**Exhibit 3.04**

** **

**BYLAWS**

**OF**

**ALLOSTHERAPEUTICS, INC.**

**(A DELAWARECORPORATION)**

 

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**BYLAWS**

**OF**

**ALLOSTHERAPEUTICS, INC.**

**(A DELAWARECORPORATION)**

**ARTICLE I**

**OFFICES**

Section 1. **RegisteredOffice**. The registered office of the corporation in the State ofDelaware shall be in the City of Wilmington, County of New Castle.

Section 2. **OtherOffices**. The corporation shall also have and maintain an office orprincipal place of business at such place as may be fixed by the Board ofDirectors, and may also have offices at such other places, both within andwithout the State of Delaware as the Board of Directors may from time to timedetermine or the business of the corporation may require.

**ARTICLE II**

**CORPORATE SEAL**

Section 3. **CorporateSeal**. The corporate seal shall consist of a die bearing the name ofthe corporation and the inscription, “Corporate Seal-Delaware.” Said seal maybe used by causing it or a facsimile thereof to be impressed or affixed orreproduced or otherwise.

**ARTICLE III**

**STOCKHOLDERS’MEETINGS**

Section 4. **Placeof Meetings**. Meetings of the stockholders of the corporation shallbe held at such place, either within or without the State of Delaware, as maybe designated from time to time by the Board of Directors, or, if not sodesignated, then at the office of the corporation required to be maintainedpursuant to Section 2 hereof.

Section 5. **AnnualMeeting**.

(a)           The annual meeting of thestockholders of the corporation, for the purpose of election of directors andfor such other business as may lawfully come before it, shall be held on suchdate and at such time as may be designated from time to time by the Board ofDirectors.

(b)           At an annual meeting of thestockholders, only such business shall be conducted as shall have been properlybrought before the meeting. To be properly brought before an annual meeting,business must be: (A) specified in the notice of meeting (or anysupplement thereto) given by or at the direction of the Board of Directors,(B) otherwise properly brought before the meeting by or at the directionof the Board of Directors, or (C) otherwise properly brought before the meetingby a stockholder. For business to be properly brought before an annual meetingby a stockholder, the stockholder must have given timely notice thereof inwriting to the Secretary of the corporation. To be timely, a stockholder’snotice must be delivered to or mailed and received at the principal executiveoffices of the corporation not later than the close of business on the sixtieth(60th) day nor earlier than the close of business on the ninetieth (90th) dayprior to the first anniversary of the preceding year’s annual meeting;provided, however, that in the event that no annual meeting was held in theprevious year or the date of the annual meeting has been changed by more thanthirty (30) days from the date contemplated at the time of the previous year’sproxy statement, notice by the stockholder to be timely must be so received notearlier than the close of business on the ninetieth (90th) day prior to suchannual meeting and not later than the close of 

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business on the later of thesixtieth (60th) day prior to such annual meeting or, in the event publicannouncement of the date of such annual meeting is first made by thecorporation fewer than seventy (70) days prior to the date of such annualmeeting, the close of business on the tenth (10th) day following the day onwhich public announcement of the date of such meeting is first made by thecorporation. A stockholder’s notice to the Secretary shall set forth as to eachmatter the stockholder proposes to bring before 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) the name and address, as they appear on the corporation’s books, ofthe stockholder proposing such business, (iii) the class and number ofshares of the corporation which are beneficially owned by the stockholder,(iv) any material interest of the stockholder in such business and(v) any other information that is required to be provided by thestockholder pursuant to Regulation 14A under the Securities Exchange Actof 1934, as amended (the “1934 Act”), in his capacity as a proponent to astockholder proposal. Notwithstanding the foregoing, in order to includeinformation with respect to a stockholder proposal in the proxy statement andform of proxy for a stockholder’s meeting, stockholders must provide notice asrequired by the regulations promulgated under the 1934 Act. 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 the annual meeting shall, if the factswarrant, determine and declare at the meeting that business was not properlybrought before the meeting and in accordance with the provisions of thisparagraph (b), and, if he should so determine, he shall so declare at themeeting that any such business not properly brought before the meeting shallnot be transacted.

(c)           Only persons who are nominated inaccordance with the procedures set forth in this paragraph (c) shallbe eligible for election as directors. Nominations of persons for, election tothe Board of Directors of the corporation may be made at a meeting ofstockholders by or at the direction of the Board of Directors or by anystockholder of the corporation entitled to vote in the election of directors atthe meeting who complies with the notice procedures set forth in thisparagraph (c). 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 5. Such stock-holder’snotice shall set forth (i) as to each person, if any, whom the stockholderproposes to nominate for election or re-election as a director: (A) thename, age, business address and residence address of such person, (B) theprincipal occupation or employment of such person, (C) the class and numberof shares 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 in solicitations of proxies for election of directors,or is otherwise required, in each case pursuant to Regulation 14A underthe 1934 Act (including without limitation such person’s written consent tobeing named in the proxy statement, if any, as a nominee and to serving as adirector if elected); and (ii) as to such stockholder giving notice, theinformation required to be provided pursuant to paragraph (b) of thisSection 5. At the request of the Board of Directors, any person nominatedby a stockholder for election as a director shall furnish to the Secretary ofthe corporation that information required to be set forth in the stockholder’snotice of nomination which pertains to the nominee. No person shall be eligiblefor election as a director of the corporation unless nominated in accordancewith the procedures set forth in this paragraph (c). The chairman of themeeting shall, if the facts warrant, determine and declare at the meeting thata nomination was not made in accordance with the procedures prescribed by theseBylaws, and if he should so determine he shall so declare at the meeting, andthe defective nomination shall be disregarded.

