Exhibit 3.1

                          AMENDED AND RESTATED BY-LAWS

                                       OF

                                   MAXXAM INC.

 

                             Amended March 30, 2000

 

                                    ARTICLE I

                                     OFFICES

 

         Section 1. Registered Office. The corporation shall maintain a

registered office in the State of Delaware as required by law.

 

         Section 2. Other Offices. The corporation may also have offices at

other places, within or without the State of Delaware, as the Board of Directors

may from time to time designate or the business of the corporation may require.

 

                                   ARTICLE II

                                  STOCKHOLDERS

 

         Section 1. Place of Meetings. All meetings of stockholders shall be

held at such places, either within or without the State of Delaware, as may be

fixed from time to time by the Board of Directors.

 

         Section 2. Annual Meeting. Annual meetings of stockholders shall be

held on such date during the month of May or June of each year, or such other

date as may be determined by the Board of Directors, and at such time as may be

fixed from time to time by the Board of Directors or any officer(s) designated

by the Board of Directors. At each annual meeting of stockholders, the

stockholders shall elect directors by a plurality vote, and may transact such

other business as may properly be brought before the meeting. The Board of

Directors acting by resolution may postpone and reschedule any previously

scheduled annual meeting of stockholders.

 

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

corporation and the proposal of business to be considered by the stockholders

may be made at an annual meeting of stockholders (a) pursuant to the

corporation's notice of meeting, (b) by or at the direction of the Board of

Directors, or (c) by any stockholder of the corporation who was a stockholder of

record at the time of giving of notice, who is entitled to vote at the meeting

and who complied with the applicable notice procedures. The provisions governing

the required notice are set forth in (i) the Fifteenth paragraph of the

corporation's Restated Certificate of Incorporation for purposes of nominations

for directors, and (ii) this By-Law for purposes of proposal of other business.

 

         For business, other than nominations for directors, to be properly

brought before an annual meeting by a stockholder pursuant to clause (c) of the

foregoing paragraph of this By-Law, the stockholder must have given timely

notice thereof in writing to the Secretary of the corporation. To be timely, a

stockholder's notice shall be delivered to the Secretary at the principal

executive offices of the corporation not less than 120 calendar days before the

first anniversary of the date of the corporation's proxy statement released to

the stockholders in connection with the previous year's annual meeting of

stockholders; provided, however, that in the event that the date of the annual

meeting is advanced by more than 30 days or delayed by more than 60 days from

the anniversary date of the previous year's meeting, notice by the stockholder

to be timely must be so delivered not later than the 10th day following the day

on which public announcement of the date of such meeting is first made. Such

stockholder's notice shall set forth, 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 reasons for conducting

such business at the meeting and any material interest in such business of such

stockholder and the beneficial owner, if any, on whose behalf the nomination or

proposal is made as well as (i) the name and address of such stockholder, as

they appear on the corporation's books, and of such beneficial owner, if

applicable, and (ii) the class and number of shares of the corporation which are

owned beneficially and of record by such stockholder and such beneficial owner,

if applicable.

 

         In addition to the information required in the Fifteenth paragraph of

the corporation's Restated Certificate of Incorporation, any stockholder's

notice relating to nominations for directors shall set forth all information

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

proxies for election of directors, or is otherwise required, in each case

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

(the "Exchange Act") (including such person's written consent to being named in

the proxy statement as a nominee and to serving as a director if elected).

 

         Notwithstanding anything herein to the contrary, in the event that the

number of directors to be elected to the Board of Directors of the corporation

is increased and there is no public announcement naming all of the nominees for

director or specifying the size of the increased Board of Directors made by the

corporation at least 130 days prior to the first anniversary of the preceding

year's annual meeting, a stockholder's notice required by this By-Law 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 10th day following the day on which such public announcement is

first made by the corporation.

