AMENDED AND RESTATED BYLAWS

                                       OF

                            CREATIVE COMPUTERS, INC.

                             a Delaware corporation

 

 

 

                                   ARTICLE I

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                                    Offices

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     Section 1.  Registered Office.  The registered office of the corporation in

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

 

     Section 2.  Other Offices.  The corporation shall also have and maintain an

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office or principal place of business at 2555 West 190th Street, Torrance,

California 90504, and may also have offices at such other places, both within

and without the State of Delaware as the Board of Directors may from time to

time determine or the business of the corporation may require.

 

 

                                   ARTICLE II

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                             Stockholders' Meetings

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     Section 1.  Place of Meetings.  Meetings of the stockholders of the

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corporation shall be held at such place, either within or without the State of

Delaware, as may be designated from time to time by the Board of Directors, or,

if not so designated, then at the office of the corporation required to be

maintained pursuant to Section 2 of Article I hereof.

 

     Section 2.  Annual Meetings.  The annual meetings of the stockholders of

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the corporation, commencing with the year 1995, for the purpose of election of

directors and for such other business as may lawfully come before it, shall be

held on such date and at such time as may be designated from time to time by the

Board of Directors, or, if not so designated, then at 10:00 a.m. on the second

Wednesday in May in each year if not a legal holiday, and, if a legal holiday,

at the same hour and place on the next succeeding day not a holiday.

 

     Section 3.  Special Meetings.  Special Meetings of the stockholders of the

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corporation may be called, for any purpose or purposes, by the Chairman of the

Board or the President or the Board of Directors at any time. Upon written

request of any stockholder or stockholders holding in the aggregate ten percent

the voting power of all stockholders delivered in person or sent by registered

mail to the Chairman of the Board, President or Secretary of the corporation,

the Secretary shall call a special meeting of

stockholders to be held at the office of the corporation required to be

maintained pursuant to Section 2 of Article I hereof at such time as the

Secretary may fix, such meeting to be held not less than ten nor more than sixty

days after the receipt of such request, and if the Secretary shall neglect or

refuse to call such meeting, within seven days after the receipt of such

request, the stockholder making such request may do so.

 

     Section 4.  Notice of Meetings.

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

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

place, date and hour and purpose or purposes of the meeting, shall be given not

less than 10 nor more than 60 days before the date of the meeting to each

stockholder entitled to vote thereat, directed to his or her address as it

appears upon the books of the corporation.

 

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

entitle stockholders fulfilling the requirements of section 262(d) of the

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

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

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

 

     (c) When a meeting is adjourned to another time or place, notice need not

be given of the adjourned meeting if the time and place thereof are announced at

the meeting at which the adjournment is taken unless the adjournment is for more

than 30 days, or unless after the adjournment a new record date is fixed for the

adjourned meeting, in which event a notice of the adjourned meeting shall be

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

 

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

may be waived in writing, either before or after such meeting, and to the extent

permitted by law will be waived by any stockholder by his or her attendance

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

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

if due notice thereof had been given.

 

     (e) Unless and until voted, every proxy shall be revocable at the pleasure

of the person who executed it or of his or her legal representatives or assigns,

except in those cases where an irrevocable proxy permitted by statute has been

given.

 

     Section 5.  Quorum and Voting.

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     (a) At all meetings of stockholders, except where otherwise provided by

law, the Certificate of Incorporation, or these Bylaws, the presence, in person

or by proxy duly authorized, of the holders of a majority of the outstanding

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

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

which for any reason cannot be lawfully voted at such meeting, shall not be

counted to determine a quorum at said meeting. In the absence of a quorum, any

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

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

shall be transacted at such meeting. At such adjourned meeting at which a quorum

is present or represented any business may be transacted which might have been

transacted at the original meeting. The stockholders present at a duly called or

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

business until adjournment, notwithstanding the withdrawal of enough

stockholders to leave less than a quorum.

 

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

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

power represented at any meeting at which a quorum is present shall be valid and

binding upon the corporation.

 

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

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

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

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

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

meeting shall be the act of such class.

 

     Section 6.  Voting Rights.

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

entitled to vote stand on the stock records of the corporation on the record

date for determining the stockholders entitled to vote at said meeting shall be

entitled to vote at such meeting. Shares standing in the names of two or more

persons shall be voted or represented in accordance with the determination of

the majority of such persons, or, if only one of such persons is present in

person or represented by proxy, such person shall have the right to vote such

shares and such shares shall be deemed to be represented for the purpose of

determining a quorum.

