EXHIBIT 3.1

AMENDED AND RESTATED

BYLAWS

OF

KINDRED HEALTHCARE, INC.

ARTICLE I

Stockholders

Section 1.1. Annual Meetings. An annual meeting of stockholders shall be held for the election of directors at such date, time and place either within or without the State of Delaware as may be designated by the Board of Directors from time to time. Subject to Section 1.11, any other proper business may be transacted at the annual meeting.

Section 1.2. Special Meetings. Special meetings of stockholders may be called by (i) the Chairman of the Board, if any, (ii) pursuant to a resolution approved by a majority of the Board of Directors, or (iii) by written request to the Chairman of the Board by stockholders representing in excess of 50% of the then outstanding common stock entitled to vote. Any special meeting so called shall be held at such date, time and place either within or without the State of Delaware as may be stated in the notice of the meeting.

Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the written notice of any meeting shall be given not less than ten nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.

Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time, to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

Section 1.5. Quorum. At each meeting of stockholders, except where otherwise provided by law or the Amended and Restated Certificate of Incorporation or these Bylaws, the holders of a majority of the outstanding shares of stock entitled to vote on a matter at the meeting, present in person or represented by proxy, shall constitute a quorum. For purposes of the foregoing, where a separate vote by class or classes is required for any matter, the holders of a majority of the outstanding shares of such class or classes, present in person or represented by proxy, shall constitute a quorum to take action with respect to the vote on that matter. In the absence of a quorum of the holders of any class of stock entitled to vote on a matter, the holders of such class

so present or represented may, by majority vote, adjourn the meeting of such class from time to time in the manner provided by Section 1.4 of these Bylaws until a quorum of such class shall be so present or represented. Shares of its own capital stock belonging on the record date for the meeting 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, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.

Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President, or in the absence of the President by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act as secretary of the meeting.

The order of business at each such meeting shall be as determined by the chairman of the meeting. The chairman of the meeting shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts and things as are necessary or desirable for the proper conduct of the meeting, including, without limitation, the establishment of procedures for the maintenance of order and safety, limitations on the time allotted to questions or comments on the affairs of the Corporation, restrictions on entry to such meeting after the time prescribed for the commencement thereof and the opening and closing of the voting polls.

Section 1.7. Inspectors. Prior to any meeting of stockholders, the Board of Directors or the Chairman shall appoint one or more inspectors to act at such meeting and make a written report thereof and may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at the meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain the number of shares outstanding and the voting power of each, determine the shares represented at the meeting and the validity of proxies and ballots, count all votes and ballots, determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons to assist them in the performance of their duties. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting. No ballot, proxy or vote, nor any revocation thereof or charge thereto, shall be accepted by the inspectors after the closing of the polls. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted therewith, any information provided by a stockholder who submits a proxy by telegram, cablegram or other electronic transmission from which it can be determined that the proxy was authorized by the

stockholder, ballots and the regular books and records of the corporation, and they may also consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for such purpose, they shall, at the time they make their certification, specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.

Section 1.8. Voting: Proxies. Unless otherwise provided in the Amended and Restated Certificate of Incorporation, each holder of common stock entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of common stock held by such stockholder which has voting power upon the matter in question. If the Amended and Restated Certificate of Incorporation provides for more or less than one vote for any share on any matter, every reference in these Bylaws to a majority or other proportion of stock shall refer to such majority or other proportion of the votes of such stock. Each stockholder entitled to vote at a meeting of stockholders 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. 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, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors unless the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or represented by proxy at such meeting shall so determine.

At any meeting for the election of Directors at which a quorum is present, each nominee for Director shall be elected if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election, provided that Directors shall be elected by the vote of a plurality of the shares present in person or represented by proxy at any such meeting and entitled to vote if (i) the Secretary of the Corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors in compliance with the advance notice requirements set forth in Section 1.11(b) of this Article; and (ii) such nomination has not been withdrawn by such stockholder on or prior to the 10^th day preceding the date the Corporation first mails its notice of meeting for such meeting to the stockholders.

