**Exhibit 3.3**

 

**BYLAWS**

** **

**OF**

** **

**AVISTAR COMMUNICATIONS CORPORATION**

**(a Delaware corporation)**

** **

**(As amended February 2, 2001)**

 

 

 

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**TABLE OF CONTENTS**

 
| ARTICLE  I |   |                                                                            |
|-----------------|--------|---------------------------------------------------------------------------------|
|            |   |                                                                            |   |
| 1.1             |   | REGISTERED OFFICE                                                               |   |
| 1.2             |   | OTHER OFFICES                                                              |   |
|            |   |                                                                            |   |
| ARTICLEII       |   |                                                                            |
|            |   |                                                                            |   |
| 2.1             |   | PLACE OF MEETINGS                                                     |   |
| 2.2             |   | ANNUAL MEETING                                                             |   |
| 2.3             |   | SPECIAL MEETING                                                            |   |
| 2.4             |   | NOTICE OF STOCKHOLDERS’ MEETINGS                            |   |
| 2.5             |   | MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE      |   |
| 2.6             |   | QUORUM                                                                          |   |
| 2.7             |   | ADJOURNED MEETING; NOTICE                                             |   |
| 2.8             |   | VOTING                                                                          |   |
| 2.9             |   | VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT |   |
| 2.10            |   | STOCKHOLDER  ACTION BY WRITTEN CONSENT WITHOUT A MEETING                        |   |
| 2.11            |   | RECORD  DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS                    |   |
| 2.12            |   | PROXIES                                                                         |   |
| 2.13            |   | INSPECTORS OF ELECTION                                                          |   |
|            |   |                                                                            |   |
| ARTICLE III     |   |                                                                            |
|            |   |                                                                            |   |
| 3.1             |   | POWERS                                                                          |   |
| 3.2             |   | NUMBER                                                                          |   |
| 3.3             |   | ELECTION,  QUALIFICATION AND TERM OF OFFICE OF DIRECTORS                        |   |
| 3.4             |   | RESIGNATION AND VACANCIES                                                       |   |
| 3.5             |   | REMOVAL                                                                         |   |
| 3.6             |   | PLACE OF MEETINGS; MEETINGS BY TELEPHONE               |   |
| 3.7             |   | FIRST  MEETINGS                                                                 |   |
| 3.8             |   | REGULAR  MEETINGS                                                               |   |
| 3.9             |   | SPECIAL MEETINGS; NOTICE                                                        |   |
| 3.10            |   | QUORUM                                                                          |   |
| 3.11            |   | WAIVER OF NOTICE                                                      |   |
| 3.12            |   | ADJOURNMENT                                                                     |   |
| 3.13            |   | NOTICE OF ADJOURNMENT                                                           |   |
| 3.14            |   | BOARD  ACTION BY WRITTEN CONSENT WITHOUT A MEETING                              |   |
| 3.15            |   | FEES AND COMPENSATION OF DIRECTORS                          |   |
| 3.16            |   | APPROVAL OF LOANS TO  OFFICERS                                                  |   |
|            |   |                                                                            |   |
| ARTICLEIV       |   |                                                                            |
|            |   |                                                                            |   |
| 4.1             |   | COMMITTEES OF DIRECTORS                                                         |   |
| 4.2             |   | MEETINGS AND ACTION OF COMMITTEES                           |   |

 

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| ARTICLE  V |   |                                                                         |
|-----------------|--------|------------------------------------------------------------------------------|
|            |   |                                                                         |   |
| 5.1             |   | OFFICERS                                                                     |   |
| 5.2             |   | ELECTION OF OFFICERS                                               |   |
| 5.3             |   | SUBORDINATE OFFICERS                                                    |   |
| 5.4             |   | REMOVAL AND  RESIGNATION OF OFFICERS                                         |   |
| 5.5             |   | VACANCIES IN OFFICES                                               |   |
| 5.6             |   | CHAIRMAN OF THE BOARD                                         |   |
| 5.7             |   | CHIEF EXECUTIVE OFFICER                                                      |   |
| 5.8             |   | VICE PRESIDENTS                                                         |   |
| 5.9             |   | SECRETARY                                                                    |   |
| 5.10            |   | CHIEF FINANCIAL OFFICER                                            |   |
|            |   |                                                                         |   |
| ARTICLEVI       |   |                                                                         |
|            |   |                                                                         |   |
| 6.1             |   | INDEMNIFICATION  OF DIRECTORS AND OFFICERS                                   |   |
| 6.2             |   | INDEMNIFICATION OF OTHERS                                                    |   |
| 6.3             |   | INSURANCE                                                                    |   |
|            |   |                                                                         |   |
| ARTICLEVII      |   |                                                                         |
|            |   |                                                                         |   |
| 7.1             |   | MAINTENANCE  AND INSPECTION OF RECORDS                                       |   |
| 7.2             |   | INSPECTION BY DIRECTORS                                                      |   |
| 7.3             |   | ANNUAL STATEMENT  TO STOCKHOLDERS                                            |   |
| 7.4             |   | REPRESENTATION  OF SHARES OF OTHER CORPORATIONS                              |   |
|            |   |                                                                         |   |
| ARTICLEVIII     |   |                                                                         |
|            |   |                                                                         |   |
| 8.1             |   | RECORD  DATE FOR PURPOSES OTHER THAN NOTICE AND VOTING                       |   |
| 8.2             |   | CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS                |   |
| 8.3             |   | CORPORATE CONTRACTS AND INSTRUMENTS:   HOW EXECUTED |   |
| 8.4             |   | STOCK  CERTIFICATES; PARTLY PAID SHARES                                      |   |
| 8.5             |   | SPECIAL  DESIGNATION ON CERTIFICATES                                         |   |
| 8.6             |   | LOST CERTIFICATES                                                       |   |
| 8.7             |   | CONSTRUCTION; DEFINITIONS                                               |   |
|            |   |                                                                         |   |
| ARTICLEIX       |   |                                                                         |
|            |   |                                                                         |   |
| ARTICLE  X |   |                                                                         |
|            |   |                                                                         |   |
| 10.1            |   | APPOINTMENT  OF A CUSTODIAN IN CERTAIN CASES                                 |   |
| 10.2            |   | DUTIES OF CUSTODIAN                                                          |   |
|            |   |                                                                         |   |

 

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**BYLAWS**

** **

OF

** **

**AVISTAR COMMUNICATIONS CORPORATION**

**(a Delaware corporation)**

 

# **ARTICLEI**

# ** **

**CORPORATE OFFICES**

 

***1.1          REGISTEREDOFFICE***

 

The registered office of the corporation shall be fixed in theCertificate of Incorporation of the corporation.

 

***1.2          OTHER OFFICES***

 

The Board of Directors of the corporation (the “Board of Directors” orthe “Board”) may at any time establish branch or subordinate offices at anyplace or places where the corporation is qualified to do business.

 

# **ARTICLEII**

# ** **

**MEETINGS OF STOCKHOLDERS**

 

***2.1          PLACE OF MEETINGS***

 

Meetings of stockholders shall be held at any place within or outsidethe State of Delaware designated by the Board of Directors.  In the absence of any such designation,stockholder’s meetings shall be held at the registered office of thecorporation.

 

***2.2          ANNUAL MEETING***

 

### (a)           Theannual meeting of stockholders shall be held each year on a date and at a timedesignated by the Board of Directors.  Atthe meeting, directors shall be elected, and any other proper business may betransacted.