 

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

to do so either in person or by an agent or agents authorized by a written proxy

executed by such person or his or her duly authorized agent, which proxy shall

be filed with the Secretary of the corporation at or before the meeting at which

it is to be used. Said proxy so appointed need not be a stockholder. No proxy

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

a longer period.

 

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

another person or persons to act for him or her as proxy pursuant to subsection

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

stockholder may grant such authority:

 

          (1) A stockholder may execute a writing authorizing another person or

persons to act for him or her as proxy. Execution may be accomplished by the

stockholder or his or her authorized officer, director, employee or agent

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

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

signature.

 

          (2) A stockholder may authorize another person or persons to act for

him or her as proxy by transmitting or authorizing the transmission of a

telegram, cablegram or other means of electronic transmission to the person who

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

service organization or like agent duly authorized by the person who will be the

holder of the proxy to receive such transmission, provided that any such

telegram, cablegram or other means of electronic transmission must either set

forth or be submitted with information from which it can be determined that the

telegram, cablegram or other electronic transmission was authorized by the

stockholder. Such authorization can be established by the signature of the

stockholder on the proxy, either in writing or by a signature stamp or facsimile

signature, or by a number or symbol from which the identity of the stockholder

can be determined, or by any other procedure deemed appropriate by the

inspectors or other persons making the determination as to due authorization. If

it is determined that such telegrams, cablegrams or other electronic

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

other persons making that determination shall specify the information upon which

they relied.

 

     (d) Any copy, facsimile telecommunication or other reliable reproduction of

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

may be substituted or used in lieu of the original writing or transmission for

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

used, provided that such copy, facsimile telecommunication or other reproduction

shall be a complete reproduction of the entire original writing or transmission.

 

     Section 7.  Voting Procedures and Inspectors of Elections.

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

appoint one or more inspectors to act at the meeting and make a written report

thereof. The corporation may designate one or more persons as alternate

inspectors to replace any inspector who fails to act. If no inspector or

alternate is able to act at a meeting of stockholders, the person presiding at

the meeting shall appoint one or more inspectors to act at the meeting. Each

inspector, before entering upon the discharge of his or her duties, shall take

and sign an oath faithfully to execute the duties of inspector with strict

impartiality and according to the best of his or her ability.

 

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

the voting power of each, (ii) determine the shares represented at a meeting and

the validity of proxies and ballots, (iii) count all votes and ballots, (iv)

determine and retain for a reasonable period a record of the disposition of any

challenges made to any determination by the inspectors, and (v) certify their

determination of the number of shares represented at the meeting, and their

count of all votes and ballots. The inspectors may appoint or retain other

persons or entities to assist the inspectors in the performance of the duties of

the inspectors.

 

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

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

the meeting. No ballot, proxies or votes, nor any revocations thereof or changes

thereto, shall be accepted by the inspectors after the closing of the polls

unless the Court of Chancery upon application by a stockholder shall determine

otherwise.

 

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

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

submitted with those proxies, any information provided in accordance with

Section 212(c)(2) of the Delaware General Corporation Law, ballots and the

regular books and records of the corporation, except that the inspectors may

consider other reliable information for the limited purpose of reconciling

proxies and ballots submitted by or on behalf of banks, brokers, their nominees

or similar persons which represent more votes than the holder of a proxy is

authorized by the record owner to cast or more votes than the stockholder holds

of record. If the inspectors consider other reliable information for the limited

purpose permitted herein, the inspectors at the time they make their

certification pursuant to subsection (b)(v) of this section shall specify the

precise information considered by them including the person or persons from whom

they obtained the information, when the information was obtained, the means by

which the information was obtained and the basis for the inspectors, belief that

such information is accurate and reliable.

 

     Section 8.  List of Stockholders.  The officer who has charge of the stock

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ledger of the corporation shall prepare and make, at least ten days before every

meeting of stockholders, a complete list of the stockholders entitled to vote at

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

number of shares registered in the name of each stockholder. 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 and which place shall be specified in the notice of the meeting, or, if not

specified, at the place where said meeting is to be held, and the list shall be

produced and kept at the time and place of meeting during the whole time

thereof, and may be inspected by any stockholder who is present.