 

         Only such persons who are nominated in accordance with the procedures

set forth in the corporation's Restated Certificate of Incorporation and these

By-Laws shall be eligible to serve as directors and only such business shall be

conducted at an annual meeting of stockholders as shall have been brought before

the meeting in accordance with the procedures set forth in this By-Law. The

chairman of the meeting shall have the power and duty to determine whether any

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

accordance with the procedures set forth in the corporation's Restated

Certificate of Incorporation or these By-Laws, as applicable, and if any

proposed nomination or business is not in compliance with the corporation's

Restated Certificate of Incorporation or these By-Laws, as applicable, to

declare that such defective nomination or proposal shall be disregarded.

 

         For purposes of this By-Law, "public announcement" shall mean

disclosure in a press release reported by the Dow Jones News Services,

Associated Press or comparable national news service or in a document publicly

filed by the corporation with the Securities and Exchange Commission pursuant to

Sections 13, 14 or 15(d) of the Exchange Act.

 

         Notwithstanding the Fifteenth paragraph of the corporation's Restated

Certificate of Incorporation or the foregoing provisions of this By-Law, 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 the Fifteenth paragraph of the corporation's Restated Certificate of

Incorporation and this By-Law. Nothing in the Fifteenth paragraph of the

corporation's Restated Certificate of Incorporation or this By-Law 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.

 

         Section 3. Special Meetings. As required by the Sixteenth paragraph of

the corporation's Restated Certificate of Incorporation, special meetings of the

stockholders for any purpose or purposes may only be called by the Board of

Directors. The business to be transacted at any special meeting shall be

confined to the specific purpose or purposes set forth in the notice of such

meeting. The Board of Directors acting by resolution may postpone and reschedule

any previously scheduled special meeting of stockholders.

 

         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

(a) pursuant to the corporation's notice of meeting (b) by or at the direction

of the Board of Directors or (c) by any stockholder of the corporation who is a

stockholder of record at the time of giving of notice provided for in this By-

Law, who shall be entitled to vote at the meeting and who complies with the

notice procedures set forth in this By-Law. Nominations by stockholders of

persons for election to the Board of Directors may be made at such a special

meeting of stockholders if the stockholder's notice required by the third

paragraph of Section 2 of Article II of these By-Laws shall be delivered to the

Secretary at the principal executive offices of the corporation not earlier than

the 90th day prior to such special meeting and not later than the close of

business on the later of the 60th day prior to such special meeting or the 10th

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.

 

         Only such persons who are nominated in accordance with the procedures

set forth in these By-Laws shall be eligible to serve as directors and only such

business shall be conducted at a special meeting of the stockholders as shall

have been brought before the meeting in accordance with the procedures set forth

in this By-Law. The chairman of the meeting shall have the power and duty to

determine whether any nomination or business proposed to be brought before the

meeting was made in compliance with the procedures set forth in this By-Law, and

if any proposed nomination or business is not in compliance, to declare that

such defective nomination or proposal shall be disregarded.

 

         Notwithstanding the foregoing provisions of this By-Law, 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 this

By-Law. Nothing in this By-Law 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.

 

         Section 4. Notice of Meetings. Notice of all meetings of the

stockholders shall be given to each stockholder entitled to vote thereat at

least ten, but not more than sixty, days prior to the meeting. Notice of any

special meeting shall state in general terms the purpose or purposes for which

the meeting is to be held, and no other business shall be transacted thereat

except as stated in such notice.

 

         Section 5. Quorum; Adjournments of Meetings. The holders of outstanding

shares of stock of the Corporation entitled to cast a majority of the votes

entitled to be cast by the holders of all classes of capital stock of the

Corporation entitled to vote generally in elections of directors, considered for

this purpose as one class, present in person or represented by proxy, shall

constitute a quorum for the transaction of business at all meetings of the

stockholders, but if there be less than a quorum, the chairman of the meeting or

the holders of shares of stock of the Corporation entitled to cast a majority of

the votes entitled to be cast by the holders of all classes of the Corporation's

capital stock so present or represented may adjourn the meeting from time to

time until a quorum shall be present, whereupon the meeting may be held, as

adjourned, without further notice, except as required by law, and any business

may be transacted thereat that might have been transacted on the original date

of the meeting. In the event that at any meeting there are not present, in

person or by proxy, holders of shares of stock of the Corporation entitled to

cast that number of votes which may be required by the laws of the State of

Delaware, or other applicable statute, the Restated Certificate of Incorporation

or these By-Laws, for action upon any given matter, action may nevertheless be

taken at such meeting upon any other matter or matters which may properly come

before the meeting if there shall be present thereat, in person or by proxy,

holders of shares of stock of the Corporation entitled to cast that number of

votes required for action in respect of such other matter or matters.

