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EXHIBIT 3(ii).1 AMENDED AND RESTATED BY-LAWS OF TVIA, INC. (a Delaware corporation)
(Amended as of May 13, 2004)




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TABLE OF CONTENTS ARTICLE 1-MEETING OF STOCKHOLDERS
    
    
    11.1 Place of Meeting
    
    
    11.2 Annual Meeting
    
    
    11.3 Special Meetings
    
    
    21.4 Notice of Meetings
    
    
    21.5 List of Stockholders
    
    
    21.6 Organization and Conduct of Business
    
    
    21.7 Quorum and Adjournments
    
    
    21.8 Voting Rights
    
    
    21.9 Majority Vote
    
    
    21.10 Record Date for Stockholder Notice and Voting
    
    
    31.11 Proxies
    
    
    31.12 Inspectors of Election
    
    
    31.13 Action Without a Meeting
    
    
    3ARTICLE 2-DIRECTORS
    
    
    32.1 Number, Election, Tenure and Qualifications
    
    
    32.2 Enlargement and Vacancies
    
    
    42.3 Resignation and Removal
    
    
    42.4 Powers
    
    
    42.5 Chairman of the Board
    
    
    52.6 Place of Meetings
    
    
    52.7 Annual Meetings
    
    
    52.8 Regular Meetings
    
    
    52.9 Special Meetings
    
    
    52.10 Quorum, Action at Meeting, Adjournments
    
    
    52.11 Action Without Meeting
    
    
    52.12 Telephone Meetings
    
    
    52.13 Committees
    
    
    52.14 Fees and Compensation of Directors
    
    
    6ARTICLE 3-OFFICERS
    
    
    63.1 Officers Designated
    
    
    63.2 Election
    
    
    63.3 Tenure
    
    
    63.4 The Chief Executive Officer
    
    
    63.5 The President
    
    
    73.6 The Vice President
    
    
    73.7 The Secretary
    
    
    73.8 The Assistant Secretary
    
    
    73.9 The Chief Financial Officer
    
    
    73.10 Treasurer and Assistant Treasurers
    
    
    73.11 Bond
    
    
    83.12 Delegation of Authority
    
    
    8ARTICLE 4-NOTICES
    
    
    84.1 Delivery
    
    
    84.2 Waiver of Notice
    
    
    8ARTICLE 5-INDEMNIFICATION
    
    
    85.1 Actions Other Than By or in the Right of the Corporation
    
    
    85.2 Actions By or in the Right of the Corporation
    
    
    8
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5.3 Success on the Merits
    
    
    95.4 Specific Authorization
    
    
    95.5 Advance Payment
    
    
    95.6 Non-Exclusivity
    
    
    95.7 Insurance
    
    
    95.8 Severability
    
    
    95.9 Intent of Article
    
    
    9ARTICLE 6-CAPITAL STOCK
    
    
    106.1 Certificates for Shares
    
    
    106.2 Transfer of Stock
    
    
    106.3 Registered Stockholders
    
    
    106.4 Lost, Stolen or Destroyed Certificates
    
    
    10ARTICLE 7-CERTAIN TRANSACTIONS
    
    
    107.1 Transactions with Interested Parties
    
    
    107.2 Quorum
    
    
    11ARTICLE 8-GENERAL PROVISIONS
    
    
    118.1 Dividends
    
    
    118.2 Reserves
    
    
    118.3 Checks
    
    
    118.4 Corporate Seal
    
    
    118.5 Fiscal Year
    
    
    118.6 Execution of Corporate Contracts and Instruments
    
    
    118.7 Representation of Shares of Other Corporations
    
    
    11ARTICLE 9-AMENDMENTS
    
    
    12
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AMENDED AND RESTATED BY-LAWSOF TVIA, INC. (a Delaware corporation) ARTICLE 1
MEETING OF STOCKHOLDERS 1.1Place of Meeting. Meetings of stockholders may be held at such place, either
within or without of the State of Delaware, as may be designated by or in the manner provided in
these by-laws, or, if not so designated, at the registered office of the corporation or the
principal executive offices of the corporation. 1.2Annual Meeting. Annual meetings of stockholders shall be held each year at such
date and time as shall be designated from time to time by the Board of Directors or the Chief
Executive Officer and stated in the notice of the meeting. At such annual meeting, the
stockholders shall elect by a plurality vote the number of directors equal to the number of
directors of the class whose term expires at such meetings (or, if fewer, the number of directors
properly nominated and qualified for election) to hold office until the third succeeding annual
meeting of stockholders after their election. The stockholders shall also transact such other
business as may properly be brought before the meetings. To be properly brought before the annual meeting, business must be (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board of Directors or
the Chief Executive Officer, (b) otherwise properly brought before the meeting by or at the
direction of the Board of Directors or the Chief Executive Officer, or (c) otherwise properly
brought before the meeting by a stockholder of record. In addition to any other applicable
requirements, for business to be properly brought before the annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of the corporation.
To be timely, a stockholders notice must be delivered by a nationally recognized courier service
or mailed by first-class United States mail, postage or delivery charges prepaid, and received at
the principal executive offices of the corporation, addressed to the attention of the Secretary of
the corporation, not less than 60 days nor more than 90 days prior to the scheduled date of the
meeting (regardless of any postponements, deferrals or adjournments of that meeting to a later
date); provided, however,that in the event that less than 75 days notice or prior public
