AMENDED AND RESTATED

                                     BYLAWS

                                       OF

                                  VOLCOM, INC.

                             A DELAWARE CORPORATION

 

 

                                    ARTICLE I

                                CORPORATE OFFICES

 

      1.1 REGISTERED OFFICE

 

      The registered office of Volcom, Inc., a Delaware corporation (the

"Corporation") shall be in the City of Dover, County of Kent, State of Delaware.

The name of the registered agent of the Corporation at such location is National

Registered Agents, Inc.

 

      1.2 OTHER OFFICES

 

      The Board of Directors of the Corporation ("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 NOTICE OF STOCKHOLDERS' MEETINGS.

 

      Whenever stockholders are required or permitted to take any action at a

meeting, a written notice of the meeting shall be given, which notice shall

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

meeting, the purpose or purposes for which the meeting is called. The written

notice of any meeting shall be given to each stockholder entitled to vote at

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

meeting. If mailed, notice is given when deposited in the United States mail,

postage prepaid, directed to the stockholder at his 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, in the absence of fraud, be prima facie evidence of the facts

stated therein.

 

      2.3 ANNUAL MEETINGS OF STOCKHOLDERS.

 

      (a) The annual meeting of stockholders shall be held each year on a date

and a time designated by the Board of Directors. At each annual meeting

directors shall be elected and only such other business shall be conducted as

shall have been properly brought before the

 

 

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meeting. To be properly brought before an annual meeting, business (including

the nominations of persons for election to the Board of Directors of the

Corporation and any other business to be considered by the stockholders) must be

(i) specified in the notice of meeting (or any supplement thereto) given by or

at the direction of the Board of Directors, (ii) otherwise brought before the

meeting by or at the direction of the Board of Directors or (iii) otherwise

properly brought before the meeting by any stockholder of the Corporation.

 

