BY-LAWS

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                                       OF

 

                              BRUKER DALTONICS INC.

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                            (A Delaware Corporation)

 

 

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                                     BY-LAWS

 

                                       OF

 

                              BRUKER DALTONICS INC.

 

                            (A Delaware Corporation)

 

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ARTICLE 1........................................................................4

   Section 1.1  Contents.........................................................4

   Section 1.2  Certificate in Effect............................................4

 

ARTICLE 2........................................................................4

   Section 2.1  Place............................................................4

   Section 2.2  Annual Meeting...................................................5

   Section 2.3  Notice of Stockholder Business...................................5

   Section 2.4  Special Meetings.................................................6

   Section 2.5  Notice of Meetings...............................................7

   Section 2.6  Affidavit of Notice..............................................7

   Section 2.7  Quorum...........................................................7

   Section 2.8  Voting Requirements..............................................8

   Section 2.9  Proxies and Voting...............................................8

   Section 2.10  Action Without Meeting..........................................8

   Section 2.11  Stockholder List................................................9

   Section 2.12  Record Date....................................................10

 

ARTICLE 3.......................................................................11

   Section 3.1  Number; Election and Term of Office.............................11

   Section 3.2  Duties..........................................................11

   Section 3.3  Compensation....................................................12

   Section 3.4  Reliance on Books...............................................12

 

ARTICLE 4.......................................................................12

   Section 4.1  Place...........................................................12

   Section 4.2  Annual Meeting..................................................12

   Section 4.3  Regular Meetings................................................13

   Section 4.4  Special Meetings................................................13

   Section 4.5  Quorum..........................................................13

   Section 4.6  Action Without Meeting..........................................13

   Section 4.7  Telephone Meetings..............................................14

 

ARTICLE 5.......................................................................15

   Section 5.1  Designation.....................................................15

   Section 5.2  Records of Meetings.............................................16

 

ARTICLE 6.......................................................................16

   Section 6.1  Method of Giving Notice.........................................16

   Section 6.2  Waiver..........................................................16

 

ARTICLE 7.......................................................................17

   Section 7.1  In General......................................................17

 

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   Section 7.2  Election of President, Secretary and Treasurer..................17

   Section 7.3  Election of Other Officers......................................17

   Section 7.4  Salaries........................................................17

   Section 7.5  Term of Office..................................................17

   Section 7.6  Duties of President and Chairman of the Board...................18

   Section 7.7  Duties of Vice President........................................18

   Section 7.8  Duties of Secretary.............................................19

   Section 7.9  Duties of Assistant Secretary...................................19

   Section 7.10  Duties of Treasurer............................................20

   Section 7.11  Duties of Assistant Treasurer..................................20

 

ARTICLE 8.......................................................................20

   Section 8.1  Directors.......................................................21

   Section 8.2  Officers........................................................22

 

ARTICLE 9.......................................................................22

   Section 9.1  Issuance of Stock...............................................22

   Section 9.2  Right to Certificate; Form......................................22

   Section 9.3  Facsimile Signature.............................................23

   Section 9.4  Lost Certificates...............................................23

   Section 9.5  Transfer of Stock...............................................24

   Section 9.6  Registered Stockholders.........................................24

 

ARTICLE 10......................................................................24

   Section 10.1  Third Party Actions............................................24

   Section 10.2  Derivative Actions.............................................25

   Section 10.3  Expenses.......................................................26

   Section 10.4  Authorization..................................................26

   Section 10.5  Advance Payment of Expenses....................................26

   Section 10.6  Non-Exclusiveness..............................................27

   Section 10.7  Insurance......................................................27

   Section 10.8  Constituent Corporations.......................................27

   Section 10.9  Additional Indemnification.....................................28

 

ARTICLE 11......................................................................28

ARTICLE 12......................................................................28

ARTICLE 13......................................................................29

ARTICLE 14......................................................................29

ARTICLE 15......................................................................29

 

 

 

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                              BRUKER DALTONICS INC.

 

                                     BY-LAWS

 

                                    ARTICLE 1

 

                          CERTIFICATE OF INCORPORATION

 

       SECTION 1.1 CONTENTS. The name, location of principal office and purposes

of the Corporation shall be as set forth in its Certificate of Incorporation.

These By-laws, the powers of the Corporation and of its Directors and

stockholders, and all matters concerning the conduct and regulation of the

business of the Corporation shall be subject to such provisions in regard

thereto, if any, as are set forth in said Certificate of Incorporation. The

Certificate of Incorporation is hereby made a part of these By-laws.

 

       SECTION 1.2 CERTIFICATE IN EFFECT. All references in these By-laws to the

Certificate of Incorporation shall be construed to mean the Certificate of

Incorporation of the Corporation as from time to time amended, including (unless

the context shall otherwise require) all certificates and any agreement of

consolidation or merger filed pursuant to the Delaware General Corporation Law,

as amended.

