AMENDED AND RESTATED BYLAWS

 

                                       OF

 

                             RESOURCE AMERICA, INC.

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                                    ARTICLE I

 

                                CORPORATE OFFICES

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1.1  REGISTERED OFFICE

 

     The registered office of the corporation shall be at 49 Bancroft Mills,

Unit 15, in the City of Wilmington, County of New Castle, State of Delaware.

 

1.2  OTHER OFFICES

 

     The board of directors may at any time establish other offices at any place

or places where the corporation is qualified to do business.

 

 

                                   ARTICLE II

 

                            MEETINGS OF STOCKHOLDERS

                            ------------------------

 

2.1  PLACE OF MEETINGS

 

     Meetings of stockholders shall be held at any place, within or outside the

State of Delaware, designated by the board of directors. In the absence of any

such designation, stockholders' meetings shall be held at the principal

executive office of the corporation.

 

 

2.2  ANNUAL MEETING

 

     Annual meetings of the stockholders shall be held, each year, at the time

and on the day designated by resolution of the Board of Directors.

 

     At the annual meeting, the stockholders shall elect one class of the board

of directors, consider reports of the affairs of the corporation and transact

such other business as may be properly brought before the meeting.

 

 

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2.3  SPECIAL MEETING

 

     Special meetings of the stockholders for any purpose may be called by the

Chairman of the Board, President or Secretary, or by resolution of the

directors.

 

 

2.4  NOTICE OF STOCKHOLDERS' MEETINGS

 

     All notices of meetings with stockholders shall be in writing and shall be

sent or otherwise given in accordance with Section 2.5 of these bylaws not less

than ten (10) nor more than sixty (60) days before the date of the meeting to

each stockholder entitled to vote at such meeting. The notice shall specify the

place, date, and hour of the meeting, and, in the case of a special meeting, the

purpose for which the meeting is called.

 

 

2.5  MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE

 

     Written notice of any meeting of stockholders, if mailed, is given when

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

stockholder at such stockholder's address as it appears on the records of the

corporation. An affidavit of the Secretary or an Assistant Secretary or of the

transfer agent of the corporation that the notice has been given shall be, in

the absence of fraud, prima facie evidence of the facts stated therein.

 

 

2.6  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 is neither present nor represented at any such meeting

of the stockholders, then either (i) the Chairman of the meeting or (ii) 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, until a quorum is present or

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

represented, any business may be transacted that might have been transacted at

the meeting as originally noticed.

 

 

2.7  ADJOURNED MEETING; NOTICE

 

     When a meeting is adjourned to another time or place, unless these bylaws

otherwise require, notice need not be given of the adjourned meeting if the time

and place thereof are announced at the meeting at which the adjournment is

taken. At the adjourned meeting the corporation may transact any business that

might have been transacted at the original meeting. If the adjournment is for

more than thirty (30) days, or if after the adjournment a new record date is

fixed for the adjourned meeting, a notice of the adjourned meeting shall be

given to each stockholder of record entitled to vote at the meeting.

 

 

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2.8  CONDUCT OF BUSINESS

 

     The Chairman of any meeting of stockholders shall determine the order of

business and the procedure at the meeting, including such regulation of the

manner of voting and the conduct of business.

 

 

2.9  VOTING

 

     The stockholders entitled to vote at any meeting of stockholders shall be

determined in accordance with the provisions of Section 2.12 of these bylaws.

 

     Except as may be otherwise provided in the certificate of incorporation or

as may be otherwise required by applicable law, each stockholder shall be

entitled to one vote for each share of capital stock held by such stockholder.