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(d)           For purposes of this Section 5, “publicannouncement” shall mean disclosure in a press release reported by the DowJones News Service, Associated Press or comparable national news service or ina document publicly filed by the corporation with the Securities and ExchangeCommission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

Section 6. **SpecialMeetings.**

(a)           Special meetings of the stockholdersof the corporation may be called, for any purpose or purposes, by (i) theChairman of the Board of Directors, (ii) the Chief Executive Officer, or(iii) the Board of Directors pursuant to a resolution adopted by amajority of the total number of authorized directors (whether or not thereexist any vacancies in previously authorized directorships at the time any suchresolution is presented to the Board of Directors for adoption), and shall beheld at such place, on such date, and at such time as the Board of Directors,shall fix.

(b)           If a special meeting is called by anyperson or persons other than the Board of Directors, the request shall be inwriting, specifying the general nature of the business proposed to betransacted, and shall be delivered personally or sent by registered mail or bytelegraphic or other facsimile transmission to the Chairman of the Board ofDirectors, the Chief Executive Officer, or the Secretary of the corporation. Nobusiness may be transacted at such special meeting otherwise than specified insuch notice. The Board of Directors shall determine the time and place of suchspecial meeting, which shall be held not less than thirty-five (35) normore than one hundred twenty (120) days after the date of the receipt ofthe request. Upon determination of the time and place of the meeting, theofficer receiving the request shall cause notice to be given to thestockholders entitled to vote, in accordance with the provisions ofSection 7 of these Bylaws. If the notice is not given within sixty(60) days after the receipt of the request, the person or persons requestingthe meeting may set the time and place of the meeting and give the notice.Nothing contained in this paragraph (b) shall be construed aslimiting, fixing, or affecting the time when a meeting of stockholders calledby action of the Board of Directors may be held.

Section 7. **Noticeof Meetings**. Except as otherwise provided by law or the Certificateof Incorporation, written notice of each meeting of stockholders shall be givennot less than ten (10) nor more than sixty (60) days before the dateof the meeting to each stockholder entitled to vote at such meeting, suchnotice to specify the place, date and hour and purpose or purposes of themeeting. Notice of the time, place and purpose of any meeting of stockholdersmay be waived in writing, signed by the person entitled to notice thereof,either before or after such meeting, and will be waived by any stockholder byhis attendance thereat in person or by proxy, except when the stockholderattends a meeting for the express purpose of objecting, at the beginning of themeeting, to the transaction of any business because the meeting is not lawfullycalled or convened. Any stockholder so waiving notice of such meeting shall bebound by the proceedings of any such meeting in all respects as if due noticethereof had been given.

Section 8. **Quorum**.At all meetings of stockholders, except where otherwise provided by statute orby the Certificate of Incorporation, or by these Bylaws, the presence, inperson or by proxy duly authorized, of the holders of a majority of’ the outstandingshares of stock entitled to vote shall constitute a quorum for the transactionof business. In the absence of a quorum, any meeting of stockholders may beadjourned, from time to time, either by the chairman of the meeting or by voteof the holders of a majority of the shares represented thereat, but no otherbusiness shall be transacted at such meeting. The stockholders present at aduly called or convened meeting, at which a quorum is present, may continue totransact business until adjournment, notwithstanding “the withdrawal of enoughstockholders to leave less than a quorum. Except as otherwise provided by law,the Certificate of Incorporation or these Bylaws, all action taken by theholders of a majority of the vote cast, excluding abstentions, at any meetingat which a quorum is present shall be valid and binding upon the corporation;provided, however, that directors shall be elected by a plurality of the votesof the shares 

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present in person or represented by proxy at the meeting and entitled tovote on the election of directors. Where a separate vote by a class or classesor series is required, except where otherwise provided by the statute or by theCertificate of Incorporation or these Bylaws, a majority of the outstandingshares of such class or classes or series, present in person or represented byproxy, shall constitute a quorum entitled to take action with respect to thatvote on that matter and, except where otherwise provided by the statute or bythe Certificate of Incorporation or these Bylaws, the affirmative vote of themajority (plurality, in the case of the election of directors) of the votescast, including abstentions, by the holders of shares of such class or classesor series shall be the act of such class or classes or series.

Section 9. **Adjournmentand Notice of Adjourned Meetings**. Any meeting of stockholders,whether annual or special, may be adjourned from time., to time either by thechairman of the meeting or by the vote of a majority of the shares castingvotes, excluding abstentions. When a meeting is adjourned to another time orplace, notice need not be given of the adjourned meeting if the time and placethereof are announced at the meeting at which the adjournment is taken. At theadjourned meeting, the corporation may transact any business which might havebeen transacted at the original meeting. If the adjournment is for more thanthirty (30) days or if after the adjournment a new record (late is fixedfor the adjourned meeting, a notice of the adjourned meeting shall be given toeach stockholder of record entitled to vote at the meeting.

Section 10. **VotingRights**. For the purpose of determining those stockholders entitledto vote at any meeting of the stockholders, except as otherwise provided bylaw, only persons in whose names shares stand on the stock records of thecorporation on the record date, as provided in Section 12 of these Bylaws,shall be entitled to vote at any meeting of stockholders. Every person entitledto vote or execute consents shall have the right to do so either in person orby an agent or agents authorized by a proxy granted in accordance with Delawarelaw. An agent so appointed need not be a stockholder. No proxy shall be votedafter three (3) years from its date of creation unless the proxy providesfor a longer period.