 

                                    ARTICLE 2

 

                            MEETINGS OF STOCKHOLDERS

 

       SECTION 2.1 PLACE. All meetings of the stockholders may be held at such

place either within or without the State of Delaware as shall be designated from

time to time by the Board of Directors, the Chairman of the Board of Directors

or the President and stated in the notice of the meeting or in any duly executed

waiver of notice thereof.

 

 

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       SECTION 2.2 ANNUAL MEETING. Annual meetings of stockholders, shall be

held on the 2nd Tuesday of April in each year, if not a legal holiday, and if a

legal holiday, then on the next secular day following, at 10:00 A.M., or at such

other date and time as shall be designated from time to time by the Board of

Directors, the Chairman of the Board of Directors or the President and stated in

the notice of the meeting. If such annual meeting has not been held on the day

herein provided therefor, a special meeting of the stockholders in lieu of the

annual meeting may be held, and any business transacted or elections held at

such special meeting shall have the same effect as if transacted or held at the

annual meeting, and in such case all references in these By-laws, except in this

Section 2.2, to the annual meeting of the stockholders shall be deemed to refer

to such special meeting.

 

       SECTION 2.3 NOTICE OF STOCKHOLDER BUSINESS. To be properly brought before

the meeting, business must be of a nature that is appropriate for consideration

at an Annual Meeting and must be (i) specified in the notice of meeting (or any

supplement thereto) given by or at the direction of the Board of Directors, or

(ii) otherwise properly brought before the meeting by or at the direction of the

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

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

be properly brought before the Annual Meeting by a stockholder, the stockholder

must have given timely notice thereof in writing to the Secretary of the

Corporation. To be timely, each such notice must be given either by personal

delivery or by United States mail, postage prepaid, to the Secretary of the

Corporation not later than (1) with respect to a matter to be brought before an

Annual Meeting of Stockholders or a Special Meeting in Lieu of an Annual

Meeting, not later than the close of business on the 90th day nor earlier than

the close of business on the 120th day

 

 

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prior to the date set forth in the By-laws for the Annual Meeting and (2) with

respect to a matter to be brought before a Special Meeting of the Stockholders

not in lieu of an Annual Meeting, the close of business on the tenth day

following the date on which notice of such meeting is first given to

stockholders. The notice shall set forth (i) information concerning the

stockholder, including his or her name and address, (ii) a representation that

the stockholder is entitled to vote at such meeting and intends to appear in

person or by proxy at the meeting to present the matter specified in the notice,

and (iii) such other information as would be required to be included in a proxy

statement soliciting proxies for the presentation of such matter to the meeting.

 

       Notwithstanding anything in these By-laws to the contrary, no business

shall be transacted at the Annual Meeting except in accordance with the

procedures set forth in this section; provided, however, that nothing in this

section shall be deemed to preclude discussion by any stockholder of any

business properly brought before the Annual Meeting in accordance with these

By-laws.

 

       SECTION 2.4 SPECIAL MEETINGS. Special meetings of the stockholders, for

any purpose or purposes, unless otherwise prescribed by statute or by the

Certificate of Incorporation, may be called by the President, the Chairman of

the Board, or by the Board of Directors and shall be called by the President or

Secretary at the request in writing of a majority of the Directors then in

office. Such request shall state the purpose or purposes of the proposed

meeting, which need not be the exclusive purposes for which the meeting is

called. The stockholder shall not have the right, in their capacity as

stockholders, to call a special meeting of the stockholders.

 

       SECTION 2.5 NOTICE OF MEETINGS. A written notice of all meetings of

stockholders stating the place, date and hour of the meeting and, in the case of

a special meeting, the purpose or

 

 

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purposes for which the special meeting is called, shall be given to each

stockholder entitled to vote at such meeting. Except as otherwise provided by

law, such notice shall be given not less than ten nor more than sixty days

before the date of the meeting. Business transacted at any special meeting of

stockholders shall be limited to the purposes stated in the notice.

 

       SECTION 2.6 AFFIDAVIT OF NOTICE. An affidavit of the Secretary or an

Assistant Secretary or the transfer agent of the Corporation that notice of a

stockholders meeting has been given shall, in the absence of fraud, be prima

facie evidence of the facts stated therein.

