AMENDED AND RESTATED

 

                                     BYLAWS

 

                                       OF

 

                        DYNAVAX TECHNOLOGIES CORPORATION

 

                             A DELAWARE CORPORATION

 

<PAGE>

 

                                TABLE OF CONTENTS

<TABLE>

<S>                                                                                                                   <C>

ARTICLE I OFFICES................................................................................................      1

 

   Section 1.1    Registered Office..............................................................................      1

 

   Section 1.2    Other Offices..................................................................................      1

 

ARTICLE II STOCKHOLDERS' MEETINGS................................................................................      1

 

   Section 2.1    Place of Meetings..............................................................................      1

 

   Section 2.2    Annual Meetings................................................................................      1

 

   Section 2.3    Special Meetings...............................................................................      1

 

   Section 2.4    Notice of Meetings.............................................................................      2

 

   Section 2.5    Quorum and Voting..............................................................................      3

 

   Section 2.6    Voting Rights..................................................................................      3

 

   Section 2.7    Voting Procedures and Inspectors of Elections..................................................      4

 

   Section 2.8    List of Stockholders...........................................................................      5

 

   Section 2.9    Stockholder Proposals at Annual Meetings.......................................................      6

 

   Section 2.10   Nominations of Persons for Election to the Board of Directors..................................      7

 

   Section 2.11   Action Without Meeting.........................................................................      8

 

ARTICLE III DIRECTORS............................................................................................      8

 

   Section 3.1    Number and Term of Office......................................................................      8

 

   Section 3.2    Powers.........................................................................................      9

 

   Section 3.3    Vacancies......................................................................................      9

 

   Section 3.4    Resignations and Removals......................................................................      9

 

   Section 3.5    Meetings.......................................................................................      9

 

   Section 3.6    Quorum and Voting..............................................................................     10

 

   Section 3.7    Action Without Meeting.........................................................................     11

 

   Section 3.8    Fees and Compensation..........................................................................     11

 

   Section 3.9    Committees.....................................................................................     11

 

ARTICLE IV OFFICERS..............................................................................................     12

 

   Section 4.1    Officers Designated............................................................................     12

 

   Section 4.2    Tenure and Duties of Officers..................................................................     12

</TABLE>

 

                                        i

<PAGE>

 

<TABLE>

<S>                                                                                                                   <C>

ARTICLE V EXECUTION OF CORPORATE INSTRUMENTS, AND VOTING OF SECURITIES OWNED BY THE CORPORATION..................     14

 

   Section 5.1    Execution of Corporate Instruments.............................................................     14

 

   Section 5.2    Voting of Securities Owned by Corporation......................................................     14

 

ARTICLE VI SHARES OF STOCK.......................................................................................     14

 

   Section 6.1    Form and Execution of Certificates.............................................................     14

 

   Section 6.2    Lost Certificates..............................................................................     15

 

   Section 6.3    Transfers......................................................................................     15

 

   Section 6.4    Fixing Record Dates............................................................................     15

 

   Section 6.5    Registered Stockholders........................................................................     17

 

ARTICLE VII OTHER SECURITIES OF THE CORPORATION..................................................................     17

 

ARTICLE VIII CORPORATE SEAL......................................................................................     17

 

ARTICLE IX INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS..........................................     18

 

   Section 9.1    Right to Indemnification.......................................................................     18

 

   Section 9.2    Authority to Advance Expenses..................................................................     18

 

   Section 9.3    Right of Claimant to Bring Suit................................................................     19

 

   Section 9.4    Provisions Nonexclusive........................................................................     19

 

   Section 9.5    Authority to Insure............................................................................     19

 

   Section 9.6    Survival of Rights.............................................................................     19

 

   Section 9.7    Settlement of Claims...........................................................................     19

 

   Section 9.8    Effect of Amendment............................................................................     20

 

   Section 9.9    Subrogation....................................................................................     20

 

   Section 9.10   No Duplication of Payments.....................................................................     20

 

ARTICLE X  NOTICES...............................................................................................     20

 

ARTICLE XI AMENDMENTS............................................................................................     21

</TABLE>

 

                                       ii

<PAGE>

                              AMENDED AND RESTATED

 

                                     BYLAWS

 

                                       OF

 

                        DYNAVAX TECHNOLOGIES CORPORATION

 

                            (A DELAWARE CORPORATION)

 

                                    ARTICLE I

 

                                     OFFICES

 

SECTION 1.1 REGISTERED OFFICE.

 

         The registered office of the corporation in the State of Delaware shall

be in the City of Wilmington, County of New Castle.

 

SECTION 1.2 OTHER OFFICES.

 

         The corporation shall also have and maintain an office or principal

place of business at 717 Potter Street, Suite 100, Berkeley, California 94710,

and may also have offices at such other places, both within and without the

State of Delaware as the Board of Directors may from time to time determine or

the business of the corporation may require.

 

                                   ARTICLE II

 

                             STOCKHOLDERS' MEETINGS

 

SECTION 2.1 PLACE OF MEETINGS.

 

         (a) Meetings of stockholders may be held at such place, either within

or without this State, as may be designated, by or in the manner provided in

these bylaws or, if not so designated, as determined by the Board of Directors.

The Board of Directors may, in its sole discretion, determine that the meeting

shall not be held at any place, but may instead be held solely by means of

remote communication as authorized by paragraph (b) of this Section 2.1.

 

         (b) If authorized by the Board of Directors in its sole discretion, and

subject to such guidelines and procedures as the Board of Directors may adopt,

stockholders and proxyholders not physically present at a meeting of

stockholders may, by means of remote communication:

 

             (1) Participate in a meeting of stockholders; and

 

             (2) Be deemed present in person and vote at a meeting of

stockholders whether such meeting is to be held at a designated place or solely

by means of remote communication, provided that (A) the corporation shall

implement reasonable measures to verify that each person deemed present and

permitted to vote at the meeting by means of remote communication is a

stockholder or proxyholder, (B) the corporation shall implement reasonable

measures to provide such stockholders and proxyholders a reasonable opportunity

to participate in the meeting and to vote on matters submitted to the

stockholders, including an opportunity to read or hear the proceedings of the

meeting substantially concurrently with such proceedings, and (C) if any

stockholder or proxyholder votes or takes other action at the meeting by means

of remote communication, a record of such vote or other action shall be

maintained by the corporation.

 

         (c) For purposes of this Section 2.1, "remote communication" shall

include (1) telephone or other voice communications and (2) electronic mail or

other form of written or visual electronic communications satisfying the

requirements of Section 2.l1(b).

 

SECTION 2.2 ANNUAL MEETINGS.

 

         The annual meetings of the stockholders of the corporation, for the

purpose of election of directors and for such other business as may lawfully

come before it, shall be held at the hour of 10:00 o'clock a.m. local time, on

the 15th day of May in each year if not a legal holiday, and, if a legal

holiday, at the same hour and place on the next succeeding full business day or

on any other day and time which may be designated by resolution of the Board of

Directors.

 

SECTION 2.3 SPECIAL MEETINGS.

 

         Special Meetings of the stockholders of the corporation may be called,

for any purpose or purposes, by Chairman of the Board, the President, the

Secretary or by the Board of Directors at any time.