disclosure of the date of the scheduled meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the earlier of (a) the close of
business on the 15th day following the day on which such notice of the date of the scheduled annual
meeting was mailed or such public disclosure was made, whichever first occurs, and (b) two days
prior to the date of the scheduled meeting. 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, series and number of shares of the corporation that are
owned beneficially by the stockholder, and (iv) any material interest of the stockholder in such
business. Notwithstanding anything in these by-laws to the contrary, no business shall be conducted at
the annual meeting except in accordance with the procedures set forth in this Section; provided,
however, that nothing in this Section shall be deemed to preclude discussion by any stockholder of
any business properly brought before the annual meeting. The Chairman of the Board of Directors of the corporation (or such other person presiding at
the meeting in accordance with these by-laws) 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, and if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the meeting shall not be transacted. 1




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1.3Special Meetings. Special meetings of the stockholders may be called for any
purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation,
by the Chief Executive Officer or Secretary only at the request of the Chairman of the Board, the
Chief Executive Officer or President of the corporation or by a resolution duly adopted by the
affirmative vote of a majority of the Board of Directors. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting shall be limited to
matters relating to the purpose or purposes stated in the notice of meeting. 1.4Notice of Meetings. Written notice of stockholders meetings, stating the place,
date and time of the meeting and, in the case of a special meeting, the purpose or purposes for
which such special meeting is called, shall be given to each stockholder entitled to vote at such
meeting not less than 10 nor more than 60 days prior to the meeting. When a meeting is adjourned to another place, date or time, written notice need not be given
of the adjourned meeting if the place, date and time thereof are announced at the meeting at which
the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than
30 days after the date for which the meeting was originally noticed, or if a new record date is
fixed for the adjourned meeting, written notice of the place, date and time of the adjourned
meeting shall be given in conformity herewith. 1.5List of Stockholders. The officer in charge of the stock ledger of the
corporation or the transfer agent shall prepare and make, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the meeting arranged in
alphabetical order, and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10
days prior to the meeting, at a place within the city where the meeting is to be held, which place,
if other than the place of the meeting, shall be specified in the notice of the meeting. The 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 is present in person thereat. 1.6Organization and Conduct of Business. The Chairman of the Board of Directors or,
in his or her absence, the Chief Executive Officer or President of the corporation or, in their
absence, such person as the Board of Directors may have designated or, in the absence of such a
person, such person as may be chosen by the holders of a majority of the shares entitled to vote
who are present, in person or by proxy, shall call to order any meeting of the stockholders and act
as Chairman of the meeting. In the absence of the Secretary of the corporation, the secretary of
the meeting shall be such person as the Chairman appoints. The Chairman of any meeting of stockholders shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and the conduct of
discussion as seems to him or her in order. 1.7Quorum and Adjournments. Except where otherwise provided by law or the
certificate of incorporation or these by-laws, the holders of a majority of the stock issued and
outstanding and entitled to vote, present in person or represented in proxy, shall constitute a
quorum at all meetings of the stockholders. The stockholders present at a duly called or held
meeting at which a quorum is present may continue to do business until adjournment, notwithstanding
the withdrawal of enough stockholders to have less than a quorum if any action taken (other than
adjournment) is approved by at least a majority of the shares required to constitute a quorum. At
such adjourned meeting at which a quorum is present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. If, however, a quorum
shall not be present or represented at any meeting of the stockholders, the stockholders entitled
to vote thereat who are present in person or represented by proxy or, if no stockholder is present
or represented by proxy, by any officer entitled to preside at or to act as secretary of such
meeting, shall have the power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. 1.8Voting Rights. Unless otherwise provided in the certificate of incorporation,
each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held by such stockholder. 1.9Majority Vote. When a quorum is present at any meeting, the vote of the holders
of a majority of the stock having voting power present in person or represented by proxy shall
decide any question brought before such 2