      (b) For nominations or other business to be properly brought before an

annual meeting by a stockholder pursuant to clause (iii) of paragraph (a) of

this Section 2.3, the stockholder must have given timely notice thereof in

writing to the Secretary of the Corporation and such other business must

otherwise be a proper matter for stockholder action. To be timely, a

stockholder's notice (a "Stockholder Notice") shall be delivered to or mailed

and received at the principal executive offices of the Corporation not later

than the close of business on the ninetieth day nor earlier than the close of

business on the one hundred twentieth day prior to the first anniversary of the

preceding year's annual meeting (provided, however, that in the event that the

date of the annual meeting is more than thirty days before or more than seventy

days after such anniversary date, the Stockholder Notice must be so delivered

not earlier than the close of business on the one hundred twentieth day prior to

such annual meeting and not later than the close of business on the later of the

ninetieth day prior to such annual meeting or the tenth day following the day on

which public announcement of the date of such meeting is first made by the

Corporation). In no event shall the public announcement of an adjournment or

postponement of an annual meeting commence a new time period (or extend any time

period) for the giving of a Stockholder Notice as described above. Such

Stockholder Notice shall set forth: (i) as to each person whom the stockholder

proposes to nominate for election or reelection as a director all information

relating to such person that is required to be disclosed in solicitations of

proxies for election of directors in an election contest, or is otherwise

required, in each case pursuant to Regulation 14A under the Securities Exchange

Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder (and

such person's written consent to being named in a proxy statement as a nominee

and to serving as a director if elected); (ii) as to any other business that the

stockholder proposes to bring before the meeting, a brief description of the

business desired to be brought before the meeting, the text of the proposal or

business (including the text of any resolutions proposed for consideration and

in the event that such business includes a proposal to amend the bylaws of the

Corporation (the "Bylaws"), the language of the proposed amendment) and the

reasons for conducting such business at the meeting; and (iii) as to the

stockholder giving the notice and the beneficial owner, if any, on whose behalf

the nomination or proposal is made (A) the name and address of such stockholder,

as they appear on the Corporation's books, and of such beneficial owner, (B) the

class and number of shares of capital stock of the Corporation that are owned

beneficially and of record by such stockholder and such beneficial owner, (C) a

representation that the stockholder is a holder of record of stock of the

Corporation entitled to vote at such meeting and intends to appear in person or

by proxy at the meeting to propose such business or nomination, (D) any material

interest of the stockholder or such beneficial owner in such business and (E) a

representation whether the stockholder or the beneficial owner, if any, intends,

or is part of a group which intends to: (1) deliver a proxy statement and/or

form of proxy to holders of at least the percentage of the Corporation's

outstanding capital stock required to approve or adopt the proposal or elect the

nominee and/or (2) otherwise solicit proxies from stockholders in support of

such proposal or nomination. The

 

 

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Corporation may require any proposed nominee to furnish such other information

as it may reasonably require to determine the eligibility of such proposed

nominee to serve as a director of the Corporation.

 

      (c) Notwithstanding anything in the second sentence of paragraph (b) of

this Section 2.3 to the contrary, in the event that the number of directors to

be elected to the Board of Directors of the Corporation at an annual meeting is

increased and there is no public announcement by the Corporation naming all of

the nominees for director or specifying the size of the increased Board of

Directors at least one hundred days prior to the first anniversary of the

preceding year's annual meeting, a stockholder's notice required by this Section

2.3 shall also be considered timely, but only with respect to nominees for any

new positions created by such increase, if it shall be delivered to the

Secretary at the principal executive offices of the Corporation not later than

the close of business on the tenth day following the day on which such public

announcement is first made by the Corporation.

 

      (d) For purposes of this Section 2.3 and Section 2.4, "public

announcement" shall mean disclosure in a press release reported by the Dow Jones

News Service, Associated Press or comparable national news service or in a

document publicly filed by the Corporation with the Securities and Exchange

Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

 

      2.4 SPECIAL MEETINGS.

 

      (a) Special meetings of the stockholders, for any purpose or purposes,

unless otherwise prescribed by statute, may only be called in accordance with

the provisions of the restated certificate of incorporation of the Corporation

(the "Certificate of Incorporation"). Business transacted at any special meeting

of stockholders shall be limited to only such business brought before the

meeting pursuant to the Corporation's notice of meeting.

 

      (b) Nominations of persons for election to the Board of Directors may be

made at a special meeting of stockholders at which directors are to be elected

(1) by or at the direction of the Board of Directors in accordance with the

Certificate of Incorporation or (2) provided that the Board of Directors has

specified in its notice of meeting that directors shall be elected at such

meeting, by any stockholder of the Corporation who provides a timely Stockholder

Notice to the Secretary of the Corporation that complies with the notice

procedures set forth in paragraph (b) of Section 2.3. In the event the

Corporation calls a special meeting of stockholders for the purpose of electing

one or more directors to the Board of Directors, any such stockholder of the

Corporation entitled to vote in such election of directors may nominate a person

or persons (as the case may be) for election to such position(s) as specified in

the Corporation's notice of meeting, if the Stockholder Notice required by this

paragraph (b) of this Section 2.4 shall be delivered to the Secretary at the

principal executive offices of the Corporation not earlier than the close of

business on the one hundred twentieth day prior to such special meeting and not

later than the close of business on the later of the ninetieth day prior to such

special meeting, or the tenth day following the day on which public announcement

is first made of the date of the special meeting and of the nominees proposed by

the Board of Directors to be elected at such meeting. In no event shall the

public announcement of an adjournment or

 

 

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postponement of a special meeting commence a new time period (or extend any time

period) for the giving of a Stockholder Notice as described above.