 

       SECTION 2.7 QUORUM. The holders of a majority of the stock issued and

outstanding and entitled to vote thereat, present in person or represented by

proxy, shall constitute a quorum at all meetings of the stockholders for the

transaction of business except as otherwise provided by statute or by the

Certificate of Incorporation. If, however, such quorum shall not be present or

represented by proxy at any meeting of the stockholders, the stockholders

entitled to vote thereat, present in person or represented by proxy, shall have

power to adjourn the meeting from time to time, without notice other than

announcement at the meeting, except as hereinafter provided, until a quorum

shall be present or represented. At such adjourned meeting at which a quorum

shall be present or represented any business may be transacted which might have

been transacted at the original meeting. If the adjournment is for more than

thirty 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 2.8 VOTING REQUIREMENTS. When a quorum is present at any meeting,

the vote of the holders of a majority of the stock having voting power present

in person or represented by proxy shall decide any question brought before such

meeting, unless the question is one upon

 

 

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which by express provision of any applicable statute or of the Certificate of

Incorporation, a different vote is required in which case such express provision

shall govern and control the decision of such question.

 

       SECTION 2.9 PROXIES AND VOTING. Unless otherwise provided in the

Certificate of Incorporation, each stockholder shall at every meeting of the

stockholders be entitled to one vote in person or by proxy for each share of the

capital stock having voting power held by such stockholder, but no proxy shall

be voted on after three years from its date, unless the proxy provides for a

longer period. Persons holding stock in a fiduciary capacity shall be entitled

to vote the shares so held, and persons whose stock is pledged shall be entitled

to vote the pledged shares, unless in the transfer by the pledgor on the books

of the Corporation he shall have expressly empowered the Pledgee to vote said

shares, in which case only the pledgee, or his proxy, may represent and vote

such shares. Shares of the capital stock of the Corporation owned by the

Corporation shall not be voted, directly or indirectly.

 

       SECTION 2.10 ACTION WITHOUT MEETING. Unless otherwise provided in the

Certificate of Incorporation, until the closing of an underwritten public

offering of the Corporation's Common Stock (a "Public Offering") any action

referred or permitted to be taken at any annual or special meeting of

stockholders may be taken without a meeting, without prior notice and without

vote, if a consent in writing, setting forth the action so taken, is signed by

the holders of outstanding stock having not less than the minimum number of

votes that would be necessary to authorize or take such action at a meeting at

which all shares entitled to vote on such action were present and voted. Prompt

notice of the taking of corporate action without a meeting by less than

unanimous written consent shall be given to those stockholders who have not

consented in writing.

 

 

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Effective upon the closing of a Public Offering, any action required or

permitted to be taken at any annual or special meeting of stockholders may be

taken without a meeting, without prior notice and without vote, only if all

stockholders entitled to vote on the matter consent to the action in writing and

written consents are filed with the records of the meetings of the stockholders.

Such consents shall be treated for all purposes as a vote at a meeting.

 

       SECTION 2.11 STOCKHOLDER LIST. 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

the meeting, arranged in alphabetical order, and showing the address of each

stockholder and the number of shares registered in the name of each stockholder.

Such list shall be open to the examination of any stockholder, for any purpose

germane to the meeting, during ordinary business hours, for a period of at least

ten days prior to the meeting either at a place 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. The original or duplicate stock ledger shall be the only evidence as to

who are the stockholders entitled to examine such list, the stock ledger or the

books of the Corporation, or to vote in person or by proxy at any meeting of

stockholders.

 

       SECTION 2.12 RECORD DATE. In order that the Corporation may determine the

stockholders entitled to notice of or to vote at any meeting of stockholders or

any adjournment thereof, or to express consent to corporate action in writing

without a meeting, or entitled to receive payment of any dividend or other

distribution or allotment of any rights, or entitled to exercise any rights

 

 

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in respect of any change, conversion or exchange of stock or for the purpose of

any other lawful action, the Board of Directors may fix, in advance, a record

date, which shall not be more than sixty nor less than ten days before the date

of such meeting, nor more than sixty days prior to any other action. 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.

 

       If no record date is fixed by the Board of Directors:

 

                (a) 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.

 

                (b) The record date for determining stockholders entitled to

express consent to corporate action in writing without a meeting, when no prior

action by the Board of Directors is necessary, shall be the day on which the

first written consent is expressed.

 

                (c) The record date for determining stockholders for any other

purpose shall be at the close of business on the day on which the Board of

Directors adopts the resolution relating thereto.

 

                                    ARTICLE 3

 

                                    DIRECTORS

 

       SECTION 3.1 NUMBER; ELECTION AND TERM OF OFFICE. There shall be a Board

of Directors of the Corporation consisting of not less than one member, the

number of members to be determined by resolution of the Board of Directors,

unless the Certificate of Incorporation fixes

 

 

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the number of Directors, in which case a change in the number of Directors shall

be made only by amendment of the Certificate. The Board of Directors shall be

divided into such classes for such terms as are provided for in the Certificate

of Incorporation. Subject to any limitation which may be contained within the

Certificate of Incorporation, the number of the Board of Directors may be

increased at any time by vote of a majority of the Directors then in office. The

Directors shall be elected at the annual meeting of the stockholders at which

the term of office of the class to which they have been elected expires, except

as provided in paragraph (c) of Section 8.1, and each Director elected shall

hold office until his successor is elected and qualified or until his earlier

resignation or removal. Directors need not be stockholders.