 

         Section 6. Voting. At any meeting of the stockholders every registered

owner of shares entitled to vote may vote in person or by proxy and, except as

otherwise provided by statute, in the Restated Certificate of Incorporation or

these By-Laws, shall have one vote for each such share standing in his/her or

its name on the books of the corporation. Except as otherwise required by

statute, the Restated Certificate of Incorporation or these By-Laws, all

matters, other than the election of directors, brought before any meeting of the

stockholder shall be decided by a majority vote of the stockholders of the

corporation present in person or by proxy at such meeting and voting thereon, a

quorum being present.

 

         Section 7. Inspectors of Election. The Board of Directors, or, if the

Board shall not have made the appointment, the chairman presiding at any meeting

of stockholders, shall have power to appoint one or more persons to act as

inspectors of election, to receive, canvass and report the votes cast by the

stockholders at such meeting or any adjournment thereof, but no candidate for

the office of director shall be appointed as an inspector at any meeting for the

election of directors.

 

         Section 8. Chairman of Meetings. The Chairman of the Board of

Directors, or any officer or director of the Corporation so designated by the

Chairman of the Board of Directors, or in the absence of either of the

foregoing, the Vice Chairman, or in the absence of all of the foregoing persons,

the President, shall preside at all meetings of the stockholders. In the absence

of the Chairman of the Board, his/her designee, the Vice Chairman and the

President, a majority of the members of the Board of Directors present in person

at such meeting may appoint any other officer or director to act as chairman of

any meeting.

 

         Section 9. Secretary of Meetings. The Secretary or an Assistant

Secretary of the corporation shall act as secretary of all meetings of the

stockholders, and, in their absence, the chairman of the meeting shall appoint

any other person to act as secretary of the meeting.

 

         Section 10. List of Stockholders. It shall be the duty of the officer

of the corporation who has charge of the stock ledger of the corporation to

prepare and make, at least ten days before every meeting of stockholders, a

complete list of the stockholders entitled to vote at said meeting (the

"stockholder list"), arranged in alphabetical order and showing the address of

each stockholder and the number of shares registered in his/her or its name. The

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

purpose germane to the meeting, during ordinary business hours, for such ten day

period 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 said meeting is to be held. The stockholder list shall also

be produced and kept at the place of the meeting during the whole time thereof,

and may be inspected by any stockholder who may be present at said meeting.

 

         Section 11. Procedural Rules. The Board of Directors of the corporation

shall be entitled to make such rules or regulations for the conduct of meetings

of stockholders as it shall deem necessary, appropriate or convenient. Subject

to such rules and regulations of the Board of Directors, if any, the chairman of

the meeting shall have the right and authority to prescribe such rules,

regulations and procedures and to do all such acts appropriate to the proper

conduct of the meeting, including, without limitation, establishing an agenda or

order of business of the meeting, rules and procedures for maintaining order at

the meeting and the safety of those present, limitations on participation in

such meeting to stockholders of record of the corporation and their duly

authorized and constituted proxies, and such other persons as the chairman of

the meeting shall permit, restrictions on entry to the meeting after the time

fixed for the commencement thereof, limitations on the time allotted to

questions or comment by participants and regulation of the opening and closing

of the polls for balloting determined by the Board of Directors or the chairman

of the meeting. The chairman of the meeting shall have the power to adjourn the

meeting to another place, date or time. Meetings of stockholders shall not be

required to be held in accordance with rules of parliamentary procedure.

 

                                   ARTICLE III

                               BOARD OF DIRECTORS

 

         Section 1. General Powers. Except as otherwise provided in the Restated

Certificate of Incorporation or these By-Laws, the property, business and

affairs of the corporation shall be managed and controlled by the Board of

Directors. The Board may exercise all such authority and powers of the

corporation and do all such lawful acts and things as are not by statute or the

Restated Certificate of Incorporation directed or required to be exercised or

done by the stockholders.