 

      2.5 COMPLIANCE WITH PROCEDURES.

 

      Only such persons who are nominated in accordance with the procedures set

forth in Section 2.3 or Section 2.4, as applicable, shall be eligible to be

elected at an annual or special meeting of stockholders of the Corporation to

serve as directors and only such business shall be conducted at a meeting of

stockholders as shall have been brought before the meeting in accordance with

the procedures set forth in Section 2.3 or Section 2.4, as applicable. Except as

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

chairman of the meeting shall have the power and duty to (i) determine whether a

nomination or any business proposed to be brought before the meeting was made or

proposed, as the case may be, in accordance with the procedures set forth in

Section 2.3 or Section 2.4, as applicable and (ii) if any proposed nomination or

business is not in compliance with Section 2.3 or Section 2.4, as applicable

(including whether the stockholder or beneficial owner, if any, on whose behalf

the nomination or proposal is made solicits (or is part of a group which

solicits), or fails to so solicit (as the case may be), proxies in support of

such stockholder's proposal in compliance with such stockholder's representation

as required by clause (iii)(E) of paragraph (b) of Section 2.3), to declare that

such defective nomination shall be disregarded or that such proposed business

shall not be transacted.

 

      2.6 COMPLIANCE WITH EXCHANGE ACT.

 

      Notwithstanding the provisions of Section 2.3 and Section 2.4, a

stockholder shall also comply with all applicable requirements of the Exchange

Act, and the rules and regulations thereunder, with respect to the matters set

forth in Section 2.3 and Section 2.4. Nothing in either Section 2.3 or Section

2.4 shall be deemed to affect any rights of stockholders to request inclusion of

proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the

Exchange Act.

 

      2.7 QUORUM, ADJOURNMENT.

 

      A majority of the stock issued and outstanding and entitled to vote at any

meeting of stockholders, the holders of which are present in person or

represented by proxy, shall constitute a quorum for the transaction of business

except as otherwise provided by law, by the Certificate of Incorporation, or by

these Bylaws. A quorum, once established, shall not be broken by the withdrawal

of enough votes to leave less than a quorum and the votes present may continue

to transact business until adjournment. If, however, such quorum shall not be

present or represented at any meeting of the stockholders, then either (i) the

Chairman of the meeting or (ii) a majority of the voting stock represented in

person or by proxy may adjourn the meeting from time to time, without notice

other than announcement at the meeting, 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 that might have been transacted at

the meeting as originally notified. If the adjournment is for more than thirty

days, or if after the adjournment a

 

 

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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 thereat.

 

      2.8 VOTE REQUIRED.

 

      When a quorum is present at any meeting, the vote of the holders of a

majority of voting power held by the stockholders present in person or

represented by proxy shall decide any question brought before such meeting,

unless the question is one upon which by express provision of the statutes, the

Certificate of Incorporation, these Bylaws, or a contractual right, a different

vote is required, in which case such express provision shall govern and control

the decision of such question. At all meetings of stockholders for the election

of directors, 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.

 

      2.9 VOTING PROCEDURES.

 

      At each meeting of the stockholders, each stockholder having the right to

vote may vote in person or may authorize another person or persons to act for

him by proxy appointed by an instrument in writing subscribed by such

stockholder and bearing a date not more than three years prior to said meeting,

unless said instrument provides for a longer period. The revocability of a proxy

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

provisions of Section 2121(c) of the Delaware General Corporation Law

("DGCL")All proxies must be filed with the Secretary of the Corporation at the

beginning of each meeting in order to be counted in any vote at the meeting.

Each stockholder shall have one vote for each share of stock having voting

power, registered in his name on the books of the Corporation on the record date

set by the Board of Directors as provided in Section 2.13 hereof.

 

      2.10 STOCKHOLDERS ENTITLED TO VOTE.

 

      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.

 

      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 the

corporation, or any action which 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, or by electronic

 

 

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transmission, setting forth the action so taken, shall be 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.

 

      2.12 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.

 

      2.13 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING

 

      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 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 to any adjournment of the meeting;

provided, however, that the Board of Directors may fix a new record date for the

adjourned meeting.

 

                                  ARTICLE III

                                    DIRECTORS

 

      3.1 POWERS

 

      Subject to the provisions of the DGCL 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

 

 

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corporate powers shall be exercised by or under the direction of the Board of

Directors of the Corporation.