In all other matters, unless otherwise provided by law or by the Amended and Restated Certificate of Incorporation or these Bylaws, the affirmative vote of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. Where a separate vote by class or classes is required, 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 or classes, except as otherwise provided by law or by the Amended and Restated Certificate of Incorporation or these Bylaws.

Section 1.9. Fixing Date for Determination of Stockholders of Record. 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 (60) nor less than ten (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 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.

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 (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.

Section 1.10. List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The 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 1.11. Advance Notice of Stockholder Proposals. (a) The matters to be considered and brought before any annual or special meeting of stockholders of the Corporation shall be limited to only such matters, including the nomination and election of directors, as shall be brought properly before such meeting in compliance with the procedures set forth in this Section 1.11.

(b) For any matter to be properly before any annual meeting of stockholders, the matter must be (i) specified in the notice of annual meeting given by or at the direction of the Board of Directors, (ii) otherwise brought before the annual meeting by or at the direction of the Board of Directors or (iii) brought before the annual meeting in the manner specified in this Section 1.11 (b) by a stockholder of record or a stockholder (a “Nominee Holder”) that holds voting securities entitled to vote at meetings of stockholders through a nominee or “street name” holder of record and can demonstrate to the Corporation such indirect ownership and such Nominee Holder’s

entitlement to vote such securities. In addition to any other requirements under applicable law and the Amended and Restated Certificate of Incorporation and Bylaws of the Corporation, persons nominated by stockholders for election as Directors of the Corporation and any other proposals by stockholders shall be properly brought before the meeting only if notice of any such matter to be presented by a stockholder at such meeting of stockholders (the “Stockholder Notice”) shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not less than 60 nor more than 90 days prior to the anniversary date of the annual meeting for the preceding year; provided, however, that if and only if the annual meeting is not scheduled to be held within a period that commences 30 days before such anniversary date, as the case may be, and ends 30 days after such anniversary date, as the case may be (an annual meeting date outside such period being referred to herein as an “Other Meeting Date”), such Stockholder Notice shall be given in the manner provided herein by the later of the close of business on (i) the date sixty (60) days prior to such Other Meeting Date or (ii) the tenth (10) day following the date such Other Annual Meeting Date is first publicly announced or disclosed. Any stockholder desiring to nominate any person or persons (as the case may be) for election as a Director or Directors of the Corporation shall deliver, as part of such Stockholder Notice, a statement in writing setting forth the name of the person or persons to be nominated, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by each such person, as reported to such stockholder by such nominee(s), the information regarding each such person required by paragraphs (a), (e) and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange Commission (or the corresponding provisions of any regulation subsequently adopted by the Securities and Exchange Commission applicable to the Corporation), each such person’s signed consent to serve as a Director of the Corporation if elected, such stockholder’s name and address, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such stockholder and, in the case of a Nominee Holder, evidence establishing such Nominee Holder’s indirect ownership of, and entitlement to vote, securities at the meeting of stockholders. Any stockholder who gives a Stockholder Notice of any matter proposed to be brought before the meeting (not involving nominees for director) shall deliver, as part of such Stockholder Notice, the text of the proposal to be presented and a brief written statement of the reasons why such stockholder favors the proposal and setting forth such stockholder’s name and address, the number and class of all shares of each class of stock of the Corporation owned of record and beneficially by such stockholder, if applicable, any material interest of such stockholder in the manner proposed (other than as a stockholder) and, in the case of a Nominee Holder, evidence establishing such Nominee Holder’s indirect ownership of, and entitlement to vote, securities at the meeting of stockholders. As used herein, shares “beneficially owned” shall mean all shares which such person is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Securities and Exchange Act of 1934 (the “Exchange Act”).