 

                                       1

<PAGE>

 

SECTION 2.4 NOTICE OF MEETINGS.

 

         (a)      Except as otherwise provided by law or the Certificate of

Incorporation, written notice of each meeting of stockholders, specifying the

place, if any, date and hour and purpose or purposes of the meeting, and the

means of remote communication, if any, by which stockholders and proxyholders

may be deemed to be present in person and vote at such meeting, shall be given

not less than 10 nor more than 60 days before the date of the meeting to each

stockholder entitled to vote thereat, directed to his address as it appears upon

the books of the corporation; except that where the matter to be acted on is a

merger or consolidation of the Corporation or a sale, lease or exchange of all

or substantially all of its assets, such notice shall be given not less than 20

nor more than 60 days prior to such meeting.

 

         (b)      If at any meeting action is proposed to be taken which, if

taken, would entitle stockholders fulfilling the requirements of section 262(d)

of the Delaware General Corporation Law to an appraisal of the fair value of

their shares, the notice of such meeting shall contain a statement of that

purpose and to that effect and shall be accompanied by a copy of that statutory

section.

 

         (c)      When a meeting is adjourned to another time or place, notice

need not be given of the adjourned meeting if the time, place, if any, thereof,

and the means of remote communication, if any, by which stockholders and

proxyholders may be deemed to be present in person and vote at such adjourned

meeting, are announced at the meeting at which the adjournment is taken unless

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

new record date is fixed for the adjourned meeting, in which event a notice of

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

vote at the meeting.

 

         (d)      Notice of the time, place and purpose of any meeting of

stockholders may be waived in writing, either before or after such meeting, and,

to the extent permitted by law, will be waived by any stockholder by his

attendance thereat, in person or by proxy. Any stockholder so waiving notice of

such meeting shall be bound by the proceedings of any such meeting in all

respects as if due notice thereof had been given.

 

         (e)      Without limiting the manner by which notice otherwise may be

given effectively to stockholders, any notice to stockholders given by the

corporation under any provision of Delaware General Corporation Law, the

Certificate of Incorporation, or these Bylaws shall be effective if given by a

form of electronic transmission consented to by the stockholder to whom the

notice is given. Any such consent shall be revocable by the stockholder by

written notice to the corporation. Any such consent shall be deemed revoked if

(i) the corporation is unable to deliver by electronic transmission two

consecutive notices given by the corporation in accordance with such consent,

and (ii) such inability becomes known to the secretary or an assistant secretary

of the corporation or to the transfer agent or other person responsible for the

giving of notice; provided, however, the inadvertent failure to treat such

inability as a revocation shall not invalidate any meeting or other action.

Notice given pursuant to this subparagraph (e) shall be deemed given: (1) if by

facsimile telecommunication, when directed to a number at which the stockholder

has consented to receive notice; (2) if by electronic mail, when directed to an

electronic mail address at which the stockholder has consented to receive

notice; (3) if by a

 

                                       2

<PAGE>

 

posting on an electronic network together with separate notice to the

stockholder of such specific posting, upon the later of (A) such posting and (B)

the giving of such separate notice; and (4) if by any other form of electronic

transmission, when directed to the stockholder. An affidavit of the secretary or

an assistant secretary or of the transfer agent or other agent of the

corporation that the notice has been given by a form of electronic transmission

shall, in the absence of fraud, be prima facie evidence of the facts stated

therein. For purposes of these bylaws, "electronic transmission" means any form

of communication, not directly involving the physical transmission of paper,

that creates a record that may be retained, retrieved and reviewed by a

recipient thereof, and that may be directly reproduced in paper form by such a

recipient through an automated process.

 

SECTION 2.5 QUORUM AND VOTING.

 

         (a)      At all meetings of stockholders except where otherwise

provided by law, the Certificate of Incorporation or these Bylaws, the presence,

in person or by proxy duly authorized, of the holders of a majority of the

outstanding shares of stock entitled to vote shall constitute a quorum for the

transaction of business. Shares, the voting of which at said meeting have been

enjoined, or which for any reason cannot be lawfully voted at such meeting,

shall not be counted to determine a quorum at said meeting. In the absence of a

quorum, any meeting of stockholders may be adjourned, from time to time, by vote

of the holders of a majority of the shares represented thereat, but no other

business shall be transacted at such meeting. At such adjourned meeting at which

a quorum is present or represented, any business may be transacted which might

have been transacted at the original meeting. The stockholders present at a duly

called or convened meeting at which a quorum is present may continue to transact

business until adjournment, notwithstanding the withdrawal of enough

stockholders to leave less than a quorum.

 

         (b)      Except as otherwise provided by law, the Certificate of

Incorporation or these Bylaws, all action taken by the holders of a majority of

the voting power represented at any meeting at which a quorum is present shall

be valid and binding upon the corporation.

 

         (c)      Where a separate vote by a class or classes is required, a

majority of the outstanding shares of such class or classes present in person or

represented by proxy shall constitute a quorum entitled to take action with

respect to that vote on that matter, and the affirmative vote of the majority of

shares of such class or classes present in person or represented by proxy at the

meeting shall be the act of such class.

 

SECTION 2.6 VOTING RIGHTS.

 

         (a)      Except as otherwise provided by law, only persons in whose

names shares entitled to vote stand on the stock records of the corporation on

the record date for determining the stockholders entitled to vote at said

meeting shall be entitled to vote at such meeting. Shares standing in the names

of two or more persons shall be voted or represented in accordance with the

determination of the majority of such persons, or, if only one of such persons

is present in person or represented by proxy, such person shall have the right

to vote such shares and such shares shall be deemed to be represented for the

purpose of determining a quorum.

 

                                       3

<PAGE>

 

         (b)      Every person entitled to vote or to execute consents shall

have the right to do so either in person or by an agent or agents authorized by

a written proxy executed by such person or his duly authorized agent, which

proxy shall be filed with the Secretary of the corporation at or before the

meeting at which it is to be used. Said proxy so appointed need not be a

stockholder. No proxy shall be voted on after three (3) years from its date

unless the proxy provides for a longer period. Unless and until voted, every

proxy shall be revocable at the pleasure of the person who executed it or of his

legal representatives or assigns, except in those cases where an irrevocable

proxy permitted by statute has been given.

 

         (c)      Without limiting the manner in which a stockholder may

authorize another person or persons to act for him as proxy pursuant to

subsection (b) of this section, the following shall constitute a valid means by

which a stockholder may grant such authority:

 

                  (1)      A stockholder may execute a writing authorizing

another person or persons to act for him as proxy. Execution may be accomplished

by the stockholder or his authorized officer, director, employee or agent

signing such writing or causing his or her signature to be affixed to such

writing by any reasonable means including, but not limited to, by facsimile

signature.