 

      3.2 NUMBER OF DIRECTORS

 

      The number of directors which shall constitute the whole board shall be

not less than two (2) and not more than nine (9). The exact number of directors

shall be determined from time to time by resolution adopted by affirmative vote

of a majority of the entire Board of Directors.

 

      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 director shall be

elected in the manner specified in the Certificate of Incorporation and shall

hold office until such time as is set forth therein.

 

      3.4 RESIGNATION AND VACANCIES

 

      Any director may resign at any time upon written notice or by electronic

transmission to the attention of the Secretary of the Corporation. Any vacancies

on the Board of Directors shall be filled only in the manner specified in the

Certificate of Incorporation. A vacancy in the Board of Directors shall be

deemed to exist under this Bylaw in the case of the death, disability,

disqualification, removal or resignation of any director.

 

      3.5 MEETINGS AND MEETINGS BY ELECTRONIC COMMUNICATIONS EQUIPMENT

 

      The Board of Directors of the Corporation may hold meetings, both regular

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

board 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 by the Board of Directors or as may be prescribed by these

Bylaws.

 

      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.

 

 

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      3.6 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.

 

      3.7 SPECIAL MEETINGS AND NOTICE

 

      Special meetings of the Board of Directors for any purpose or purposes may

be called at any time by the chairman of the board, the president or a majority

of the members of the Board of Directors.

 

      Notice of the time and place of special meetings shall be delivered orally

or in writing, by telephone, facsimile, telegraph or telex, or by electronic

mail or other electronic means, during normal business hours, at least

twenty-four (24) hours before the date and time of the meeting, to each director

or sent by first-class mail or telegram, charges prepaid, addressed to each

director at that director's address as it is shown on the records of the

Corporation. If the notice is mailed, it shall be deposited in the United States

mail at least three (3) days before the time of the holding of the meeting.

Notice of any meeting may be waived in writing or by electronic transmission at

any time before or after the meeting and will be waived by any director by

attendance thereat, except when the director attends the meeting for the express

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

business because the meeting is not lawfully called or convened.

 

      3.8 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.

 

      3.9 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 or by electronic transmission, and such writing or writings or

transmission or transmissions are filed with the minutes of proceedings of the

board or committee. Such filing shall be in paper form if the minutes are

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

maintained in electronic form.

 

 

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      3.10 FEES AND COMPENSATION OF DIRECTORS

 

      Unless otherwise restricted by the Certificate of Incorporation or these

Bylaws, the Board of Directors shall be entitled to such compensation for their

services as may be approved by the Board of Directors, including, if so

approved, by resolution of the Board of Directors, a fixed sum and expenses of

attendance, if any, for attendance at each regular or special meeting of the

Board of Directors and at any meeting of a committee of the Board of Directors.

Nothing herein contained shall be construed to preclude any director from

serving the Corporation in any other capacity as an officer, agent, employee, or

otherwise and receiving compensation therefor.

 

      3.11 REMOVAL OF DIRECTORS

 

      Neither the Board of Directors nor any individual director may be removed

without cause. Subject to any limitation imposed by law, any director may be re

moved with cause by the holders of at least sixty-six and two-thirds percent

(66-2/3%) of the voting power of the Corporation entitled to vote at an election

of directors.

 

 

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                                   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, each such 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 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. Any such committee, to the extent provided in the resolution of the

Board of Directors, shall have and may exercise all the powers and authority of

the Board of Directors in the management of the business and affairs of the

Corporation, 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 (i) amending the Certificate of Incorporation (except

that a committee may, to the extent authorized in the resolution or resolutions

providing for the issuance of shares of stock adopted by the board of directors

as provided in Section 151(a) of the General Corporation Law of Delaware, fix

the designations and any of the preferences or rights of such shares relating to

dividends, redemption, dissolution, any distribution of assets of the

corporation or the conversion into, or the exchange of such shares for, shares

of any other class or classes or any other series of the same or any other class

or classes of stock of the corporation or fix the number of shares of any series

of stock or authorize the increase or decrease of the shares of any series),

(ii) adopting an agreement of merger or consolidation, (iii) recommending to the

stockholders the sale, lease or exchange of all or substantially all of the

Corporation's property and assets, (iv) recommending to the stockholders a

dissolution of the Corporation or a revocation of a dissolution, or (v) amending

the Bylaws of the Corporation; and, unless the board resolution establishing the

committee or the 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. Each committee shall keep regular minutes of

its meetings and report the same to the Board of Directors when required.