 

       SECTION 3.2 DUTIES. The business of the Corporation shall be managed by

or under the direction of its Board of Directors which may exercise all such

powers of the Corporation and do all such lawful acts and things as are not by

statute or by the Certificate of Incorporation or by these By-laws directed or

required to be exercised or done by the stockholders.

 

       SECTION 3.3 COMPENSATION. Unless otherwise restricted by the Certificate

of Incorporation or these By-laws, the Board of Directors shall have the

authority to fix the compensation of Directors. The Directors may be paid their

expenses, if any, of attendance at each meeting of the Board of Directors and

may be paid a fixed sum for attendance at each meeting of the Board of Directors

or a stated salary as Directors. No such payment shall preclude any Director

from serving the Corporation in any other capacity and receiving compensation

therefor. Members of special or standing committees may be allowed like

compensation for attending committee meetings.

 

 

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       SECTION 3.4 RELIANCE ON BOOKS. A member of the Board of Directors or a

member of any committee designated by the Board of Directors shall, in the

performance of his duties, be fully protected in relying in good faith upon the

books of account or reports made to the Corporation by any of its officers, or

by an independent certified public accountant, or by an appraiser selected with

reasonable care by the Board of Directors or by any committee, or in relying in

good faith upon other records of the Corporation.

 

                                    ARTICLE 4

 

                       MEETINGS OF THE BOARD OF DIRECTORS

 

       SECTION 4.1 PLACE. The Board of Directors of the Corporation may hold

meetings, both regular and special, either within or without the State of

Delaware.

 

       SECTION 4.2 ANNUAL MEETING. The first meeting of each newly elected

Board of Directors shall be held immediately following the annual meeting of

stockholders or any special meeting held in lieu thereof, and no notice of

such meeting shall be necessary to the newly elected Directors in order

legally to constitute the meeting.

 

       SECTION 4.3 REGULAR MEETINGS. Regular meetings of the Board of Directors

may be held without notice at such time and at such place as shall from time to

time be determined by the Board.

 

       SECTION 4.4 SPECIAL MEETINGS. Special meetings of the Board may be called

by the President on two days' notice to each Director either personally or by

mail or by email; special meetings shall be called by the President or Secretary

in like manner and on like notice on the written request of two Directors unless

the Board consists of only one Director, in which case

 

 

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special meetings shall be called by the President or Secretary in like manner

and on like notice on the written request of the sole Director.

 

       SECTION 4.5 QUORUM. At all meetings of the Board a majority of the

Directors then in office shall constitute a quorum for the transaction of

business and the act of a majority of the Directors present at any meeting at

which there is a quorum shall be the act of the Board of Directors, except as

may be otherwise specifically provided by statute or by the Certificate of

Incorporation. If a quorum shall not be Present at any meeting of the Board of

Directors, the Directors present thereat may adjourn the meeting from time to

time, without notice other than announcement at the meeting, until a quorum

shall be present.

 

       SECTION 4.6 ACTION WITHOUT MEETING. Unless otherwise restricted by the

Certificate of Incorporation or these By-laws, 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 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 4.7 TELEPHONE MEETINGS. Unless otherwise restricted by the

Certificate of Incorporation or these By-laws, members of the Board of

Directors, or any committee designated by the Board of Directors, may

participate in a meeting of the Board of Directors, or any committee, by means

of conference telephone or similar communications equipment by means of which

all persons participating in the meeting can hear each other, and such

participation in a meeting shall constitute presence in person at the meeting.

 

 

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                                    ARTICLE 5

 

                             COMMITTEES OF DIRECTORS

 

       SECTION 5.1  DESIGNATION.

 

                (a) The Board of Directors may, by resolution passed by a

majority of the whole Board, designate one or more committees, including, if the

Board of Directors deems appropriate, an audit committee and a compensation

committee, 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.

 

                (b) 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 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.

 

                (c) Any such committee, to the extent provided in the resolution

of the Board of Directors designating the committee, 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 amending the

Certificate of Incorporation, adopting an agreement of merger or consolidation,

recommending to the stockholders the sale, lease or exchange of all or

substantially all of the Corporation's property and assets, recommending to the

stockholders a dissolution of the Corporation or a revocation of a dissolution,

or amending the By-laws of the Corporation; and, unless the resolution or the

 

 

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Certificate of Incorporation expressly so provide, no such committee shall have

the power or authority to declare a dividend or to authorize the issuance of

stock. Such committee or committees shall have such name or names as may be

determined from time to time by resolution adopted by the Board of Directors.