 

     Except as may be otherwise provided in the certificate of incorporation or

these bylaws, or as may be otherwise required by applicable law:

 

     (i) in all matters other than the election of directors, the affirmative

vote of the majority of shares present in person or represented by proxy at the

meeting and entitled to vote on the subject matter shall be the act of the

stockholders;

 

     (ii) directors shall be elected by a plurality of the votes of the shares

present in person or represented by proxy at the meeting and entitled to vote on

the election of directors; and

 

     (iii) where a separate vote by a class or classes or series is required,

the affirmative vote of the majority of shares of such class or classes or

series present in person or represented by proxy at the meeting shall be the act

of such class or classes or series.

 

 

2.10 WAIVER OF NOTICE

 

     Whenever notice is required to be given under any provision of this Article

II, a written waiver thereof, signed by the person entitled to notice, whether

before or after the time stated therein, shall be deemed equivalent to notice.

Attendance of a person at a meeting shall constitute a waiver of notice of such

meeting, except when the person attends a meeting for the express purpose of

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

because the meeting is not lawfully called or convened. Neither the business to

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

stockholders need be specified in any written waiver of notice unless so

required by the certificate of incorporation or these bylaws.

 

 

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2.11 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING

 

     Unless otherwise provided in the certificate of incorporation, any action

required to be taken at any annual or special meeting of stockholders of a

corporation, or any action that may be taken at any annual or special meeting of

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

without a 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 thereon were present and voted.

 

     Prompt notice of the taking of the corporate action without a meeting by

less than unanimous written consent shall be given to those stockholders who

have not consented in writing. If the action which is consented to is such as

would have required the filing of a certificate under any section of the General

Corporation Law of Delaware if such action had been voted on by stockholders at

a meeting thereof, then the certificate filed under such section shall state, in

lieu of any statement required by such section concerning any vote of

stockholders, that written notice and written consent have been given as

provided in Section 228 of the General Corporation Law of Delaware.

 

 

2.12 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS

 

     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 entitled 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 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 (60) nor less than ten (10) days before the date of such

meeting, nor more than sixty (60) days prior to any other action.

 

     If the board of directors does not so fix a record date:

 

     (i) 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.

 

     (ii) 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 delivered to the corporation at its principal place of

business.

 

     (iii) 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. A determination of stockholders of

record entitled to notice of or to vote at a meeting of stockholders shall apply

 

 

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to any adjournment of the meeting; provided, however, that the board of

directors may fix a new record date for the adjourned meeting.

 

 

2.13 PROXIES

 

     Each stockholder entitled to vote at a meeting of stockholders or to

express consent or dissent to corporate action in writing without a meeting may

authorize another person or persons to act for the stockholder by a written

proxy, signed by the stockholder and filed with the secretary of the

corporation, but no such proxy shall be voted or acted upon after three (3)

years from its date, unless the proxy provides for a longer period. A proxy

shall be deemed signed if the stockholder's name is placed on the proxy (whether

by manual signature, typewriting, telegraphic transmission or otherwise) by the

stockholder or the stockholder's attorney-in-fact. The revocability of a proxy

that states on its face that it is irrevocable shall be governed by the

provisions of Section 212(e) of the General Corporation Law of Delaware.

 

 

2.14 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS

 

     A stockholder may bring a matter of business or nominations for the

election of directors before a meeting of stockholders only if: (a) such

business may otherwise be properly be brought before the meeting, (b) such

stockholder shall have given, and the corporation shall have received at its

principal executive offices addressed to the Secretary, written notice in proper

form of such matter not less than 90 days prior to the first anniversary date of

the mailing date of the corporation's proxy solicitation materials for the

previous year's annual meeting of stockholders, and (c) in the case of a special

meeting of stockholders, such business is within the purpose or purposes

specified in the notice of the meeting and such stockholder shall have given,

and the corporation shall have received at its principal executive offices

addressed to the Secretary, written notice in proper form of such matter not

less than 90 days prior to the date of the special meeting. To be in proper

form, a stockholder's notice to the secretary shall set forth:

 

     (i) the name and address of the stockholder who intends to make the

nominations, propose the business, and, as the case may be, the name and address

of the person or persons to be nominated or the nature of the business to be

proposed;