 

         Section 2. Number of Directors. The number of directors of the

corporation (exclusive of directors to be elected by the holders of any one or

more classes or series of Preferred Stock of the corporation or any other class

or series of stock of the corporation, which may at some time be outstanding,

voting separately as a class or classes) shall not be less than three nor more

than fourteen, and may be changed from time to time by action of not less than a

majority of the members of the Board then in office. Whenever the words "whole

Board," "entire Board" or "total number of directors" are used in these By-Laws,

such words shall mean the number of directors fixed by the Board and then in

effect in accordance with the provisions of the Restated Certificate of

Incorporation or these By-Laws.

 

         Section 3. Annual Meeting. The annual meeting of the Board of

Directors, of which no notice shall be necessary, shall be held immediately

following the annual meeting of stockholders or any adjournment thereof at the

principal office, if any, of the corporation in the city in which the annual

meeting of stockholders was held at which any of such directors were elected, or

at such other place as a majority of the members of the newly elected Board who

are then present shall determine, for the election or appointment of officers

for the ensuing year and the transaction of such other business as may be

brought before such meeting.

 

         Section 4. Regular Meetings. Regular meetings of the Board of

Directors, other than the annual meeting, shall be held at such times and

places, and on such notice, if any, as the Board of Directors may from time to

time determine.

 

         Section 5. Special Meetings. Special meetings of the Board of Directors

may be called by order of the Chairman of the Board or the Vice Chairman or the

President or may be called at the request of any two directors. Notice of the

time and place of each special meeting shall be given by or at the direction of

the Secretary of the corporation or an Assistant Secretary of the corporation,

or, in their absence, by the person or persons calling the meeting by mailing

the same at least five days before the meeting or by telephoning, telegraphing,

transmitting by facsimile or electronically or delivering personally the same at

least twenty-four hours before the meeting to each director. Except as otherwise

specified in the notice thereof, or as required by statute, the Restated

Certificate of Incorporation or these By-Laws, any and all business may be

transacted at any special meeting.

 

         Section 6. Attendance By Communications Equipment. Unless otherwise

restricted by the Restated Certificate of Incorporation, members of the Board of

Directors or of any committee designated by the Board may participate in a

meeting of the Board or any such committee by means of conference telephone or

similar communications equipment whereby all persons participating in the

meeting can hear each other. Participation in any meeting by such means shall

constitute presence in person at such meeting. Any meeting at which one or more

members of the Board of Directors or of any committee designated by the Board

shall participate by means of conference telephone or similar communications

equipment shall be deemed to have been held at the place designated for such

meeting, provided that at least one member is at such place while participating

in the meeting.

 

         Section 7. Organization. Every meeting of the Board of Directors shall

be presided over by the Chairman of the Board or, in his/her absence, the Vice

Chairman, or in his/her absence, the President. In the absence of the Chairman

of the Board, the Vice Chairman and the President, a presiding officer shall be

chosen by a majority of the directors present. The Secretary of the corporation,

or, in his/her absence, an Assistant Secretary of the corporation, shall act as

secretary of the meeting, but, in their absence, the presiding officer may

appoint any person to act as secretary of the meeting.

 

         Section 8. Quorum; Vote. A majority of the directors then in office

(but in no event less than one-third of the total number of directors) shall

constitute a quorum for the transaction of business, but less than a quorum may

adjourn any meeting to another time or place from time to time until a quorum

shall be present, whereupon the meeting may be held, as adjourned, without

further notice. Except as otherwise required by statute, the Restated

Certificate of Incorporation or these By-Laws, all matters coming before any

meeting of the Board of Directors shall be decided by the vote of a majority of

the directors present at the meeting, a quorum being present.

 

         Section 9. Compensation. The directors shall receive such compensation

for their services as directors and as members of any committee appointed by the

Board as may be prescribed by the Board of Directors and shall be reimbursed by

the Corporation for ordinary and reasonable expenses incurred in the performance

of their duties, and the foregoing shall not be construed as prohibiting the

payment to any director of compensation for services rendered in any other

capacity.