 

       SECTION 5.2 RECORDS OF MEETINGS. Each committee shall keep regular

minutes of its meetings and report the same to the Board of Directors when

required.

 

                                    ARTICLE 6

                                     NOTICES

 

       SECTION 6.1 METHOD OF GIVING NOTICE. Whenever, under any provision of the

law or of the Certificate of Incorporation or of these By-laws, notice is

required to be given to any Director or stockholder, such notice shall be given

in writing by the Secretary or the person or persons calling the meeting by

leaving such notice with such Director or stockholder at his residence or usual

place of business or by mailing it addressed to such Director or stockholder, at

his address as it appears on the records of the Corporation, with postage

thereon prepaid, and such notice shall be deemed to be given at the time when

the same shall be deposited in the United States mail. Notice to Directors may

also be given by email.

 

       SECTION 6.2 WAIVER. Whenever any notice is required to be given under any

provision of law or of the Certificate of Incorporation or of these By-laws, a

waiver thereof in writing, signed by the person or persons entitled to said

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

equivalent thereto. Attendance of a person at a meeting shall constitute a

waiver of notice of such meeting, except when the person attends the meeting for

the express purpose of

 

 

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objecting at the beginning of the meeting to the transaction of any business

because the meeting is not lawfully called or convened.

 

                                    ARTICLE 7

 

                                    OFFICERS

 

       SECTION 7.1 IN GENERAL. The officers of the Corporation shall be chosen

by the Board of Directors and shall include a President, a Secretary and a

Treasurer. The Board of Directors may also choose a Chairman of the Board, one

or more Vice Presidents, Assistant Secretaries and Assistant Treasurers. Any

number of offices may be held by the same person, unless the Certificate of

Incorporation or these By-laws otherwise provide.

 

       SECTION 7.2 ELECTION OF PRESIDENT, SECRETARY AND TREASURER. The Board of

Directors at its first meeting after each annual meeting of stockholders shall

choose a President, a Secretary and a Treasurer.

 

       SECTION 7.3 ELECTION OF OTHER OFFICERS. The Board of Directors may

appoint such other officers and agents as it shall deem appropriate who shall

hold their offices for such terms and shall exercise such powers and perform

such duties as shall be determined from time to time by the Board.

 

       SECTION 7.4 SALARIES. The salaries of all officers and agents of the

Corporation may be fixed by the Board of Directors.

 

       SECTION 7.5 TERM OF OFFICE. The officers of the Corporation shall hold

office until their successors are chosen and qualify or until their earlier

resignation or removal. Any officer elected or appointed by the Board of

Directors may be removed at any time in the manner specified in Section 8.2.

 

 

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       SECTION 7.6 DUTIES OF PRESIDENT AND CHAIRMAN OF THE BOARD. The Chairman

of the Board shall be the Chief Executive Officer of the Corporation. The

President shall report to the Chairman of the Board and the Chief Executive

Officer and shall preside at all meetings of the stockholders and, if he is a

Director, at all meetings of the Board of Directors. Subject to the control and

direction of the Directors, the President shall have general and active

management of the business of the Corporation and shall see that all orders and

resolutions of the Board of Directors are carried into effect. The President

shall execute bonds, mortgages and other contracts requiring a seal, under the

seal of the Corporation, except where required or permitted by law to be

otherwise signed and executed and except where the signing and execution thereof

shall be expressly delegated by the Board of Directors to some other officer or

agent of the Corporation. The Chairman of the Board, if any, shall make his

counsel available to the other officers of the Corporation, shall be authorized

to sign stock certificates on behalf of the Corporation, shall preside at all

meetings of the Directors at which he is present, and, in the absence of the

President at all meetings of the stockholders, and shall have such other duties

and powers as may from time to time be conferred upon him by the Directors.

 

       SECTION 7.7 DUTIES OF VICE PRESIDENT. In the absence of the President or

in the event of his inability or refusal to act, the Vice President (or in the

event there be more than one Vice President, the Vice Presidents in the order

designated by the Directors, or in the absence of any designation, then in the

order of their election) shall perform the duties of the President not otherwise

conferred upon the Chairman of the Board, if any, and when so acting, shall have

all the powers of and be subject to all the restrictions upon the President. The

Vice Presidents shall

 

 

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

may from time to time prescribe.