(c) Only such matters shall be properly brought before a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more Directors to the Board of Directors, any stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the Stockholder Notice required by Section 1.11 (b) hereof shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation not later than the close of business on the tenth day following the day on which the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such a meeting is publicly announced or disclosed.

(d) For purposes of this Section 1.11, a matter shall be deemed to have been “publicly announced or disclosed” if such matter is disclosed in a press release or in a document publicly filed by the Corporation with the Securities and Exchange Commission.

(e) In no event shall the adjournment or postponement of an annual meeting, or any announcement thereof, commence a new period for the giving of notice as provided in this Section 1.11. This Section 1.11 shall not apply to shareholder proposals made pursuant to Rule l4a-8 under the Exchange Act.

(f) The person presiding at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power and duty to determine whether notice of nominees and other matters proposed to be brought before a meeting has been duly given in the manner provided in this Section 1.11 and, if not so given, shall direct and declare at the meeting that such nominees and other matters shall not be considered.

Section 1.12. Stockholder Access to Proxy Materials.

(a) Inclusion of Access Nominees in Proxy Statement. Except as provided in subsection (d) of this Section, the Corporation shall include in its proxy statement and proxy card (“Proxy Materials”) for any meeting of stockholders at which directors are to be elected and any adjournment or postponement thereof (“Meeting”) the name of any person, together with the Required Information (as defined below), nominated for election to the Board (the “Access Nominee”) by a stockholder or group of stockholders that satisfies the requirements of this Section (such stockholder or group of stockholders satisfying the requirements of this Section, the “Eligible Stockholder”). Each such proxy card shall permit a stockholder to vote, or instruct the voting of, its shares with respect to the election of the Access Nominee(s) in the same manner as provided for the nominees of the Board, but shall clearly distinguish between the Access Nominee(s) and the nominees of the Board. “Required Information” means the following information (without duplication) submitted to the Corporation:

(i) information concerning the Access Nominee and the Eligible Stockholder that the Corporation determines is required to be disclosed in the Proxy Materials by the regulations promulgated under the Exchange Act;

(ii) information regarding any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity other than the Corporation in connection with the Access Nominee’s nomination for or service as a director of the Corporation; and

(iii) at the election of the Eligible Stockholder, a statement not to exceed 500 words, in support of the Access Nominee.

Notwithstanding the above, the Corporation may omit from its proxy materials any information that it, in good faith, believes would violate any applicable law or regulation.

(b) Number of Access Nominees. The Corporation shall not be required to include in the Proxy Materials more than the Maximum Number of Access Nominees. Any Eligible Stockholder submitting more than one Access Nominee for inclusion in the Proxy Materials pursuant to this Section 1.12 shall rank such Access Nominees based on the order that the Eligible Stockholder desires such Access Nominees to be selected for inclusion in the Proxy Materials in the event that the total number of Access Nominees submitted by Eligible Stockholders pursuant to this Section 1.12 exceeds the Maximum Number. In the event that the number of Access Nominees submitted by Eligible Stockholders exceeds the Maximum Number, the highest ranking Access Nominee who meets the requirements of this Section 1.12 from each Eligible Stockholder will be selected for inclusion in the Proxy Materials until the Maximum Number is reached, going in order of the size (from largest to smallest, based on the lowest Net Long Position of each such Eligible Stockholder during the Holding Period), up to the Maximum Number. The “Maximum Number” with respect to any Meeting shall be a number, not less than zero, equal to:

(i) the greater of (A) two and (B) the number that represents 20% of the total number of directors comprising the Board (including any unfilled vacancies) (rounding down to the nearest whole number), determined as of the last date by which notice of a director nomination may be timely given pursuant to Section 1.11 of these Bylaws; less

(ii) the number of director candidates for which the Corporation shall have received valid stockholder notices pursuant to Section 1.11 of these Bylaws (except for stockholder notices delivered pursuant to Section 1.11 solely in compliance with this Section 1.12); less

(iii) the number of previously elected Access Nominees then serving on the Board and re-nominated by the Board for election at the Meeting, other than any such person who will, as of the Meeting, have served continuously as a director for at least two annual terms; less

(iv) any nominee for whom access to the Proxy Materials for such Meeting was validly sought in accordance with this Section but who the Nominating and Governance Committee decides to nominate for election at such Meeting.