 

     (ii) a representation that the stockholder is a holder of record of stock

of the corporation entitled to vote at such meeting and, if applicable, intends

to appear in person or by proxy at the meeting to nominate the person or persons

specified in the notice or introduce the business specified in the notice;

 

     (iii) if applicable, a description of all arrangements or understandings

between the stockholder and each nominee and any other person or persons (naming

such person or persons) pursuant to which the nomination or nominations are to

be made by the stockholder;

 

 

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     (iv) such other information regarding each nominee or each matter of

business to be proposed by such stockholder as would be required to be included

in a proxy statement filed pursuant to the proxy rules of the Securities and

Exchange Commission had the nominee been nominated, or intended to be nominated,

or the matter been proposed, or intended to be proposed by the board of

directors; and

 

     (v) if applicable, the consent of each nominee to serve as director of the

corporation if so elected.

 

     The chairman of the meeting may refuse to acknowledge the nomination of any

person or the proposal of any business not made in compliance with the foregoing

procedure.

 

 

                                   ARTICLE III

 

                                    DIRECTORS

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3.1  POWERS

 

     Subject to the provisions of the General Corporation Law of Delaware and

any limitations in the certificate of incorporation or these bylaws relating to

action required to be approved by the stockholders or by the outstanding shares,

the business and affairs of the corporation shall be managed and all corporate

powers shall be exercised by or under the direction of the board of directors.

 

 3.2  NUMBER OF DIRECTORS

 

     The authorized number of directors shall be nine (9). This number may be

changed by a duly adopted amendment or resolution of a majority of the board of

directors. The directors shall be divided into three classes, which shall be as

nearly equal in number as possible.

 

     No reduction of the authorized number of directors shall have the effect of

removing any director before that director's term of office expires.

 

3.3  ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS

 

     Except as provided in Section 3.4 of these bylaws, each class of directors

shall be elected as set forth in Section 2.9(ii) at each annual meeting of

stockholders. Directors need not be stockholders unless so required by the

certificate of incorporation or these bylaws, wherein other qualifications for

directors may be prescribed. Each director, including a director elected to fill

a vacancy, shall hold office until his or her successor is elected and qualified

or until the director's earlier resignation. At each succeeding annual

stockholder's meeting following such election, the respective successors of each

class shall be elected for three year terms.

 

     Elections of directors need not be by written ballot.

 

 

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3.4  RESIGNATION AND VACANCIES

 

     Any director may resign at any time upon written notice to the attention of

the secretary of the corporation. When one or more directors so resigns and the

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

office, including those who have so resigned, shall have the 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 as provided in this section in the filling of other vacancies.

 

     Any vacancy among the board of directors or newly created directorship

position, occurring from any cause whatsoever, may be filled by a majority vote

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

sole remaining director. Any person elected to fill a vacancy shall hold office

until the next election of the class of directors for which such director has

been chosen and until such successor is elected and qualified.

 

     Whenever the holders of any class or classes of stock or series thereof are

entitled to elect one or more directors by the provisions of the certificate of

incorporation, vacancies and newly created directorships of such class or

classes or series may be filled by a majority of the directors elected by such

class or classes or series thereof then in office, or by a sole remaining

director so elected.

 

3.5  PLACE OF MEETINGS; MEETINGS BY TELEPHONE

 

     The board of directors of the corporation may hold meetings, both regular

and special, either within or outside the State of Delaware.

 

     Unless otherwise restricted by the certificate of incorporation or these

bylaws, 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.

 

3.6  FIRST MEETINGS

 

     The first meeting of each newly elected board of directors shall be held

without notice, provided a quorum is present, immediately following the annual

meeting of stockholders.

 

3.7  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.

 

 

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3.8  SPECIAL MEETINGS; NOTICE

 

     Special meetings of the board of directors for any purpose may be called at

any time by the chairman of the board or the vice chairman of the board.