###  

### (b)           Atan annual meeting of the stockholders, only such business shall be conducted asshall have been properly brought before the meeting.  To be properly brought before an annualmeeting, 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, (B) otherwiseproperly brought before the meeting by or at the direction of the Board ofDirectors, or (C) otherwise properly brought before

 

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### the meeting by astockholder.  For business to be properlybrought before an annual meeting by a stockholder, the stockholder must havegiven timely notice thereof in writing to the Secretary of thecorporation.  To be timely, astockholder’s notice must be delivered to or mailed and received at theprincipal executive offices of the corporation not less than thirty (30) calendardays in advance of the date specified in the corporation’s proxy statementreleased to stockholders in connection with the previous year’s annual meetingof stockholders; provided, however, that in the event that noannual meeting was held in the previous year or the date of the annual meetinghas been changed by more than thirty (30) days from the date contemplated atthe time of the previous year’s proxy statement, notice by the stockholder tobe timely must be so received a reasonable time before the solicitation ismade.  A stockholder’s notice to theSecretary shall set forth as to each matter the stockholder proposes to bringbefore the annual meeting:  (i) abrief description of the business desired to be brought before the annualmeeting and the reasons for conducting such business at the annual meeting, (ii) thename and address, as they appear on the corporation’s books, of the stockholderproposing such business, (iii) the class and number of shares of thecorporation which are beneficially owned by the stockholder, (iv) anymaterial interest of the stockholder in such business and (v) subsequentto the corporation’s becoming subject to the reporting requirements of theSecurities Exchange Act of 1934, as amended (the “Exchange Act”), any otherinformation that is required to be provided by the stockholder pursuant toRegulation 14A under the Exchange Act, in his capacity as a proponent to astockholder proposal.  Notwithstandinganything in these Bylaws to the contrary, no business shall be conducted at anyannual meeting except in accordance with the procedures set forth in thisparagraph (b).  The chairman of theannual meeting shall, if the facts warrant, determine and declare at themeeting that business was not properly brought before the meeting and inaccordance with the provisions of this paragraph (b), and, if he should sodetermine, he shall so declare at the meeting that any such business notproperly brought before the meeting shall not be transacted.

###  

### (c)           Onlypersons who are nominated in accordance with the procedures set forth in thisparagraph (c) shall be eligible for election as directors.  Nominations of persons for election to theBoard of Directors of the corporation may be made at a meeting of stockholdersby or at the direction of the Board of Directors or by any stockholder of thecorporation entitled to vote in the election of directors at the meeting; provided,however, such nominations, other than those made by or at the directionof the Board of Directors, shall be made pursuant to timely notice in writingto the Secretary of the corporation in accordance with the provisions ofparagraph (b) of this Section 2.2. Such stockholder’s notice shall set forth (i) as to each person, ifany, whom the stockholder proposes to nominate for election or re-election as adirector:  (A) the name, age,business address and residence address of such person, (B) the principaloccupation or employment of such person, (C) the class and number ofshares of the corporation which are beneficially owned by such person,(D) a description of all arrangements or understandings between thestockholder and each nominee and any other person or persons (naming suchperson or persons) pursuant to which the nominations are to be made by thestockholder, and (E) any other information relating to such person that isrequired to be disclosed (or would be required were the corporation subject tothe reporting requirements of the Exchange Act) in solicitations of proxies forelections of directors, or is otherwise required, in each case pursuant to Regulation 14Aunder the Exchange Act (including without limitation such person’s writtenconsent to being named in the proxy statement, if any, as a

 

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### nominee and to serving asa director if elected); and (ii) as to such stockholder giving notice, theinformation required to be provided pursuant to paragraph (b) of thisSection 2.2.  At the request of theBoard of Directors, any person nominated by a stockholder for election as adirector shall furnish to the Secretary of the corporation that informationrequired to be set forth in the stockholder’s notice of nomination whichpertains to the nominee.  No person shallbe eligible for election as a director of the corporation unless nominated inaccordance with the procedures set forth in this paragraph (c).  The chairman of the meeting shall, if thefacts warrants, determine and declare at the meeting that a nomination was notmade in accordance with the procedures prescribed by these Bylaws, and if heshould so determine, he shall so declare at the meeting, and the defectivenomination shall be disregarded.

###  

***2.3******          SPECIAL MEETING***

 

### (a)           Aspecial meeting of the stockholders may be called at any time by the Board ofDirectors, the President, or by the Chairman of the Board, or in the absence ofthe Chairman of the Board by the Chief Executive Officer, or by one or morestockholders holding shares in the aggregate entitled to cast not less than tenpercent (10%) of the votes at that meeting, but such special meetings may notbe called by any other person or persons.

###  

### (b)           Ifa special meeting is called by any person or persons other than the Board ofDirectors, the request shall be in writing, specifying the time of such meetingand the general nature of the business proposed to be transacted, and shall bedelivered personally or sent by registered mail or by telegraphic or otherfacsimile transmission to the Chairman of the Board, the President, ChiefExecutive Officer, or the Secretary of the corporation.  A stockholder’s notice to the Secretary shallset forth as to each matter the stockholder proposes to bring before the annualmeeting:  (i) a brief description ofthe business desired to be brought before the special meeting and the reasonsfor conducting such business at the special meeting, (ii) the name andaddress, as they appear on the corporation’s books, of the stockholderproposing such business, (iii) the class and number of shares of thecorporation which are beneficially owned by the stockholder, (iv) anymaterial interest of the stockholder in such business and (v) subsequentto the corporation’s becoming subject to the reporting requirements of theExchange Act, any other information that is required to be provided by thestockholder pursuant to Regulation 14A under the Exchange Act, in hiscapacity as a proponent to a stockholder proposal.  Notwithstanding anything in these Bylaws tothe contrary, no business shall be conducted at any special meeting except inaccordance with the procedures set forth in this paragraph (b).  The chairman of the special meeting shall, ifthe facts warrant, determine and declare at the meeting that business was notproperly brought before the meeting and in accordance with the provisions ofthis paragraph (b), and, if he should so determine, he shall so declare atthe meeting that any such business not properly brought before the meetingshall not be transacted.  The officerreceiving the request shall cause notice to be promptly given to thestockholders entitled to vote, in accordance with the provisions of Sections2.4 and 2.5, that a meeting will be held at the time requested by the person orpersons who called the meeting, not less than thirty-five (35) nor more thansixty (60) days after the receipt of the request.  If the notice is not given within twenty (20)days after the receipt of the request, the person or persons requesting themeeting may give the notice.  Nothingcontained in this paragraph of this Section 2.3 shall be construed as limiting,fixing, or

 

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### affecting the time when ameeting of stockholders called by action of the Board of Directors may be held.

###  

### (c)           Onlypersons who are nominated in accordance with the procedures set forth in thisparagraph (c) shall be eligible for election as directors.  Nominations of persons for election to theBoard of Directors of the corporation may be made at a meeting of stockholdersby or at the direction of the Board of Directors or by any stockholder of thecorporation entitled to vote in the election of directors at the meeting; provided,however, such nominations, other than those made by or at the directionof the Board of Directors, shall be made pursuant to timely notice in writingto the Secretary of the corporation in accordance with the provisions ofparagraph (b) of this Section 2.3. Such stockholder’s notice shall set forth (i) as to each person, ifany, whom the stockholder proposes to nominate for election or re-election as adirector:  (A) the name, age, businessaddress and residence address of such person, (B) the principal occupationor employment of such person, (C) the class and number of shares of thecorporation which are beneficially owned by such person, (D) a descriptionof all arrangements or understandings between the stockholder and each nomineeand any other person or persons (naming such person or persons) pursuant towhich the nominations are to be made by the stockholder, and (E) any otherinformation relating to such person that is required to be disclosed (or wouldbe required were the corporation subject to the reporting requirements of theExchange Act) in solicitations of proxies for elections of directors, or isotherwise required, in each case pursuant to Regulation 14A under the ExchangeAct (including without limitation such person’s written consent to being namedin the proxy statement, if any, as a nominee and to serving as a director ifelected); and (ii) as to such stockholder giving notice, the informationrequired to be provided pursuant to paragraph (b) of thisSection 2.3.  At the request of theBoard of Directors, any person nominated by a stockholder for election as adirector shall furnish to the Secretary of the corporation that informationrequired to be set forth in the stockholder’s notice of nomination whichpertains to the nominee.  No person shallbe eligible for election as a director of the corporation unless nominated inaccordance with the procedures set forth in this paragraph (c).  The chairman of the meeting shall, if thefacts warrants, determine and declare at the meeting that a nomination was notmade in accordance with the procedures prescribed by these Bylaws, and if heshould so determine, he shall so declare at the meeting, and the defectivenomination shall be disregarded.