 

     Section 9.  Stockholder Proposals at Annual Meetings.  At an annual meeting

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of the stockholders, only such business shall be conducted as shall have been

properly brought before the meeting. To be properly brought before an annual

meeting, business must be specified in the notice of meeting (or any supplement

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

properly brought before the meeting by or at the direction of the Board of

Directors or otherwise properly brought before the meeting by a stockholder. In

addition to any other applicable requirements, for business to be properly

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

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

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

the principal executive offices of the corporation, not less than 45 days nor

more than 75 prior to the date on which the corporation first mailed its proxy

materials for the previous year's annual meeting of stockholders (or the date on

which the corporation mails its proxy materials for

the current year if during the prior year the corporation did not hold an annual

meeting or if the date of the annual meeting was changed more than thirty (30)

days from the prior year). A stockholder's notice to the Secretary shall set

forth as to each matter the stockholder proposes to bring before the annual

meeting, (i) a brief description of the business desired to be brought before

the annual meeting and the reasons for conducting such business at the annual

meeting, (ii) the name and record address of the stockholder proposing such

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

beneficially owned by the stockholder and (iv) any material interest of the

stockholder in such business.

 

     Notwithstanding anything in the Bylaws to the contrary, no business shall

be conducted at the annual meeting except in accordance with the procedures set

forth in this Section 9, provided, however, that nothing in this Section 9 shall

be deemed to preclude discussion by any stockholder of any business properly

brought before the annual meeting in accordance with said procedure.

 

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

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

meeting in accordance with the provisions of this Section 2.9, and if he or she

should so determine, he or she shall so declare to the meeting and any such

business not properly brought before the meeting shall not be transacted.

 

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

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

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

Exchange Commission.

 

     Section 10.  Nominations of Persons for Election to the Board of Directors.

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

in accordance with the following procedures shall be eligible for election as

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

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

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

Board of Directors or by any stockholder of the corporation entitled to vote for

the election of directors at the meeting who complies with the notice procedures

set forth in this Section 10. Such nominations, other than those made by or at

the direction of the Board of Directors, shall be made pursuant to timely notice

in writing to the Secretary of the corporation. To be timely, a stockholder's

notice shall be delivered to or mailed and received at the principal executive

offices of the corporation not less than 30 days nor more than 60 days prior to

the meeting; provided, however, that in the event that less than 40 days notice

or prior public disclosure of the date of the meeting is given or made to

stockholders, notice by the stockholder to be timely must be so received not

later than the close of business on the 10th day following the day on which such

notice of the date of the meeting was mailed or such public disclosure was made.

Such stockholder's notice shall set forth (a) as to each person whom the

stockholder proposes to nominate for election or re-election as a director, (i)

the name, age, business address and residence address of the person, (ii) the

principal occupation or employment of the person, (iii) the class and number of

shares of the corporation which are beneficially owned by the person, and (iv)

any other information relating to the person that

is required to be disclosed in solicitations for proxies for election of

directors pursuant to Regulation 14A under the Securities Exchange Act of 1934,

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

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

the corporation which are beneficially owned by the stockholder. The corporation

may require any proposed nominee to furnish such other information as may

reasonably be required by the corporation to determine the eligibility of such

proposed nominee to serve as a director of the corporation. No person shall be

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

accordance with the procedures set forth herein. These provisions shall not

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

of preferred stock.

 

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

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

foregoing procedure, and if he and she should so determine, he or she shall so

declare to the meeting and the defective nomination shall be disregarded.

 

     Section 11.  Action Without Meeting.  Unless otherwise provided in the

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Certificate of Incorporation, any action required by statute 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

or consents in writing, setting forth the action so taken, are 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. To be effective, a

written consent must be delivered to the corporation by delivery to its

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

agent of the corporation having custody of the books in which proceedings of

meetings of stockholders are recorded. Delivery made to a corporation's

registered office shall be by hand or by certified or registered mail, return

receipt requested. Every written consent shall bear the date of signature of

each stockholder who signs the consent and no written consent shall be effective

to take the corporate action referred to therein unless, within 60 days of the

earliest dated consent delivered in the manner required by this Section to the

corporation, written consents signed by a sufficient number of holders to take

action are delivered to the corporation in accordance with this Section. 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.

 

                                  ARTICLE III

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                                   Directors

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     Section 1.  Number and Term of Office.  The number of directors

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constituting the entire Board of Directors shall not be less than three nor more

than five as fixed from time to time by vote of a majority of the entire Board

of Directors, provided, however, that the number of directors shall not be

reduced so as to shorten the term of any director at the time in office, and

provided further, that the number of directors constituting the entire Board of

Directors shall be three until otherwise fixed by a majority of the entire

Board.

 

     Section 2.  Powers.  The powers of the corporation shall be exercised, its

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

Board of Directors.