 

     Notice of the time and place of any special meeting shall be delivered

personally or by telephone, first-class mail or facsimile to each director at

least two (2) days prior to such special meeting.

 

3.9  QUORUM

 

     At all meetings of the board of directors, a majority of the authorized

number of directors 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 is not present at any meeting of the board of

directors, then the directors present thereat may adjourn the meeting from time

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

is present.

 

     A meeting at which a quorum is initially present may continue to transact

business notwithstanding the withdrawal of directors, if any action taken is

approved by at least a majority of the required quorum for that meeting.

 

3.10 WAIVER OF NOTICE

 

     Whenever notice is required to be given under this Article III, a written

waiver thereof, signed by the person entitled to notice, whether before or after

the time stated therein, shall be deemed equivalent to notice. Attendance of a

person at a meeting shall constitute a waiver of notice of such meeting, except

when the person attends a meeting for the express purpose of objecting, at the

beginning of the meeting, to the transaction of any business because the meeting

is not lawfully called or convened. Neither the business to be transacted at,

nor the purpose of, any regular or special meeting of the directors, or members

of a committee of directors, need be specified in any written waiver of notice

unless so required by the certificate of incorporation or these bylaws.

 

3.11 BOARD ACTION BY WRITTEN CONSENT WITHOUT A 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 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.

 

 

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3.12 FEES AND COMPENSATION OF DIRECTORS

 

     Unless otherwise restricted by the certificate of incorporation or these

bylaws, the board of directors shall have the authority to fix the compensation

of directors.

 

3.13 APPROVAL OF LOANS TO OFFICERS

 

     The corporation may lend money to, or guarantee any obligation of, or

otherwise assist any officer or other employee of the corporation or of its

subsidiary, including any officer or employee who is a director of the

corporation or its subsidiary, whenever, in the judgment of the directors, such

loan, guaranty or assistance may reasonably be expected to benefit the

corporation. The loan, guaranty or other assistance may be with or without

interest and may be unsecured, or secured in such manner as the board of

directors shall approve, including, without limitation, a pledge of shares of

stock of the corporation. Nothing in this section contained shall be deemed to

deny, limit or restrict the powers of guaranty or warranty of the corporation at

common law or under any statute.

 

 

                                   ARTICLE IV

 

                                   COMMITTEES

                                   ----------

 

4.1  COMMITTEES OF DIRECTORS

 

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

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

or more of the directors of the corporation. The board may designate one or more

directors as alternate members of any committee, who may replace any absent or

disqualified member at any meeting of the committee. In the absence or

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

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

member or members constitute a quorum, may unanimously appoint another member of

the board of directors to act at the meeting in the place of any such absent or

disqualified member.

 

 

                                    ARTICLE V

 

                                    OFFICERS

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5.1  OFFICERS

 

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

chairman of the board, president, a secretary, a chief operating officer, a

chief financial officer and a treasurer. The corporation may also have, at the

discretion of the board of directors, a chief executive officer, one or more

 

 

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executive, senior or other vice presidents, one or more assistant vice

presidents, one or more assistant secretaries, one or more assistant treasurers,

and any such other officers as may be appointed in accordance with the

provisions of Section 5.3 of these bylaws. Any number of offices may be held by

the same person.

 

5.2  APPOINTMENT OF OFFICERS

 

     The officers of the corporation, except such officers as may be appointed

in accordance with Sections 5.3 of these bylaws, shall be appointed by the board

of directors, subject to the rights, if any, of an officer under any contract of

employment.

 

5.3  SUBORDINATE OFFICERS

 

     The board of directors may appoint, or empower the chief executive officer

to appoint, such other officers and agents as the business of the corporation

may require, each of whom shall hold office for such period, have such

authority, and perform such duties as are provided in these bylaws or as the

board of directors may from time to time determine.