 

                  (2)      A stockholder may authorize another person or persons

to act for him as proxy by transmitting or authorizing the transmission of a

telephone, telegram, cablegram or other means of electronic transmission to the

person who will be the holder of the proxy or to a proxy solicitation firm,

proxy support service organization or like agent duly authorized by the person

who will be the holder of the proxy to receive such transmission, provided that

any such telephone, telegram, cablegram or other means of electronic

transmission must either set forth or be submitted with information from which

it can be determined that the telephone, telegram, cablegram or other electronic

transmission was authorized by the stockholder. Such authorization can be

established by the signature of the stockholder on the proxy, either in writing

or by a signature stamp or facsimile signature, or by a number or symbol from

which the identity of the stockholder can be determined, or by any other

procedure deemed appropriate by the inspectors or other persons making the

determination as to due authorization.

 

If it is determined that such telegrams, cablegrams or other electronic

transmissions are valid, the inspectors or, if there are no inspectors, such

other persons making that determination shall specify the information upon which

they relied.

 

         (d)      Any copy, facsimile telecommunication or other reliable

reproduction of the writing or transmission created pursuant to subsection (c)

of this section may be substituted or used in lieu of the original writing or

transmission for any and all purposes for which the original writing or

transmission could be used, provided that such copy, facsimile telecommunication

or other reproduction shall be a complete reproduction of the entire original

writing or transmission.

 

SECTION 2.7 VOTING PROCEDURES AND INSPECTORS OF ELECTIONS.

 

         (a)      The corporation shall, in advance of any meeting of

stockholders, appoint one or more inspectors to act at the meeting and make a

written report thereof. The corporation may

 

                                       4

<PAGE>

 

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 a 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 duties, shall take and sign an oath faithfully to execute the

duties of inspector with strict impartiality and according to the best of his

ability.

 

         (b)      The inspectors shall (i) ascertain the number of shares

outstanding and the voting power of each, (ii) determine the shares represented

at a meeting and the validity of proxies and ballots, (iii) count all votes and

ballots, (iv) determine and retain for a reasonable period a record of the

disposition of any challenges made to any determination by the inspectors, and

(v) 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 or entities to assist the inspectors in the performance of

the duties of the inspectors.

 

         (c)      The date and time of the opening and the closing of the polls

for each matter upon which the stockholders will vote at a meeting shall be

announced at the meeting. No ballot, proxies or votes, nor any revocations

thereof or changes thereto, shall be accepted by the inspectors after the

closing of the polls unless the Court of Chancery upon application by a

stockholder shall determine otherwise.

 

         (d)      In determining the validity and counting of proxies and

ballots, the inspectors shall be limited to an examination of the proxies, any

envelopes submitted with those proxies, any information provided in accordance

with Sections 211(e) or 212(c)(2) of the Delaware General Corporation Law, or

any information provided pursuant to Section 211(a)(2)(B)(i) or (iii) thereof,

ballots and the regular books and records of the corporation, except that the

inspectors may 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 the limited purpose permitted herein, the inspectors at the time

they make their certification pursuant to subsection (b)(v) of this section

shall 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 2.8   LIST OF STOCKHOLDERS.

 

         The officer 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 said meeting, arranged in

alphabetical order, showing the address of and the number of shares registered

in the name of each stockholder. The corporation need not include electronic

mail addresses or other electronic contact information on such list. Such list

shall be open to the examination of any stockholder for any purpose germane to

the meeting for a period of at least 10 days prior to the meeting: (i) on a

reasonably accessible electronic network, provided that the information required

to gain access to such list is provided with the notice of the meeting, or (ii)

during ordinary business hours at the principal place of business of the

corporation. In the event

 

                                       5

<PAGE>

 

that the corporation determines to make the list available on an electronic

network, the corporation may take reasonable steps to ensure that such

information is available only to stockholders of the corporation. If the meeting

is to be held at a place, then the list shall 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. If the meeting is to be held solely by means of

remote communication, then the list shall also be open to the examination of any

stockholder during the whole time of the meeting on a reasonably accessible

electronic network, and the information required to access such list shall be

provided with the notice of the meeting.

 

SECTION 2.9 STOCKHOLDER PROPOSALS AT ANNUAL MEETINGS.

 

         At an annual meeting of the stockholders, only such business shall be

conducted as shall have been properly brought before the meeting. To be properly

brought before an annual meeting, business must be specified in the notice of

meeting (or any supplement thereto) given by or at the direction of the Board of

Directors, otherwise properly brought before the meeting by or at the direction

of the Board of Directors, or otherwise properly brought before the meeting by a

stockholder. In addition to any other applicable requirements for business to be

properly brought before an annual meeting by a stockholder, the stockholder must

have given timely notice thereof in writing to the Secretary of the corporation.

To be timely a stockholder's notice must be delivered to or mailed and received

at the principal executive offices of the corporation not less than 60 days nor

more than 90 days prior to the one year anniversary of the date of the previous

year's annual meeting of stockholders (or the date on which the corporation

mails its proxy materials for the current year if during the prior year the

corporation did not hold an annual meeting or if the date of the annual meeting

was changed more than 30 days from the prior year). A stockholder's notice to

the Secretary shall set forth as to each matter the stockholder proposes to

bring before the annual meeting (i) a brief description of the business desired

to be brought before the annual meeting and the reasons for conducting such

business at the annual meeting, (ii) the name and record address of the

stockholder proposing such business, (iii) the class and number of shares of the

corporation which are beneficially owned by the stockholder, and (iv) any

material interest of the stockholder in such business.

 

         Notwithstanding anything in the Bylaws to the contrary, no business

shall be conducted at the annual meeting except in accordance with the

procedures set forth in Section 2.1 and this Section 2.9, provided, however,

that nothing in this Section 2.9 shall be deemed to preclude discussion by any

stockholder of any business properly brought before the annual meeting in

accordance with said procedure.

 

         The Chairman of an annual meeting shall, if the facts warrant,

determine and declare to the meeting that business was not properly brought

before the meeting in accordance with the provisions of Section 2.1 and this

Section 2.9, and if he should so determine he shall so declare to the meeting,

and any such business not properly brought before the meeting shall not be

transacted.

 

         Nothing in this Section 2.9 shall affect the right of a stockholder to

request inclusion of a proposal in the corporation's proxy statement to the

extent that such right is provided by an applicable rule of the Securities and

Exchange Commission.

 

                                       6

<PAGE>

 

SECTION 2.10 NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF DIRECTORS.

 

         In addition to any other applicable requirements, only persons who are

nominated in accordance with the following procedures shall be eligible for

election as directors. Nominations of persons for election to the Board of

Directors of the corporation may be made at a meeting of stockholders by or at

the direction of the Board of Directors, by any nominating committee or person

appointed by the Board of Directors or by any stockholder of the corporation

entitled to vote for the election of directors at the meeting who complies with

the notice procedures set forth in this Section 2.10. Such nominations, other

than those made by or at the direction of the Board of Directors, shall be made

pursuant to timely notice in writing to the Secretary of the corporation. To be

timely a stockholder's notice must be delivered to or mailed and received at the

principal executive offices of the corporation not less than 60 days nor more

than 90 days prior to the one year anniversary of the date of the previous

year's annual meeting of stockholders (or the date on which the corporation

mails its proxy materials for the current year if during the prior year the

corporation did not hold an annual meeting or if the date of the annual meeting

was changed more than 30 days from the prior year). Such stockholder's notice

shall set forth (a) as to each person whom the stockholder proposes to nominate

for election or re-election as a director, (i) the name, age, business address

and residence address of the person, (ii) the principal occupation or employment

of the person, (iii) the class and number of shares of the corporation which are

beneficially owned by the person, and (iv) any other information relating to the

person that is required to be disclosed in solicitations for proxies for

election of directors pursuant to Rule 14a under the Securities Exchange Act of

1934; and (b) as to the stockholder giving the notice, (i) the name and record

address of the stockholder, and (ii) the class and number of shares of the

corporation which are beneficially owned by the stockholder. 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. No person shall be eligible

for election as a director of the corporation unless nominated in accordance

with the procedures set forth herein. These provisions shall not apply to

nomination of any persons entitled to be separately elected by holders of

preferred stock.