###  

***2.4          NOTICE OF STOCKHOLDERS’ MEETINGS***

 

Except as set forth in Section 2.3, all noticesof meetings of stockholders shall be sent or otherwise given in accordance withSection 2.5 of these Bylaws not less than ten (10) nor more than sixty (60)days before the date of the meeting.  Thenotice shall specify the place, date, and hour of the meeting and (i) inthe case of a special meeting, the general nature of the business to betransacted (no business other than that specified in the notice may betransacted) or (ii) in the case of the annual meeting, those matters whichthe Board of Directors, at the time of giving the notice, intends to presentfor action by the stockholders (but any proper matter may be presented at themeeting for such action). The notice of any meeting at which directors are tobe elected shall include the name of any nominee or nominees who, at the timeof the notice, the Board intends to present for election.

 

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***2.5          MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE***

 

Written noticeof any meeting of stockholders shall be given either personally or byfirst-class mail or by telegraphic or other written communication.  Notices not personally delivered shall besent charges prepaid and shall be addressed to the stockholder at the addressof that stockholder appearing on the books of the corporation or given by thestockholder to the corporation for the purpose of notice.  If no such address appears on thecorporation’s books or is given, notice shall be deemed to have been given ifsent to that stockholder by mail or telegraphic or other written communicationto the corporation’s principal executive office, or if published at least oncein a newspaper of general circulation in the county where that office islocated.  Notice shall be deemed to havebeen given at the time when delivered personally or deposited in the mail orsent by telegram or other means of written communication.

 

If any noticeaddressed to a stockholder at the address of that stockholder appearing on thebooks of the corporation is returned to the corporation by the United StatesPostal Service marked to indicate that the United States Postal Service isunable to deliver the notice to the stockholder at that address, then allfuture notices or reports shall be deemed to have been duly given withoutfurther mailing if the same shall be available to the stockholder on writtendemand of the stockholder at the principal executive office of the corporationfor a period of one (1) year from the date of the giving of the notice.

 

An affidavitof the mailing or other means of giving any notice of any stockholders’meeting, executed by the secretary, assistant secretary or any transfer agentof the corporation giving the notice, shall be prima facie evidence of thegiving of such notice.

 

***2.6          QUORUM***

 

Except asotherwise provided by law, the Certificate of Incorporation or these Bylaws, ateach meeting of stockholders the presence in person or by proxy of the holdersof shares of stock having a majority of the votes which could be cast by theholders of all outstanding shares of stock entitled to vote at the meetingshall be necessary and sufficient to constitute a quorum.  In the absence of a quorum, the stockholdersso present may, by majority vote, adjourn the meeting from time to time in themanner provided in Section 2.7 of these Bylaws until a quorum shallattend.  Shares of its own stockbelonging to the corporation or to another corporation, if a majority of theshares entitled to vote in the election of directors of such other corporationis held, directly or indirectly, by the corporation, shall neither be entitledto vote nor be counted for quorum purposes; provided, however,that the foregoing shall not limit the right of the corporation to vote stock,including but not limited to its own stock, held by it in a fiduciarycapacity.  The stockholders present at aduly called or held meeting at which a quorum is present may continue to dobusiness until adjournment, notwithstanding the withdrawal of enoughstockholders to leave less than a quorum, if any action taken (other thanadjournment) is approved by at least a majority of the shares required toconstitute a quorum.

 

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***2.7          ADJOURNED MEETING; NOTICE***

 

Anystockholders’ meeting, annual or special, whether or not a quorum is present,may be adjourned from time to time by the vote of the majority of the sharesrepresented at that meeting, either in person or by proxy.  In the absence of a quorum, no other businessmay be transacted at that meeting except as provided in Section 2.6 ofthese Bylaws.

 

When anymeeting of stockholders, either annual or special, is adjourned to another timeor place, notice need not be given of the adjourned meeting if the time andplace are announced at the meeting at which the adjournment is taken.  However, if a new record date for theadjourned meeting is fixed or if the adjournment is for more than thirty (30)days from the date set for the original meeting, then notice of the adjournedmeeting shall be given.  Notice of anysuch adjourned meeting shall be given to each stockholder of record entitled tovote at the adjourned meeting in accordance with the provisions of Sections 2.4and 2.5 of these Bylaws.  At anyadjourned meeting the corporation may transact any business which might havebeen transacted at the original meeting.

 

***2.8          VOTING***

 

Thestockholders entitled to vote at any meeting of stockholders shall bedetermined in accordance with the provisions of Section 2.11 of theseBylaws, subject to the provisions of Sections 217 and 218 of the GeneralCorporation Law of Delaware (relating to voting rights of fiduciaries, pledgorsand joint owners, and to voting trusts and other voting agreements).

 

Except as maybe otherwise provided in the Certificate of Incorporation, each outstandingshare, regardless of class, shall be entitled to one vote on each mattersubmitted to a vote of the stockholders. Any stockholder entitled to vote on any matter may vote part of theshares in favor of the proposal and refrain from voting the remaining sharesor, except when the matter is the election of directors, may vote them againstthe proposal; but, if the stockholder fails to specify the number of shareswhich the stockholder is voting affirmatively, it will be conclusively presumedthat the stockholder’s approving vote is with respect to all shares which thestockholder is entitled to vote.

 

If a quorum ispresent, the affirmative vote of the majority of the shares represented andvoting at a duly held meeting (which shares voting affirmatively alsoconstitute at least a majority of the required quorum) shall be the act of thestockholders, unless the vote of a greater number or a vote by classes isrequired by law or by the Certificate of Incorporation.

 

***2.9          VALIDATION OF MEETINGS; WAIVER OF NOTICE; CONSENT***

 

Thetransactions of any meeting of stockholders, either annual or special, howevercalled and noticed, and wherever held, shall be as valid as though they hadbeen taken at a meeting duly held after regular call and notice, if a quorum bepresent either in person or by proxy, and if, either before or after themeeting, each person entitled to vote, who was not present in person or byproxy, signs a written waiver of notice or a consent to the holding of themeeting or an approval of the minutes thereof. The waiver of notice or consent or approval need not specify either thebusiness to be transacted or the purpose of any annual or special meeting ofstockholders.  All such waivers,

 

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consents, and approvals shallbe filed with the corporate records or made a part of the minutes of themeeting.

 

Attendance bya person at a meeting shall also constitute a waiver of notice of and presenceat that meeting, except when the person objects at the beginning of the meetingto the transaction of any business because the meeting is not lawfully calledor convened.  Attendance at a meeting isnot a waiver of any right to object to the consideration of matters required bylaw to be included in the notice of the meeting but not so included, if thatobjection is expressly made at the meeting.