 

 5.4  REMOVAL AND RESIGNATION OF OFFICERS

 

     Subject to the rights, if any, of an officer under any contract of

employment, any officer may be removed, either with or without cause, by an

affirmative vote of the majority of the board of directors at any regular or

special meeting of the board or, except in the case of an officer chosen by the

board of directors, by any officer upon whom such power of removal may be

conferred by the board of directors.

 

     Any officer may resign at any time by giving written notice to the

corporation. Any resignation shall take effect at the date of the receipt of

that notice or at any later time specified in that notice; and, unless otherwise

specified in that notice, the acceptance of the resignation shall not be

necessary to make it effective. Any resignation is without prejudice to the

rights, if any, of the corporation under any contract to which the officer is a

party.

 

5.5  VACANCIES IN OFFICES

 

     Any vacancy occurring in any office of the corporation may be filled by the

board of directors.

 

5.6  CHAIRMAN OF THE BOARD

 

     The chairman of the board, if such an officer be elected, shall, if

present, preside at meetings of the board of directors and exercise and perform

such other powers and duties as may from time to time be assigned to him or her

by the board of directors or as may be prescribed by these bylaws. The chairman

of the board shall be, ex officio, a member of all standing committees. If there

is no chief executive officer and no president, then the chairman of the board

shall also be the chief executive officer of the corporation and shall have the

powers and duties prescribed in Section 5.8 of these bylaws.

 

 

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5.7  VICE CHAIRMAN OF THE BOARD

 

     The vice chairman of the board shall preside at all meetings of the

stockholders and of the board of directors in the absence of the chairman of the

board. In the absence or disability of the chairman of the board, or in the

event that it is impractical for the chairman of the board to act personally, he

shall have the powers and duties of the chairman of the board. The vice chairman

of the board shall also have such other powers or duties as shall be assigned to

him by the board of directors.

 

5.8  CHIEF EXECUTIVE OFFICER

 

     Subject to the supervisory powers, if any, as may be given by the board of

directors to the chairman of the board, if there be such an officer, the chief

executive officer shall, subject to the control of the board of directors, have

general supervision, direction, and control of the business and the officers of

the corporation. In the absence or nonexistence of a chairman of the board or

vice chairman of the board, the chief executive officer shall preside at

meetings of the board of directors and stockholders. The chief executive officer

shall have such other powers and duties as may be prescribed by the board of

directors or these bylaws.

 

5.9   PRESIDENT

 

     In the absence of the chairman of the board, vice chairman of the board or

a chief executive officer, the president shall preside at all meetings of the

board of directors. The president shall have the general powers and duties of

management usually vested in the office of president of a corporation and shall

have such other powers and duties as may be prescribed by the board of directors

or these bylaws. In the absence or disability of the chairman of the board or

vice chairman of the board, or in the event that for any reason it is

impractical for the chairman of the board or vice chairman of the board to act

personally, the president shall have the powers and duties of chairman of the

board and vice chairman of the board.

 

 

5.10 CHIEF OPERATING OFFICER

 

     The chief operating officer shall supervise the property, business and

affairs of the corporation, subject to the direction of the chief executive

officer, in accordance with the policies established by the board of directors

and subject to overall discretion, authority and responsibility of the board of

directors.

 

5.11 VICE PRESIDENTS

 

     In the absence or disability of the president, the vice presidents, if any,

in order of their rank as fixed by the board of directors or, if not ranked, a

vice president designated by the board of directors, shall perform all the

duties of the president and when so acting shall have all the powers of, and be

subject to all the restrictions upon, the president. The vice presidents shall

 

 

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have such other powers and perform such other duties as from time to time may be

prescribed for them respectively by the board of directors, these bylaws, the

president or the chairman of the board.

 

5.12 CHIEF FINANCIAL OFFICER

 

     The chief financial officer shall keep and maintain, or cause to be kept

and maintained, adequate and correct books and records of accounts of the

properties and business transactions of the corporation, including accounts of

its assets, liabilities, receipts, disbursements, gains, losses, capitol

retained earnings, and shares.