 

      4.2 COMMITTEE MINUTES

 

      Each committee shall keep regular minutes of its meetings and report the

same to the Board of Directors when required.

 

      4.3 MEETINGS AND ACTION OF COMMITTEES

 

      Meetings and actions of committees shall be governed by, and held and

taken in accordance with, the provisions of Article III of these Bylaws, Section

3.5 (place of meetings and meetings by electronic communications equipment),

Section 3.6 (regular meetings), Section 3.7 (special meetings and notice),

Section 3.8 (quorum), Section 3.9 (action without a meeting), and Section 8.13

(waiver of notice), with such changes in the context of those Bylaws as are

 

 

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necessary to substitute the committee and its members for the Board of Directors

and its members; provided, however, that the time of regular meetings of

committees may be determined either by resolution of the Board of Directors or

by resolution of the committee, that special meetings of committees may also be

called by resolution of the Board of Directors and that notice of special

meetings of committees shall also be given to all alternate members, who shall

have the right to attend all meetings of the committee. The Board of Directors

may adopt rules for the government of any committee not inconsistent with the

provisions of these Bylaws.

 

                                   ARTICLE V

                                    OFFICERS

 

      5.1 OFFICERS

 

      The officers of the Corporation shall include, if and when designated by

the Board of Directors, a president, a secretary, and a treasurer, all of whom

shall be elected at the annual organizational meeting of the Board of Directors.

The Board of Directors may also appoint other officers as are desired, including

a chairman of the Board of Directors, a chief executive officer, a chief

financial officer, a controller, one or more vice presidents, assistant

secretaries, assistant treasurers, assistant controllers and such other officers

and agents as may be appointed in accordance with the provisions of Section 5.2

of this Article V. The Board of Directors may assign such additional titles to

one or more of the officers as it shall deem appropriate. In the event there are

two or more vice presidents, then the directors may, at the time of the election

of the officers, by resolution determine the order of their rank. Any one person

may hold any number of offices of the Corporation at any one time unless

specifically prohibited therefrom by law.

 

      5.2 APPOINTMENT OF OFFICERS

 

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

in accordance with the provisions of Sections 5.3 or 5.4 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 president 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; FILLING VACANCIES

 

      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 of Directors 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.

 

 

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      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.

 

      Any vacancy occurring in any office of the Corporation shall be filled by

the Board of Directors.

 

      5.5 CHAIRMAN OF THE BOARD

 

      The Board of Directors shall select a chairman of the board of the

Corporation who shall be subject to the control of the Board of Directors and

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

chairman of the board shall have and perform such other duties as from time to

time may be assigned to him by the Board of Directors.

 

      5.6 CHIEF EXECUTIVE OFFICER

 

      The Board of Directors shall select a chief executive officer of the

Corporation who shall be subject to the control of the Board of Directors and

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

of the Corporation. He shall preside at all meetings of the stockholders, in the

absence or nonexistence of a chairman of the board, at all meetings of the Board

of Directors.

 

      5.7 PRESIDENT

 

      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 addition and subject to such supervisory powers, if any, as may be

given by the Board of Directors to the chairman of the board, if no one has been

appointed chief executive officer, the president shall be the chief executive

officer of the Corporation and shall, subject to the control of the Board of

Directors, have the powers and duties described in Section 5.6.

 

      5.8 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 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.

 

 

                                       12

<PAGE>

 

      5.9 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 or at the office of the Corporation's transfer agent

or registrar, as determined by resolution of the Board of Directors, 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. He 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.