 

***2.10        STOCKHOLDERACTION BY WRITTEN CONSENT WITHOUT A MEETING***

 

Subject to anylimitations set forth in the Certificate of Incorporation, any action which maybe taken at any annual or special meeting of stockholders may be taken withouta meeting and without prior notice, if a consent in writing, setting forth theaction so taken, is signed by the holders of outstanding shares having notless than the minimum number of votes that would be necessary to authorizeor take that action at a meeting at which all shares entitled to vote on thataction were present and voted.

 

Prompt noticeof the taking of the corporate action without a meeting by less than unanimouswritten consent shall be given to those stockholders who have not consented inwriting.  If the action which isconsented to is such as would have required the filing of a certificate underany section of the General Corporation Law of Delaware if such action hadbeen voted on by stockholders at a meeting thereof, then the certificate filedunder such section shall state, in lieu of any statement required by suchsection concerning any vote of stockholders, that written notice andwritten consent have been given as provided in Section 228 of the GeneralCorporation Law of Delaware.

 

***2.11        RECORDDATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS***

 

For purposesof determining the stockholders entitled to notice of any meeting or to votethereat or entitled to give consent to corporate action without a meeting,the Board of Directors may fix, in advance, a record date, which shall notbe more than sixty (60) days nor less than ten (10) days before the dateof any such meeting nor more than sixty (60) days before any such actionwithout a meeting, and in such event only stockholders of record onthe date so fixed are entitled to notice and to vote or to give consents,as the case may be, notwithstanding any transfer of any shares on thebooks of the corporation after the record date.

 

If the Boardof Directors does not so fix a record date:

 

### (a)           therecord date for determining stockholders entitled to notice of or to vote at ameeting of stockholders shall be at the close of business on the business daynext preceding the day on which notice is given, or, if notice is waived, atthe close of business on the business day next preceding the day on which themeeting is held; and

 

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### (b)           therecord date for determining stockholders entitled to give consent to corporateaction in writing without a meeting, (i) when no prior action by the Board hasbeen taken, shall be the day on which the first written consent is given,or (ii) when prior action by the Board has been taken, shall be at the close ofbusiness on the day on which the Board adopts the resolution relating to thataction.

###  

The recorddate for any other purpose shall be as provided in Article VIII of theseBylaws.

 

***2.12        PROXIES***

 

Every personentitled to vote for directors, or on any other matter, shall have the right todo so either in person or by one or more agents authorized by a written proxysigned by the person and filed with the secretary of the corporation, but nosuch proxy shall be voted or acted upon after three (3) years from its date,unless the proxy provides for a longer period. A proxy shall be deemed signed if the stockholder’s name is placed onthe proxy (whether by manual signature, typewriting, telegraphic transmissionor otherwise) by the stockholder or the stockholder’s attorney-in-fact.  The revocability of a proxy that states onits face that it is irrevocable shall be governed by the provisions of Section212(c) of the General Corporation Law of Delaware.

 

***2.13        INSPECTORSOF ELECTION***

 

Before anymeeting of stockholders, the Board of Directors may appoint an inspectoror inspectors of election to act at the meeting or its adjournment.  If no inspector of election is so appointed,then the chairman of the meeting may, and on the request of any stockholder ora stockholder’s proxy shall, appoint an inspector or inspectors of election toact at the meeting.  The number ofinspectors shall be either one (1) or three (3).  If inspectors are appointed at a meetingpursuant to the request of one (1) or more stockholders or proxies, then theholders of a majority of shares or their proxies present at the meeting shalldetermine whether one (1) or three (3) inspectors are to be appointed.  If any person appointed as inspector fails toappear or fails or refuses to act, then the chairman of the meeting may, andupon the request of any stockholder or a stockholder’s proxy shall, appoint aperson to fill that vacancy.

 

Suchinspectors shall:

 

### (a)           determinethe number of shares outstanding and the voting power of each, the number ofshares represented at the meeting, the existence of a quorum, and theauthenticity, validity, and effect of proxies;

###  

### (b)           receivevotes, ballots or consents;

###  

### (c)           hearand determine all challenges and questions in any way arising in connectionwith the right to vote;

###  

### (d)           countand tabulate all votes or consents;

###  

### (e)           determinewhen the polls shall close;

 

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### (f)            determinethe result; and

###  

### (g)           doany other acts that may be proper to conduct the election or vote with fairnessto all stockholders.

###  

# **ARTICLEIII**

# ** **

**DIRECTORS**

 

***3.1          POWERS***

 

Subject to theprovisions of the General Corporation Law of Delaware and to any limitations inthe Certificate of Incorporation or these Bylaws relating to action required tobe approved by the stockholders or by the outstanding shares, the business andaffairs of the corporation shall be managed and all corporate powers shall beexercised by or under the direction of the Board of Directors.

 

***3.2          NUMBER***

 

The number of directors of the corporation shall benot less than five (5) nor more than nine (9). The current number of authorized directors is seven (7).  The indefinite number of directors may bechanged, or a definite number may be fixed without provision for an indefinitenumber, by a duly adopted amendment to the certificate of incorporation or byan amendment to the certificate of incorporation or by an amendment to thisbylaw duly adopted by the vote or written consent of holders of a majority ofthe outstanding shares entitled to vote. Directors need not be stockholders. No reduction of the authorized number of directors shall have the effectof removing any director before that director’s term of office expires.

 

***3.3          ELECTION,QUALIFICATION AND TERM OF OFFICE OF DIRECTORS***

 

Except asprovided in Section 3.4 of these Bylaws, at each annual meeting ofstockholders, directors of the Corporation shall be elected to hold officeuntil the expiration of the term for which they are elected, and until theirsuccessors have been duly elected and qualified; except that if any suchelection shall not be so held, such election shall take place at astockholders’ meeting called and held in accordance with the Delaware GeneralCorporation Law.

 

Directors neednot be stockholders unless so required by the Certificate of Incorporation orthese Bylaws, wherein other qualifications for directors may be prescribed.

 

Elections ofdirectors need not be by written ballot.

 

Notwithstandingthe foregoing provisions of this Article, each director shall serve until hissuccessor is duly elected and qualified or until his earlier death, resignationor removal.

 

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***3.4          RESIGNATIONAND VACANCIES***

 

Any directormay resign effective on giving written notice to the Chairman of the Board, thePresident, the secretary or the Board of Directors, unless the notice specifiesa later time for that resignation to become effective.  If the resignation of a director is effectiveat a future time, the Board of Directors may elect a successor to take officewhen the resignation becomes effective.

 

Unless otherwise provided in the Certificate ofIncorporation or these Bylaws, vacancies in the Board of Directors may befilled by a majority of the remaining directors, even if less than a quorum, orby a sole remaining director; however, a vacancy created by the removalof a director by the vote or written consent of the stockholders or by courtorder may be filled only by the affirmative vote of a majority of the sharesrepresented and voting at a duly held meeting at which a quorum is present(which shares voting affirmatively also constitute a majority of the requiredquorum), or by the unanimous written consent of all shares entitled to votethereon.  Each director so elected shallhold office until the next annual meeting of the stockholders and until asuccessor has been elected and qualified.

 

Unlessotherwise provided in the Certificate of Incorporation or these Bylaws:

 

#### (i)    Vacanciesand newly created directorships resulting from any increase in the authorizednumber of directors elected by all of the stockholders having the right to voteas a single class may be filled by a majority of the directors then in office,although less than a quorum, or by a sole remaining director.

####  

#### (ii)   Wheneverthe holders of any class or classes of stock or series thereof are entitled toelect one or more directors by the provisions of the Certificate ofIncorporation, vacancies and newly created directorships of such class orclasses or series may be filled by a majority of the directors elected by suchclass or classes or series thereof then in office, or by a sole remainingdirector so elected.