Any Access Nominee whose nomination is subsequently withdrawn or who is disqualified from serving on the Board prior to the Meeting shall be counted as an Access Nominee for purposes of calculating the Maximum Number.

(c) Stockholder and Nominee Eligibility Requirements. A stockholder or stockholder group shall constitute an Eligible Stockholder, and a proposed nominee shall constitute an Access Nominee, only if each of the following requirements is satisfied:

(i) Such stockholder or stockholder group has (as may be demonstrated by such stockholder’s Schedule 13D, Schedule 13G, Form 3, 4 or 5 filing, or other written proof of ownership reasonably satisfactory to the Corporation) been the beneficial owner of

shares of common stock representing a Net Long Position of not less than 3% of the total voting power of the Corporation (“Required Shares”) continuously for not less than three years (the “Holding Period”), determined as of the date written notice of a nomination is submitted to the Corporation in accordance with these Bylaws, and must continue to own the Required Shares through the date of the Meeting.

(A) Required Shares shall (x) include securities that have been loaned by or on behalf of such stockholder or stockholder group to another person only if such stockholder or the applicable member of such stockholder group (or any person acting on its behalf) has the right to recall such securities and undertakes to recall such securities upon being notified by the Corporation that the applicable Access Nominee will be included in the Proxy Materials; and (y) exclude securities that have been sold by or on behalf of such stockholder or stockholder group in a “short sale” (as defined in 17 CFR 242.200) that is not closed out or that have been borrowed for purposes other than such a short sale;

(B) “Net Long Position” shall be determined for each trading day of the Holding Period in accordance with the definition thereof set forth in Rule 14e-4 under the Exchange Act, provided that (x) in determining such stockholder’s “short position,” the reference in such Rule to “the date the tender offer is first publicly announced or otherwise made known by the bidder to the holders of the security to be acquired” shall be each trading day of the Holding Period, and the reference to the “highest tender offer price or stated amount of the consideration offered for the subject security” shall refer to the Last Reported Sale Price of the common stock on such trading day; (y) the Net Long Position shall be reduced by the number of shares of common stock as to which such stockholder or any member of such stockholder group has entered into any derivative or other agreement, arrangement or understanding that hedges or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership thereof; and (z) the calculation of Net Long Position shall not take into account for any purpose (including, for the avoidance of doubt, for purposes of clause (y) of this subsection) long or short positions in broad-based index options, broad-based index futures and broad-based publicly traded market baskets of stocks approved for trading by the applicable federal governmental authority;

(C) Shares “beneficially owned” shall mean all shares which such person is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 under the Exchange Act; and

(D) “Last Reported Sale Price” of the common stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices) on such date as reported in composite transactions for the primary exchange or quotation system on which the common stock then trades or is quoted (determined without reference to after-hours or extended market trading) or, if the common stock is not so listed or quoted, the last quoted bid price for the common stock in the over-the-counter market on the relevant date as reported by Pink OTC Markets Inc. or similar organization.

(ii) Such stockholder or stockholder group complies with Regulation 14N under the Exchange Act and provides the Corporation with a copy of the Schedule 14N that has been filed with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act.

(iii) Such stockholder or stockholder group complies with Section 1.11 of these Bylaws, provided that the required notice must be delivered to the Secretary of the Corporation not more than 150 nor less than 120 days prior to the anniversary of the mailing of the Proxy Materials for the previous year’s Meeting.