 

      5.10 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, capital

retained earnings, and shares. The books of account shall at all reasonable

times be open to inspection by any director.

 

      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. He 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

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.

 

      The chief financial officer shall be the treasurer of the Corporation.

 

      5.11 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

 

 

                                       13

 

<PAGE>

 

shall perform such other duties and have such other powers as may be prescribed

by the Board of Directors or these Bylaws.

 

      5.12 ASSISTANT TREASURER

 

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

treasurers, 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 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.

 

      5.13 ASSISTANT CONTROLLER

 

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

controllers, 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 controller or in the event of his or her inability

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

and shall perform such other duties and have such other powers as may be

prescribed by the Board of Directors or these Bylaws.

 

      5.14 REPRESENTATION OF SHARES OF OTHER CORPORATIONS

 

      The chairman of the board, the president, any vice president, the chief

financial officer, the secretary or 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.

 

      5.15 AUTHORITY AND DUTIES OF OFFICERS

 

      In addition to the foregoing authority and duties, all officers of the

Corporation shall respectively have such authority and perform such duties in

the management of the business of the Corporation as may be designated from time

to time by the Board of Directors or the stockholders.

 

                                   ARTICLE VI

                                    INDEMNITY

 

      6.1 INDEMNIFICATION

 

      (a) The Corporation shall, to the fullest extent permitted by the DGCL, as

the same exists or may hereafter be amended (but in the case of any such

amendment, only to the extent that such amendment permits the Corporation to

provide broader indemnification rights than said law permitted the Corporation

to provide prior to such amendment), indemnify any and

 

 

                                       14

 

<PAGE>

 

all persons whom it shall have power to indemnify under the DGCL from and

against any and all of the expenses, liabilities or other matters referred to in

or covered by the DGCL, and the indemnification provided for herein shall not be

deemed exclusive of any other rights to which those indemnified may be entitled

under any Bylaw, agreement, vote of stockholders or disinterested directors or

otherwise, both as to action in such person's 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 person.

 

      (b) The Corporation shall indemnify any person who was or is a party or is

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

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 the 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), judgments, fines and amounts paid in settlement actually and reasonably

incurred by the person in connection with such action, suit or proceeding if the

person acted in good faith and in a manner the person 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 the

person's conduct was unlawful. The termination of any action, suit or proceeding

by judgment, order, settlement, conviction, or upon a plea of nolo contendere or

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

not act in good faith and in a manner which the person 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 the

person's 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 the 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) actually and reasonably incurred by the person in connection with the

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

and in a 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 such 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.

 

 

                                       15

<PAGE>

 

      6.3 SUCCESSFUL DEFENSE

 

      To the extent that a director, officer, employee or agent of the

Corporation shall be 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 such

person in connection therewith.

 

      6.4 DETERMINATION OF CONDUCT

 

      Any indemnification under Section 6.1 and 6.2 (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 the person has met the applicable

standard of conduct set forth in Sections 6.1 and 6.2. Such determination shall

be made (1) by a majority vote of the directors who are not parties to such

action, suit or proceeding, even though less than a quorum or (2) by a committee

of such directors designated by majority vote of such directors, even though

less than a quorum, or (3) if there are no such directors, or if such directors

so direct, by independent legal counsel in a written opinion, or (4) by the

stockholders.

 

      6.5 PAYMENT OF EXPENSES IN ADVANCE

 

      Expenses (including attorneys' fees) incurred by an officer or director in

defending any civil, criminal, administrative or investigative action, suit or

proceeding 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 such director or officer to repay such amount if it shall ultimately

be determined that such person is not entitled to be indemnified by the

Corporation as authorized in this Article VI. Such expenses (including

attorneys' fees) incurred by other employees and agents may also be so paid upon

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

 

      6.6 INDEMNITY NOT EXCLUSIVE

 

      The indemnification and advancement of expenses provided by, or granted

pursuant to 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 bylaw, agreement, vote of stockholders or

disinterested directors or otherwise, both as to action in such person's

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

office.