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meeting, unless the question is one upon which by express provision of the statutes or of the
certificate of incorporation or of these by-laws, a different vote is required in which case such
express provision shall govern and control the decision of such question. 1.10Record Date for Stockholder Notice and Voting. For purposes of determining the
stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or to
vote, or entitled to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any right in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 days nor less than 10 days before the date of any such
meeting nor more than 60 days before any other action to which such record date relates. A
determination of stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting. If the Board of Directors does not
so fix a record date, 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 business day next preceding
the day on which notice is given or, if notice is waived, at the close of business on the business
day next preceding the day on which the meeting is held. The record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating to such purpose. 1.11Proxies. To the extent permitted by law, any stockholder of record may appoint a
person or persons to act as the stockholders proxy or proxies at any stockholder meeting for the
purpose of representing and voting the stockholders shares. The stockholder may make this
appointment by any means the General Corporation Law of the State of Delaware specifically
authorizes, and by any other means the Secretary of the corporation may permit. Prior to any vote,
and subject to any contract rights of the proxy holder, the stockholder may revoke the proxy
appointment either directly or by the creation of a new appointment, which will automatically
revoke the former one. The inspector of elections appointed for the meeting may establish
requirements concerning such proxy appointments or revocations that the inspector considers
necessary or appropriate to assure the integrity of the vote and to comply with law. 1.12Inspectors of Election. The corporation shall, in advance of any meeting of
stockholders, appoint one or more inspectors of election to act at the meeting and make a written
report thereof. The corporation may designate one or more persons to act 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. 1.13Action Without a Meeting. No action required or permitted to be taken at any
annual or special meeting of the stockholders of the corporation may be taken without a meeting and
the power of the stockholders to consent in writing, without a meeting, to the taking of any action
is specifically denied. ARTICLE 2DIRECTORS 2.1Number, Election, Tenure and Qualifications. The number of directors which shall
constitute the whole Board of Directors shall be not less than five nor more than nine. Within
such limit, the number of directors that shall constitute the whole Board of Directors shall be
fixed from time to time by resolution adopted by a majority of the entire Board of Directors.
Thereafter, the number of directors which shall constitute the whole Board of Directors shall be
fixed from time to time by resolution of the Board of Directors. The classes of directors that
shall constitute the whole Board of Directors shall be as provided in the certificate of
incorporation. At each annual meeting of the stockholders, directors shall be elected for that class of
directors whose terms are then expiring, except as otherwise provided in Section 2.2 of this
Article, and each director so elected shall hold office until such directors successor is duly
elected and qualified or until such directors earlier resignation, removal, death or incapacity. Subject to the rights of holders of any class or series of stock having a preference over the
common stock as to dividends or upon liquidation, nominations of persons for election to the Board
of Directors at the annual meeting, by or 3




