his or her duties in such sum and with such surety or

sureties as the board of directors shall determine. He or she shall: (a) have

charge and custody of and be responsible for all funds and securities of the

corporation; receive and give receipts for monies due and payable to the

corporation from any source whatsoever, and deposit all such monies in the name

of the corporation in such banks, trust companies or other depositories as shall

be selected in accordance with the provisions of Article VI of these bylaws; and

(b) in general perform all of the duties incident to the office of treasurer and

such other duties as from time to time may be assigned to him or her by the

president or by the board of directors.

 

Section

5.11     OTHER OFFICERS,

ASSISTANTS AND ACTING OFFICERS. The

board of directors shall have the power to appoint other officers than those

specifically named in this Article as it may deem necessary from time to time,

and such other officers shall have the powers and duties as from time to time

may be granted or assigned to them by the board of directors. The board of

directors shall also have the power to appoint assistant officers and acting

officers to act in such capacity and as assistant to any officer, or to perform

the duties of such officer whenever for any reason it is impracticable for such

officer to act personally, and such assistant or acting officer so appointed by

the board of directors shall have the power to perform all the duties of the

office to which he or she is so appointed to be assistant, or as to which he or

she is so appointed to act, except as such power may be otherwise defined or

restricted by the board of directors.

 

Section

5.12     SALARIES. The

salaries of the officers shall be fixed from time to time by the board of

directors and no officer shall be prevented from receiving such salary by reason

of the fact that he or she is also a director of the corporation.

 

ARTICLE

VI
Written

Instruments, Loans,

Checks

and Deposits

 

 

Section

6.1     WRITTEN INSTRUMENTS.

Subject

always to the specific directions of the board of directors, all deeds and

mortgages made by the corporation to which the corporation shall be a party

shall be executed in its name by the president or any executive vice president

and attested by the secretary. All other written contracts and agreements to

which the corporation shall be a party shall be executed in its name by the

president or any executive vice president or such other officer as may be

designated by the board of directors.

 

Section

6.2     LOANS. No

loans shall be contracted on behalf of the corporation and no evidences of

indebtedness shall be issued in its name unless authorized by a resolution of

the board of directors. Such authority may be general or confined to specific

instances.

 

Section

6.3     CHECKS AND DRAFTS.

All

checks, drafts or other orders for the payment of money, notes or other

evidences of indebtedness issued in the name of the corporation, shall be signed

by such officer or officers, agent or agents of the corporation and in such

manner as shall from time to time be determined by resolution of the board of

directors.

 

Section

6.4     DEPOSITS. All

funds of the corporation not otherwise employed shall be deposited from time to

time to the credit of the corporation in such banks, trust companies or other

depositories as the board of directors may select.

 

ARTICLE

VII
Certificates

for Shares of

Capital

Stock and Their Transfer

 

 

Section

7.1     CERTIFICATES FOR SHARES

OF CAPITAL STOCK. Certificates

representing shares of stock of the corporation shall be in such form as may be

determined by the board of directors. Such certificates shall be signed by the

president or any executive vice president and the secretary or an assistant

secretary. If any such certificate is manually countersigned by a transfer agent

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 such

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 he or she were such officer, transfer agent or registrar at

the date of issue. All certificates for shares of stock shall be consecutively

numbered or otherwise identified. The name of the person to whom the shares

represented thereby are issued, with the number of shares and date of issue,

shall be entered on the books of the corporation. All certificates surrendered

to the corporation for transfer shall be cancelled and no new certificates shall

be issued until the former certificate for a like number of shares shall have

been surrendered and cancelled, except that in case of a lost, destroyed or

mutilated certificate a new certificate may be issued therefor upon such terms

and indemnity to the corporation as the board of directors may prescribe.

 

 

Section

7.2     TRANSFER OF SHARES OF

STOCK. Transfers

of shares of stock of the corporation shall be made on the books of the

corporation by the holder of record thereof or by his or her legal

representative, who shall furnish proper evidence of authority to transfer, or

by his or her attorney thereunto authorized by power of attorney duly executed

and filed with the secretary of the corporation, and on surrender for

cancellation of the certificate for such shares. The person in whose name shares

of stock stand on the books of the corporation shall be deemed the owner thereof

for all purposes as regards the corporation.