 

      6.7 INSURANCE INDEMNIFICATION

 

      The Board of Directors may authorize the Corporation 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 such person and incurred by such person in any such

 

 

                                       16

 

<PAGE>

 

capacity, or arising out of such person's status as such, whether or not the

Corporation would have the power to indemnify such person against such liability

under this Article VI.

 

      6.8 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 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.

 

      6.9 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 any 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 that

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 the person

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.

 

      6.10 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

 

      (a) 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 a person.

 

      (b) The Delaware Court of Chancery is hereby vested with exclusive

jurisdiction to hear and determine all actions for advancement of expenses or

indemnification brought under this Section 6.1 or under any Bylaw, agreement,

vote of stockholders or disinterested directors, or otherwise. The Delaware

Court of Chancery may summarily determine the Corporation's obligation to

advance expenses (including attorneys' fees).

 

      6.11 NON-EXCLUSIVITY OF RIGHTS

 

      The rights conferred on any person by this Bylaw shall not be exclusive of

any other right which such person may have or hereafter acquire under any

applicable statute,

 

 

                                       17

 

<PAGE>

 

provision of the Certificate of Incorporation, Bylaws, agreement, vote of

stockholders or disinterested directors or otherwise, both as to action in the

person's official capacity and as to action in another capacity while holding

office. The Corporation is specifically authorized to enter into individual

contracts with any or all of its directors, officers, employees or agents

respecting indemnification and advances, to the fullest extent not prohibited by

the DGCL or any other applicable law.

 

      6.12 AMENDMENTS

 

      Any repeal or modification of this Bylaw shall only be prospective and

shall not affect the rights under this Bylaw in effect at the time of the

alleged occurrence of any action or omission to act that is the cause of any

proceeding against any agent of the Corporation.

 

                                  ARTICLE VII

                              RECORDS AND REPORTS

 

      7.1 MAINTENANCE AND INSPECTION OF RECORDS

 

      The Corporation shall, either at its principal executive officer or at

such place or places as 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, and other records.

 

      Any stockholder of record, in person or by attorney or other agent, shall,

upon written demand under oath stating the purpose thereof, have the right

during the usual hours for business to inspect for any proper purpose the

Corporation's stock ledger, a list of its stockholders, and its other books and

records and to make copies or extracts therefrom. A proper purpose shall mean a

purpose reasonably related to such person's interest as a stockholder. In every

instance where an attorney or other agent is the person who seeks the night to

inspection, the demand under oath shall be accompanied by a power of attorney or

such other writing that authorizes the attorney or other agent so to act on

behalf of the stockholder. The demand under oath shall be directed to the

Corporation at its registered office in Delaware or at its principal place of

business. The Delaware Court of Chancery is hereby vested with the exclusive

jurisdiction to determine whether a stockholder is entitled to the inspection

sought.

 

      7.2 INSPECTION BY DIRECTORS

 

      Any director shall have the right to examine the Corporation's stock

ledger, a list of its stockholders, and its other books and records for a

purpose reasonably related to his position as a director. The Delaware Court of

Chancery is hereby vested with the exclusive jurisdiction to determine whether a

director is entitled to the inspection sought. The Court may summarily order the

Corporation to permit the director to inspect any and all books and records, the

stock ledger, and the stock list and to make copies or extracts therefrom. The

Court may, in its discretion, prescribe any limitations or conditions with

reference to the inspection, or award such other and further relief as the Court

may deem just and proper.

 

 

                                       18

<PAGE>

 

                                  ARTICLE VIII

                                 GENERAL MATTERS

 

      8.1 CHECKS

 

      From time to time, the Board of Directors shall determine by resolution

which person or persons may sign or endorse all checks, drafts, other orders for

payment of money, notes or other evidences of indebtedness that are issued in

the name of or payable to the Corporation and only the persons so authorized

shall sign or endorse those instruments.

 

      8.2 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.