 

       SECTION 7.8 DUTIES OF SECRETARY. The Secretary shall attend all meetings

of the Board of Directors and all meetings of the stockholders and record all

the proceedings of the meetings of the Corporation and of the Board of Directors

in a book to be kept for that purpose and shall perform like duties for the

standing committees when required. He shall give, or cause to be given, notice

of all meetings of the stockholders and special meetings of the Board of

Directors, except as otherwise provided in these By-laws, and shall perform such

other duties as may be prescribed by the Board of Directors or President, under

whose supervision he shall be. He shall have charge of the stock ledger (which

may, however, be kept by any transfer agent or agents of the Corporation under

his direction) and of the corporate seal of the Corporation.

 

       SECTION 7.9 DUTIES OF ASSISTANT SECRETARY. The Assistant Secretary, or if

there be more than one, the Assistant Secretaries in the order determined by the

Board of Directors (or if there be no such determination, then in the order of

their election) shall, in the absence of the Secretary or in the event of his

inability or refusal to act, perform the duties and exercise the powers of the

Secretary and shall perform such other duties and have such other powers as the

Board of Directors may from time to time prescribe.

 

       SECTION 7.10 DUTIES OF TREASURER. The Treasurer shall have the custody of

the corporate funds and securities and shall keep full and accurate accounts of

receipts and disbursements in books belonging to the Corporation and shall

deposit all moneys and other valuable effects in the name and to the credit of

the Corporation in such depositories as may be designated by the Board of

Directors. The Treasurer shall disburse the funds of the Corporation as may be

ordered by the

 

 

                                      -18-

<PAGE>

 

Board of Directors, taking proper vouchers for such disbursements, and shall

render to the President and the Board of Directors, at its regular meetings, or

when the Board of Directors so requires, an account of all of his transactions

as Treasurer and of the financial condition of the Corporation. If required by

the Board of Directors, he shall give the Corporation a bond in such sum and

with such surety or sureties as shall be satisfactory to the Board of Directors

for the faithful performance of the duties of this office and for the

restoration to the Corporation, in case of his death, resignation, retirement or

removal from office, of all books, papers, vouchers, money and other property of

whatever kind in his possession or under his control belonging to the

Corporation.

 

       SECTION 7.11 DUTIES OF ASSISTANT TREASURER. The Assistant Treasurer, or

if there shall be more than one, the Assistant Treasurers in the order

determined by the Board of Directors (or if there be no such determination, then

in the order of their election), shall, in the absence of the Treasurer or in

the event of his inability or refusal to act, perform the duties and exercise

the powers of the Treasurer and shall perform such other duties and have such

other powers as the Board of Directors may from time to time prescribe.

 

                                    ARTICLE 8

 

                      RESIGNATIONS, REMOVALS AND VACANCIES

 

       SECTION 8.1  DIRECTORS.

 

                (a) RESIGNATIONS. Any Director may resign at any time by giving

written notice to the Board of Directors or the President or the Secretary. Such

resignation shall take effect at the time specified therein; and unless

otherwise specified therein, the acceptance of such resignation shall not be

necessary to make it effective.

 

 

                                      -19-

<PAGE>

 

                (b) REMOVALS. Subject to any provisions of the Certificate of

Incorporation, any Director or the entire Board of Directors may be removed with

or without cause, at any meeting called for the purpose, by vote of the holders

of a majority of the shares entitled to vote for the election of Directors, or a

majority vote of the Board of Directors. This Section 8.1(b) may not be altered,

amended or repealed except by the holders of a majority of the shares of stock

issued and outstanding and entitled to vote for the election of the Directors.

 

                (c) VACANCIES. Vacancies occurring in the office of Director and

newly created Directorships resulting from any increase in the authorized number

of Directors shall be filled by a majority of the Directors then in office,

though less than a quorum, unless previously filled by the stockholders entitled

to vote for the election of Directors, and the Directors so chosen shall hold

office subject to the By-laws until the next annual meeting of Stockholders at

which the term of office of the class to which they have been elected expires

and until their successors are duly elected and qualify or until their earlier

resignation or removal. If there are no Directors in office, then an election of

Directors may be held in the manner provided by statute.

 

       SECTION 8.2 OFFICERS. Any officer may resign at any time by giving

written notice to the Board of Directors or the President or the Secretary. Such

resignation shall take effect at the time specified therein; and unless

otherwise specified therein, the acceptance of such resignation shall not be

necessary to make it effective. The Board of Directors may, at any meeting

called for the purpose, by vote of a majority of their entire number, remove

from office any officer of the Corporation or any member of a committee, with or

without cause. Any vacancy occurring in the office of President, Secretary or

Treasurer shall be filled by the Board of Directors and the

 

 

                                      -20-

<PAGE>

 

officers so chosen shall hold office subject to the By-laws for the unexpired

term in respect of which the vacancy occurred and until their successors shall

be elected and qualify or until their earlier resignation or removal.