 

     Section 3.  Vacancies.  Vacancies and newly created directorships resulting

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from any increase in the authorized number of directors may be filled by a

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

sole remaining director, and each director so elected shall hold office until

the next election of directors, and until his or her successor shall have been

duly elected and qualified. A vacancy in the Board of Directors shall be deemed

to exist under this section in the case of the death, removal or resignation of

any director, or if the stockholders fail at any meeting of stockholders at

which directors are to be elected (including any meeting referred to in Section

4 below) to elect the number of directors then constituting the whole Board.

 

     Section 4.  Resignations and Removals.

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

resignation to the Secretary, such resignation to specify whether it will be

effective at a particular time, upon receipt by the Secretary or at the pleasure

of the Board of Directors. If no such specification is made it shall be deemed

effective at the pleasure of the Board of Directors. When one or more directors

shall resign from the Board, effective at a future date, a majority of the

directors then in office, including those who have so resigned, shall have power

to fill such vacancy or vacancies, the vote thereon to take effect when such

resignation or resignations shall become effective, and each director so chosen

shall hold office for the unexpired portion of the term of the director whose

place shall be vacated and until his successor shall have been duly elected and

qualified.

 

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

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

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

directors elected by a vote of stockholders holding a majority of the

outstanding shares entitled to vote at an election of directors.

 

     Section 5.  Meetings.

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

after the annual stockholders, meeting and at the place where such meeting is

held or at the place announced by the Chairman at such meeting. No notice of an

annual meeting of the Board of Directors shall be necessary and such meeting

shall be held for the purpose of electing officers and transacting such other

business as may lawfully come before it.

 

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

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

maintained pursuant to Section 2 of Article I hereof. Regular meetings of the

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

Delaware which has been designated by resolutions of the Board of Directors or

the written consent of all directors.

 

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

place within or without the State of Delaware whenever called by the Chairman of

the Board or, if there is no Chairman of the Board, by the President, or by a

majority of the directors then in office.

 

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

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

director or sent by telegram or facsimile transmission at least 48 hours before

the start  of the meeting, or sent by first class mail at least  120 hours

before the start of the meeting. Notice of any meeting may be waived in writing

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

 

attendance thereat.

 

     Section 6.  Quorum and Voting.

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     (a) A quorum of the Board of Directors shall consist of a majority of the

exact number of directors fixed from time to time in accordance with Section 1

of Article III of these Bylaws, but not less than one; provided, however, at any

meeting whether a quorum be present or otherwise, a majority of the directors

present may adjourn from time to time until the time fixed for the next regular

meeting of the Board of Directors, without notice other than by announcement at

the meeting.

 

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

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

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

Incorporation or these Bylaws.

 

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

participate in a meeting by means of conference telephone or similar

communication equipment by means of which all persons participating in the

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

constitute presence in person at such meeting.

 

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

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

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

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

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

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

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

of the minutes of the meeting.

 

     Section 7.  Action Without Meeting.  Unless otherwise restricted by the

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Certificate of Incorporation or these Bylaws, any action required or permitted

to be taken at any meeting of the Board of Directors or of any committee thereof

may be taken without a meeting, if all members of the Board or of such

committee, as the case may be, consent thereto in writing, and such writing or

writings are filed with the minutes of proceedings of the Board or committee.

 

     Section 8.  Fees and Compensation.  Directors and members of committees may

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receive such compensation, if any, for their services, and such reimbursement

for expenses, as may be fixed or determined by resolution of the Board of

Directors.

 

     Section 9.  Committees.

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

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by a majority of the whole Board, appoint an Executive Committee of not less

than one member, each of whom shall be a director. The Executive Committee, to

the extent permitted by law, shall have and may exercise when the Board of

Directors is not in session all powers of the Board in the management of the

business and affairs of the corporation, including, without limitation, the

power and authority to declare a dividend or to authorize the issuance of stock,

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

Certificate of Incorporation, to adopt an agreement or merger or consolidation,

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

substantially all of the corporation's property and assets, to recommend to the

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

of a dissolution, or to amend these Bylaws.

 

     (b) Other Committees:  The Board of Directors may, by resolution passed by

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

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

Directors shall have such powers and perform such duties as may be prescribed by

the resolution or resolutions creating such committee, but in no event shall any

such committee have the powers denied to the Executive Committee in these

Bylaws.

 

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

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

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

(a) or (b) of this Section 9, may at any time increase or decrease the number of

members of a committee or terminate the existence of a committee; provided, that

no committee shall consist of less than one

member. The membership of a committee member shall terminate on the date of his

death or voluntary resignation, but the Board may at any time for any reason

remove any individual committee member and the Board may fill any committee

vacancy created by death, resignation, removal or increase in the number of

members of the committee. The Board of Directors may designate one or more

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

disqualified member at any meeting of the committee, and, in addition, in the

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

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

he, she or they constitute a quorum, may unanimously appoint another member of

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

disqualified member.