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at the direction of the Board of Directors, may be made by any nominating committee or person
appointed by the Board of Directors; nominations may also be made by any stockholder of record 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. 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 by a
nationally recognized courier service or mailed by first-class United States mail postage or
delivery charges prepaid, and received at the principal executive offices of the corporation
addressed to the attention of the Secretary of the corporation not less than 60 days nor more than
90 days prior to the scheduled date of the meeting (regardless of any postponements, deferrals or
adjournments of that meeting to a later date); provided, however, that in the event that less than
75 days notice or prior public disclosure of the date of the scheduled meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not later than the earlier
of (a) the close of business on the 15th day following the day on which such notice of the date of
the scheduled annual meeting was mailed or such public disclosure was made, whichever first occurs,
and (b) two days prior to the date of the scheduled meeting. Such stockholders notice to the
Secretary shall set forth (a) as to each person whom the stockholder proposes to nominate for
election or reelection 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, series and
number of shares of capital stock of the corporation that are owned beneficially by the person,
(iv) a statement as to the persons citizenship, and (v) any other information relating to the
person that is required to be disclosed in solicitations for proxies for election of directors
pursuant to Section 14 of the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated there under; and (b) as to the stockholder giving the notice, (i) the name
and record address of the stockholder and (ii) the class, series and number of shares of capital
stock of the corporation that are owned beneficially 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 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. In connection with any annual meeting, the Chairman of the Board of Directors (or such other
person presiding at such meeting in accordance with these by-laws) 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 should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded. Directors shall serve as provided in the certificate of incorporation of the corporation.
Directors need not be stockholders. 2.2Enlargement and Vacancies. The number of members of the Board of Directors may be
increased at any time by vote of a majority of the directors then in office. Sole power to fill
vacancies and newly created directorships resulting from any increase in the authorized number of
directors shall be vested in the Board of Directors through action by a majority of the directors
then in office, though less than a quorum, or by a sole remaining director, and each director so
chosen shall hold office until the next annual election at which the term of the class to which
they have been elected expires and until such directors successor is duly elected and qualified or
until such directors earlier resignation, removal from office, death or incapacity. If there are
no directors in office, then an election of directors may be held in the manner provided by
statute, hi the event of a vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law or these by-laws, may exercise the powers of the full board until the
vacancy is filled. 2.3Resignation and Removal. Any director may resign at any time upon written notice
to the corporation at its principal place of business or to the Chief Executive Officer or the
Secretary. Such resignation shall be effective upon receipt of such notice unless the notice
specifies such resignation to be effective at some other time or upon the happening of some other
event. Any director or the entire Board of Directors may be removed, but only for cause, by the
holders of a majority of the shares then entitled to vote at an election of directors, unless
otherwise specified by law or the certificate of incorporation. 2.4Powers. The business of the corporation shall be managed by or under the
direction of the Board of Directors which may exercise all such powers of the corporation and do
all such lawful acts and things which are not by statute or by the certificate of incorporation or
by these by-laws directed or required to be exercised or done by the stockholders. 4




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2.5Chairman of the Board. If the Board of Directors appoints a Chairman of the
Board, such Chairman shall, when present, preside at all meetings of the stockholders and the Board
of Directors. The Chairman shall perform such duties and possess such powers as are customarily
vested in the office of the Chairman of the Board or as may be vested in the Chairman by the Board
of Directors. 2.6Place of Meetings. The Board of Directors may hold meetings, both regular and
special, either within or without the State of Delaware. 2.7Annual Meetings. The annual meetings of the Board of Directors shall be held
immediately following the annual meeting of stockholders, and no notice of such meeting shall be
necessary to the Board of Directors, provided a quorum shall be present. The annual meetings shall
be for the purposes of organization, and an election of officers and the transaction of other
business. 2.8Regular Meetings. Regular meetings of the Board of Directors may be held without
notice at such time and place as may be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall be given prompt
notice of such determination. A regular meeting may be held immediately following the annual
meeting of stockholders, and at the same place as the annual meeting of stockholders. 2.9Special Meetings. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the Chief Executive Officer, the President, the Secretary, or on the written
request of two or more directors, or by one director in the event that there is only one director
in office. Notice of the time and place of special meetings shall be delivered personally or by
telephone to each director, or sent by first-class mail or telegram, cable, commercial delivery
service, telex, facsimile transmission, or electronic means, charges prepaid, sent to such
directors business or home address as they appear upon the records of the corporation. In case
such notice is mailed, it shall be deposited in the United States mail at least four days prior to
the time of holding of the meeting. In case such notice is delivered personally or by telegram,
cable, commercial delivery service, telex, facsimile transmission, or electronic means, it shall be
so delivered at least four hours prior to the time of the holding of the meeting. A notice or
waiver of notice of a meeting of the Board of Directors need not specify the purposes of the
meeting. 2.10Quorum, Action at Meeting, Adjournments. At all meetings of the Board of
Directors, a majority of directors then in office, but in no event less than one third of the
entire Board of Directors, shall constitute a quorum for the transaction of business and the act of
a majority of the directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by law or by the
certificate of incorporation. For purposes of this section, the term entire shall mean the
number of directors last fixed by the stockholders or directors, as the case may be, in accordance
with law and these by-laws; provided, however, that if less than all the number so fixed of
directors were elected, the entire Board shall mean the greatest number of directors so elected
to hold office at any one time pursuant to such authorization. If a quorum shall not be present at
any meeting of the Board of Directors, a majority of the directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the meeting, until a quorum
shall be present. 2.11Action Without Meeting. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting, if all members of
the Board of Directors or committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission or transmissions
are filed with the minutes of proceedings of the Board of Directors or committee. 2.12Telephone Meetings. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any member of the Board of Directors or any committee thereof may
participate in a meeting of the Board of Directors or of any committee, as the case may be, by
means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting. 2.13Committees. The Board of Directors may, by resolution passed by a majority of
the whole Board of Directors, designate one or more committees, each committee to consist of one or
more of the directors of the corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace 5