Section 11. **JointOwners of Stock**. If shares or other securities having voting powerstand of record in the names of two (2) or more persons, whetherfiduciaries, members of a partnership, joint tenants, tenants in common,tenants by the entirety, or otherwise, or if two (2) or more persons havethe same fiduciary relationship respecting the same shares, unless theSecretary is given written notice to the contrary and is furnished with a copyof the instrument or order appointing them or creating the relationship whereinit is so provided, their acts with respect to voting shall have the followingeffect: (a) if only one (1) votes, his act binds all; (b) ifmore than one (1) votes, the act of the majority so voting binds all;(c) if more than one (1) votes, but the vote is evenly split on anyparticular matter, each faction may vote the securities in questionproportionally, or may apply to the Delaware Court of Chancery for relief asprovided in the General Corporation Law of Delaware, Section 217(b). Ifthe instrument filed with the Secretary shows that any such tenancy is held inunequal interests, a majority or even-split for the purpose ofsubsection (c) shall be a majority or even-split in interest.

Section 12. **Listof Stockholders**. The Secretary shall prepare and make, at least ten(10) days before every meeting of stockholders, a complete list of thestockholders entitled to vote at said meeting, arranged in alphabetical order,showing the address of each stockholder and the number of shares registered inthe name of each stockholder. Such list shall be open to the examination of anystockholder, for any purpose germane to the meeting, during ordinarybusiness hours, for a period of at least ten (10) days prior to themeeting, either at a place within the city where the meeting is to be held,which place shall be specified in the notice of the meeting, or, if notspecified, at the place where the meeting is to be held. The list shall beproduced and kept at the time and place of meeting during the whole timethereof and may be inspected by any stockholder who is present.

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Section 13. **ActionWithout Meeting**.

(a)           Unless otherwise provided in theCertificate of Incorporation, any action required by statute to be taken at anyannual or special meeting of the stockholders, or any action which may be takenat any annual or special meeting of the stockholders, may be taken without ameeting, without prior notice and without a vote, if a consent in writing,setting forth the action so taken, shall be signed by the holders ofoutstanding stock having not less than the minimum number of votes that wouldbe necessary to authorize or take such action at a meeting at which all sharesentitled to vote thereon were present and voted.

(b)           Every written consent shall bear thedate of signature of each stockholder who signs the consent, and no writtenconsent shall be effective to take the corporate action referred to thereinunless, within sixty (60) days of the earliest dated consent delivered tothe corporation in the manner herein required, written consents signed by asufficient number of stockholders to take action are delivered to thecorporation by delivery to its registered office in the State of Delaware, itsprincipal place of business or an officer or agent of the corporation havingcustody of the book in which proceedings of meetings of stockholders arerecorded. Delivery made to a corporation’s registered office shall be by handor by certified or registered mail, return receipt requested.

(c)           Prompt notice of the taking of thecorporate action without a meeting by less than unanimous written consent shallbe given to those stockholders who have not consented in writing. If the actionwhich is consented to is such as would have required the filing of acertificate under any section of the General Corporation Law of the Stateof Delaware if such action had been voted on by stockholders at a meetingthereof, then the certificate filed under such section shall state, in lieu ofany statement required by such section concerning any vote ofstockholders, that written notice and written consent have been given asprovided in Section 228 of the General Corporation Law of Delaware.

(d)           Notwithstanding the foregoing, nosuch action by written consent may be taken following the closing of theinitial public offering pursuant to an effective registration statement underthe Securities Act of 1933, as amended (the “1933 Act”), covering the offer andsale of Common Stock of the corporation (the “Initial Public Offering”).

Section 14. **Organization**.

(a)           At every meeting of stockholders, theChairman of the Board of Directors, or, if a Chairman has not been appointed oris absent, the President, or, if the President is absent, a chairman of themeeting chosen by a majority in interest of the stockholders entitled to vote,present in person or by proxy, shall act as chairman. The Secretary, or, in hisabsence, an Assistant Secretary directed to do so by the President, shall actas secretary of the meeting.

(b)           The Board of Directors of thecorporation shall be entitled to make such rules or regulations for the conductof meetings of stockholders as it shall deem necessary, appropriate orconvenient. Subject to such rules and regulations of the Board of Directors, ifany, the chairman of the meeting shall have the right and authority toprescribe such rules, regulations and procedures and to do all such acts as, inthe judgment of such chairman, are necessary, appropriate or convenient for theproper conduct of the meeting, including, without limitation, establishing anagenda or order of business for the meeting, rules and procedures formaintaining order at the meeting and the safety of those present, limitationson participation in such meeting to stockholders of record of the corporationand their duly authorized and constituted proxies and such other persons as thechairman shall permit, restrictions on entry to the meeting after the timefixed for the commencement thereof, limitations on the time allotted toquestions or comments by participants and regulation of the opening and closingof the polls for balloting on matters which are to be voted on by ballot.Unless and to the extent determined by the Board of Directors or the 

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chairman of the meeting, meetingsof stockholders shall not be required to be held in accordance with rules ofparliamentary procedure.