 

     (d) Meetings:  Unless the Board of Directors shall otherwise provide,

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regular meetings of the Executive Committee or any other committee appointed

pursuant to this Section 9 shall be held at such times and places as are

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

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

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

committee may be held at the principal office of the corporation required to be

maintained pursuant to Section 2 of Article I hereof; or at any place which has

been designated from time to time by resolution of such committee or by written

consent of all members thereof, and may be called by any director who is a

member of such committee, upon written notice to the members of such committee

of the time and place of such special meeting given in the manner provided for

the giving of written notice to members of the Board of Directors of the time

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

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

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

authorized number of members of any such committee shall constitute a quorum for

the transaction of business, and the act of a majority of those present at any

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

 

     Section 10.  Duties of the Chairman of the Board of Directors.  The

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Chairman of the Board of Directors shall, when present, preside at all meetings

of the stockholders and the Board of Directors. The Chairman of the Board of

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

Board of Directors shall designate from time to time.

 

                                   ARTICLE IV

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                                    Officers

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     Section 1.  Officers Designated.  The officers of the corporation shall be

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a President, and one or more Vice-Presidents, a Secretary, and a Treasurer. The

order of the seniority of the Vice Presidents shall be in the order of their

nomination, unless otherwise determined by the Board of Directors. The Board of

Directors or the President may also appoint one or more assistant secretaries,

assistant treasurers, and such other officers and

agents with such powers and duties as it or he shall deem necessary. The Board

of Directors may assign such additional titles to one or more of the officers as

they shall deem appropriate. Any one person may hold any number of offices of

the corporation at any one time unless specifically prohibited therefrom by law.

The salaries and other compensation of the officers of the corporation shall be

fixed by or in the manner designated by the Board of Directors.

 

     Section 2.  Tenure and Duties of Officers.

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

 

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

         -------

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

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

of Directors may be removed at any time by the Board of Directors. If the office

of any officer becomes vacant for any reason, the vacancy may be filled by the

Board of Directors. Nothing in these Bylaws shall be construed as creating any

kind of contractual right to employment with the corporation.

 

     (b) Duties of President:  The President shall be the chief executive

         -------------------

officer of the corporation in the absence of the Chairman of the Board and shall

preside at all meetings of the stockholders and at all meetings of the Board of

Directors, unless the Chairman of the Board of Directors has been appointed and

is present. The President shall perform such other duties and have such other

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

 

     (c) Duties of Vice-Presidents:  The Vice-Presidents, in the order of their

         -------------------------

seniority, may assume and perform the duties of the President in the absence or

disability of the President or whenever the office of the President is vacant.

The Vice-Presidents shall perform such other duties and have such other powers

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

 

     (d) Duties of Secretary:  The Secretary shall attend all meetings of the

         -------------------

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

record all acts and proceedings thereof in the minute book of the corporation.

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

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

any Committee thereof requiring notice. The Secretary shall perform such other

duties and have such other powers as the Board of Directors shall designate from

time to time. The President may direct any Assistant Secretary to assume and

perform the duties of the Secretary in the absence or disability of the

Secretary, and each Assistant Secretary shall perform such other duties and have

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

from time to time.

 

     (e) Duties of Treasurer:  The Treasurer shall keep or cause to be kept the

         -------------------

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

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

as often as required by the Board of Directors or the President. The Treasurer,

subject to the order of the Board of Directors, shall have the custody of all

funds and securities of the corporation. The

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

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

Directors or the President shall designate from time to time. The President may

direct any Assistant Treasurer to assume and perform the duties of the Treasurer

in the absence or disability of the Treasurer, and each Assistant Treasurer

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

Directors or the President shall designate from time to time.

 

                                   ARTICLE V

                                   ---------

 

                    Execution of Corporate Instruments, and

                 Voting of Securities Owned by the Corporation

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

 

     Section 1.  Execution of Corporate Instruments.

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

 

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

designate the signatory officer or officers, or other person or persons, to

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

without limitation, except where otherwise provided by law, and such execution

or signature shall be binding upon the corporation.

 

     (b) Unless otherwise specifically determined by the Board of Directors or

otherwise required by law, formal contracts of the corporation, promissory

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

corporation, and other corporate instruments or documents requiring the

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

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

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

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

Assistant Secretary or Assistant Treasurer. All other instruments and documents

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

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

Directors.