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any absent or disqualified member at any meeting of the committee. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the corporations property
and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a
dissolution, or amending the by-laws of the corporation; and, unless the resolution designating
such committee or the certificate of incorporation expressly so provide, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its
meetings and make such reports to the Board of Directors as the Board of Directors may request.
Except as the Board of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is provided in these
by-laws for the conduct of its business by the Board of Directors. 2.14Fees and Compensation of Directors. Unless otherwise restricted by the
certificate of incorporation or these by-laws, the Board of Directors shall have the authority to
fix the compensation of directors. The directors may be paid their expenses, if any, of attendance
at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each
meeting of the Board of Directors and/or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and receiving compensation
therefore. Members of special or standing committees may be allowed like compensation for
attending committee meetings. ARTICLE 3OFFICERS 3.1Officers Designated. The officers of the corporation shall be chosen by the Board
of Directors and shall be a Chief Executive Officer, a President, a Secretary, and a Chief
Financial Officer or Treasurer. The Board of Directors may also choose a Chief Operating Officer,
one or more Vice Presidents, and one or more assistant Secretaries or assistant Treasurers. Any
number of offices may be held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide. 3.2Election. The Board of Directors at its first meeting after each annual meeting
of stockholders shall choose a Chief Executive Officer, a President, a Secretary, and a Chief
Financial Officer or Treasurer. Other officers may be appointed by the Board of Directors at such
meeting, at any other meeting, or by written consent or may be appointed by the Chief Executive
Officer pursuant to a delegation of authority from the Board of Directors. 3.3Tenure. The officers of the corporation shall hold office until their successors
are chosen and qualify, unless a different term is specified in the vote choosing or appointing
such officer, or until such officers earlier death, resignation or removal. Any officer elected
or appointed by the Board of Directors or by the Chief Executive Officer may be removed with or
without cause at any time by the affirmative vote of a majority of the Board of Directors or a
committee duly authorized to do so, except that any officer appointed by the Chief Executive
Officer may also be removed at any time by the Chief Executive Officer. Any vacancy occurring in
any office of the corporation may be filled by the Board of Directors, at its discretion. Any
officer may resign by delivering such officers written resignation to the corporation at its
principal place of business or to the Chief Executive Officer or the Secretary. Such resignation
shall be effective upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event. 3.4The Chief Executive Officer. Subject to such supervisory powers, if any, as may
be given by the Board of Directors to the Chairman of the Board, the Chief Executive Officer shall
preside at all meetings of the stockholders and in the absence of the Chairman of the Board, or if
there be none, at all meetings of the Board of Directors, shall have general and active management
of the business of the corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He or she shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed and except 6