**ARTICLE IV**

**DIRECTORS**

Section 15. **Numberand Term of Office**. The Board of Directors shall consist of one ormore members. The authorized number of directors of the corporation shall befixed from time to time by resolution of the Board of Directors. Directors neednot be stockholders. If for any cause, the directors shall not have beenelected at an annual meeting, they may be elected as soon thereafter asconvenient at a special meeting of the stockholders called for that purpose inthe manner provided in these Bylaws.

Section 16. **Powers**.The powers of the corporation shall be exercised, its business conducted andits property controlled by the Board of Directors, except as may be otherwiseprovided by statute or by the Certificate of Incorporation.

Section 17. **Vacancies**.Unless otherwise provided in the Certificate of Incorporation, any vacancies onthe Board of Directors resulting from death, resignation, disqualification,removal or other causes and any newly created directorships resulting from anyincrease in the number of directors, shall unless the Board of Directorsdetermines by resolution that any such vacancies or newly created directorshipsshall be filled by stockholders, be filled only by the affirmative vote of amajority of the directors then in office, even though less than a quorum of theBoard of Directors. Any director elected in accordance with the precedingsentence shall hold office for the remainder of the full term of the directorfor which the vacancy was created or occurred and until such director’ssuccessor shall have been elected and qualified. A vacancy in the Board ofDirectors shall be deemed to exist under this Bylaw in the case of the death,removal or resignation of any director.

Section 18. **Resignation**.Any director may resign at any time by delivering his written resignation tothe Secretary, such resignation to specify whether it will be effective at aparticular time, upon receipt by the Secretary or at the pleasure of the Boardof Directors. If no such specification is made, it shall be deemed effective atthe pleasure of the Board of Directors. When one or more directors shall resignfrom the Board of Directors, effective at a future date, a majority of thedirectors then in office, including those who have so resigned, shall havepower to fill such vacancy or vacancies, the vote thereon to take effect whensuch resignation or resignations shall become effective, and each Director sochosen shall hold office for the unexpired portion of the term of the Directorwhose place shall be vacated and until his successor shall have been dulyelected and qualified.

Section 19. **Removal**.Subject to the rights of the holders of any series of Preferred Stock, nodirector shall be removed without cause. Subject to any limitations imposed bylaw, the Board of Directors or any individual director may be removed fromoffice at any time with cause by the affirmative vote of the holders of amajority of the voting power of all the then-outstanding shares of voting stockof the corporation, entitled to vote at an election of directors (the “VotingStock”).

Section 20. **Meetings**.

(a)           **Annual Meetings.**The annual meeting of the Board of Directors shall be held immediately beforeor after the annual meeting of stockholders and at the place where such meetingis held. No notice of an annual meeting of the Board of Directors shall benecessary and such meeting shall be held for the purpose of electing officersand transacting such other business as may lawfully come before it.

(b)           **Regular Meetings**.Except as hereinafter otherwise provided, regular meetings of the Board ofDirectors shall be held in the office of the corporation required to be maintainedpursuant to Section 2 hereof. Unless otherwise restricted by theCertificate of Incorporation, 

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regular meetings of the Board ofDirectors may also be held at any place within or without the State of Delawarewhich has been designated by resolution of the Board of Directors or thewritten consent of all directors.

(c)           **Special Meetings.**Unless otherwise restricted by the Certificate of Incorporation, specialmeetings of the Board of Directors may be held at any time and place within orwithout the State of Delaware whenever called by the Chairman of the Board, thePresident or any two of the directors.

(d)           **Telephone Meetings.**Any member of the Board of Directors, or of any committee thereof, mayparticipate in a meeting by means of conference telephone or similarcommunications equipment by means of which all persons participating in themeeting can hear each other, and participation in a meeting by such means shallconstitute presence in person at such meeting.

(e)           **Notice of Meetings.**Notice of the time and place of all special meetings of the Board of Directorsshall be orally or in writing, by telephone, facsimile, telegraph or telex,during normal business hours, at least twenty-four (24) hours beforethe date and time of the meeting, or sent in writing to each director by firstclass mail, charges prepaid, at least three (3) days before the date ofthe meeting. Notice of any meeting may be waived in writing at any time beforeor after the meeting and will be waived by any director by attendance thereat,except when the director attends the meeting for the express purpose ofobjecting, at the beginning of the meeting, to the transaction of any businessbecause the meeting is not lawfully called or convened.

(f)            **Waiver of Notice.**The transaction of all business at any meeting of the Board of Directors, orany committee thereof, however called or noticed, or wherever held, shall be asvalid as though had at a meeting duly held after regular call and notice, if aquorum be present and if, either before or after the meeting, each of thedirectors not present shall sign a written waiver of notice. All such waiversshall be filed with the corporate records or made a part of the minutes of themeeting.

Section 21. **Quorumand Voting**.

(a)           Unless the Certificate ofIncorporation requires a greater number and except with respect toindemnification questions arising under Section 42 hereof, for which aquorum shall be one-third of the exact number of directors fixed from time totime in accordance with the Certificate of Incorporation, a quorum of the Boardof Directors shall consist of a majority of the exact number of directors fixedfrom time to time by the Board of Directors in accordance with the Certificateof Incorporation; provided, however, at any meeting whether a quorum be presentor otherwise, a majority of the directors present may adjourn from time to timeuntil the time fixed for the next regular meeting of the Board of Directors,without notice other than by announcement at the meeting.

(b)           At each meeting of the Board ofDirectors at which a quorum is present, all questions and business shall bedetermined by the affirmative vote of a majority of the directors present,unless a different vote be required by law, the Certificate of Incorporation orthese Bylaws.