 

         The Chairman of the meeting shall, if the facts warrant, determine and

declare to the meeting that a nomination was not made in accordance with the

foregoing procedure, and if he should so determine, he shall so declare to the

meeting and the defective nomination shall be disregarded.

 

 

                                       7

<PAGE>

 

SECTION 2.11 ACTION WITHOUT MEETING.

 

         The stockholders of the Corporation may not take action by written

consent without a meeting but must take any such action at a duly called annual

or special meeting.

 

                                   ARTICLE III

 

                                    DIRECTORS

 

SECTION 3.1 NUMBER AND TERM OF OFFICE.

 

         The number of directors of the corporation shall not be less than six

(6) nor more than eleven (11) until changed by amendment of the Certificate of

Incorporation or by a Bylaw amending this Section 3.1 duly adopted by the vote

or written consent of holders of a majority of the outstanding shares or by the

Board of Directors. The exact number of directors shall be fixed from time to

time, within the limits specified in the Certificate of Incorporation or in this

Section 3.1, by a bylaw or amendment thereof duly adopted by the vote of a

majority of the shares entitled to vote represented at a duly held meeting at

which a quorum is present, or by the written consent of the holders of a

majority of the outstanding shares entitled to vote, or by the Board of

Directors. Subject to the foregoing provisions for changing the number of

directors, the number of directors of the corporation has been fixed at seven

(7).

 

         The directors shall be divided into three classes, designated Class I,

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

directors permits. The provisions described herein with respect to the

corporation's classified board are in addition to the provisions in the

corporation's Certificate of Incorporation (and such provisions of the

corporation's Certificate of Incorporation shall govern in case of a conflict

with the provisions hereof). If the number of directors is changed, any increase

or decrease shall be apportioned among the classes so as to maintain the number

of directors in each class as nearly equal as possible, and any additional

directors of any class elected to fill a vacancy resulting from an increase in

such class shall hold office for a term that shall coincide with the remaining

term of that class, but in no case will a decrease in the number of directors

shorten the term of any incumbent director. Notwithstanding the foregoing,

whenever the holders of any one or more classes or series of Preferred Stock

issued by the corporation shall have the right, voting separately by class or

series, to elect directors at an annual or special meeting of stockholders, the

election, term of office, filling of vacancies and other features of such

directorships shall be governed by the applicable terms of these Bylaws and any

certificate of designation creating such class or series of Preferred Stock, and

such directors so elected shall not be divided into classes pursuant to this

Section 3.1 unless expressly provided by such terms.

 

With the exception of the first Board of Directors, which shall be elected by

the incorporators, and except as provided in Section 3.3 of this Article III,

the directors shall be elected by a plurality vote of the shares represented in

person or by proxy, at the stockholders annual meeting in each year and entitled

to vote on the election of directors. Elected directors shall hold office until

the next annual meeting for the years in which their terms expire and until

their successors shall be duly elected and

 

                                       8

<PAGE>

 

qualified. Directors need not be stockholders. If, for any cause, the Board of

Directors shall not have been elected at an annual meeting, they may be elected

as soon thereafter as convenient at a special meeting of the stockholders called

for that purpose in the manner provided in these Bylaws.

 

SECTION 3.2 POWERS.

 

         The powers of the corporation shall be exercised, its business

conducted and its property controlled by or under the direction of the Board of

Directors.

 

SECTION 3.3 VACANCIES.

 

         Vacancies and newly created directorships resulting from any increase

in the authorized number of directors may be filled by a majority of the

directors then in office, although less than a quorum, or by a sole remaining

director, and each director so elected shall hold office for the unexpired

portion of the term of the director whose place shall be vacant and until his

successor shall have been duly elected and qualified. A vacancy in the Board of

Directors shall be deemed to exist under this section in the case of the death,

removal or resignation of any director, or if the stockholders fail at any

meeting of stockholders at which directors are to be elected (including any

meeting referred to in Section 3.4 below) to elect the number of directors then

constituting the whole Board.

 

SECTION 3.4 RESIGNATIONS AND REMOVALS.

 

         (a)      Any director may resign at any time by delivering his

resignation to the Secretary in writing or by electronic transmission, such

resignation to specify whether it will be effective at a particular time, upon

receipt by the Secretary or at the pleasure of the Board of Directors. If no

such specification is made it shall be deemed effective at the pleasure of the

Board of Directors. When one or more directors shall resign from the Board

effective at a future date, a majority of the directors then in office,

including those who have so resigned, shall have power to fill such vacancy or

vacancies, the vote thereon to take effect when such resignation or resignations

shall become effective, and each director so chosen shall hold office for the

unexpired portion of the term of the director whose place shall be vacated and

until his successor shall have been duly elected and qualified.

 

         (b)      At a special meeting of stockholders called for the purpose in

the manner hereinabove provided, the Board of Directors or any individual

director may be removed from office, with or without cause, and a new director

or directors elected by a vote of stockholders holding a majority outstanding

shares entitled to vote at an election of directors unless the certificate of

incorporation otherwise provides.

 

SECTION 3.5 MEETINGS.

 

         (a)      The annual meeting of the Board of Directors shall be held

immediately after the annual stockholders' meeting and at the place where such

meeting is held or at the place announced by the Chairman at such meeting. No

notice of an annual meeting of the Board of

 

                                       9

<PAGE>

 

Directors shall be necessary, and such meeting shall be held for the purpose of

electing officers and transacting such other business as may lawfully come

before it.

 

         (b)      Except as hereinafter otherwise provided, regular meetings of

the Board of Directors shall be held in the office of the corporation required

to be maintained pursuant to Section 1.2 of Article I hereof. Regular meetings

of the Board of Directors may also be held at any place, within or without the

State of Delaware, which has been designated by resolutions of the Board of

Directors or the written consent of all directors.

 

         (c)      Special meetings of the Board of Directors may be held at any

time and place within or without the State of Delaware whenever called by the

Chairman of the Board or the President or any vice president or the Secretary of

the corporation or any two (2) directors.

 

         (d)      Written notice of the time and place of all regular and

special meetings of the Board of Directors shall be delivered personally to each

director or sent by telegram or facsimile transmission or other form of

electronic transmission at least 48 hours before the start of the meeting, or

sent by first class mail at least 120 hours before the start of the meeting.

Notice of any meeting may be waived in writing at any time before or after the

meeting and will be waived by any director by attendance thereat.

 

SECTION 3.6 QUORUM AND VOTING.