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where the signing and execution thereof shall be expressly delegated by the Board of Directors
to some other officer or agent of the corporation. 3.5The President. The President shall, in the event there be no Chief Executive
Officer or in the absence of the Chief Executive Officer or in the event of his or her disability
or refusal to act, perform the duties of the Chief Executive Officer, and when so acting, shall
have the powers of and subject to all the restrictions upon the Chief Executive Officer. The
President shall perform such other duties and have such other powers as may from time to time be
prescribed for such person by the Board of Directors or the Chief Executive Officer. 3.6The Vice President. The Vice President (or in the event there be more than one,
the Vice Presidents in the order designated by the directors, or in the absence of any designation,
in the order determined by their tenure in office), shall, in the absence of the President or in
the event of his or her disability or refusal to act, perform the duties of the President, and when
so acting, shall have the powers of and subject to all the restrictions upon the President. The
Vice President(s) shall perform such other duties and have such other powers as may from time to
time be prescribed for them by the Board of Directors or the Chief Executive Officer. 3.7The Secretary. The Secretary shall attend all meetings of the Board of Directors
and the stockholders and record all votes and the proceedings of the meetings in a book to be kept
for that purpose and shall perform like duties for the standing committees, when required. The
Secretary shall give, or cause to be given, notice of all meetings of stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may from time to time be
prescribed by the Board of Directors or the Chief Executive Officer, under whose supervision he or
she shall act. The Secretary shall have custody of the seal of the corporation, and the Secretary,
or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it,
and, when so affixed, the seal may be attested by his or her signature or by the signature of such
Assistant Secretary. The Board of Directors may give general authority to any other officer to
affix the seal of the corporation and to attest the affixing thereof by his or her signature. The
Secretary shall keep, or cause to be kept, at the principal executive office or at the office of
the corporations transfer agent or registrar, as determined by resolution of the Board of
Directors, a share register, or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number and date of
certificates issued for the same and the number and date of cancellation of every certificate
surrendered for cancellation. 3.8The Assistant Secretary. The Assistant Secretary, or if there be more than one,
the Assistant Secretaries in the order designated by the Board of Directors (or in the absence of
any designation, in the order determined by their tenure in office) shall assist the Secretary in
the performance of his or her duties and, in the absence of the Secretary or in the event of his or
her inability or refusal to act, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as may from time to time be prescribed
by the Board of Directors or the Chief Executive Officer. 3.9The Chief Financial Officer. The Chief Financial Officer shall have the custody
of the Corporate funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys and other valuable
effects in the name and to the credit of the corporation in such depositories as may be designated
by the Board of Directors. The Chief Financial Officer shall disburse the funds of the corporation
as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his or her transactions as Chief
Financial Officer and of the financial condition of the corporation. The Chief Financial Officer
shall perform such other duties and have other powers as may from time to time be prescribed by the
Board of Directors or the Chief Executive Officer. 3.10Treasurer and Assistant Treasurers. The Treasurer shall have such duties as may
be specified by the Chief Financial Officer to assist the Chief Financial Officer in the
performance of his or her duties and to perform such other duties and have other powers as may from
time to time be prescribed by the Board of Directors or the Chief Executive Officer. It shall be
the duty of the Assistant Treasurers to assist the Treasurer in the performance of his or her
duties and to perform such other duties and have other powers as may from time to time be
prescribed by the Board of Directors or the Chief Executive Officer. 7




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3.11Bond. If required by the Board of Directors, any officer shall give the
corporation a bond in such sum and with such surety or sureties and upon such terms and conditions
as shall be satisfactory to the Board of Directors, including without limitation a bond for the
faithful performance of the duties of such officers office and for the restoration to the
corporation of all books, papers, vouchers, money and other property of whatever kind in such
officers possession or under such officers control and belonging to the corporation. 3.12Delegation of Authority. The Board of Directors may from time to time delegate
the powers or duties of any officer to any other officers or agents, notwithstanding any provision
hereof. ARTICLE 4NOTICES 4.1Delivery. Whenever, under the provisions of law, or of the certificate of
incorporation or these by-laws, written notice is required to be given to any director or
stockholder, such notice may be given by mail, addressed to such director or stockholder, at such
persons address as it appears on the records of the corporation, with postage thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be deposited in the United
States mail or delivered to a nationally recognized courier service. Unless written notice by mail
is required by law, written notice may also be given by telegram, cable, telecopy, commercial
delivery services, telex or similar means, addressed to such director or stockholder at such
persons address as it appears on the records of the corporation, in which case such notice shall
be deemed to be given when delivered into the control of the persons charged with effecting such
transmission, the transmission charge to be paid by the corporation or the person sending such
notice and not by the addressee. Oral notice or other in-hand delivery, in person or by telephone,
shall be deemed given at the time it is actually given. 4.2Waiver of Notice. Whenever any notice is required to be given under the
provisions of law or of the certificate of incorporation or of these by-laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. In addition to the foregoing, notice of a
meeting need not be given to any director who signs a waiver of notice or a consent to holding the
meeting or an approval of the minutes thereof, whether before or after the meeting, or who attends
the meeting without protesting, prior thereto or at its commencement, the lack of notice to such
director. All such waivers, consents and approvals executed under this Section 5.4 shall be filed
with the corporate records or made a part of the minutes of the meeting. ARTICLE 5INDEMNIFICATION 5.1Actions Other Than By or in the Right of the Corporation. Subject to Section 5.4,
the corporation shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe such persons conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which such person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such persons conduct was unlawful. 5.2Actions By or in the Right of the Corporation. Subject to Section 5.4, the
corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses 8