(iv) The proposed nominee is not a Disqualified Nominee. A “Disqualified Nominee” with respect to any Meeting means an individual:

(A) whose election as a member of the Board would cause the Corporation to be in violation of these Bylaws, the Articles of Incorporation, the rules and listing standards of the principal U.S. exchanges upon which the common stock of the Corporation is traded, or any applicable state or federal law, rule or regulation, or whose election would be inconsistent with the Corporation’s corporate governance policy or other policies or guidelines applicable to directors;

(B) who is not independent under the listing standards of each principal U.S. exchange upon which the common stock of the Corporation is listed, any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board in determining and disclosing independence of the Corporation’s directors, in each case as determined by the Board or any committee thereof;

(C) who is or becomes a party to any agreement, arrangement, understanding with, commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question;

(D) who is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914;

(E) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past 10 years;

(F) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended;

(G) who withdraws his or her consent to serve on the Corporation’s Board if elected; or

(H) who shall have provided information to the Corporation in respect of such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading.

(v) Neither such stockholder nor any member of the stockholder group (as applicable) is a Disqualified Nominator. A “Disqualified Nominator” with respect to any Meeting means a stockholder:

(A) to whom access to the Proxy Materials for the immediately preceding Meeting was provided, either individually or as part of a stockholder group, and who withdrew its Access Nominee from, or whose Access Nominee became ineligible or unavailable for election at, such Meeting (whether because such stockholder or the stockholder group no longer held the Required Shares or otherwise, but excluding as a result of the death or incapacity of the Access Nominee);

(B) who has engaged in or is currently engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a Director at the Meeting other than its Access Nominee(s) or a nominee of the Board; or

(C) who shall have provided information to the Corporation in respect of such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement made, in light of the circumstances under which they were made, not misleading.

(vi) Such stockholder executes and delivers, or all members of such stockholder group execute and deliver, to the Secretary of the Corporation, together with the notice required pursuant to Section 1.11 of these Bylaws, a representation and undertaking in a form reasonably acceptable to the Corporation, stating that:

(A) it shall remain the beneficial owner of the Required Shares through the date of the applicable Meeting;

(B) it is not holding any of the Corporation’s securities with the purpose, or with the effect, of changing or influencing the control of the Corporation or in connection with or as a participant in any transaction having such purpose or effect (other than solely by reason of seeking the election of the Access Nominee proposed by such stockholder or stockholder group);

(C) it shall comply with Schedule 14 of the Exchange Act and the rules and regulations thereunder, including Rule 14a-9;

(D) the proposed nominee is not a Disqualified Nominee;

(E) such stockholder is not a Disqualified Nominator, or no member of the stockholder group is a Disqualified Nominator (as applicable);

(F) it will not distribute to any stockholder any form of proxy for the Meeting other than the form distributed by the Corporation;

(G) it has not nominated and will not nominate for election any individual as a director at the annual meeting other than its Access Nominee(s);

(H) it agrees to comply with all applicable laws, rules and regulations with respect to any solicitation in connection with the Meeting and will file with the SEC any solicitation or other communication with the Corporation’s stockholders relating to the meeting at which the Access Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or an exemption from filing is available thereunder;

(I) it will provide facts, statements and other information in all communications with the Corporation and its stockholders that are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; and

(J) it shall (x) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of the Corporation or out of the information that the Eligible Stockholder provided to the Corporation, and (y) indemnify the Corporation and its directors, employees, agents and representatives to the fullest extent permitted by applicable law in respect of any and all expenses, liabilities and losses (including attorneys’ fees, judgments, fines and amounts paid or to be paid in settlement) that may arise out of, or are based upon the nomination, solicitation or other activity by the Eligible Stockholder in connection with its efforts to elect an Access Nominee pursuant to this Section 1.12.

(vii) In the event that any information or communications provided by the stockholder or stockholder group to the Corporation or its stockholders ceases to be true and correct in all material respects or omits a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, such stockholder or stockholder group promptly notifies the Secretary of the Corporation and provides the information required to correct such defect (it being understood that providing any such notification shall not be deemed to cure any such defect or limit the remedies (including without limitation under these Bylaws) available to the Corporation relating to any such defect).