 

     The chief financial officer shall deposit all moneys and other valuables in

the name and to the credit of the corporation with such depositories as may be

designated by the board of directors. The chief financial officer shall disburse

the funds of the corporation as may be ordered by the board of directors, shall

render to the president and directors, whenever they request it, an account of

all his or her transactions as chief financial officer and of the financial

condition of the corporation, and shall have other powers and perform such other

duties as may be prescribed by the board of directors or these bylaws.

 

5.13 SECRETARY

 

     The secretary shall keep or cause to be kept, at the principal executive

office of the corporation or such other place as the board of directors may

direct, a book of minutes of all meetings and actions of directors, committees

of directors, and stockholders. The minutes shall show the time and place of

each meeting, whether regular or special (and, if special, how authorized and

the notice given), the names of those present at directors' meetings or

committee meetings, the number of shares present or represented at stockholders'

meetings, and the proceedings thereof.

 

     The secretary shall keep, or cause to be kept, at the principal executive

office of the corporation, at the office of the corporation's transfer agent or

registrar, as determined by resolution of the board of directors, or such other

place as the board of directors may direct, a share register, or a duplicate

share register, showing the names of all stockholders and their addresses, the

number and classes of shares held by each, the number and date of certificates

evidencing such shares, and the number and date of cancellation of every

certificate surrendered for cancellation.

 

     The secretary shall give, or cause to be given, notice of all meetings of

the stockholders and of the board of directors required to be given by law or by

these bylaws. The secretary shall keep the seal of the corporation, if one be

adopted, in safe custody and shall have such other powers and perform such other

duties as may be prescribed by the board of directors or by these bylaws.

 

 

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5.14 TREASURER

 

     The treasurer shall, in the absence of the chief financial officer or in

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

exercise the powers of the chief financial officer and shall perform such other

duties and have such other powers as may be prescribed by the board of directors

or these bylaws.

 

5.15 ASSISTANT SECRETARY

 

     The assistant secretary, or, if there is more than one, the assistant

secretaries in the order determined by the stockholders or 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 or her 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 may be

prescribed by the board of directors or these bylaws.

 

5.16 REPRESENTATION OF SHARES OF OTHER CORPORATIONS

 

     The chairman of the board, the chief executive officer, the president, the

chief operating officer, any vice president, the chief financial officer, the

secretary or the assistant secretary of this corporation, or any other person

authorized by the board of directors or the president or a vice president, is

authorized to vote, represent, and exercise on behalf of this corporation all

rights incident to any and all shares of any other corporation or corporations

standing in the name of this corporation. The authority granted herein may be

exercised either by such person directly or by any other person authorized to do

so by proxy or power of attorney duly executed by such person having the

authority.

 

                                   ARTICLE VI

 

                                    INDEMNITY

                                   ----------

 

6.1  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 attorneys' fees),

judgments, fines and amounts paid in settlement (if such settlement is approved

in advance by the corporation, which approval shall not be unreasonably

withheld) 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

 

 

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

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

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

person reasonably believed to be in or not opposed to the best interest of the

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

reasonable cause to believe that his conduct was unlawful.

 

6.2  ACTIONS BY OR IN THE RIGHT OF THE CORPORATION

 

     The corporation shall indemnify any person who was or is a party or is

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

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

reason of the fact that such person 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) and amounts paid in settlement (if such settlement is approved in advance

by the corporation, which approval shall not be unreasonably withheld) actually

and reasonably incurred by such person in connection with the defense or

settlement of such action or suit if the person acted in good faith and in

manner the person reasonably believed to be in or not opposed to the best

interests of the corporation, except that no indemnification shall be made in

respect of any claim, issue or matter as to which such person shall have been

adjudged to be liable to the corporation unless and only to the extent that the

Delaware 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 Delaware Court of

Chancery or such other court shall deem proper. Notwithstanding any other

provision of this Article VI, no person shall be indemnified hereunder for any

expenses or amounts paid in settlement with respect to any action to recover

short-swing profits under Section 16(b) of the Securities Exchange Act of 1934,

as amended.