 

         (a)      EXECUTIVE COMMITTEE: The Board of Directors may appoint an

Executive Committee of not less than one member, each of whom shall be a

director. The Executive Committee, to the extent permitted by law, shall have

and may exercise, when the Board of Directors is not in session, all powers of

he Board in the management of the business and affairs of the corporation,

except such committee shall not have the power or authority to amend these

Bylaws or to approve or recommend to the stockholders any action which must be

submitted to stockholders for approval under the General Corporation Law.

 

         (b)      At each meeting of the Board at which a quorum is present, all

questions and business shall be determined by a vote of a majority of the

directors present, unless a different vote be required by law, the Certificate

of Incorporation, or these Bylaws.

 

         (c)      Any member of the Board of Directors, or of any committee

thereof, may participate in a meeting by means of conference telephone or other

communication equipment by means of which all persons participating in the

meeting can hear each other, and participation in a meeting by such means shall

constitute presence in person at such meeting.

 

         (d)      The transactions of any meeting of the Board of Directors, or

any committee thereof, however called or noticed, or wherever held, shall be as

valid as though had at a meeting duly held after regular call and notice if a

quorum be present and if, either before or after the meeting, each of the

directors not present shall sign a written waiver of notice, or a consent to

holding such meeting, or an approval of the minutes thereof. All such waivers,

consents or approvals shall be filed with the corporate records or made a part

of the minutes of the meeting.

 

                                       10

<PAGE>

 

SECTION 3.7 ACTION WITHOUT MEETING.

 

         Unless otherwise restricted by the Certificate of Incorporation or

these Bylaws, any action required or permitted to be taken at any meeting of the

Board of Directors 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 or by electronic transmission, and such writing or writings

or electronic transmission or transmissions are filed with the minutes of

proceedings of the Board or committee. Such filing shall be in paper form if the

minutes are maintained in paper form and shall be in electronic form if the

minutes are maintained in electronic form.

 

SECTION 3.8 FEES AND COMPENSATION.

 

         Directors and members of committees may receive such compensation, if

any, for their services, and such reimbursement for expenses, as may be fixed or

determined by resolution of the Board of Directors.

 

SECTION 3.9 COMMITTEES.

 

         (a)      EXECUTIVE COMMITTEE: The Board of Directors may appoint an

Executive Committee of not less than one member, each of whom shall be a

director. The Executive Committee, to the extent permitted by law, shall have

and may exercise when the Board of Directors is not in session all powers of

the Board in the management of the business and affairs of the corporation,

except such committee shall not have the power or authority to amend these

Bylaws or to approve or recommend to the stockholders any action which must be

submitted to stockholders for approval under the General Corporation Law.

 

         (b)      OTHER COMMITTEES: The Board of Directors may, by resolution

passed by a majority of the whole Board, from time to time appoint such other

committees as may be permitted by law. Such other committees appointed by the

Board of Directors shall have such powers and perform such duties as may be

prescribed by the resolution or resolutions creating such committee, but in no

event shall any such committee have the powers denied to the Executive Committee

in these Bylaws.

 

         (c)      TERM: The members of all committees of the Board of Directors

shall serve a term coexistent with that of the Board of Directors which shall

have appointed such committee. The Board, subject to the provisions of

subsections (a) or (b) of this Section 3.9, may at any time increase or decrease

the number of members of a committee or terminate the existence of a committee;

provided that no committee shall consist of less than one member. The membership

of a committee member shall terminate on the date of his death or voluntary

resignation, but the Board may at any time for any reason remove any individual

committee member and the Board may fill any committee vacancy created by death,

resignation, removal or increase in the number of members of the committee. The

Board of Directors may designate one or more directors as

 

                                       11

<PAGE>

 

alternate members of any committee, who may replace any absent or disqualified

member at any meeting of the committee, and, in addition, in the absence or

disqualification of any member of a committee, the member or members thereof

present at any meeting and not disqualified from voting, whether or not he or

they constitute a quorum, may unanimously appoint another member of the Board of

Directors to act at the meeting in the place of any such absent or disqualified

member.

 

         (d)      MEETINGS: Unless the Board of Directors shall otherwise

provide, regular meetings of the Executive Committee or any other committee

appointed pursuant to this Section 3.9 shall be held at such times and places as

are determined by the Board of Directors, or by any such committee, and when

notice thereof has been given to each member of such committee, no further

notice of such regular meetings need be given thereafter; special meetings of

any such committee may be held at the principal office of the corporation

required to be maintained pursuant to Section 1.2 of Article I hereof; or at any

place which has been designated from time to time by resolution of such

committee or by written consent of all members thereof, and may be called by any

director who is a member of such committee upon written notice to the members of

such committee of the time and place of such special meeting given in the manner

provided for the giving of written notice to members of the Board of Directors

of the time and place of special meetings of the Board of Directors. Notice of

any special meeting of any committee may be waived in writing at any time after

the meeting and will be waived by any director by attendance thereat. A majority

of the authorized number of members of any such committee shall constitute a

quorum for the transaction of business, and the act of a majority of those

present at any meeting at which a quorum is present shall be the act of such

committee.

 

                                   ARTICLE IV

 

                                    OFFICERS

 

SECTION 4.1 OFFICERS DESIGNATED.

 

         The officers of the corporation shall be a President, a Secretary and a

Treasurer. The Board of Directors or the President may also appoint a Chairman

of the Board, one or more Vice-Presidents, assistant secretaries, assistant

treasurers, and such other officers and agents with such powers and duties as it

or he shall deem necessary. The order of the seniority of the Vice- Presidents

shall be in the order of their nomination unless otherwise determined by the

Board of Directors. The Board of Directors may assign such additional titles to

one or more of the officers as they shall deem appropriate. Any one person may

hold any number of offices of the corporation at any one time unless

specifically prohibited therefrom by law. The salaries and other compensation of

the officers of the corporation shall be fixed by or in the manner designated by

the Board of Directors.

 

SECTION 4.2 TENURE AND DUTIES OF OFFICERS.

 

         (a)      GENERAL: All officers shall hold office at the pleasure of the

Board of Directors and until their successors shall have been duly elected and

qualified, unless sooner removed. Any officer elected or appointed by the Board

of Directors may be removed at any time by the

 

                                       12

<PAGE>

 

Board of Directors. If the office of any officer becomes vacant for any reason,

the vacancy may be filled by the Board of Directors. Nothing in these Bylaws

shall be construed as creating any kind of contractual right to employment with

the corporation.

 

         (b)      DUTIES OF THE CHAIRMAN OF THE BOARD OF DIRECTORS: The Chairman

of the Board of Directors (if there be such an officer appointed) when present

shall preside at all meetings of the stockholders and the Board of Directors.

The Chairman of the Board of Directors shall perform such other duties and have

such other powers as the Board of Directors shall designate from time to time.

 

         (c)      DUTIES OF PRESIDENT: The President shall be the chief

executive officer of the Corporation and shall preside at all meetings of the

stockholders and at all meetings of the Board of Directors, unless the Chairman

of the Board of Directors has been appointed and is present. The President shall

perform such other duties and have such other powers as the Board of Directors

shall designate from time to time.