Section 22. **ActionWithout Meeting**. Unless otherwise restricted by the Certificate ofIncorporation or these Bylaws, any action required or permitted to be taken atany meeting of the Board of Directors or of any committee thereof may be takenwithout a meeting, if all members of the Board of Directors or committee, asthe case may be, consent thereto in writing, and such writing or writings arefiled with the minutes of proceedings of the Board of Directors or committee.

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Section 23. **Feesand Compensation**. Directors shall be entitled to such compensationfor their services as may be approved by the Board of Directors, including, ifso approved, by resolution of the Board of Directors, a fixed sum and expensesof attendance, if any, for attendance at each regular or special meeting of theBoard of Directors and at any meeting of a committee of the Board of Directors.Nothing herein contained shall be construed to preclude any director fromserving the corporation in any other capacity as an officer, agent, employee,or otherwise and receiving compensation therefor.

Section 24. **Committees**.

(a)           **Executive Committee.**The Board of Directors may by resolution passed by a majority of the wholeBoard of Directors appoint an Executive Committee to consist of one (1) ormore members of the Board of Directors. The Executive Committee, to the extentpermitted by law and provided in the resolution of the Board of Directors shallhave and may exercise all the powers and authority of the Board of Directors inthe management of the business and affairs of the corporation, includingwithout limitation the power or authority to declare a dividend, to authorizethe issuance of stock and to adopt a certificate of ownership and merger, andmay authorize the seal of the corporation to be affixed to all papers which mayrequire it; but no such committee shall have the power or authority inreference to amending the Certificate of Incorporation (except that a committeemay, to the extent authorized in the resolution or resolutions providing forthe issuance of shares of stock adopted by the Board of Directors fix thedesignations and any of the preferences or rights of such shares relating todividends, redemption, dissolution, any distribution of assets of thecorporation or the conversion into, or the exchange of such shares for, sharesof any other class or classes or any other series of the same or any otherclass or classes of stock of the corporation or fix the number of shares of anyseries of stock or authorize the increase or decrease of the shares of anyseries), adopting an agreement of merger or consolidation, recommending to thestockholders the sale, lease or exchange of all or substantially all of thecorporation’s property and assets, recommending to the stockholders adissolution of the corporation or a revocation of a dissolution, or amendingthe bylaws of the corporation.

(b)           **Other Committees.**The Board of Directors may, by resolution passed by a majority of the wholeBoard of Directors, from time to time appoint such other committees as may bepermitted by law. Such other committees appointed by the Board of Directorsshall consist of one (1) or more members of the Board of Directors andshall have such powers and perform such duties as may be prescribed by theresolution or resolutions creating such committees, but in no event shall suchcommittee have the powers denied to the Executive Committee in these Bylaws.

(c)           **Term.** Eachmember of a committee of the Board of Directors shall serve a term on thecommittee coexistent with such member’s term on the Board of Directors. TheBoard of Directors, subject to the provisions of subsections (a) or(b) of this Bylaw may at any time increase or decrease the number ofmembers of a committee or terminate the existence of a committee. Themembership of a committee member shall terminate on the date of his death orvoluntary resignation from the committee or from the Board of Directors. TheBoard of Directors may at any time for any reason remove any individualcommittee member and the Board of Directors may fill any committee vacancycreated by death, resignation, removal or increase in the number of members ofthe committee. The Board of Directors may designate one or more directors asalternate members of any committee, who may replace any absent or disqualifiedmember at any meeting of the committee, and, in addition, in the absence ordisqualification of any member of a committee, the member or members thereofpresent at any meeting and not disqualified from voting, whether or not he orthey constitute a quorum, may unanimously appoint another member of the Boardof Directors to act at the meeting in the place of any such absent ordisqualified member.

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(d)           **Meetings.**Unless the Board of Directors shall otherwise provide, regular meetings of theExecutive Committee or any other committee appointed pursuant to thisSection 24 shall be held at such times and places as are determined by theBoard of Directors, or by any such committee, and when notice thereof has beengiven to each member of such committee, no further notice of such regularmeetings need be given thereafter. Special meetings of any such committee maybe held at any place which has been determined from time to time by suchcommittee, and may be called by any director who is a member of such committee,upon written notice to the members of such committee of the time and place ofsuch special meeting given in the manner provided for the giving of writtennotice to members of the Board of Directors of the time and place of specialmeetings of the Board of Directors. Notice of any special meeting of anycommittee may be waived in writing at any time before or after the meeting andwill be waived by any director by attendance thereat, except when the directorattends such special meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business because themeeting is not lawfully called or convened. A majority of the authorized numberof members of any such committee shall constitute a quorum for the transactionof business, and the act of a majority of those present at any meeting at whicha quorum is present shall be the act of such committee.

Section 25. **Organization**.At every meeting of the directors, the Chairman of the Board of Directors, or,if a Chairman has not been appointed or is absent, the President, or if thePresident is absent, the most senior Vice President, or, in the absence of anysuch officer, a chairman of the meeting chosen by a majority of the directorspresent, shall preside over the meeting. The Secretary, or in his absence, anAssistant Secretary directed to do so by the President, shall act as secretaryof the meeting.