 

6.3  SUCCESSFUL DEFENSE

 

     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 6.1 and 6.2, or in defense of

any claim, issue or matter therein, such person shall be indemnified against

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

person in connection therewith.

 

6.4  PAYMENT OF EXPENSES IN ADVANCE

 

     Expenses incurred in defending a civil or criminal action, suit or

proceeding by an individual who may be entitled to indemnification pursuant to

Sections 6.1 or 6.2 shall be paid by the corporation in advance of the final

disposition of such action, suit or proceeding upon receipt of an undertaking by

or on behalf of the director, officer, employee or agent to repay such amount if

it shall ultimately be determined that the individual is not entitled to be

indemnified by the corporation as authorized in this Article VI.

 

 

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6.5  INDEMNITY NOT EXCLUSIVE

 

     The indemnification and advancement of expenses provided by or granted

pursuant to the other sections of this Article VI shall not be deemed exclusive

of any other rights to which those seeking indemnification or advancement of

expenses may be entitled under any by-law, agreement, vote of stockholders or

disinterested directors or otherwise, both as to action in their official

capacity and as to action in another capacity while holding such office.

 

6.6  INSURANCE INDEMNIFICATION

 

     The corporation shall have the power to purchase and maintain insurance on

behalf of any person who is or was a director, officer, employee or agent of the

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

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

venture, trust or other enterprise, against any liability asserted against the

person and incurred by the person in any such capacity or arising out of the

person's status as such, whether or not the corporation would have the power to

indemnify such person against such liability under the provisions of this

Article VI.

 

6.7  THE CORPORATION

 

     For purposes of this Article VI, references to "the corporation" shall

include, in addition to the resulting corporation, any constituent corporation

(including any constituent of a constituent) absorbed in a consolidation or

merger which, if its separate existence had continued, would have had power and

authority to indemnify its directors, officers, and employees or agents, so that

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

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

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

partnership, joint venture, trust or other enterprise, shall stand in the same

position under and subject to the provisions of this Article VI (including,

without limitation, the provisions of Section 6.4) with respect to the resulting

or surviving corporation as the person would have with respect to such

constituent corporation if its separate existence had continued.

 

6.8  EMPLOYEE BENEFIT PLANS

 

     For purposes of this Article VI, references to "other enterprises" shall

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

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

references to "serving at the request of the corporation" shall include any

service as a director, officer, employee or agent of the corporation which

imposes duties on, or involves services by, such director, officer, employee, or

agent with respect to an employee benefit plan, its participants, or

beneficiaries; and a person who acted in good faith and in a manner he

reasonably believed to be in the interest of the participants and beneficiaries

of an employee benefit plan shall be deemed to have acted in a manner "not

opposed to the best interests of the corporation" as referred to in this Article

VI.

 

 

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6.9  CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

 

     The indemnification and advancement of expenses provided by, or granted

pursuant to, this Article VI shall, unless otherwise provided when authorized or

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

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

administrators of such person.

 

 

                                   ARTICLE VII

 

                               RECORDS AND REPORTS

                               -------------------

 

7.1  MAINTENANCE OF RECORDS

 

     The corporation shall, either at its principal executive office or at such

place or places as may be designated by the board of directors, keep a record of

its stockholders listing their names and addresses and the number and class of

shares held by each stockholder, a copy of these bylaws as amended to date,

accounting books, minutes of the proceedings of the board of directors and

stockholders, and other records.

 

 

                                  ARTICLE VIII

 

                                 GENERAL MATTERS

                                 ---------------

 

 

8.1  EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS

 

     The board of directors, except as otherwise provided in these bylaws, may

authorize any officer or officers, or agent or agents, to enter into any

contract or execute any instrument in the name of and on behalf of the

corporation; such authority may be general or confined to specific instances.