 

         (d)      DUTIES OF VICE-PRESIDENTS: The Vice-Presidents, in the order

of their seniority, may assume and perform the duties of the President in the

absence or disability of the President or whenever the office of the President

is vacant. The Vice-President shall perform such other duties and have such

other powers as the Board of Directors or the President shall designate from

time to time.

 

         (e)      DUTIES OF SECRETARY: The Secretary shall attend all meetings

of the stockholders and of the Board of Directors and any committee thereof, and

shall record all acts and proceedings thereof in the minute book of the

corporation, which may be maintained in either paper or electronic form. The

Secretary shall give notice, in conformity with these Bylaws, of all meetings of

the stockholders and of all meetings of the Board of Directors and any Committee

thereof requiring notice. The Secretary shall perform such other duties and have

such other powers as the Board of Directors shall designate from time to time.

The President may direct any assistant secretary to assume and perform the

duties of the Secretary in the absence or disability of the Secretary, and each

assistant secretary shall perform such other duties and have such other powers

as the Board of Directors or the President shall designate from time to time.

 

         (f)      DUTIES OF TREASURER: The Treasurer shall keep or cause to be

kept the books of account of the corporation in a thorough and proper manner,

and shall render statements of the financial affairs of the corporation in such

form and as often as required by the Board of Directors or the President. The

Treasurer, subject to the order of the Board of Directors, shall have the

custody of all funds and securities of the corporation. The Treasurer shall

perform all other duties commonly incident to his office and shall perform such

other duties and have such other powers as the Board of Directors or the

President shall designate from time to time. The President may direct any

assistant treasurer to assume and perform the duties of the Treasurer in the

absence or disability of the Treasurer, and each assistant treasurer shall

perform such other duties and have such other powers as the Board of Directors

or the President shall designate from time to time.

 

                                       13

<PAGE>

 

                                    ARTICLE V

 

                     EXECUTION OF CORPORATE INSTRUMENTS, AND

                  VOTING OF SECURITIES OWNED BY THE CORPORATION

 

SECTION 5.1 EXECUTION OF CORPORATE INSTRUMENTS.

 

         (a)      The Board of Directors may in its discretion determine the

method and designate the signatory officer or officers, or other person or

persons, to execute any corporate instrument or document, or to sign the

corporate name without limitation, except where otherwise provided by law, and

such execution or signature shall be binding upon the corporation.

 

         (b)      Unless otherwise specifically determined by the Board of

Directors or otherwise required by law, formal contracts of the corporation,

promissory notes, deeds of trust, mortgages and other evidences of indebtedness

of the corporation, and other corporate instruments or documents requiring the

corporate seal, and certificates of shares of stock owned by the corporation,

shall be executed, signed or endorsed by the Chairman of the Board (if there be

such an officer appointed) or by the President; such documents may also be

executed by any Vice-President and by the Secretary or Treasurer or any

assistant secretary or assistant treasurer. All other instruments and documents

requiring the corporate signature but not requiring the corporate seal may be

executed as aforesaid or in such other manner as may be directed by the Board of

Directors.

 

         (c)      All checks and drafts drawn on banks or other depositaries on

funds to the credit of the corporation or in special accounts of the corporation

shall be signed by such person or persons as the Board of Directors shall

authorize so to do.

 

         (d)      Execution of any corporate instrument may be effected in such

form, either manual, facsimile or electronic signature, as may be authorized by

the Board of Directors.

 

SECTION 5.2 VOTING OF SECURITIES OWNED BY CORPORATION.

 

         All stock and other securities of other corporations owned or held by

the corporation for itself or for other parties in any capacity shall be voted,

and all proxies with respect thereto shall be executed, by the person authorized

so to do by resolution of the Board of Directors or, in the absence of such

authorization, by the Chairman of the Board (if there be such an officer

appointed), or by the President, or by any Vice-President.

 

                                   ARTICLE VI

 

                                 SHARES OF STOCK

 

SECTION 6.1 FORM AND EXECUTION OF CERTIFICATES.

 

         The shares of 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

 

                                       14

<PAGE>

 

series of its stock shall be uncertificated shares. Any such resolution shall

not apply to shares represented by a certificate until such certificate is

surrendered to the corporation. Certificates for the shares of stock of the

corporation shall be in such form as is consistent with the Certificate of

Incorporation and applicable law. Every holder of stock in the corporation shall

be entitled to have a certificate signed by, or in the name of the corporation

by, the Chairman of the Board (if there be such an officer appointed), or by the

President or any Vice-President and by the Treasurer or assistant treasurer or

the Secretary or assistant secretary, certifying the number of shares owned by

him in the corporation. Any or all of the signatures 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 with the same effect as if he were such officer,

transfer agent, or registrar at the date of issue. If the corporation shall be

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, limitations 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 in section 202 of the

Delaware General Corporation 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.

 

SECTION 6.2 LOST CERTIFICATES.

 

         The Board of Directors may direct a new certificate or certificates to

be issued in place of any certificate or certificates theretofore issued by the

corporation alleged to have been lost or destroyed, upon the making of an

affidavit of that fact by the person claiming the certificate of stock to be

lost or destroyed. When authorizing such issue of a new certificate or

certificates, the Board of Directors may, in its discretion and as a condition

precedent to the issuance thereof, require the owner of such lost or destroyed

certificate or certificates, or his legal representative, to indemnify the

corporation in such manner as it shall require and/or to give the corporation a

surety bond in such form and amount as it may direct as indemnity against any

claim that may be made against the corporation with respect to the certificate

alleged to have been lost or destroyed.

 

SECTION 6.3 TRANSFERS.

 

         Transfers of record of shares of stock of the corporation shall be made

only upon its books by the holders thereof, in person or by attorney duly

authorized, and upon the surrender of a certificate or certificates for a like

number of shares, properly endorsed.

 

SECTION 6.4 FIXING RECORD DATES.

 

         (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

 

                                       15

<PAGE>

 

fix a record date, which record date shall not precede the date upon which the

resolution fixing the record date is adopted by the Board of Directors, and

which record date shall not be more than 60 nor less than 10 days before the

date of such meeting. If no record date is fixed by the Board of Directors, the

record date for determining stockholders entitled to notice of or to vote at a

meeting of stockholders shall be 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 date on which the meeting is

held. A determination of stockholders of record entitled 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 consent to corporate action in writing or by electronic transmission

without a meeting, the Board of Directors may fix a record date, which record

date shall not precede the date upon which the resolution fixing the record date

is adopted by the Board of Directors, and which date shall not be more than 10

days after the date upon which the resolution fixing the record date is adopted

by the Board of Directors. If no record date has been fixed by the Board of

Directors, the record date for determining stockholders entitled to consent to

corporate action in writing or by electronic transmission without a meeting,

when no prior action by the Board of Directors is required by the Delaware

General Corporation Law, shall be the first date on which a signed written

consent or electronic transmission setting forth the action taken or proposed to

be taken is delivered to the corporation by delivery to its registered office in

Delaware, its principal place of business, or an officer or agent of the

corporation having custody of the book in which proceedings of meetings of

stockholders are recorded; provided that any such electronic transmission shall

satisfy the requirements of Section 2.11(b) and, unless the Board of Directors

otherwise provides by resolution, no such consent by electronic transmission

shall be deemed to have been delivered until such consent is reproduced in paper

form and until such paper form shall be delivered to the corporation by delivery

to its registered office in Delaware, its principal place of business or an

officer or agent of the corporation having custody of the book in which

proceedings of meetings of stockholders are recorded. Delivery made to a

corporation's registered office shall be by hand or by certified or registered

mail, return receipt requested. If no record date has been fixed by the Board of

Directors and prior action by the Board of Directors is required by law, the

record date for determining stockholders entitled to consent to corporate action

in writing or by electronic transmission without a meeting shall be at the close

of business on the day on which the Board of Directors adopts the resolution

taking such prior action.