 

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

the credit of the corporation, or in special accounts of the corporation, shall

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

to do.

 

     Section 2.  Voting of Securities Owned by Corporation.  All stock and other

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

securities of other corporations owned or held by the corporation for itself, or

for other parties in any capacity, shall be voted, and all proxies with respect

thereto shall be executed, by the person authorized so to do by resolution of

the Board of Directors or, in the absence of such authorization, by the Chairman

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

any Vice-President.

 

                                   ARTICLE VI

                                   ----------

 

                                Shares of Stock

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

 

     Section 1.  Form and Execution of Certificates.  Certificates for the

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

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

the Certificate of Incorporation and applicable law. Every holder of stock in

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

name of the corporation by, the Chairman of the Board (if there be such an

officer appointed), or by the President or any Vice-President and by the

Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,

certifying the number of shares owned by him or her in the corporation. Any or

all of the signatures on the certificate may be a facsimile. In case any

officer, transfer agent, or registrar who has signed or whose facsimile

signature has been placed upon a certificate shall have ceased to be such

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

be issued with the same effect as if he were such officer, transfer agent, or

registrar at the date of issue. If the corporation shall be authorized to issue

more than one class of stock or more than one series of any class, the powers,

designations, preferences and relative, participating, optional or other special

rights of each class of stock or series thereof and the qualifications,

limitations or restrictions of such preferences and/or rights shall be set forth

in full or summarized on the face or back of the certificate which the

corporation shall issue to represent such class or series of stock, provided

that, except as otherwise provided in section 202 of the Delaware General

Corporation Law, in lieu of the foregoing requirements, there may be set forth

on the face or back of the certificate which the corporation shall issue to

represent such class or series of stock, a statement that the corporation will

furnish without charge to each stockholder who so requests the powers,

designations, preferences and relative, participating, optional or other special

rights of each class of stock or series thereof and the qualifications,

limitations or restrictions of such preferences and/or rights.

 

     Section 2.  Lost Certificates.  The Board of Directors may direct a new

     ---------   -----------------

certificate or certificates to be issued in place of any certificate or

certificates theretofore issued by the corporation alleged to have been lost or

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

the certificate of stock to be lost or destroyed. When authorizing such issue of

a new certificate or certificates, the Board of Directors may, in its discretion

and as a condition precedent to the issuance thereof, require the owner of such

lost or destroyed certificate or certificates, or his legal representative, to

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

corporation a surety bond in such form and amount as it may direct as indemnity

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

certificate alleged to have been lost or destroyed.

 

     Section 3.  Transfers.  Transfers of record of shares of stock of the

     ---------   ---------

corporation shall be made only upon its books by the holders thereof, in person

or by attorney duly authorized, and upon the surrender of a certificate or

certificates for a like number of shares, properly endorsed.

 

     Section 4.  Fixing Record Dates.

     ---------   -------------------

 

     (a) In order that the corporation may determine the stockholders entitled

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

thereof, the Board of Directors may fix a record date, which record date shall

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

by the Board of Directors, and which record date shall not be more than 60 nor

less than 10 days before the date of such meeting. If no record date is fixed by

the Board of Directors, the record date for determining stockholders entitled to

notice of or to vote at a meeting of stockholders shall be at the close of

business on the day next preceding the day on which notice is given, or, if

notice is waived, at the close of business on the day next preceding the date on

which the meeting is held. A determination of stockholders of record entitled

notice of or to vote at a meeting of stockholders shall apply to any adjournment

of the meeting; provided, however, that the Board of Directors may fix a new

record date for the adjourned meeting.

 

     (b) In order that the corporation may determine the stockholders entitled

to consent to corporate action in writing without a meeting, the Board of

Directors may fix a record date, which record date shall not precede the date

upon which the resolution fixing the record date is adopted by the Board of

Directors, and which date shall not be more than 10 days after the date upon

which the resolution fixing the record date is adopted by the Board of

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

record date for determining stockholders entitled to consent to corporate action

in writing without a meeting, when no prior action by the Board of Directors is

required by the Delaware General Corporation Law, shall be the first date on

which a signed written consent setting forth the action taken or proposed to be

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

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

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

stockholders are recorded. Delivery made to a corporation's registered office

shall be by hand or by certified or registered mail, return receipt requested.

If no record date has been fixed by the Board of Directors and prior action by

the Board of Directors is required by law, the record date for determining

stockholders entitled to consent to corporate action in writing without a

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

Directors adopts the resolution taking such prior action.