 

Section

7.3     TRANSFER AGENTS AND

REGISTRARS. The

board of directors may appoint one or more transfer agents or assistant transfer

agents and one or more registrars of transfers, and may require all certificates

for shares of stock of the corporation to bear the signature of a transfer agent

or assistant transfer agent and a registrar of transfers. The board of directors

may at any time terminate the appointment of any transfer agent or any assistant

transfer agent or any registrar of transfers.

 

ARTICLE

VIII
Indemnification

 

 

Section

8.1     DIRECTORS AND OFFICERS.

 

 

(a)  The

corporation shall indemnify any person who was or is a party or is threatened to

be made party to any threatened, pending or completed action, suit or

proceeding, whether civil, criminal, administrative or investigative (other than

an action by or in the right of the corporation) by reason of the fact that he

or she is or was a director or officer of the corporation, or is or was serving

at the request of the corporation as a director or officer of another

corporation, partnership, joint venture, trust or other enterprise, against

expenses (including attorneys’ fees), judgments, fines and amounts paid in

settlement actually and reasonably incurred by him or her in connection with

such action, suit or proceeding if he or she acted in good faith and in a manner

he or she reasonably believed to be in or not opposed to the best interests of

the corporation, and, with respect to any criminal action or proceeding, had no

reasonable cause to believe his or her conduct was unlawful. The termination of

any action, suit or proceeding by judgment, order, settlement, conviction, or

upon a plea of nolo

contendere

or

its equivalent, shall not, of itself, create a presumption that the person did

not act in good faith and in a manner which he or she reasonably believed to be

in or not opposed to the best interests of the corporation, and, with respect to

any criminal action or proceeding, had reasonable cause to believe that his or

her conduct was unlawful.

 

(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 or she is or was a director or officer of the corporation, or is or

was serving at the request of the corporation as a director or officer of

another corporation, partnership, joint venture, trust or other enterprise

against expenses (including attorneys’ fees) actually and reasonably incurred by

him or her in connection with the defense or settlement of such action or suit

if he or she acted in good faith and in a manner he or she reasonably believed

to be in or not opposed to the best interests of the corporation, and 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 of the State of

Delaware or the court in which action or suit was brought shall determine upon

application that, despite the adjudication of liability but in view of all the

circumstances of the case, such person is fairly and reasonably entitled to

indemnity for such expenses which the Court of Chancery of the State of Delaware

or such other court shall deem proper.

 

(c)  To

the extent that any person referred to in paragraphs (a) and (b) of this Section

8.1 has been successful on the merits or otherwise in defense of any action,

suit or proceeding referred to therein or in defense of any claim, issue or

matter therein, he or she shall be indemnified against expenses (including

attorneys’ fees) actually and reasonably incurred by him or her in connection

therewith.

 

(d)  Any

indemnification under paragraphs (a) and (b) of this Section 8.1 (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 or she has met the applicable standard of

conduct set forth in paragraphs (a) and (b) of this Section 8.1. Such

determination shall be made (i) by the board of directors by a majority vote of

a quorum consisting of directors who were not parties to such action, suit or

proceeding or (ii) if such quorum is not obtainable, or, even if obtainable a

quorum of disinterested directors so directs, by independent legal counsel in a

written opinion, or (iii) by the stockholders.

 

(e)  Expenses

(including attorneys’ fees) incurred in defending any civil, criminal,

administrative or investigative action, suit or proceeding may be paid by the

corporation in advance of the final disposition of such action, suit or

proceeding upon receipt of an undertaking by or on behalf of such director or

officer to repay such amount if it shall ultimately be determined that he or she

is not entitled to be indemnified by the corporation as provided in this Section

8.1. Such expenses (including attorneys’ fees) incurred by other employees and

agents may be so paid upon such terms and conditions, if any, as the board of

directors deems appropriate.