 

      8.3 STOCK CERTIFICATES, PARTLY PAID SHARES

 

      The shares of the Corporation shall be represented by certificates,

provided that the Board of Directors of the Corporation may provide by

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

its stock shall be uncertificated shares. Any such resolution shall not apply to

shares represented by a certificate until such certificate is surrendered to the

Corporation. Notwithstanding the adoption of such a resolution by the Board of

Directors, every holder of stock represented by certificates and upon request

every holder of uncertificated shares shall be entitled to have a certificate

signed by, or in the name of the Corporation by the chairman or vice-chairman of

the Board of Directors, or the president or vice-president, and by the chief

financial officer or an assistant treasurer, or the secretary or an assistant

secretary of such Corporation representing the number of shares registered in

certificate form. Any or all of the signatures on the certificate may be a

facsimile. In case any officer, transfer agent or registrar who has signed or

whose facsimile signature has been placed upon a certificate has ceased to be

such officer, transfer agent or registrar before such certificate is issued, it

may be issued by the Corporation with the same effect as if such person were

such officer, transfer agent or registrar at the date of issue.

 

      The Corporation may issue the whole or any part of its shares as partly

paid and subject to call for the remainder of the consideration to be paid

therefor. Upon the face or back of each stock certificate issued to represent

any such partly paid shares, upon the books and records of the Corporation in

the case of uncertificated partly paid shares, the total amount of the

consideration to be paid therefor and the amount paid thereon shall be stated.

Upon the declaration of any dividend on fully paid shares, the Corporation shall

declare a dividend upon partly paid shares of the same class, but only upon the

basis of the percentage of the consideration actually paid thereon.

 

 

                                       19

<PAGE>

 

      8.4 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 DGCL, 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.

 

      8.5 LOST CERTIFICATES

 

      Except as provided in this Section 8.5, 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 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 his 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.

 

      8.6 CONSTRUCTION, DEFINITIONS

 

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

construction, and definitions in the DGCL 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.

 

      8.7 DIVIDENDS

 

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

(i) the DGCL or (ii) 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.

 

 

                                       20

<PAGE>

 

      8.8 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.

 

      8.9 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.

 

      8.10 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 in its books.

 

      8.11 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 DGCL.

 

      8.12 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 DGCL.

 

      8.13 WAIVER OF NOTICE

 

      Whenever any notice is required to be given to any stockholder or director

of the Corporation under the provisions of the DGCL, a waiver thereof in

writing, signed by the person or persons entitled to such notice, whether before

or after the time stated therein, shall be deemed equivalent to the giving of

such notice. Neither the business to be transacted at, nor the purpose of, any

annual or special meeting of the stockholders of the Board of Directors need be

specified in any waiver of notice of such meeting.

 

 

                                       21

<PAGE>

 

                                   ARTICLE IX

                                   AMENDMENTS

 

      The Bylaws of the Corporation may be adopted, amended or repealed only by

the affirmative vote of sixty-six and two-thirds percent (66-2/3%) of the

stockholders entitled to vote, voting together as a single class; provided,

however, that the Corporation may, in its Certificate of Incorporation, confer

the power to adopt, amend or repeal Bylaws upon the directors. The fact that

such power has been so conferred upon the directors shall not divest the

stockholders of the power, nor limit their power to adopt, amend or repeal

Bylaws.

 

 

                                       22

AMENDMENT NO. 1 TO THE AMENDED AND RESTATED

BYLAWS OF VOLCOM, INC.

The following sets forth the first amendment to the Amended and Restated Bylaws (the “Bylaws”) of Volcom, Inc., a Delaware corporation, which amendment shall be effective as of June 17, 2011.

Article III, Section 3.2 of the Bylaws is hereby deleted in its entirety and replaced with the following:

“3.2 Number of Directors. The number of directors which shall constitute the whole board shall be not less than two (2) and not more than ten (10). The exact number of directors shall be determined from time to time by resolution adopted by affirmative vote of a majority of the entire Board of Directors.

No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of office expires.”

 

[As filed: 06-17-2011]