 

                                    ARTICLE 9

 

                              CERTIFICATE OF STOCK

 

       SECTION 9.1 ISSUANCE OF STOCK. The Directors may, at any time and from

time to time, if all of the shares of capital stock which the Corporation is

authorized by its Certificate of Incorporation to issue have not been issued,

subscribed for, or otherwise committed to be issued, issue or take subscriptions

for additional shares of its capital stock up to the amount authorized in its

Certificate of Incorporation. Such stock shall be issued and the consideration

paid therefor in the manner prescribed by law.

 

       SECTION 9.2 RIGHT TO CERTIFICATE; FORM. 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, the President or a Vice

President and the Treasurer or an Assistant Treasurer, or the Secretary or an

Assistant Secretary of the Corporation, certifying the number of shares owned by

him in the Corporation; provided that the Directors may provide by one or more

resolutions that some or all of any or all classes or series of the

Corporation's stock shall be uncertified shares. Certificates may be issued for

partly paid shares and in such case upon the face or back of the certificates

issued to represent any such partly paid shares, the total amount of the

consideration to be paid therefor, and the amount paid thereon shall be

specified.

 

       SECTION 9.3 FACSIMILE SIGNATURE. Any of or all the signatures on the

certificate may be facsimile. In case any officer, transfer agent or registrar

who has signed or whose facsimile

 

 

                                      -21-

<PAGE>

 

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 he were such officer,

transfer agent or registrar at the date of issue.

 

       SECTION 9.4 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,

stolen or destroyed, upon the making of an affidavit of that fact by the person

claiming the certificate of stock to be lost, stolen 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, stolen or destroyed certificate or

certificates, or his legal representative, to advertise the same in such manner

as it shall require and/or to give the Corporation a bond in such sum as it may

direct as indemnity against any claim that may be made against the Corporation

with respect to the certificate alleged to have been lost, stolen or destroyed.

 

       SECTION 9.5 TRANSFER OF STOCK. Upon surrender to the Corporation or the

transfer agent of the Corporation of a certificate for shares duly endorsed or

accompanied by proper evidence of succession, assignation or authority to

transfer, it shall be the duty of the Corporation to issue a new certificate to

the person entitled thereto, cancel the old certificate and record the

transaction upon its books.

 

       SECTION 9.6 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 to hold liable

for calls and assessments a person registered on its books as the owner of

shares, and shall not be bound to recognize any equitable or other claim to

 

 

                                      -22-

<PAGE>

 

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 10

 

                                 INDEMNIFICATION

 

       SECTION 10.1 THIRD PARTY ACTIONS. The Corporation shall indemnify any

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

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

criminal, administrative or investigative (other than an action by or in the

right of the Corporation) by reason of the fact that he is or was a Director,

officer, employee or agent of the Corporation, or is or was serving at the

request of the Corporation as a director, officer, employee or agent of another

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

expenses (including attorney's fees), judgments, fines and amounts paid in

settlement actually and reasonably incurred by him in connection with such

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

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

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

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

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

plea of nolo contendere or its equivalent, shall not, of itself, create a

presumption that the person did not act in good faith and in a manner which he

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

Corporation, and, with respect to any criminal action or proceeding, had

reasonable cause to believe that his conduct was unlawful.

 

       SECTION 10.2 DERIVATIVE ACTIONS. The Corporation shall indemnify any

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

threatened, pending or completed action or

 

 

                                      -23-

<PAGE>

 

suit by or in the right of the Corporation to procure a judgment in its favor by

reason of the fact that he is or was a Director, officer, employee or agent of

the Corporation, or is or was serving at the request of the Corporation as a

director, officer, employee or agent of another corporation, partnership, joint

venture, trust or other enterprise against expenses (including attorneys' fees)

actually and reasonably incurred by him in connection with the defense or

settlement of such action or suit if he acted in good faith and in a manner he

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

Corporation and except that no indemnification shall be made in respect of any

claim, issue or matter as to which such person shall have been adjudged to be

liable for negligence or misconduct in the performance of his duty to the

Corporation unless and only to the extent that the Court of Chancery or the

court in which such action or suit was brought shall determine upon application

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

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

expenses which the Court of Chancery or such other court shall deem proper.

 

       SECTION 10.3 EXPENSES. To the extent that a Director, officer, employee

or agent of the Corporation has been successful on the merits or otherwise in

defense of any action, suit or proceeding referred to in Sections 10.1 and 10.2,

or in defense of any claim, issue or matter therein, he shall be indemnified

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

him in connection therewith.

 

       SECTION 10.4 AUTHORIZATION. Any indemnification under Sections 10.1 and

10.2 (unless ordered by a court) shall be made by the Corporation only as

authorized in the specific case upon a determination that indemnification of the

Director, officer, employee or agent is proper in the circumstances because he

has met the applicable standard of conduct set forth in Sections 10.1

 

 

                                      -24-

<PAGE>

 

and 10.2. Such determination shall be made (a) by the Board of Directors by a

majority vote of a quorum consisting of Directors who were not parties to such

action, suit or proceeding, or (b) if such a quorum is not obtainable, or, even

if obtainable a quorum of disinterested Directors so directs, by independent

legal counsel in a written opinion, or (c) by the stockholders.