Unless so authorized or ratified by the board of directors or within the agency

power of an officer, no officer, agent or employee shall have any power or

authority to bind the corporation by any contract or engagement or to pledge its

credit or to render it liable for any purpose or for any amount.

 

8.2  SPECIAL DESIGNATION ON CERTIFICATES

 

     If the corporation is authorized to issue more than one class of stock or

more than one series of any class, then the powers, the designations, the

preferences, and the 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 that the corporation shall

issue to represent such class or series of stock; provided, however, that,

except as otherwise provided in Section 202 of the General Corporation Law of

 

 

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Delaware, in lieu of the foregoing requirements there may be set forth on the

face or back of the certificate that 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, the designations,

the preferences, and the 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.

 

8.3  LOST CERTIFICATES

 

     Except as provided in this Section 8.3, no new certificates for shares

shall be issued to replace a previously issued certificate unless the latter is

surrendered to the corporation and canceled at the same time. The corporation

may issue, or direct its transfer agent to issue, a new certificate of stock or

uncertificated shares in the place of any certificate theretofore issued by it,

alleged to have been lost, stolen or destroyed, and the corporation may require

the owner of the lost, stolen or destroyed certificate, or the owner's legal

representative, to give the corporation a bond sufficient to indemnify it

against any claim that may be made against it on account of the alleged loss,

theft or destruction of any such certificate or the issuance of such new

certificate or uncertificated shares.

 

8.4  CONSTRUCTION; DEFINITIONS

 

     Unless the context requires otherwise, the general provisions, rules of

construction, and definitions in the Delaware General Corporation Law shall

govern the construction of these bylaws. Without limiting the generality of this

provision, the singular number includes the plural, the plural number includes

the singular, and the term "person" includes both a corporation and a natural

person.

 

8.5  DIVIDENDS

 

     The directors of the corporation, subject to any restrictions contained in

the General Corporation Law of Delaware or the certificate of incorporation, may

declare and pay dividends upon the shares of its capital stock. Dividends may be

paid in cash, in property, or in shares of the corporation's capital stock.

 

     The directors of the corporation may set apart out of any of the funds of

the corporation available for dividends a reserve or reserves for any proper

purpose and may abolish any such reserve. Such purposes shall include but not be

limited to equalizing dividends, repairing or maintaining any property of the

corporation, and meeting contingencies.

 

8.6  FISCAL YEAR

 

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

board of directors and may be changed by the board of directors.

 

 

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8.7  SEAL

 

     The corporation may adopt a corporate seal, which shall be adopted and

which may be altered by the board of directors, and may use the same by causing

it or a facsimile thereof to be impressed or affixed or in any other manner

reproduced.

 

8.8  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, assignment 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 in its books.

 

8.9  STOCK TRANSFER AGREEMENTS

 

     The corporation shall have power to enter into and perform any agreement

with any number of stockholders of any one or more classes of stock of the

corporation to restrict the transfer of shares of stock of the corporation of

any one or more classes owned by such stockholders in any manner not prohibited

by the General Corporation Law of Delaware.

 

8.10 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, shall be entitled to hold liable for calls and

assessments the person registered on its books as the owner of shares, and shall

not be bound to recognize any equitable or other claim to or interest in such

share or shares on the part of another person, whether or not it shall have

express or other notice thereof, except as otherwise provided by the laws of

Delaware.

 

 

                                   ARTICLE IX

 

                                   AMENDMENTS

                                   ----------

 

 

     Except as otherwise set forth herein or as provided by the General

Corporation Law of Delaware, these bylaws may be altered, amended or repealed,

or new bylaws may be adopted by the affirmative vote of a majority of the

directors present at any regular or special meeting of the board of directors at

which a quorum is present.

 

[As Filed: 02-14-2000]