(d) Stockholder Groups. The following additional requirements shall apply to any group of stockholders acting together or seeking to act together as an Eligible Stockholder:

(i) the number of stockholders that may act together as a group to form an Eligible Stockholder shall not exceed (x) 20 stockholders if the aggregate worldwide market value of the Corporation is less than or equal to $2,500,000,000, or (y) 25 stockholders if the aggregate worldwide market value of the Corporation is greater than $2,500,000,000. For purposes of the preceding sentence, (A) the “aggregate worldwide market value” shall be defined as the product of: (1) the number of outstanding shares of the Corporation’s common stock as of the close of business on June 30 of the year immediately preceding the applicable Meeting; and (2) the Last Reported Sale Price of the Corporation’s common stock on June 30 of the year immediately preceding the applicable Meeting, and (B) two or more collective investment funds that are under common management and investment control shall be treated as one stockholder;

(ii) the requirements and obligations applicable to an individual Eligible Stockholder that are set forth in these Bylaws, including the Holding Period, shall apply to each member of such group individually; provided, that the beneficial ownership of the Required Shares shall be calculated based on the continuous beneficial ownership of all stockholders in such group (who otherwise meet the requirements of this Section 1.12) in the aggregate;

(iii) no stockholder shall be permitted to be a member of more than one group constituting an Eligible Stockholder; and

(iv) all members of such stockholder group shall execute and deliver to the Secretary of the Corporation a certificate in a form reasonably acceptable to the Corporation (A) irrevocably designating one group member that is authorized to act on behalf of all members of the group with respect to the nomination and any and all matters related thereto, including withdrawal of the nomination; and (B) acknowledging and agreeing that the assumption of liability and indemnification obligations set forth in subsection (c)(vi)(J) of this Section 1.12 shall apply to each member of such group on a joint and several basis.

(e) Exclusive Method of Nomination; Board Determinations. This Section 1.12 shall provide the exclusive method for stockholders to include nominees for director in the Corporation’s Proxy Materials. All determinations with respect to compliance with this Section shall be made by the Board (or a duly authorized committee thereof) and shall be conclusive in the absence of manifest error. References in this Section 1.12 to any particular statute, rule or regulation include any successor statute, rule or regulation, in each case as amended or otherwise modified from time to time.

ARTICLE II

Board of Directors

Section 2.1. Powers; Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise

provided by law or in the Amended and Restated Certificate of Incorporation. The Board of Directors shall consist of between nine (9) and twelve (12) members as shall from time to time be fixed by resolution adopted by the affirmative vote of not less than 80% of all Directors then in office. Directors need not be stockholders.

Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies. Except as otherwise provided in these Bylaws, the Directors shall be elected at the annual meeting of stockholders and each shall serve until his or her successor shall be elected and qualified. Any Director may resign at any time, which resignation shall be made in writing and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chief Executive Officer or Secretary of the Corporation. The acceptance of a resignation shall not be necessary to make it effective. Any Director, or the entire Board of Directors, may be removed from office with or without cause but only by the affirmative vote of not less than two-thirds (2/3) of the votes entitled to be cast by the holders of all outstanding shares of Voting Stock (as defined herein), voting together as one class. If the office of any Director becomes vacant (due to resignation, removal or otherwise), the remaining Directors in office, though less than a quorum, by a majority vote, or the holders of a majority of all the shares of Voting Stock outstanding, may appoint any qualified person to fill such vacancy. Any Directors elected or appointed to fill a vacancy shall hold office until the next annual meeting of stockholders, and until his or her successor is elected and qualified or until his or her earlier resignation or removal. As used in these Bylaws the term “Voting Stock” shall mean stock of any class or series of the Corporation entitled to vote in the election of Directors generally.

Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be held at such places within or without the State of Delaware and at such times as the Board may from time to time determine, and if so determined notice thereof need not be given.

Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chairman of the Board, if any, by the President or pursuant to a resolution approved by a majority of the Board of Directors. Reasonable notice thereof shall be given by the person or persons calling the meeting.

Section 2.5. Participation in Meetings by Conference Telephone Permitted. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of the Board or of such committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.

Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of Directors one-half (1/2) of the entire Board shall constitute a quorum for the transaction of business. 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 unless the Amended and Restated Certificate of Incorporation or these Bylaws shall require a vote of a greater number. In case at any meeting of the Board a quorum shall not be present, the members of the Board present may adjourn the meeting from time to time until a quorum shall be present.

Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if any, or in the absence of the Chairman of the Board by the Vice Chairman of the Board, if any, or in the absence of the Vice Chairman of the Board by the President, if a member of the Board of Directors, or if the President is not a member of the Board of Directors or in the President’s absence by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8. Action by Directors Without a Meeting. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, 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 members of the Board or of such 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 2.9. Compensation of Directors. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the fees or other compensation of Directors for services to the Corporation, including attendance at meetings of the Board or committees of the Board.

ARTICLE III

Committees

Section 3.1. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or in these 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 to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by law to be submitted to stockholders for approval, (ii) adopting, amending or repealing these Bylaws or (iii) removing or indemnifying directors.

Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the Board or a provision in the rules of such committee to the contrary, a majority of the entire authorized number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at the time of such vote if a quorum is then present shall be the act of such committee, and in other respects each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these Bylaws.

ARTICLE IV

Officers

Section 4.1. Officers; Election. As soon as practicable after the annual meeting of stockholders in each year, the Board of Directors shall elect a President and a Secretary, and it may, if it so determines, elect from among its members a Chairman of the Board and a Vice Chairman of the Board. The Board may also elect one or more Vice Presidents, one or more Assistant Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as the Board may deem desirable or appropriate and may give any of them such further designations or alternate titles as it considers desirable. Any number of offices may be held by the same person unless the Amended and Restated Certificate of Incorporation or these Bylaws otherwise provide.

Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless otherwise provided in the resolution by the Board of Directors electing any officer, each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the Board or to the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. The Board may remove any officer with or without cause at any time. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election of an officer shall not of itself create contractual rights. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board at any regular or special meeting or by unanimous written consent.

Section 4.3. Powers and Duties. The officers of the Corporation shall have such powers and duties in the management of the Corporation as shall be stated in these Bylaws or in a resolution of the Board of Directors which is not inconsistent with these Bylaws and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the Board. The Secretary shall have the duty to record the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book to be kept for that purpose. The Board may require any officer, agent or employee to give security for the faithful performance of his or her duties.

Section 4.4. Voting Upon Stock in Other Corporations. Unless otherwise ordered by the Board of Directors, the Chairman of the Board or the Vice Chairman of the Board, if any, or the President or any Executive Vice President or any Vice President or the Secretary or the Treasurer shall have full power and authority on behalf of the Corporation to execute and deliver a proxy or proxies for and/or to attend and to act and to vote at any meetings of stockholders of any corporation in which the Corporation may hold stock, and at any such meetings shall possess and may exercise any and all rights and powers incident to the ownership of such stock and which, as the owner thereof, the Corporation might have possessed and exercised if present. The Board of Directors, by resolution, from time to time, may confer like powers upon any other person or persons.

ARTICLE V

Stock

Section 5.1. Stock Certificates and Uncertificated Shares. The shares of stock in the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions 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 theretofore issued until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board, every holder of stock represented by certificates, and upon request every holder of uncertificated shares, shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman or Vice Chairman of the Board, if any, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, representing the number of shares of stock registered in certificate form owned by such holder. If such certificate is manually signed by one officer or manually countersigned by a transfer agent or by a registrar, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate 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.