 

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

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

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

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

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

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

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

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

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

Board of Directors adopts the resolution relating thereto.

 

     Section 5.  Registered Stockholders.  The corporation shall be entitled to

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

recognize the exclusive right of a person registered on its books as the owner

of shares to receive

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

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

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

except as otherwise provided by the laws of Delaware.

 

 

                                  ARTICLE VII

                                  -----------

 

                      Other Securities of the Corporation

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

 

     All bonds, debentures and other corporate securities of the corporation,

other than stock certificates, may be signed by the Chairman of the Board (if

there be such an officer appointed), or the President or any Vice-President or

such other person as may be authorized by the Board of Directors and the

corporate seal impressed thereon or a facsimile of such seal imprinted thereon

and attested by the signature of the Secretary or an Assistant Secretary, or the

Treasurer or an Assistant Treasurer; provided, however, that where any such

bond, debenture or other corporate security shall be authenticated by the manual

signature of a trustee under an indenture pursuant to which such bond, debenture

or other corporate security shall be issued, the signature of the persons

signing and attesting the corporate seal on such bond, debenture or other

corporate security may be the imprinted facsimile of the signatures of such

persons. Interest coupons appertaining to any such bond, debenture or other

corporate security, authenticated by a trustee as aforesaid, shall be signed by

the Treasurer or an Assistant Treasurer of the corporation, or such other person

as may be authorized by the Board of Directors, or bear imprinted thereon the

facsimile signature of such person. In case any officer who shall have signed or

attested any bond, debenture or other corporate security, or whose facsimile

signature shall appear thereon or before the bond, debenture or other corporate

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

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

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

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

corporation.

 

                                  ARTICLE VIII

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

 

                                 Corporate Seal

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

 

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

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

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

otherwise.

 

                                   ARTICLE IX

                                   ----------

 

                               Indemnification of

                   Officers, Directors, Employees and Agents

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

 

     Section 1.  Right to Indemnification.  Each person who was or is a party or

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

is threatened to be made a party to or is involved (as a party, witness, or

otherwise), in any

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

criminal, administrative, or investigative (hereinafter a "Proceeding"), by

reason of the fact that he, or a person of whom he is the legal representative,

is or was a director, officer, employee, or agent of the corporation or is or

was serving at the request of the corporation as a director, officer, employee,

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

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

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

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

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

indemnified and held harmless by the corporation to the fullest extent

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

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

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

the corporation to provide broader indemnification rights than were permitted

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

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

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

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

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

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

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

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

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

--------  -------

pursuant to Section 3 of this Article, the corporation shall indemnify any Agent

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

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

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

conferred in this Article shall be a contract right.

 

     Section 2.  Authority to Advance Expenses.  Expenses incurred by an officer

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

or director (acting in his capacity as such) in defending a Proceeding shall be

paid by the corporation in advance of the final disposition of such Proceeding,

provided, however, that such Expenses shall be advanced only upon delivery to

--------  --------

the corporation of an undertaking by or on behalf of such director or officer to

repay such amount if it shall ultimately be determined that he is not entitled

to be indemnified by the corporation as authorized in this Article or otherwise.

Expenses incurred by other Agents of the corporation (or by the directors or

officers not acting in their capacity as such, including service with respect to

employee benefit plans) may be advanced upon such terms and conditions as the

Board of Directors deems appropriate. Any obligation to reimburse the

corporation for Expense advances shall be unsecured and no interest shall be

charged thereon.

 

     Section 3.  Right of Claimant to Bring Suit.  If a claim under Section 1 or

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

2 of this Article is not paid in full by the corporation within 60 days after a

written claim has been received by the corporation, the claimant may at any time

thereafter bring suit against the corporation to recover the unpaid amount of

the claim and, if successful in whole or in part, the claimant shall be entitled

to be paid also the expense (including attorneys, fees) of prosecuting such

claim. The burden of proof of such proceeding shall be on the claimant to

establish that he is entitled to be indemnified under this Article. It shall be

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

for expenses incurred in

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

undertaking has been tendered to the corporation) that the claimant has not met

the standards of conduct that make it permissible under the Delaware General

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

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

Neither the failure of the corporation (including its Board of Directors,

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

prior to the commencement of such action that indemnification of the claimant is

proper under the circumstances because he has met the applicable standard of

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

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

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

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

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

 

     Section 4.  Provisions Nonexclusive.  The rights conferred on any person by

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

this Article shall not be exclusive of any other rights that such person may

have or hereafter acquire under any statute, provision of the Certificate of

Incorporation, agreement, vote of stockholders or disinterested directors, or

otherwise, both as to action in an official capacity and as to action in another

capacity while holding such office. To the extent that any provision of the

Certificate of Incorporation, agreement, or vote of the stockholders or

disinterested directors is inconsistent with these bylaws, the provision,

agreement, or vote shall take precedence.