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(including attorneys fees) actually and reasonably incurred by such person in connection with
the defense or settlement of such action or suit if such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests of the corporation
and except that no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or misconduct in the
performance of such persons duty to the corporation unless and only to the extent that the Court
of Chancery of the State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery of the State of Delaware or such other court shall deem
proper. 5.3Success on the Merits. To the extent that any person described in Sections 5.1 or
5.2 of this Article 5 has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in said Sections, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys fees) actually and
reasonably incurred by such person in connection therewith. 5.4Specific Authorization. Any indemnification under Sections 5.1 or 5.2 of this
Article 5 (unless ordered by a court) shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification of any person described in said Sections is
proper in the circumstances because such person has met the applicable standard of conduct set
forth in said Sections. Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by
the stockholders of the corporation. 5.5Advance Payment. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the Board of Directors in the manner provided for in Section
5.4 upon receipt of an undertaking by or on behalf of any person described in said Section to repay
such amount unless it shall ultimately be determined that such person is entitled to
indemnification by the corporation as authorized in this Article 5. 5.6Non-Exclusivity. The indemnification provided by this Article 5 shall not be
deemed exclusive of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in such persons official capacity and as to action in
another capacity while holding such office, and shall continue as to a person who has ceased to be
director, officer, employee or agent of the corporation and shall inure to the benefit of the
heirs, executors and administrators of such a person. Any repeal or amendment of any of the
provisions of this Article 5 shall not adversely affect any right or potential of any indemnitee
existing at the time of such repeal or amendment. 5.7Insurance. The Board of Directors may authorize, by a vote of the majority of the
full Board of Directors, the corporation to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such persons status as
such, whether or not the corporation would have the power to indemnify such person against such
liability under the provisions of this Article 5. 5.8Severability. If any word, clause or provision of this Article 5 or any award
made hereunder shall for any reason be determined to be invalid, the provisions hereof shall not
otherwise be affected thereby but shall remain in full force and effect. 5.9Intent of Article. The intent of this Article 5 is to provide for indemnification
to the fullest extent permitted by Section 145 of the General Corporation Law of the State of
Delaware. To the extent that such Section or any successor Section may be amended or supplemented
from time to time, this Article 5 shall be amended automatically and construed so as to permit
indemnification to the fullest extent from time to time permitted by law. 9