**ARTICLE V**

**OFFICERS**

Section 26. **OfficersDesignated**. The officers of the corporation shall include, if andwhen designated by the Board of Directors, the Chairman of the Board ofDirectors, the Chief Executive Officer, the President, one or more VicePresidents, the Secretary, the Chief Financial Officer, the Treasurer, theController, all of whom shall be elected at the annual organizational meetingof the Board of Directors. The Board of Directors may also appoint one or moreAssistant Secretaries, Assistant Treasurers, Assistant Controllers and suchother officers and agents with such powers and duties as it shall deemnecessary. The Board of Directors may assign such additional titles to one ormore of the officers as it shall deem appropriate. Any one person may hold anynumber of offices of the corporation at any one time unless specificallyprohibited therefrom by law. The salaries and other compensation of theofficers of the corporation shall be fixed by or in the manner designated bythe Board of Directors.

Section 27. **Tenureand Duties of Officers**.

(a)           **General.** Allofficers shall hold office at the pleasure of the Board of Directors and untiltheir successors shall have been duly elected and qualified, unless soonerremoved. Any officer elected or appointed by the Board of Directors may beremoved at any time by the Board of Directors. If the office of any officerbecomes vacant for any reason, the vacancy may be filled by the Board ofDirectors.

(b)           **Duties of Chairman of theBoard of Directors.** The Chairman of the Board of Directors, whenpresent, shall preside at all meetings of the stockholders and the Board ofDirectors. The Chairman of the Board of Directors shall perform other dutiescommonly incident to his office and shall also perform such other duties andhave such other powers as the Board of Directors shall designate from time totime. If there is no President, then the Chairman of the Board of 

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Directors shall also serve as theChief Executive Officer of the corporation and shall have the powers and dutiesprescribed in paragraph (c) of this Section 27.

(c)           **Duties of President.**The President shall preside at all meetings of the stockholders and at allmeetings of the Board of Directors, unless the Chairman of the Board ofDirectors has been appointed and is present. Unless some other officer has beenelected Chief Executive Officer of the corporation, the President shall be thechief executive officer of the corporation and shall, subject to the control ofthe Board of Directors, have general supervision, direction and control of thebusiness and officers of the corporation. The President shall perform otherduties commonly incident to his office and shall also perform such other dutiesand have such other powers as the Board of Directors shall designate from timeto time.

(d)           **Duties of Vice Presidents.**The Vice Presidents may assume and perform the duties of the President in theabsence or disability of the President or whenever the office of President isvacant. The Vice Presidents shall perform other duties commonly incident totheir office and shall also perform such other duties and have such otherpowers as the Board of Directors or the President shall designate from time totime.

(e)           **Duties of Secretary.**The Secretary shall attend all meetings of the stockholders and of the Board ofDirectors and shall record all acts and proceedings thereof in the minute bookof the corporation. The Secretary shall give notice in conformity with theseBylaws of all meetings of the stockholders and of all meetings of the Board ofDirectors and any committee thereof requiring notice. The Secretary shallperform all other duties given him in these Bylaws and other duties commonlyincident to his office and shall also perform such other duties and have suchother powers as the Board of Directors shall designate from time to time. ThePresident may direct any Assistant Secretary to assume and perform the dutiesof the Secretary in the absence or disability of the Secretary, and eachAssistant Secretary shall perform other duties commonly incident to his officeand shall also perform such other duties and have such other powers as theBoard of Directors or the President shall designate from time to time.

(f)            **Duties of Chief FinancialOfficer.** The Chief Financial Officer shall keep or cause to be keptthe books of account of the corporation in a thorough and proper manner andshall render statements of the financial affairs of the corporation in suchform and as often as required by the Board of Directors or the President. TheChief Financial Officer, subject to the order of the Board of Directors, shallhave the custody of all funds and securities of the corporation. The ChiefFinancial Officer shall perform other duties commonly incident to his officeand shall also perform such other duties and have such other powers as theBoard of Directors or the President shall designate from time to time. ThePresident may direct the Treasurer or any Assistant Treasurer, or theController or any Assistant Controller to assume and perform the duties of theChief Financial Officer in the absence or disability of the Chief FinancialOfficer, and each Treasurer and Assistant Treasurer and each Controller andAssistant Controller shall perform other duties commonly incident to his officeand shall also perform such other duties and have such other powers as theBoard of Directors or the President shall designate from time to time.

Section 28. **Delegationof Authority**. The Board of Directors may from time to time delegatethe powers or duties of any officer to any other officer or agent,notwithstanding any provision hereof.

Section 29. **Resignations**.Any officer may resign at any time by giving written notice to the Board ofDirectors or to the President or to the Secretary. Any such resignation shallbe effective when received by the person or persons to whom such notice isgiven, unless a later time is specified therein, in which event the resignationshall become effective at such later time. Unless otherwise specified in suchnotice, the acceptance of any such resignation shall not be necessary to makeit effective. Any resignation shall be without prejudice to the rights, if any,of the corporation under any contract with the resigning officer.

 

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Section 30. **Removal**.Any officer may be removed from office at any time, either with or withoutcause, by the affirmative vote of a majority of the directors in office at thetime, or by the unanimous written consent of the directors in office at thetime, or by any committee or superior officers upon whom such power of removalmay have been conferred by the Board of Directors.

**ARTICLE VI**

**EXECUTION OFCORPORATE INSTRUMENTS AND VOTING OF SECURITIES OWNED BY THE CORPORATION**

Section 31. **Executionof Corporate Instruments**. The Board of Directors may, in itsdiscretion, determine the method and designate the signatory officer orofficers, or other person or persons, to execute on behalf of the corporationany corporate instrument or document, or to sign on behalf of the corporationthe corporate name without limitation, or to enter into contracts on behalf ofthe corporation, except where otherwise provided by law or these Bylaws, andsuch execution or signature shall be binding upon the corporation.