####  

If at anytime, by reason of death or resignation or other cause, the corporation shouldhave no directors in office, then any officer or any stockholder or anexecutor, administrator, trustee or guardian of a stockholder, or otherfiduciary entrusted with like responsibility for the person or estate of astockholder, may call a special meeting of stockholders in accordance with theprovisions of the Certificate of Incorporation or these Bylaws, or may apply tothe Court of Chancery for a decree summarily ordering an election as providedin Section 211 of the General Corporation Law of Delaware.

 

If, at thetime of filling any vacancy or any newly created directorship, the directorsthen in office constitute less than a majority of the whole Board (asconstituted immediately prior to any such increase), then the Court of Chancerymay, upon application of any stockholder or stockholders holding at leastten (10) percent of the total number of the shares at the time outstandinghaving the right to vote for such directors, summarily order an election to beheld to fill any such vacancies or newly created directorships, or to replacethe directors chosen by the directors then in office as

 

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aforesaid, which election shallbe governed by the provisions of Section 211 of the General CorporationLaw of Delaware as far as applicable.

 

***3.5          REMOVAL***

 

Subject to anylimitations imposed by law, and unless otherwise provided in the Certificate ofIncorporation, the Board of Directors, or any individual director, may beremoved from office with or without cause at any time by the affirmative voteof the holders of at least a majority of the then outstanding shares of thecapital stock of the corporation entitled to vote at an election of directors.

 

***3.6          PLACE OF MEETINGS; MEETINGS BY TELEPHONE***

 

Regularmeetings of the Board of Directors may be held at any place within oroutside the State of Delaware that has been designated from time to time byresolution of the Board.  In the absenceof such a designation, regular meetings shall be held at the principalexecutive office of the corporation. Special meetings of the Board may be held at any place within or outsidethe State of Delaware that has been designated in the notice of the meeting or,if not stated in the notice or if there is no notice, at the principalexecutive office of the corporation.

 

Any meeting,regular or special, may be held by conference telephone or similarcommunication equipment, so long as all directors participating in the meetingcan hear one another; and all such directors shall be deemed to be present inperson at the meeting.

 

***3.7          FIRST MEETINGS***

 

The firstmeeting of each newly elected Board of Directors shall be held at such time andplace as shall be fixed by the vote of the stockholders at the annual meetingand no notice of such meeting shall be necessary to the newly elected directorsin order legally to constitute the meeting, provided a quorum shall be present.In the event of the failure of the stockholders to fix the time or place ofsuch first meeting of the newly elected Board of Directors, or in the eventsuch meeting is not held at the time and place so fixed by the stockholders,the meeting may be held at such time and place as shall be specified in anotice given as hereinafter provided for special meetings of the Board ofDirectors, or as shall be specified in a written waiver signed by all of thedirectors.

 

***3.8          REGULAR MEETINGS***

 

Regularmeetings of the Board of Directors may be held without notice if the times ofsuch meetings are fixed by the Board of Directors.

 

***3.9          SPECIALMEETINGS; NOTICE***

 

Specialmeetings of the Board of Directors for any purpose or purposes may be called atany time by the Chairman of the Board, or in the absence of the Chairman of theBoard by the Chief Executive Officer or any three directors.

 

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Notice of thetime and place of special meetings shall be delivered personally or bytelephone to each director or sent by first-class mail or telegram,charges prepaid, addressed to each director at that director’s address as it isshown on the records of the corporation. If the notice is mailed, it shall be deposited in the United States mailat least four (4) days before the time of the holding of the meeting.  If the notice is delivered personally or bytelephone or telegram, it shall be delivered personally or by telephone or tothe telegraph company at least forty-eight (48) hours before the time of theholding of the meeting.  Any oral noticegiven personally or by telephone may be communicated either to the director orto a person at the office of the director who the person giving the notice hasreason to believe will promptly communicate it to the director.  The notice need not specify the purpose orthe place of the meeting, if the meeting is to be held at the principalexecutive office of the corporation.

 

***3.10        QUORUM***

 

A majority ofthe authorized number of directors shall constitute a quorum for thetransaction of business, except to adjourn as provided in Section 3.12 ofthese Bylaws.  Every act or decision doneor made by a majority of the directors present at a duly held meeting at whicha quorum is present shall be regarded as the act of the Board of Directors,subject to the provisions of the Certificate of Incorporation and applicablelaw.

 

A meeting atwhich a quorum is initially present may continue to transact businessnotwithstanding the withdrawal of directors, if any action taken is approved byat least a majority of the required quorum for that meeting.

 

***3.11        WAIVER OF NOTICE***

 

Notice of ameeting need not be given to any director (i) who signs a waiver of noticeor a consent to holding the meeting or an approval of the minutes thereof,whether before or after the meeting, or (ii) who attends the meetingwithout protesting, prior thereto or at its commencement, the lack of notice tosuch directors.  All such waivers,consents, and approvals shall be filed with the corporate records or made partof the minutes of the meeting.  A waiverof notice need not specify the purpose of any regular or special meeting of theBoard of Directors.

 

***3.12        ADJOURNMENT***

 

A majority ofthe directors present, whether or not constituting a quorum, may adjourn anymeeting to another time and place.

 

***3.13        NOTICEOF ADJOURNMENT***

 

Notice of thetime and place of holding an adjourned meeting need not be given unless themeeting is adjourned for more than twenty-four (24) hours.  If the meeting is adjourned for more thantwenty-four (24) hours, then notice of the time and place of the adjournedmeeting shall be given before the adjourned meeting takes place, in the mannerspecified in Section 3.9 of these Bylaws, to the directors who were notpresent at the time of the adjournment.

 

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***3.14        BOARDACTION BY WRITTEN CONSENT WITHOUT A MEETING***

 

Any actionrequired or permitted to be taken by the Board of Directors may be takenwithout a meeting, provided that all members of the Board individually or collectivelyconsent in writing to that action.  Suchaction by written consent shall have the same force and effect as a unanimousvote of the Board of Directors. Such written consent and any counterpartsthereof shall be filed with the minutes of the proceedings of the Board.

 

***3.15        FEES AND COMPENSATION OF DIRECTORS***

 

Directors andmembers of committees may receive such compensation, if any, for their servicesand such reimbursement of expenses as may be fixed or determined by resolutionof the Board of Directors.  ThisSection 3.15 shall not be construed to preclude any director from servingthe corporation in any other capacity as an officer, agent, employee orotherwise and receiving compensation for those services.

 

***3.16        APPROVALOF LOANS TO OFFICERS***

 

Thecorporation may lend money to, or guarantee any obligation of, or otherwiseassist any officer or other employee of the corporation or of its subsidiary,including any officer or employee who is a director of the corporation or itssubsidiary, whenever, in the judgment of the directors, such loan, guaranty orassistance may reasonably be expected to benefit the corporation.  The loan, guaranty or other assistance may bewith or without interest and may be unsecured, or secured in such manner as theBoard of Directors shall approve, including, without limitation, a pledgeof shares of stock of the corporation. Nothing contained in this Section 3.16 shall be deemed to deny, limit orrestrict the powers of guaranty or warranty of the corporation at common law orunder any statute.