 

                                   ARTICLE IV

                                   COMMITTEES

 

         Section 1. Executive Committee. The Board of Directors may, by

resolution passed by a majority of the whole Board, designate from among its

members an Executive Committee to consist of three or more members and may

designate one of such members as chairman. The Board may also designate one or

more of its members as alternates to serve as a member or members of the

Executive Committee in the absence of a regular member or members. Except as

provided in Section 4 of this Article IV, the Executive Committee shall have and

may exercise all the powers and authority of the Board of Directors in the

management of the business and affairs of the corporation, and the Executive

Committee may authorize the seal of the corporation to be affixed to all papers

which may require it.

 

         Section 2. Other Committees. The Board of Directors, acting by a

majority of the whole Board, may also appoint from among its own members such

other committees as the Board may determine, to have such powers and duties as

shall from time to time be prescribed by the Board and which, in the discretion

of the Board, may be designated as committees of the Board.

 

         Section 3. Quorum and Discharge. A majority of the entire committee

shall constitute a quorum for the transaction of business of any committee and

may fix its rules of procedure. The Board of Directors may discharge any

committee either with or without cause at any time.

 

         Section 4. Powers of Committees. No committee designated or appointed

by the Board of Directors shall have the power or authority of the Board in

reference to (a) amending the Restated Certificate of Incorporation, (b)

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

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

corporation's property and assets, (d) recommending to the stockholders a

dissolution of the corporation or a revocation of a dissolution, (e) amending

the By-Laws of the corporation, (f) declaring dividends, (g) designating

committees, (h) filling vacancies among committee members or (i) removing

officers. The Executive Committee shall have the power and authority of the

Board to authorize the issuance of shares of capital stock of the corporation of

any class or any series of any class.

 

         Section 5. Committee Meetings. Regular meetings of any committee

designated or appointed by the Board of Directors shall be held at such times

and places and on such notice, if any, as the committee may from time to time

determine. Special meetings of any committee designated or appointed by the

Board may be called by order of the Chairman of the Board, Vice Chairman of the

Board, President of the corporation, Chairman of the committee or any two

members of any such committee. Notice shall be given of the time and place of

each special meeting by mailing the same at least two days before the meeting or

by telephoning, telegraphing or delivering personally the same at least

twenty-four hours before the meeting to each committee member. Except as

otherwise spe cified in the notice thereof or as required by law, the Restated

Certificate of Incorporation or these By-Laws, any and all business may be

transacted at any regular or special meeting of a committee. The Secretary of

the corporation shall keep the minutes of the meetings of all committees

designated or appointed by the Board of Directors and shall be the custodian of

all corporation records.

 

                                    ARTICLE V

                                    OFFICERS

 

         Section 1. General. The Board of Directors shall elect the following

executive officers: a Chairman of the Board, a Vice Chairman, a President, one

or more Vice Presidents and a Secretary; and it may elect or appoint from time

to time such other or additional officers as in its opinion are desirable for

the conduct of the business of the corporation.

 

         Section 2. Term of Office: Removal and Vacancy. Each officer shall hold

his/her office until his/her successor is elected and qualified or until his/her

earlier resignation or removal. Any officer or agent shall be subject to removal

with or without cause at any time by the Board of Directors. Vacancies in any

office, whether occurring by death, resignation, removal or otherwise, may be

filled at any regular or special meeting of the Board of Directors.

 

         Section 3. Powers and Duties. Each of the officers of the corporation

shall, unless otherwise ordered by the Board of Directors, have such powers and

duties as generally pertain to his/her respective office as well as such powers

and duties as from time to time may be conferred upon him/her by the Board of

Directors. Unless otherwise ordered by the Board of Directors after the adoption

of these By-Laws, the Chairman of the Board, or, when the office of Chairman of

the Board is vacant, the President, shall be the chief executive officer of the

corporation.