 

     Section 5.  Authority to Insure.  The corporation may purchase and maintain

     ---------   -------------------

insurance to protect itself and any Agent against any Expense, whether or not

the corporation would have the power to indemnify the Agent against such Expense

under applicable law or the provisions of this Article.

 

     Section 6.  Survival of Rights.  The rights provided by this Article shall

     ---------   ------------------

continue as to a person who has ceased to be an Agent and shall inure to the

benefit of the heirs, executors, and administrators of such a person.

 

     Section 7.  Settlement of Claims.  The corporation shall not be liable to

     ---------   --------------------

indemnify any Agent under this Article (a) for any amounts paid in settlement of

any action or claim effected without the corporation's written consent, which

consent shall not be unreasonably withheld; or (b) for any judicial award if the

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

to participate in the defense of such action.

 

     Section 8.  Effect of Amendment.  Any amendment, repeal, or modification of

     ---------   -------------------

this Article shall not adversely affect any right or protection of any Agent

existing at the time of such amendment, repeal, or modification.

 

     Section 9.  Subrogation.  In the event of payment under this Article, the

     ---------   -----------

corporation shall be subrogated to the extent of such payment to all of the

rights of recovery of the Agent, who shall execute all papers required and shall

do everything that may be necessary

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

enable the corporation effectively to bring suit to enforce such rights.

 

     Section 10.  No Duplication of Payments.  The corporation shall not be

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

liable under this Article to make any payment in connection with any claim made

against the Agent to the extent the Agent has otherwise actually received

payment (under any insurance policy, agreement, vote, or otherwise) of the

amounts otherwise indemnifiable hereunder.

 

                                   ARTICLE X

                                   ---------

 

                                    Notices

                                    -------

 

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

given to any stockholder, the same shall be given in writing, timely and duly

deposited in the United States Mail, postage prepaid, and addressed to his or

her last known post office address as shown by the stock record of the

corporation or its transfer agent. Any notice required to be given to any

director may be given by the method hereinabove stated, or by telegram or other

means of electronic transmission, except that such notice other than one which

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

facsimile telecommunication) facsimile telephone number as such director shall

have filed in writing with the Secretary of the corporation, or, in the absence

of such filing, to the last known post office address of such director. If no

address of a stockholder or director be known, such notice may be sent to the

office of the corporation required to be maintained pursuant to Section 2 of

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

competent employee of the corporation or its transfer agent appointed with

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

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

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

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

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

been given as at the time of mailing and all notices given by telegram or other

means of electronic transmission shall be deemed to have been given as at the

sending time recorded by the telegraph company or other electronic transmission

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

same method of giving be employed in respect of all directors, but one

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

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

The period or limitation of time within which any stockholder may exercise any

option or right, or enjoy any privilege or benefit, or be required to act, or

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

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

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

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

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

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

person or persons entitled to said notice, whether before or after the time

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

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

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

the giving of such notice to such person shall not be required and there shall be no

duty to apply to any governmental authority or agency for a license or permit to

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

held without notice to any such person with whom communication is unlawful shall

have the same force and effect as if such notice had been duly given. In the

event that the action taken by the corporation is such as to require the filing

of a certificate under any provision of the Delaware General Corporation Law,

the certificate shall state, if such is the fact and if notice is required, that

notice was given to all persons entitled to receive notice except such persons

with whom communication is unlawful.

 

                                   ARTICLE XI

                                   ----------

 

                                   Amendments

                                   ----------

 

     These Bylaws may be repealed, altered or amended or new Bylaws adopted by

written consent of stockholders in the manner authorized by Section 11 of

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

the affirmative vote of a majority of the stock entitled to vote at such

meeting. The Board of Directors shall also have the authority to repeal, alter

or amend these Bylaws or adopt new Bylaws (including, without limitation, the

amendment of any Bylaws setting forth the number of directors who shall

constitute the whole Board of Directors) by unanimous written consent or at any

annual, regular, or special meeting by the affirmative vote of a majority of the

whole number of directors, subject to the power of the stockholders to change or

repeal such Bylaws and provided that the Board of Directors shall not make or

alter any Bylaws fixing the qualifications, classifications, or term of office

of directors.

[As Filed: 04/02/2001]