 

# **ARTICLEIV**

# ** **

**COMMITTEES**

 

***4.1          COMMITTEESOF DIRECTORS***

 

The Board ofDirectors may, by resolution adopted by a majority of the authorized number ofdirectors, designate one (1) or more committees, each consisting of two or moredirectors, to serve at the pleasure of the Board.  The Board may designate one (1) or moredirectors as alternate members of any committee, who may replace any absentmember at any meeting of the committee. The appointment of members or alternate members of a committee requiresthe vote of a majority of the authorized number of directors.  Any committee, to the extent provided in theresolution of the Board, shall have all the authority of the Board, but no suchcommittee shall have the power or authority to (i) amend the Certificateof Incorporation (except that a committee may, to the extent authorized in theresolution or resolutions providing for the issuance of shares of stock adoptedby the Board of Directors as provided in Section 151(a) of the GeneralCorporation Law of Delaware,

 

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fix any of the preferences orrights of such shares relating to dividends, redemption, dissolution, anydistribution of assets of the corporation or the conversion into, or theexchange of such shares for, shares of any other class or classes or any otherseries of the same or any other class or classes of stock of the corporation), (ii) adoptan agreement of merger or consolidation under Sections 251 or 252 of the GeneralCorporation Law of Delaware, (iii) recommend to the stockholders the sale,lease or exchange of all or substantially all of the corporation’s property andassets, (iv) recommend to the stockholders a dissolution of thecorporation or a revocation of a dissolution, or (v) amend the Bylaws ofthe corporation; and, unless the Board resolution establishing the committee,the Bylaws or the Certificate of Incorporation expressly so provide, no suchcommittee shall have the power or authority to declare a dividend, to authorizethe issuance of stock, or to adopt a certificate of ownership and mergerpursuant to Section 253 of the General Corporation Law of Delaware.

 

***4.2          MEETINGS AND ACTION OF COMMITTEES***

 

Meetings andactions of committees shall be governed by, and held and taken in accordancewith, the provisions of Article III of these Bylaws, Section 3.6 (place ofmeetings), Section 3.8 (regular meetings), Section 3.9 (specialmeetings and notice), Section 3.10 (quorum), Section 3.11 (waiver ofnotice), Section 3.12 (adjournment), Section 3.13 (notice ofadjournment), and Section 3.14 (action without meeting), with such changesin the context of those Bylaws as are necessary to substitute the committee andits members for the Board of Directors and its members; provided, however,that the time of regular meetings of committees may be determined either byresolution of the Board of Directors or by resolution of the committee, thatspecial meetings of committees may also be called by resolution of the Board ofDirectors, and that notice of special meetings of committees shall also begiven to all alternate members, who shall have the right to attend all meetingsof the committee.  The Board of Directorsmay adopt rules for the government of any committee not inconsistent with theprovisions of these Bylaws.

 

# **ARTICLEV**

# ** **

**OFFICERS**

 

***5.1          OFFICERS***

 

The officersof the corporation shall consist of a Chairman of the Board, a Chief ExecutiveOfficer, a Secretary and a Chief Financial Officer.  The corporation may also have, at thediscretion of the Board of Directors, a President, one or more Vice Presidents,one or more assistant secretaries, one or more assistant treasurers, and suchother officers as may be appointed in accordance with the provisions ofSection 5.3 of these Bylaws.  Anynumber of offices may be held by the same person.

 

***5.2          ELECTION OF OFFICERS***

 

The officersof the corporation, except such officers as may be appointed in accordancewith the provisions of Section 5.3 or Section 5.5 of theseBylaws, shall be chosen by the Board, subject to the rights, if any, of anofficer under any contract of employment.

 

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***5.3          SUBORDINATE OFFICERS***

 

The Board ofDirectors may appoint, or may empower the President to appoint, such otherofficers as the business of the corporation may require, each of whom shallhold office for such period, have such authority, and perform such duties asare provided in these Bylaws or as the Board of Directors may from time to timedetermine.

 

***5.4          REMOVALAND RESIGNATION OF OFFICERS***

 

Subject to therights, if any, of an officer under any contract of employment, any officer maybe removed, either with or without cause, by the Board of Directors at anyregular or special meeting of the Board or, except in case of an officer chosenby the Board of Directors, by any officer upon whom such power of removal maybe conferred by the Board of Directors.

 

Any officermay resign at any time by giving written notice to the corporation.  Any resignation shall take effect at the dateof the receipt of that notice or at any later time specified in that notice;and, unless otherwise specified in that notice, the acceptance of theresignation shall not be necessary to make it effective.  Any resignation is without prejudice to therights, if any, of the corporation under any contract to which the officer is aparty.

 

***5.5          VACANCIES IN OFFICES***

 

A vacancy inany office because of death, resignation, removal, disqualification or anyother cause shall be filled in the manner prescribed in these Bylaws forregular appointments to that office.

 

***5.6          CHAIRMAN OF THE BOARD***

 

The Chairmanof the Board, if such an officer be elected, shall serve as the corporation’sgeneral manager, and shall have general supervision, direction and control ofthe corporation’s business and its officers, and, if present, preside atmeetings of the stockholders and the Board of Directors and exercise andperform such other powers and duties as may from time to time be assigned tohim by the Board of Directors or as may be prescribed by these Bylaws.  If there is no Chief Executive Officer, thenthe Chairman of the Board shall also be the Chief Executive Officer of thecorporation and shall have the powers and duties prescribed in Section 5.7of these Bylaws.  The Chairman of theBoard shall report to the Board of Directors.

 

***5.7          CHIEFEXECUTIVE OFFICER***

 

Subject tosuch powers, if any, as may be given by the Board of Directors to the Chairmanof the Board, if there be such an officer, the Chief Executive Officer shall,subject to the control of the Chairman of the Board, or the Board of Directorsif there is no Chairman of the Board, have general supervision, direction, andcontrol of the business and the officers of the corporation.  He or she shall preside at all meetings ofthe stockholders and the Board of Directors, in the absence or nonexistence ofa Chairman of the Board.  He or she shallhave the general powers and duties of management usually vested in the officeof President of a corporation, and shall have such other powers and duties asmay be prescribed by the Board of Directors or these Bylaws.

 

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***5.8          VICE PRESIDENTS***

 

In the absenceor disability of the President, the Vice Presidents, if any, in order of theirrank as fixed by the Board of Directors or, if not ranked, a Vice Presidentdesignated by the Board of Directors, shall perform all the duties of thePresident and when so acting shall have all the powers of, and be subject toall the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such otherduties as from time to time may be prescribed for them respectively by theBoard of Directors, these Bylaws, the President or the Chairman of the Board.

 

***5.9          SECRETARY***

 

The Secretaryshall keep or cause to be kept, at the principal executive office of thecorporation or such other place as the Board of Directors may direct, a book ofminutes of all meetings and actions of directors, committees of directors andstockholders.  The minutes shall show thetime and place of each meeting, whether regular or special (and, if special,how authorized and the notice given), the names of those present at directors’meetings or committee meetings, the number of shares present or represented atstockholders’ meetings, and the proceedings thereof.

 

The Secretaryshall keep, or cause to be kept, at the principal executive office of thecorporation 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 aduplicate share register, showing the names of all stockholders and theiraddresses, the number and classes of shares held by each, the number and dateof certificates evidencing such shares, and the number and date of cancellationof every certificate surrendered for cancellation.

 

The Secretaryshall give, or cause to be given, notice of all meetings of thestockholders and of the Board of Directors required to be given by law or bythese Bylaws.  He or she shall keep theseal of the corporation, if one be adopted, in safe custody and shall have suchother powers and perform such other duties as may be prescribed by the Board ofDirectors or by these Bylaws.

 

***5.10        CHIEF FINANCIAL OFFICER***

 

The ChiefFinancial Officer shall keep and maintain, or cause to be kept and maintained,adequate and correct books and records of accounts of the properties andbusiness transactions of the corporation, including accounts of its assets,liabilities, receipts, disbursements, gains, losses, capital, retained earningsand shares.  The books of account shallat all reasonable times be open to inspection by any director.

 

The ChiefFinancial Officer shall deposit all money and other valuables in the name andto the credit of the corporation with such depositaries as may be designated bythe Board of Directors. He or she shall disburse the funds of the corporationas may be ordered by the Board of Directors, shall render to the President anddirectors, whenever they request it, an account of all of his or hertransactions as Chief Financial Officer and of the financial condition of thecorporation, and shall have such other powers and perform such other duties asmay be prescribed by the Board of Directors or these Bylaws.