 

         (c)      In order that the corporation may determine the stockholders

entitled to receive payment of any dividend or other distribution or allotment

of any rights or the stockholders entitled to exercise any rights in respect of

any change, conversion or exchange of stock, or for the purpose of any other

lawful action, the Board of Directors may fix a record date, which record date

shall not precede the date upon which the resolution fixing the record date is

adopted, and which record date shall be not more than 60 days prior to such

action. If no record date is fixed, the record date for determining stockholders

for any such purpose shall be at the close of business on the day on which the

Board of Directors adopts the resolution relating thereto.

 

                                       16

<PAGE>

 

SECTION 6.5 REGISTERED STOCKHOLDERS.

 

         The corporation shall be entitled to recognize the exclusive right of a

person registered on its books as the owner of shares to receive dividends and

to vote as such owner, and shall not be bound to recognize any equitable or

other claim to or interest in such share or shares on the part of any other

person, whether or not it shall have express or other notice thereof, except as

otherwise provided by the laws of Delaware.

 

                                   ARTICLE VII

 

                       OTHER SECURITIES OF THE CORPORATION

 

         All bonds, debentures and other corporate securities of the

corporation, other than stock certificates, may be signed by the Chairman of the

Board (if there be such an officer appointed), or the President or any

Vice-President or such other person as may be authorized by the Board of

Directors and the corporate seal impressed thereon or a facsimile of such seal

imprinted thereon and attested by the signature of the Secretary or an assistant

secretary, or the Treasurer or an assistant treasurer; provided, however, that

where any such bond, debenture or other corporate security shall be

authenticated by the manual signature of a trustee under an indenture pursuant

to which such bond, debenture or other corporate security shall be issued, the

signature of the persons signing and attesting the corporate seal on such bond,

debenture or other corporate security may be the imprinted facsimile of the

signatures of such persons. Interest coupons appertaining to any such bond,

debenture or other corporate security, authenticated by a trustee as aforesaid,

shall be signed by the Treasurer or an assistant treasurer of the corporation,

or such other person as may be authorized by the Board of Directors, or bear

imprinted thereon the facsimile signature of such person. In case any officer

who shall have signed or attested any bond, debenture or other corporate

security, or whose facsimile signature shall appear thereon has ceased to be an

officer of the corporation or before the bond, debenture or other corporate

security so signed or attested shall have been delivered, such bond, debenture

or other corporate security nevertheless may be adopted by the corporation and

issued and delivered as though the person who signed the same or whose facsimile

signature shall have been used thereon had not ceased to be such officer of the

corporation.

 

                                  ARTICLE VIII

 

                                 CORPORATE SEAL

 

         The corporate seal shall consist of a die bearing the name of the

corporation and the state of its incorporation. Said seal may be used by causing

it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

 

                                       17

<PAGE>

 

                                   ARTICLE IX

 

          INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS

 

SECTION 9.1 RIGHT TO INDEMNIFICATION.

 

         Each person who was or is a party or is threatened to be made a party

to or is involved (as a party, witness, or otherwise), in any threatened,

pending, or completed action, suit, or proceeding, whether civil, criminal,

administrative, or investigative (hereinafter a "Proceeding"), by reason of the

fact that he, or a person of whom he is the legal representative, 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 or of a partnership, joint venture, trust, or other

enterprise, including service with respect to employee benefit plans, whether

the basis of the Proceeding is alleged action in an official capacity as a

director, officer, employee, or agent or in any other capacity while serving as

a director, officer, employee, or agent (hereafter an "Agent"), shall be

indemnified and held harmless by the corporation to the fullest extent

authorized by the Delaware General Corporation Law, as the same exists or may

hereafter be amended or interpreted (but, in the case of any such amendment or

interpretation, only to the extent that such amendment or interpretation permits

the corporation to provide broader indemnification rights than were permitted

prior thereto) against all expenses, liability, and loss (including attorneys'

fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to

be paid in settlement, and any interest, assessments, or other charges imposed

thereon, and any federal, state, local, or foreign taxes imposed on any Agent as

a result of the actual or deemed receipt of any payments under this Article)

reasonably incurred or suffered by such person in connection with investigating,

defending, being a witness in, or participating in (including on appeal), or

preparing for any of the foregoing in, any Proceeding (hereinafter "Expenses");

provided, however, that except as to actions to enforce indemnification rights

pursuant to Section 9.3 of this Article, the corporation shall indemnify any

Agent seeking indemnification in connection with a Proceeding (or part thereof)

initiated by such person only if the Proceeding (or part thereof) was authorized

by the Board of Directors of the corporation. The right to indemnification

conferred in this Article shall be a contract right.

 

SECTION 9.2 AUTHORITY TO ADVANCE EXPENSES.

 

         Expenses incurred by an officer or director (acting in his capacity as

such) in defending a Proceeding shall be paid by the corporation in advance of

the final disposition of such Proceeding, provided, however, that if required by

the Delaware General Corporation Law, as amended, such Expenses shall be

advanced only upon delivery to the corporation of an undertaking by or on behalf

of such director or officer to repay such amount if it shall ultimately be

determined that he is not entitled to be indemnified by the corporation as

authorized in this Article or otherwise. Expenses incurred by other Agents of

the corporation (or by the directors or officers not acting in their capacity as

such, including service with respect to employee benefit plans) may be advanced

upon such terms and conditions as the Board of Directors deems appropriate. Any

obligation to reimburse the corporation for Expense advances shall be unsecured

and no interest shall be charged thereon.

 

                                       18

<PAGE>

 

SECTION 9.3 RIGHT OF CLAIMANT TO BRING SUIT.

 

         If a claim under Section 9.1 or 9.2 of this Article is not paid in full

by the corporation within 90 days after a written claim has been received by the

corporation, the claimant may at any time thereafter bring suit against the

corporation to recover the unpaid amount of the claim and, if successful in

whole or in part, the claimant shall be entitled to be paid also the expense

(including attorneys' fees) of prosecuting such claim. It shall be a defense to

any such action (other than an action brought to enforce a claim for expenses

incurred in defending a Proceeding in advance of its final disposition where the

required undertaking has been tendered to the corporation) that the claimant has

not met the standards of conduct that make it permissible under the Delaware

General Corporation Law for the corporation to indemnify the claimant for the

amount claimed. The burden of proving such a defense shall be on the

corporation. Neither the failure of the corporation (including its Board of

Directors, independent legal counsel, or its stockholders) to have made a

determination prior to the commencement of such action that indemnification of

the claimant is proper under the circumstances because he has met the applicable

standard of conduct set forth in the Delaware General Corporation Law, nor an

actual determination by the corporation (including its Board of Directors,

independent legal counsel, or its stockholders) that the claimant had not met

such applicable standard of conduct, shall be a defense to the action or create

a presumption that claimant has not met the applicable standard of conduct.