 

         Section 4. Power to Vote Stock. Unless otherwise ordered by the Board

of Directors, the Chairman of the Board, the Vice Chairman and the President

each shall have full power and authority on behalf of the corporation to attend

and to vote at any meeting of stockholders of any corporation in which this

corporation may hold stock, and may exercise on behalf of this corporation any

and all of the rights and powers incident to the ownership of such stock at any

such meeting and shall have power and authority to execute and deliver proxies,

waivers and consents on behalf of the corporation in connection with the

exercise by the corporation of the rights and powers incident to the ownership

of such stock. The Board of Directors, from time to time, may confer like powers

upon any other person or persons.

 

 

                                   ARTICLE VI

                                  CAPITAL STOCK

 

         Section 1. Certificates of Stock. Certificates for stock of the

corporation shall be in such form as the Board of Directors may from time to

time prescribe and shall be signed by the Chairman of the Board or a Vice

Chairman of the Board or the President or a Vice President and by the Secretary

of the corporation or an Assistant Secretary of the corporation.

 

         Section 2. Transfer of Stock. Shares of capital stock of the

corporation shall be transferable on the books of the corporation only by the

holder of record thereof, in person or by duly authorized attorney, upon

surrender and cancellation of certificates for a like number of shares, with an

assignment or power of transfer endorsed thereon or delivered therewith, duly

executed, and with such proof of the authenticity of the signature and of

authority to transfer, and of payment of transfer taxes, as the corporation or

its agents may require.

 

         Section 3. Ownership of Stock. The corporation shall be entitled to

treat the holder of record of any share or shares of stock as the owner thereof

in fact and shall not be bound to recognize any equitable or other claim to or

interest in such shares on the part of any other person, whether or not it shall

have express or other notice thereof, except as otherwise expressly provided by

law.

 

                                   ARTICLE VII

                                    AMENDMENT

 

         The Board of Directors shall have the power to make, alter or repeal

the By-Laws of the corporation subject to the power of the stockholders to alter

or repeal the By-Laws made or altered by the Board of Directors.

 

                                  ARTICLE VIII

                                 INDEMNIFICATION

 

         Section 1. Obligation to Indemnify. This corporation shall, to the

fullest extent permitted by Delaware law, as in effect from time to time (but,

in the case of any amendment of the Delaware General Corporation Law or the

Delaware Limited Liability Company Act, only to the extent that such amendment

permits this corporation to provide broader indemnification rights than said

laws permitted this corporation to provide prior to such amendment), indemnify

each person who is or was a director, manager or officer of this corporation or

of any of its wholly owned subsidiaries at any time on or after August 1, 1988,

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

pending or completed action, suit or proceeding, or was or is involved in any

action, suit or proceeding, whether civil, criminal, administrative or

investigative (hereinafter a "proceeding"), by reason of the fact that he or she

is or was a director, manager, officer, employee or agent of this corporation or

of any of its wholly owned subsidiaries, or is or was at any time serving, at

the request of this corporation or any of its wholly owned subsidiaries, any

other corporation, partnership, joint venture, trust, employee benefit plan or

other enterprise in any capacity against all expense, liability and loss

(including, but not limited to, attorneys' fees, judgments, fines, excise taxes

or penalties (with respect to any employee benefit plan or otherwise), and

amounts paid or to be paid in settlement) incurred or suffered by such director,

manager, officer, employee or agent in connection with such proceeding;

provided, however, that, except as provided in Section 5 of this ARTICLE VIII,

this corporation shall not be obligated to indemnify any person under this

ARTICLE VIII, in connection with a proceeding (or part thereof) if such

proceeding (or part thereof) was not authorized by the Board of Directors of

this corporation and was initiated by such person against (i) this corporation

or any of its subsidiaries, (ii) any person who is or was a director, manager,

officer, employee or agent of this corporation or any of its subsidiaries and/or

(iii) any person or entity which is or was controlled, controlled by, or under

common control with, this corporation or has or had business relations with this

corporation or any of its subsidiaries.