 

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# **ARTICLEVI**

# ** **

**INDEMNIFICATIONOF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS**

 

***6.1          INDEMNIFICATIONOF DIRECTORS AND OFFICERS***

 

Thecorporation shall, to the maximum extent and in the manner permitted by theGeneral Corporation Law of Delaware, indemnify each of its directors andofficers against expenses (including attorneys’ fees), judgments, fines,settlements and other amounts actually and reasonably incurred in connectionwith any proceeding, arising by reason of the fact that such person is or wasan agent of the corporation.  Forpurposes of this Section 6.1, a “director” or “officer” of the corporationincludes any person (i) who is or was a director or officer of the corporation,(ii) who is or was serving at the request of the corporation as a directoror officer of another corporation, partnership, joint venture, trust or otherenterprise, or (iii) who was a director or officer of a corporation whichwas a predecessor corporation of the corporation or of another enterprise atthe request of such predecessor corporation.

 

***6.2          INDEMNIFICATIONOF OTHERS***

 

Thecorporation shall have the power, to the maximum extent and in the mannerpermitted by the General Corporation Law of Delaware, to indemnify each of itsemployees and agents (other than directors and officers) against expenses(including attorneys’ fees), judgments, fines, settlements and other amountsactually and reasonably incurred in connection with any proceeding, arising byreason of the fact that such person is or was an agent of the corporation.  For purposes of this Section 6.2, an “employee”or “agent” of the corporation (other than a director or officer) includes anyperson (i) who is or was an employee or agent of the corporation, (ii) whois or was serving at the request of the corporation as an employee or agent ofanother corporation, partnership, joint venture, trust or other enterprise, or (iii) whowas an employee or agent of a corporation which was a predecessor corporationof the corporation or of another enterprise at the request of such predecessorcorporation.

 

***6.3          INSURANCE***

 

Thecorporation may purchase and maintain insurance on behalf of any person who isor was a director, officer, employee or agent of the corporation, or is or wasserving at the request of the corporation as a director, officer, employee oragent of another corporation, partnership, joint venture, trust or otherenterprise against any liability asserted against him or her and incurred byhim or her in any such capacity, or arising out of his or her status as such,whether or not the corporation would have the power to indemnify him or heragainst such liability under the provisions of the General Corporation Law ofDelaware.

 

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# **ARTICLEVII**

# ** **

**RECORDSAND REPORTS**

 

***7.1          MAINTENANCEAND INSPECTION OF RECORDS***

 

Thecorporation shall, either at its principal executive office or at such place orplaces as designated by the Board of Directors, keep a record of itsstockholders listing their names and addresses and the number and class ofshares held by each stockholder, a copy of these Bylaws as amended to date,accounting books and other records.

 

Anystockholder of record, in person or by attorney or other agent, shall, uponwritten demand under oath stating the purpose thereof, have the right duringthe usual hours for business to inspect for any proper purpose thecorporation’s stock ledger, a list of its stockholders, and its other books andrecords and to make copies or extracts therefrom.  A proper purpose shall mean a purposereasonably related to such person’s interest as a stockholder.  In every instance where an attorney or otheragent is the person who seeks the right to inspection, the demand under oathshall be accompanied by a power of attorney or such other writing thatauthorizes the attorney or other agent to so act on behalf of the stockholder.The demand under oath shall be directed to the corporation at its registeredoffice in Delaware or at its principal place of business.

 

The officerwho has charge of the stock ledger of a corporation shall prepare and make, atleast ten (10) days before every meeting of stockholders, a complete list ofthe stockholders entitled to vote at the meeting, arranged in alphabeticalorder, and showing the address of each stockholder and the number of sharesregistered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for anypurpose germane to the meeting, during ordinary business hours, for a period ofat least ten (10) days prior to the meeting, either at a place within the citywhere the meeting is to be held, which place shall be specified in the noticeof the meeting, or, if not so specified, at the place where the meeting is tobe held.  The list shall also be producedand kept at the time and place of the meeting during the whole time thereof,and may be inspected by any stockholder who is present.

 

***7.2          INSPECTIONBY DIRECTORS***

 

Any directorshall have the right to examine the corporation’s stock ledger, a list of itsstockholders and its other books and records for a purpose reasonably relatedto his or her position as a director. The Court of Chancery is hereby vestedwith the exclusive jurisdiction to determine whether a director is entitled tothe inspection sought. The Court may summarily order the corporation to permitthe director to inspect any and all books and records, the stock ledger, andthe stock list and to make copies or extracts therefrom.  The Court may, in its discretion, prescribeany limitations or conditions with reference to the inspection, or award suchother and further relief as the Court may deem just and proper.

 

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***7.3          ANNUALSTATEMENT TO STOCKHOLDERS***

 

The Board ofDirectors shall present at each annual meeting, and at any special meeting ofthe stockholders when called for by vote of the stockholders, a full and clearstatement of the business and condition of the corporation.

 

***7.4          REPRESENTATIONOF SHARES OF OTHER CORPORATIONS***

 

The Chairmanof the Board, the President, any Vice President, the Chief Financial Officer,the secretary or assistant secretary of this corporation, or any other personauthorized by the Board of Directors or the President or a Vice President, isauthorized to vote, represent, and exercise on behalf of this corporation allrights incident to any and all shares of any other corporation or corporationsstanding in the name of this corporation. The authority herein granted may be exercised either by such persondirectly or by any other person authorized to do so by proxy or power ofattorney duly executed by such person having the authority.

 

# **ARTICLEVIII**

# ** **

**GENERAL MATTERS**

 

***8.1          RECORDDATE FOR PURPOSES OTHER THAN NOTICE AND VOTING***

 

For purposesof determining the stockholders entitled to receive payment of any dividend orother distribution or allotment of any rights or the stockholders entitled toexercise any rights in respect of any other lawful action (other than action bystockholders by written consent without a meeting), the Board of Directors mayfix, in advance, a record date, which shall not be more than sixty (60) daysbefore any such action.  In that case,only stockholders of record at the close of business on the date so fixed areentitled to receive the dividend, distribution or allotment of rights, or toexercise such rights, as the case may be, notwithstanding any transfer of anyshares on the books of the corporation after the record date so fixed, exceptas otherwise provided by law.

 

If the Boardof Directors does not so fix a record date, then the record date fordetermining stockholders for any such purpose shall be at the close of businesson the day on which the Board adopts the applicable resolution or the sixtieth(60th) day before the date of that action, whichever is later.

 

***8.2          CHECKS; DRAFTS; EVIDENCES OF INDEBTEDNESS***

 

From time totime, the Board of Directors shall determine by resolution which person orpersons may sign or endorse all checks, drafts, other orders for payment ofmoney, notes or other evidences of indebtedness that are issued in the name ofor payable to the corporation, and only the persons so authorized shall sign orendorse those instruments.

 

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***8.3          CORPORATE CONTRACTS AND INSTRUMENTS: HOW EXECUTED***

 

The Board ofDirectors, except as otherwise provided in these Bylaws, may authorize anyofficer or officers, or agent or agents, to enter into any contract or executeany instrument in the name of and on behalf of the corporation; such authoritymay be general or confined to specific instances.  Unless so authorized or ratified by the Boardof Directors or within the agency power of an officer, no officer, agent oremployee shall have any power or authority to bind the corporation by anycontract or engagement or to pledge its credit or to render it liable for anypurpose or for any amount.