 

       SECTION 10.5 ADVANCE PAYMENT OF EXPENSES. Expenses incurred by an officer

or Director in defending a civil or criminal action, suit or proceeding may be

paid by the Corporation in advance of the final disposition of such action, suit

or proceeding as authorized by the Board of Directors in the specific case upon

receipt of an undertaking by or on behalf of such officer or Director to repay

such amount unless it shall ultimately be determined that he is entitled to be

indemnified by the Corporation as authorized in this Article 10. Such expenses

incurred by other employees and agents may be so paid upon such terms and

conditions, if any, as the Board of Directors deems appropriate.

 

       SECTION 10.6 NON-EXCLUSIVENESS. The indemnification provided by this

Article 10 shall not be deemed exclusive of any other rights to which those

seeking indemnification may be entitled under any by-law, 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, and shall continue as to a person who has ceased to be a Director,

officer, employee or agent and shall inure to the benefit of the heirs,

executors and administrators of such a person.

 

       SECTION 10.7 INSURANCE. The Corporation shall have power to purchase and

maintain insurance on behalf of any person who is or was a Director, officer,

employee or agent of the Corporation, or is or was serving at the request of the

Corporation as a director, officer,

 

 

                                      -25-

<PAGE>

 

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

other enterprise against any liability asserted against him and incurred by him

in any such capacity, or arising out of his status as such, whether or not the

Corporation would have the power to indemnify him against such liability under

the provisions of this Article 10.

 

       SECTION 10.8 CONSTITUENT CORPORATIONS. The Corporation shall have power

to indemnify any person who is or was a director, officer, employee or agent of

a constituent corporation absorbed in a consolidation or merger with this

Corporation or is or was serving at the request of such constituent corporation

as a director, officer, employee or agent of another corporation, partnership,

joint venture, trust or other enterprise, in the same manner as hereinabove

provided for any person who is or was a Director, officer, employee or agent of

the Corporation, or is or was serving at the request of the Corporation as a

director, officer, employee or agent of another corporation, partnership, joint

venture, trust or other enterprise.

 

       SECTION 10.9 ADDITIONAL INDEMNIFICATION. In addition to the foregoing

provisions of this Article 10, the Corporation shall have the power, to the full

extent provided by law, to indemnify any person for any act or omission of such

person against all loss, cost, damage and expense (including attorney's fees) if

such person is determined (in the manner prescribed in Section 10.4 hereof) to

have acted in good faith and in a manner he reasonably believed to be in, or not

opposed to, the best interest of the Corporation.

 

                                   ARTICLE 11

 

                               EXECUTION OF PAPERS

 

       Except as otherwise provided in these By-laws or as the Board of

Directors may generally or in particular cases otherwise determine, all deeds,

leases, transfers, contracts, bonds, notes,

 

 

                                      -26-

<PAGE>

 

checks, drafts and other instruments authorized to be executed on behalf of the

Corporation shall be executed by the President or the Treasurer.

 

                                   ARTICLE 12

 

                                   FISCAL YEAR

 

       The fiscal year of the Corporation shall be fixed by resolution of the

Board of Directors.

 

                                   ARTICLE 13

 

                                      SEAL

 

       The Corporate seal shall have inscribed thereon the name of the

Corporation, the year of its organization and the word "Delaware". The seal may

be used by causing it or a facsimile thereof to be impressed or affixed or

reproduced or otherwise.

 

                                   ARTICLE 14

 

                                     OFFICES

 

       In addition to its principal office, the Corporation may 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 15

 

                                   AMENDMENTS

 

       Except as otherwise provided herein, these By-laws may be altered,

amended or repealed or new By-laws may be adopted by the stockholders or by the

Board of Directors, when such power is conferred upon the Board of Directors by

the Certificate of Incorporation, at any regular meeting of the stockholders or

of the Board of Directors, or at any special meeting of the stockholders or of

the Board of Directors if notice of such alteration, amendment, repeal or

adoption of new By-laws is contained in the notice of such special meeting, or

by the written

 

 

                                      -27-

<PAGE>

 

consent of a majority in interest of the outstanding voting stock of the

Corporation or by the unanimous written consent of the Directors. If the power

to adopt, amend or repeal by-laws is conferred upon the Board of Directors by

the Certificate of Incorporation, it shall not divest or limit the power of the

stockholders to adopt, amend or repeal by-laws.

 

[As Filed: 04/14/2000]