 

         Section 2. Contract Right; Advance Payment of Expenses. The right to

indemnification conferred in this ARTICLE VIII shall be a contract right, shall

continue as to a person who has ceased to be a director, manager or officer of

this corporation or of any of its wholly owned subsidiaries and shall inure to

the benefit of his or her heirs, executors and administrators, and shall include

the right to be paid by this corporation the expenses incurred in connection

with the defense or investigation of any such proceeding in advance of its final

disposition; provided, however, that, if and to the extent that Delaware law so

requires, the payment of such expenses in advance of the final disposition of a

proceeding shall be made only upon delivery to this corporation of an under

taking, by or on behalf of such director, manager or officer or former director,

manager or officer, to repay all amounts so advanced if it shall ultimately be

determined that such director, manager or officer or former director, manager or

officer is not entitled to be indemnified by this corporation.

 

         Section 3. Vesting of Rights. The corporation's obligation to indemnify

and to pay expenses in advance of the final disposition of a proceeding under

this ARTICLE VIII shall arise, and all rights and protections granted to

directors, managers and officers under this ARTICLE VIII shall vest, at the time

of the occurrence of the transaction or event to which any proceeding relates,

or at the time that the action or conduct to which any proceeding relates was

first taken or engaged in (or omitted to be taken or engaged in), regardless of

when any proceeding is first threatened, commenced or completed.

 

         Section 4. Continuing of Obligations. Notwithstanding any other

provision of these By-laws or the Restated Certificate of Incorporation of this

corporation, no action by this corpora tion, either by amendment to or repeal of

this ARTICLE VIII or the Restated Certificate of Incorporation of this

corporation or otherwise shall diminish or adversely affect any right or

protection granted under this ARTICLE VIII to any director, manager or officer

or former director, manager or officer of this corporation or of any of its

wholly-owned subsidiaries which shall have become vested as aforesaid prior to

the date that any such amendment, repeal or other corporate action is taken.

 

         Section 5. Right to Sue for Unpaid Claims. If a claim for

indemnification and/or for payment of expenses in advance of the final

disposition of a proceeding arising under this ARTICLE VIII is not paid in full

by this corporation within thirty days after a written claim has been received

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

this 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 of

prosecuting such claim.

 

         Section 6. Non-Exclusivity. The right to indemnification and the

payment of expenses incurred in connection with the defense or investigation of

a proceeding in advance of its final disposition conferred in this ARTICLE VIII

shall not be exclusive of any other right which any person may have or hereafter

acquire under any statute, provision of the By-Laws, Restated Certificate of

Incorporation, agreement, vote of stockholders or disinterested directors or

otherwise. This corporation may also indemnify all other persons to the fullest

extent permitted by Delaware law.

 

         Section 7. Effective Date. The provisions of this ARTICLE VIII shall

apply to any proceeding commenced on or after August 1, 1988. The provisions of

this ARTICLE VIII of this corporation's By-Laws, as in effect on July 31, 1988,

shall govern indemnification in respect of any proceeding commenced prior to

August 1, 1988 and in respect of any rights to indemnification or prepayment of

expenses granted under the provisions of said ARTICLE VIII which shall have

become vested.

 

                                   ARTICLE IX

                               LIABILITY INSURANCE

 

         The corporation may purchase and maintain insurance on behalf of any

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

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

director, officer, manager, employee or agent of another corporation,

partnership, joint venture, trust or other enterprise, against any liability

asserted against him or her and incurred by him or her in any such capacity, or

arising out of his status as such, whether or not the corporation would have the

power to indemnify him or her against such liability under the provisions of

ARTICLE VIII hereof.

 

                                    ARTICLE X

                                  MISCELLANEOUS

 

         Section 1. Corporate Seal. The seal of the corporation shall be

circular in form and shall contain the name of the corporation and the year and

State of incorporation. The Secretary of the corporation shall be the custodian

of the seal of the corporation.

 

         Section 2. Fiscal Year. The Board of Directors shall have power to fix,

and from time to time to change, the fiscal year of the corporation.

 

         Section 3. Waiver of Notice. Any notice required to be given under the

provisions of these By-Laws or otherwise may be waived by the stockholder,

director, member of any committee or officer to whom such notice is required to

be given, before or after the meeting or other action of which notice was

required to be given.