 

SECTION 9.4 PROVISIONS NONEXCLUSIVE.

 

         The rights conferred on any person by this Article shall not be

exclusive of any other rights that such person may have or hereafter acquire

under any statute, provision of the Certificate of Incorporation, agreement,

vote of stockholders or disinterested directors, or otherwise, both as to action

in an official capacity and as to action in another capacity while holding such

office. To the extent that any provision of the Certificate, agreement, or vote

of the stockholders or disinterested directors is inconsistent with these

bylaws, the provision, agreement, or vote shall take precedence.

 

SECTION 9.5 AUTHORITY TO INSURE.

 

         The corporation may purchase and maintain insurance to protect itself

and any Agent against any Expense, whether or not the corporation would have the

power to indemnify the Agent against such Expense under applicable law or the

provisions of this Article.

 

SECTION 9.6 SURVIVAL OF RIGHTS.

 

         The rights provided by this Article shall continue as to a person who

has ceased to be an Agent and shall inure to the benefit of the heirs,

executors, and administrators of such a person.

 

SECTION 9.7 SETTLEMENT OF CLAIMS.

 

         The corporation shall not be liable to indemnify any Agent under this

Article (a) for any amounts paid in settlement of any action or claim effected

without the corporation's written consent, which consent shall not be

unreasonably withheld; or (b) for any judicial award if the

 

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corporation was not given a reasonable and timely opportunity, at its expense,

to participate in the defense of such action.

 

SECTION 9.8 EFFECT OF AMENDMENT.

 

         Any amendment, repeal, or modification of this Article shall not

adversely affect any right or protection of any Agent existing at the time of

such amendment, repeal, or modification.

 

SECTION 9.9 SUBROGATION.

 

         In the event of payment under this Article, the corporation shall be

subrogated to the extent of such payment to all of the rights of recovery of the

Agent, who shall execute all papers required and shall do everything that may be

necessary to secure such rights, including the execution of such documents

necessary to enable the corporation effectively to bring suit to enforce such

rights.

 

SECTION 9.10 NO DUPLICATION OF PAYMENTS.

 

         The corporation shall not be liable under this Article to make any

payment in connection with any claim made against the Agent to the extent the

Agent has otherwise actually received payment (under any insurance policy,

agreement, vote, or otherwise) of the amounts otherwise indemnifiable hereunder.

 

                                    ARTICLE X

 

                                     NOTICES

 

         Whenever, under any provisions of these Bylaws, notice is required to

be given to any stockholder, the same shall be given either (1) in writing,

timely and duly deposited in the United States Mail, postage prepaid, and

addressed to his last known post office address as shown by the stock record of

the corporation or its transfer agent, or (2) by a means of electronic

transmission that satisfies the requirements of Section 2.4(e) of these Bylaws,

and has been consented to by the stockholder to whom the notice is given. Any

notice required to be given to any director may be given by either of the

methods hereinabove stated, except that such notice other than one which is

delivered personally, shall be sent to such address or (in the case of

electronic communication) such e-mail address, facsimile telephone number or

other form of electronic address as such director shall have filed in writing or

by electronic communication with the Secretary of the corporation, or, in the

absence of such filing, to the last known post office address of such director.

If no address of a stockholder or director be known, such notice may be sent to

the office of the corporation required to be maintained pursuant to Section 1.2

of Article I hereof. An affidavit of mailing, executed by a duly authorized and

competent employee of the corporation or its transfer agent appointed with

respect to the class of stock affected, specifying the name and address or the

names and addresses of the stockholder or stockholders, director or directors,

to whom any such notice or notices was or were given, and the time and method of

giving the same, shall be conclusive evidence of the statements therein

contained. All notices given by mail, as above provided, shall be deemed to have

been given as at the time of

 

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mailing and all notices given by means of electronic transmission shall be

deemed to have been given as at the sending time recorded by the electronic

transmission equipment operator transmitting the same. It shall not be necessary

that the same method of giving notice be employed in respect of all directors,

but one permissible method may be employed in respect of any one or more, and

any other permissible method or methods may be employed in respect of any other

or others. The period or limitation of time within which any stockholder may

exercise any option or right, or enjoy any privilege or benefit, or be required

to act, or within which any director may exercise any power or right, or enjoy

any privilege, pursuant to any notice sent him in the manner above provided,

shall not be affected or extended in any manner by the failure of such a

stockholder or such director to receive such notice. Whenever any notice is

required to be given under the provisions of the statutes or of the Certificate

of Incorporation, or of these Bylaws, a waiver thereof in writing signed by the

person or persons entitled to said notice, or a waiver by electronic

transmission by the person entitled to notice, whether before or after the time

stated therein, shall be deemed equivalent thereto. Whenever notice is required

to be given, under any provision of law or of the Certificate of Incorporation

or Bylaws of the corporation, to any person with whom communication is unlawful,

the giving of such notice to such person shall not be required and there shall

be no duty to apply to any governmental authority or agency for a license or

permit to give such notice to such person. Any action or meeting which shall be

taken or held without notice to any such person with whom communication is

unlawful shall have the same force and effect as if such notice had been duly

given. In the event that the action taken by the corporation is such as to

require the filing of a certificate under any provision of the Delaware General

Corporation Law, the certificate shall state, if such is the fact and if notice

is required, that notice was given to all persons entitled to receive notice

except such persons with whom communication is unlawful.

 

                                   ARTICLE XI

 

                                   AMENDMENTS

 

         (a)      These Bylaws may be repealed, altered or amended or new Bylaws

adopted by written consent of stockholders in the manner authorized by Section

2.11 of Article II, or at any meeting of the stockholders, either annual or

special, by the affirmative vote of a majority of the stock entitled to vote at

such meeting, unless a larger vote is required by these Bylaws or the

Certificate of Incorporation. The Board of Directors shall also have the

authority to repeal, alter or amend these Bylaws or adopt new Bylaws (including,

without limitation, the amendment of any Bylaws setting forth the number of

directors who shall constitute the whole Board of Directors) by unanimous

written consent or at any annual, regular, or special meeting by the affirmative

vote of a majority of the whole number of directors, subject to the power of the

stockholders to change or repeal such Bylaws and provided that the Board of

Directors shall not make or alter any Bylaws fixing the qualifications,

classifications, or term of office of directors.

 

         (b)      Notwithstanding the foregoing, any amendment, change or repeal

of Sections 2.9, 2.10 or 3.1 of these Bylaws or any other amendment to these

Bylaws that will have the effect of permitting circumvention of or modifying

Sections 2.9, 2.10 or 3.1, shall require the favorable

 

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vote, at a stockholders' meeting, of the holders of at least 66 2/3% of the

then-outstanding shares of stock of the Corporation entitled to vote.

 

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[As filed 2/5/2004]