If the Corporation is authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided by law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required by law to be set forth or stated on certificates or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.

Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the

Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

ARTICLE VI

Miscellaneous

Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.

Section 6.2. Seal. The Corporation may have a corporate seal which shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever notice is required to be given by law or under any provision of the Amended and Restated Certificate of Incorporation or these Bylaws, 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 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 stockholders, Directors or members of a committee of Directors need be specified in any written waiver of notice unless so required by the Amended and Restated Certificate of Incorporation or these Bylaws.

Section 6.4. Indemnification of Directors, Officers and Employees. The Corporation shall indemnify to the full extent permitted by law any person made or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person or such person’s testator or intestate representative is or was a Director, officer or employee of the Corporation or serves or served at the request of the Corporation or any other enterprise as a Director, officer, member or employee. Notwithstanding the foregoing, the indemnification obligations of the Corporation pursuant to this Section 6.4 shall be limited to (i) officers, directors, agents and employees who as of or after September 13, 1999, were or are employed by the Corporation or serving as directors of the Corporation and (ii) agents and employees who were no longer employed by the Corporation as of September 13, 1999, other than such agents and employees who were officers and directors of the Corporation prior to September 13, 1999.

Expenses, including attorneys’ fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon receipt by it of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation. The rights provided to any person by this bylaw shall be enforceable against the Corporation by such person who shall be presumed to have relied upon it in serving or continuing to serve as a Director, officer or

employee as provided above. No amendment of this bylaw shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment. For purposes of this bylaw, the term “Corporation” shall include any predecessor of the Corporation and any constituent corporation (including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term “other enterprise” shall include any corporation, partnership, limited liability company, joint venture, trust or employee benefit plan; service “at the request of the Corporation” shall include 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; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to an employee benefit plan which such person reasonably believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation.

The indemnification and payment of expenses provided by, or granted pursuant to, this Section 6.4 shall not be deemed exclusive of any other rights to which those seeking indemnification or payment of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested Directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.

Anything in these Bylaws to the contrary notwithstanding, no elimination of this Section 6.4, and no amendment of this Section 6.4 adversely affecting the right of any person to indemnification hereunder, shall be effective until the 60th day following notice to such person of such action, and no elimination of or amendment to this Section 6.4 shall deprive any person of his or her rights hereunder arising out of alleged or actual events or acts occurring prior to such 60th day or actual or alleged failures to act prior to such 60th day.

The Corporation shall not, except by elimination or amendment of this Section 6.4 in a manner consistent with the preceding paragraph, take any corporate action or enter into any agreement which prohibits, or otherwise limits the rights of any person to, indemnification in accordance with the provisions of this Section 6.4. The indemnification of any person provided by this Section 6.4 shall continue after such person has ceased to be a Director, officer or employee of the Corporation and shall inure to the benefit of such person’s heirs, executors, administrators and legal representatives.

Section 6.5. Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its Directors or officers, or between the Corporation and any other corporation, partnership, limited liability company, association or other organization in which one or more of its directors or officers are directors, members or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the Director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or her or their votes are counted for such purpose, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested Directors, even though the disinterested Directors be less than a quorum; or (2) the material facts as to his or her relationship or interest and as to the contract or

transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested Directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.

Section 6.6. Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, micro photographs or any other information storage device, provided that the records so kept can be converted into clearly legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.

Section 6.7. Amendment of Bylaws. The Board of Directors may amend or repeal these Bylaws or adopt new Bylaws by the affirmative vote of two-thirds (2/3) of the Directors present at any meeting of the Board, assuming a quorum is present; provided, however, that the affirmative vote of not less than 80% of all Directors then in office shall be required to amend or repeal Section 2.1 hereof. The stockholders may amend or repeal these Bylaws or adopt new Bylaws only by the affirmative vote of at least two-thirds (2/3) of the then outstanding common stock entitled to vote.