 

***8.4          STOCKCERTIFICATES; PARTLY PAID SHARES***

 

The shares ofa corporation shall be represented by certificates, provided that the Board ofDirectors of the corporation may provide by resolution or resolutions that someor all of any or all classes or series of its stock shall be uncertificatedshares.  Any such resolution shall notapply to shares represented by a certificate until such certificate issurrendered to the corporation. Notwithstanding the adoption of such a resolution by the Board ofDirectors, every holder of stock represented by certificates and upon requestevery holder of uncertificated shares shall be entitled to have a certificatesigned by, or in the name of the corporation by, the chairman or vice-chairmanof the Board of Directors, or the President or Vice-President, and by the ChiefFinancial Officer, the secretary or an assistant secretary of such corporationrepresenting the number of shares registered in certificate form.  Any or all of the signatures on thecertificate may be a facsimile.  In caseany officer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate has ceased to be such officer,transfer agent or registrar before such certificate is issued, it may be issuedby the corporation with the same effect as if he or she were such officer,transfer agent or registrar at the date of issue.

 

Thecorporation may issue the whole or any part of its shares as partly paid andsubject to call for the remainder of the consideration to be paidtherefor.  Upon the face or back of eachstock certificate issued to represent any such partly paid shares, upon thebooks and records of the corporation in the case of uncertificated partly paidshares, the total amount of the consideration to be paid therefor and theamount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares, thecorporation shall declare a dividend upon partly paid shares of the same class,but only upon the basis of the percentage of the consideration actually paidthereon.

 

***8.5          SPECIALDESIGNATION ON CERTIFICATES***

 

If thecorporation is authorized to issue more than one class of stock or more thanone series of any class, then the powers, the designations, the preferences,and the relative, participating, optional or other special rights of each classof stock or series thereof and the qualifications, limitations or restrictionsof such preferences and/or rights shall be set forth in full or summarized onthe face or back of the certificate that the corporation shall issue torepresent such class or series of stock; provided, however, that,except as otherwise provided in Section 202 of the General Corporation Lawof Delaware, in lieu of the foregoing requirements there may be set forth onthe face or back of the certificate that the corporation shall issue torepresent such class or series of stock

 

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a statement that the corporation will furnish without charge to eachstockholder who so requests the powers, the designations, the preferences, andthe relative, participating, optional or other special rights of each class ofstock or series thereof and the qualifications, limitations or restrictions ofsuch preferences and/or rights.

 

***8.6          LOST CERTIFICATES***

 

Except asprovided in this Section 8.6, no new certificates for shares shall beissued to replace a previously issued certificate unless the latter issurrendered to the corporation and canceled at the same time.  The Board of Directors may, in case any sharecertificate or certificate for any other security is lost, stolen or destroyed,authorize the issuance of replacement certificates on such terms and conditionsas the Board may require; the Board may require indemnification of thecorporation secured by a bond or other adequate security sufficient to protectthe corporation against any claim that may be made against it, including anyexpense or liability, on account of the alleged loss, theft or destruction ofthe certificate or the issuance of the replacement certificate.

 

***8.7          CONSTRUCTION; DEFINITIONS***

 

Unless thecontext requires otherwise, the general provisions, rules of construction, anddefinitions in the General Corporation Law of Delaware shall govern theconstruction of these Bylaws.  Withoutlimiting the generality of this provision, the singular number includes theplural, the plural number includes the singular, and the term “person” includesboth a corporation and a natural person.

 

# **ARTICLEIX**

# ** **

**AMENDMENTS**

 

The originalor other Bylaws of the corporation may be adopted, amended or repealed by the stockholdersentitled to vote; provided, however, that the corporation may, inits Certificate of Incorporation, confer the power to adopt, amend or repealBylaws upon the directors.  The fact thatsuch power has been so conferred upon the directors shall not divest thestockholders of the power, nor limit their power to adopt, amend or repealBylaws.

 

**DISSOLUTION**

 

If it shouldbe deemed advisable in the judgment of the Board of Directors of thecorporation that the corporation should be dissolved, the Board, after theadoption of a resolution to that effect by a majority of the whole Board at anymeeting called for that purpose, shall cause notice to be mailed to eachstockholder entitled to vote thereon of the adoption of the resolution and of ameeting of stockholders to take action upon the resolution.

 

At the meetinga vote shall be taken for and against the proposed dissolution.  If a majority of the outstanding stock of thecorporation entitled to vote thereon votes for the proposed dissolution,

 

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then a certificate stating that the dissolution has been authorized inaccordance with the provisions of Section 275 of the General CorporationLaw of Delaware and setting forth the names and residences of the directors andofficers shall be executed, acknowledged, and filed and shall become effectivein accordance with Section 103 of the General Corporation Law ofDelaware.  Upon such certificate’sbecoming effective in accordance with Section 103 of the GeneralCorporation Law of Delaware, the corporation shall be dissolved.

 

Whenever all the stockholders entitled to vote on a dissolution consentin writing, either in person or by duly authorized attorney, to a dissolution,no meeting of directors or stockholders shall be necessary.  The consent shall be filed and shall becomeeffective in accordance with Section 103 of the General Corporation Law ofDelaware.  Upon such consent’s becomingeffective in accordance with Section 103 of the General Corporation Law ofDelaware, the corporation shall be dissolved. If the consent is signed by an attorney, then the original power ofattorney or a photocopy thereof shall be attached to and filed with theconsent.  The consent filed with theSecretary of State shall have attached to it the affidavit of the secretary orsome other officer of the corporation stating that the consent has been signedby or on behalf of all the stockholders entitled to vote on a dissolution; inaddition, there shall be attached to the consent a certification by thesecretary or some other officer of the corporation setting forth the names andresidences of the directors and officers of the corporation.

 

# **ARTICLEX**

# ** **

**CUSTODIAN**

 

***10.1        APPOINTMENTOF A CUSTODIAN IN CERTAIN CASES***

 

The Court ofChancery, upon application of any stockholder, may appoint one or more personsto be custodians and, if the corporation is insolvent, to be receivers, of andfor the corporation when:

 

#### (i)    at anymeeting held for the election of directors the stockholders are so divided thatthey have failed to elect successors to directors whose terms have expired orwould have expired upon qualification of their successors; or

####  

#### (ii)   thebusiness of the corporation is suffering or is threatened with irreparableinjury because the directors are so divided respecting the management of theaffairs of the corporation that the required vote for action by the Board ofDirectors cannot be obtained and the stockholders are unable to terminate thisdivision; or

####  

#### (iii)  thecorporation has abandoned its business and has failed within a reasonable timeto take steps to dissolve, liquidate or distribute its assets.

 

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***10.2        DUTIES OF CUSTODIAN***

 

The custodianshall have all the powers and title of a receiver appointed underSection 291 of the General Corporation Law of Delaware, but the authorityof the custodian shall be to continue the business of the corporation and notto liquidate its affairs and distribute its assets, except when the Court ofChancery otherwise orders and except in cases arising under Sections 226(a)(3)or 352(a)(2) of the General Corporation Law of Delaware.

 

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**CERTIFICATE OF AMENDMENT OF BYLAWS**

** **

**OF**

** **

**AVISTAR COMMUNICATIONS CORPORATION**

** **

 

Theundersigned hereby certifies that he is the duly elected, qualified, and actingSecretary of Avistar Communications Corporation and that the foregoing Bylaws,comprising twenty-three (23) pages, are the Bylaws of the corporation adoptedon March 23, 2000 as amended by the board of directors and the stockholders ofthe corporation on February 2, 2001.

 

IN WITNESSWHEREOF, the undersigned has hereunto set his hand and affixed the corporateseal this 27th day of April 2001.

 

 
|   | /s/ William L. Campbell         |
|--------|---------------------------------|
|   | William L. Campbell,  Secretary |

 

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