Unless otherwise specifically determined by the Board ofDirectors or otherwise required by law, promissory notes, deeds of trust,mortgages and other evidences of indebtedness of the corporation, and othercorporate instruments or documents requiring the corporate seal, andcertificates of shares of stock owned by the corporation, shall be executed,signed or endorsed by the Chairman of the Board of Directors, or the Presidentor any Vice President, and by the Secretary or Treasurer or any AssistantSecretary or Assistant Treasurer. All other instruments and documents requiringthe corporate signature, but not requiring the corporate seal, may be executedas aforesaid or in such other manner as may be directed by the Board ofDirectors.

All checks and drafts drawn on banks or otherdepositaries on funds to the credit of the corporation or in special accountsof the corporation shall be signed by such person or persons as the Board ofDirectors shall authorize so to do.

Unless authorized or ratified by the Board of Directorsor within the agency power of an officer, no officer, agent or employee shallhave any power or authority to bind the corporation by any contract orengagement or to pledge its credit or to render it liable for any purpose orfor any amount.

Section 32. **Votingof Securities Owned by the Corporation**. All stock and othersecurities of other corporations owned or held by the corporation for itself,or for other parties in any capacity, shall be voted, and all proxies withrespect thereto shall be executed, by the person authorized so to do byresolution of the Board of Directors, or, in the absence of such authorization,by the Chairman of the Board of Directors, the Chief Executive Officer, thePresident, or any Vice President.

**ARTICLE VII**

**SHARES OF STOCK**

Section 33. **Form andExecution of Certificates**. Certificates for the shares of stock ofthe corporation shall be in such form as is consistent with the Certificate ofIncorporation and applicable law. Every holder of stock in the corporationshall be entitled to have a certificate signed by or in the name of thecorporation by the Chairman of the Board of Directors, or the President or anyVice President and by the Treasurer or Assistant Treasurer or the Secretary orAssistant Secretary, certifying the number of shares owned by him in thecorporation. Any or all of the signatures on the certificate may be facsimiles.In case any officer, transfer agent, or registrar who has signed or whosefacsimile signature has been placed upon a certificate shall have ceased to besuch officer, transfer agent, -or registrar before such certificate is issued,it may be issued with the same effect as if he were such officer, transferagent, or registrar at the date of issue. Each certificate shall state upon theface or back thereof, in full or in summary, all of the powers, designations,preferences, and rights, and the limitations or restrictions of the sharesauthorized to be issued or shall, except as otherwise required by 

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law, set forth on the face or back a statement that the corporation willfurnish without charge to each stockholder who so requests the powers,designations, preferences and relative, participating, optional, or otherspecial rights of each class of stock or series thereof and the qualifications,limitations or restrictions of such preferences and/or rights. Within areasonable time after the issuance or transfer of uncertificated stock, thecorporation shall send to the registered owner thereof a written noticecontaining the information required to be set forth or stated on certificatespursuant to this section or otherwise required by law or with respect tothis section a statement that the corporation will furnish without chargeto each stockholder who so requests the powers, designations, preferences andrelative participating, optional or other special rights of each class of stockor series thereof and the qualifications, limitations or restrictions of suchpreferences and/or rights. Except as otherwise expressly provided by law, therights and obligations of the holders of certificates representing stock of thesame class and series shall be identical.

Section 34. **LostCertificates**. A new certificate or certificates shall be issued inplace of any certificate or certificates theretofore issued by the corporationalleged to have been lost, stolen, or destroyed, upon the making of anaffidavit of that fact by the person claiming the certificate of stock to belost, stolen, or destroyed. The corporation may require, as a conditionprecedent to the issuance of a new certificate or certificates, the owner ofsuch lost, stolen, or destroyed certificate or certificates, or his legalrepresentative, to advertise the same in such manner as it shall require or togive the corporation a surety bond in such form and amount as it may direct asindemnity against any claim that may be made against the corporation withrespect to the certificate alleged to have been lost, stolen, or destroyed.

Section 35. **Transfers**.

(a)           Transfers of record of shares ofstock of the corporation shall be made only upon its books by the holdersthereof, in person or by attorney duly authorized, and upon the surrender of aproperly endorsed certificate or certificates for a like number of shares.

(b)           The corporation shall have power to enterinto and perform any agreement with any number of stockholders of any one ormore classes of stock of the corporation to restrict the transfer of shares ofstock of the corporation of any one or more classes owned by such stockholdersin any manner not prohibited by the General Corporation Law of Delaware.

Section 36. **FixingRecord Dates**.

(a)           In order that the corporation maydetermine the stockholders entitled to notice of or to vote at any meeting ofstockholders or any adjournment thereof, the Board of Directors may fix, inadvance, a record date, which record date shall not precede the date upon whichthe resolution fixing the record date is adopted by the Board of Directors, andwhich record date shall not be more than sixty (60) nor less than ten (10) daysbefore the date of such meeting. If no record date is fixed by the Board ofDirectors, the record date for determining stockholders entitled to notice ofor to vote at a meeting of stockholders shall be at the close of business onthe day next preceding the day on which notice is given, or if notice iswaived, at the close of business on the day next preceding the day on which themeeting is held. A determination of stockholders of record entitled to noticeof or to vote at a meeting of stockholders shall apply to any adjournment ofthe meeting; provided, however, that the Board of Directors may fix a newrecord date for the adjourned meeting.