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ARTICLE 6CAPITAL STOCK 6.1Certificates for Shares. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Certificates shall be signed by, or in the name of the
corporation by, the Chairman of the Board, the Chief Executive Officer, the President or a Vice
President and by the Chief Financial Officer, the Secretary or an Assistant Secretary of 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 by the corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue. Certificates may be issued
for partly paid shares and in such case upon the face or back of the certificates issued to
represent any such partly paid shares, the total amount of the consideration to be paid therefore,
and the amount paid thereon shall be specified. Within a reasonable time after the issuance or transfer of uncertificated stock, the
corporation shall send to the registered owner thereof a written notice containing the information
required by the General Corporation Law of the State of Delaware or 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. 6.2Transfer of Stock. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate of shares duly endorsed or accompanied by proper evidence of
succession, assignation or authority to transfer, and proper evidence of compliance of other
conditions to rightful transfer, it shall be the duty of the corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the transaction upon its
books. Upon receipt of proper transfer instructions and proper evidence of compliance of other
conditions to rightful transfer from the registered owner of uncertificated share, such
uncertificated shares shall be canceled and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the corporation. 6.3Registered Stockholders. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and to hold liable for calls and assessments a person registered on its
books as the owner of shares, and shall not be bound to recognize any equitable or other claim to
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. 6.4Lost, Stolen or Destroyed Certificates. The Board of Directors may direct that a
new certificate or certificates be issued to replace any certificate or certificates theretofore
issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing the 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
the lost, stolen or destroyed certificate or certificates, or his or her legal representative, to
give reasonable evidence of such loss, theft or destruction, to advertise the same in such manner
as it shall require, and/or to give the corporation a bond in such sum as it may direct as
indemnity against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost, stolen or destroyed or the issuance of such new certificate. ARTICLE 7CERTAIN TRANSACTIONS 7.1Transactions with Interested Parties. No contract or transaction between the
corporation and one or more of its directors or officers, or between the corporation and any other
corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or have a financial interest, shall be void or voidable solely for this
reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or committee thereof which authorizes the contract or transaction or solely
because the vote or votes of such director or officer are counted for such purpose, if: 10




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(a) the material facts as to such persons relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the Board of
Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less
than a quorum; or (b) the material facts as to such persons relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the stockholders. 7.2Quorum. Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract
or transaction. ARTICLE 8GENERAL PROVISIONS 8.1Dividends. Dividends upon the capital stock of the corporation, subject to any
restrictions contained in the General Corporation Law of the State of Delaware or the provisions of
the certificate of incorporation, if any, may be declared by the Board of Directors at any regular
or special meeting or by written consent. Dividends may be paid in cash, in property or in shares
of the capital stock, subject to the provisions of the certificate of incorporation. 8.2Reserves. The Board of Directors may set apart out of any funds of the
corporation available for dividends a reserve or reserves for any proper purpose and may abolish
any such reserve. 8.3Checks. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate. 8.4Corporate Seal. The Board of Directors may, by resolution, adopt a corporate
seal. The corporate seal shall have inscribed thereon the name of the corporation, the year of its
organization and the word Delaware. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or otherwise reproduced. The seal may be altered from time to time by the
Board of Directors. 8.5Fiscal Year. The fiscal year of the corporation shall be fixed by resolution of
the Board of Directors. 8.6Execution of Corporate Contracts and Instruments. The Board of Directors, except
as otherwise provided in these by-laws, may authorize any officer or officers, or agent or agents,
to enter into any contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific instances. Unless so authorized
or ratified by the Board of Directors or within the agency power of an officer, no officer, agent
or employee shall have any power or authority to bind the corporation by any contract or engagement
or to pledge its credit or to render it liable for any purpose or for any amount. 8.7Representation of Shares of Other Corporations. The Chief Executive Officer, the
President or any Vice President, the Chief Financial Officer or the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary of this corporation is authorized to vote,
represent and exercise on behalf of this corporation all rights incident to any and all shares of
any corporation or corporations standing in the name of this corporation. The authority herein
granted to said officers to vote or represent on behalf of this corporation any and all shares held
by this corporation in any other corporation or corporations may be exercised either by such
officers in person or by any other person authorized so to do by proxy or power of attorney duly
executed by said officers. 11




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ARTICLE 9AMENDMENTS The Board of Directors is expressly empowered to adopt, amend or repeal these by-laws,
provided, however, that any adoption, amendment or repeal of these by-laws by the Board of
Directors shall require the approval of at least sixty-six and two-thirds percent of the total
number of authorized directors (whether or not there exist any vacancies in previously authorized
directorships at the time any resolution providing for adoption, amendment or repeal is presented
to the Board of Directors). The stockholders shall also have power to adopt, amend or repeal these
by-laws at any regular or special meeting of stockholders, provided, however, that in addition to
any vote of the holders of any class or series of stock of this corporation required by law or by
the certificate of incorporation of this corporation, the affirmative vote of the holders of at
least sixty-six and two-thirds percent of the voting power of all of the then outstanding shares of
the stock of the corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for such adoption, amendment or repeal by the
stockholders of any provisions of these by-laws and notice of such adoption, amendment or repeal
shall be contained in the notice of such meeting. 12