 

(f)  The

indemnification and advancement of expenses provided by or granted pursuant to

this Section 8.1 shall not be deemed exclusive of any other rights to which

those seeking indemnification or advancement of expenses may be entitled under

any bylaw, agreement, vote of stockholders or 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 shall have power to 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 him or her and incurred

by him or her in any such capacity, or arising out of his or her status as such,

whether or not the corporation would have the power to indemnify him or her

against such liability under the provisions of this Section 8.1.

 

(h)  For

purposes of this Section 8.1, references to "other enterprises" shall include

employee benefit plans; references to "fines" shall include any excise taxes

assessed on a person with respect to an employee benefit plan; and references to

"serving at the request of the corporation" shall include any service as a

director, officer, employee or agent of the corporation which imposes duties on,

or involves services by, such director, officer, employee, or agent 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 8.1.

 

(i)  The

indemnification and advancement of expenses provided by, or granted pursuant to,

this Section 8.1 shall, unless otherwise provided when authorized or ratified,

continue as to a person who has ceased to be a director, officer, employee or

agent and shall inure to the benefit of the heirs, executors and administrators

of such a person.

 

(j)  Unless

otherwise determined by the board of directors, references in this section to

"the corporation" shall not 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, and employees or agents, so that any person who is or was a director,

officer, employee or agent of such constituent corporation, or is or was serving

at the request of such constituent corporation as a director, officer, employee

or agent of another corporation, partnership, joint venture, trust or other

enterprise, shall stand in the same position under this section with respect to

the resulting or surviving corporation as he or she would have with respect to

such constituent corporation if its separate existence had continued.

 

 

Section

8.2     EMPLOYEES AND AGENTS.

The

board of directors may, by resolution, extend the indemnification provisions of

the foregoing Section 8.1 to any person who was or is a party or is threatened

to be made a party to any threatened, pending or completed action, suit or

proceeding by reason of the fact that he or she is or was an employee or agent

of the corporation, or is or was serving at the request of the corporation as an

employee or agent of another corporation, partnership, joint venture, trust or

other enterprise.

 

ARTICLE

IX
Fiscal

Year

 

 

Section

9.1     The

fiscal year of the corporation shall end on December 31 or on such other date as

the board of directors may from time to time determine by resolution.

 

 

ARTICLE

X
Dividends

 

 

Section

10.1     The

board of directors may from time to time declare, and the corporation may pay,

dividends on its outstanding shares of stock in the manner and upon the terms

and conditions provided by law and its certificate of incorporation.

 

 

ARTICLE

XI
Seal

 

Section

11.1     The

corporation shall have a corporate seal which shall be in the form of a circle

and shall have inscribed thereon the name of the corporation and the words

"Corporate Seal, Delaware."

 

ARTICLE

XII
Waiver

of Notice

 

 

Section

12.1     Whenever

any notice whatsoever is required to be given under any provision of these

bylaws or of the certificate of incorporation or of the General Corporation Law

of the State of Delaware, a written waiver thereof, signed by the person

entitled to notice, whether before or after the time stated therein, shall be

deemed equivalent to notice. Attendance of a person at a meeting shall

constitute a waiver of notice of such meeting, except when the person attends a

meeting for the express purpose of objecting, at the beginning of the meeting,

to the transactions of any business because the meeting is not lawfully called

or convened. Neither the business to be transacted at, nor the purpose of, any

regular or special meeting of the stockholders or directors or any committee

need be specified in any written waiver of notice.

 

ARTICLE

XIII
Amendments

 

Section

13.1     These

bylaws may not be altered, amended, changed or repealed unless such alteration,

amendment, change or repeal shall have received: (a) the affirmative vote of not

less than 66 2/3% of the number of directors as may be fixed from time to time,

in the manner prescribed in the certificate of incorporation, by the board of

directors of the corporation, or the written consent of all of such directors;

or (b) the affirmative vote of the holders of shares having at least 70% of the

voting power of all outstanding capital stock of the corporation entitled to

vote thereon.

 

 

118302_2.DOC

As

amended January 20, 2004