(b)           Prior to the Initial Public Offering,in order that the corporation may determine the stockholders entitled toconsent to corporate action in writing without a meeting, the Board ofDirectors may fix a record date, which record date shall not precede the dateupon which the resolution fixing the record date is adopted by the Board ofDirectors, and which date shall not be more than 10 days after the dateupon which the resolution fixing the record date is adopted by 

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the Board of Directors. Anystockholder of record seeking to have the stockholders authorize or takecorporate action by written consent shall, by written notice to the Secretary,request the Board of Directors to fix a record date. The Board of Directorsshall promptly, but in all events within 10 days after the date on whichsuch a request is received, adopt a resolution fixing the record date. If norecord date has been fixed by the Board of Directors within 10 days of thedate on which such a request is received, the record date for determiningstockholders entitled to consent to corporate action in writing without ameeting, when no prior action by the Board of Directors is required byapplicable law, shall be the first date on which a signed written consentsetting forth the action taken or proposed to be taken is delivered to thecorporation by delivery to its registered office in the State of Delaware, itsprincipal place of business or an officer or agent of the corporation havingcustody of the book in which proceedings of meetings of stockholders arerecorded. Delivery made to the corporation’s registered office shall be by handor by certified or registered mail, return receipt requested. If no record datehas been fixed by the Board of Directors and prior action by the Board ofDirectors is required by law, the record date for determining stockholdersentitled to consent to corporate action in writing without a meeting shall beat the close of business on the day on which the Board of Directors adopts theresolution taking such prior action.

(c)           In order that the corporation maydetermine the stockholders entitled to receive payment of any dividend or otherdistribution or allotment of any rights or the stockholders entitled toexercise any rights in respect of any change, conversion or exchange of stock,or for the purpose of any other lawful action, the Board of Directors may fix,in advance, a record date, which record date shall not precede the date uponwhich the resolution fixing the record date is adopted, and which record dateshall be not more than sixty (60) days prior to such action. If no recorddate is fixed, the record date for determining stockholders for any suchpurpose shall be at the close of business on the day on which the Board ofDirectors adopts the resolution relating thereto.

Section 37. **RegisteredStockholders**. The corporation shall be entitled to recognize the exclusiveright of a person registered on its books as the owner of shares to receivedividends, and to vote as such owner, and shall not be bound to recognize anyequitable or other claim to or interest in such share or shares on the part ofany other person whether or not it shall have express or other notice thereof,except as otherwise provided by the laws of Delaware.

**ARTICLE VIII**

**OTHER SECURITIESOF THE CORPORATION**

Section 38. **Executionof Other Securities**. All bonds, debentures and other corporate securitiesof the corporation, other than stock certificates (covered in Section 33),may be signed by the Chairman of the Board of Directors, the President or anyVice President, or such other person as may be authorized by the Board ofDirectors, and the corporate seal impressed thereon or a facsimile of such sealimprinted thereon and attested by the signature of the Secretary or anAssistant Secretary, or the Chief Financial Officer or Treasurer or anAssistant Treasurer; provided, however, that where any such bond, debenture orother corporate security shall be authenticated by the manual signature, orwhere permissible facsimile signature, of a trustee under an indenture pursuantto which such bond, debenture or other corporate security shall be issued, thesignatures of the persons signing and attesting the corporate seal on suchbond, debenture or other corporate security may be the imprinted facsimile ofthe signatures of such persons. Interest coupons appertaining to any such bond,debenture or other corporate security, authenticated by a trustee as aforesaid,shall be signed by the Treasurer or an Assistant Treasurer of the corporationor such other person as may be authorized by the Board of Directors, or bearimprinted thereon the facsimile signature of such person. In case any officerwho shall have signed or attested any bond, debenture or other corporatesecurity, or whose facsimile signature shall appear thereon or on any suchinterest coupon, shall have ceased to be such officer 

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before the bond, debenture or other corporate security so signed orattested shall have been delivered, such bond, debenture or other corporatesecurity nevertheless may be adopted by the corporation and issued anddelivered as though the person who signed the same or whose facsimile signatureshall have been used thereon had not ceased to be such officer of thecorporation.

**ARTICLE IX**

**DIVIDENDS**

Section 39. **Declarationof Dividends**. Dividends upon the capital stock of the corporation,subject to the provisions of the Certificate of Incorporation, if any, may bedeclared by the Board of Directors pursuant to law at any regular or specialmeeting. Dividends may be paid in cash, in property, or in shares of thecapital stock, subject to the provisions of the Certificate of Incorporation.

Section 40. **DividendReserve**. Before payment of any dividend, there may be set aside outof any funds of the corporation available for dividends such sum or sums as theBoard of Directors from time to time, in their absolute discretion, think properas a reserve or reserves to meet contingencies, or for equalizing dividends, orfor repairing or maintaining any property of the corporation, or for such otherpurpose as the Board of Directors shall think conducive to the interests of thecorporation, and the Board of Directors may modify or abolish any such reservein the manner in which it was created.

**ARTICLE X**

**FISCAL YEAR**

Section 41. **FiscalYear**. The fiscal year of the corporation shall be fixed byresolution of the Board of Directors.

**ARTICLE XI**

**INDEMNIFICATION**

Section 42. **Indemnificationof Directors, Executive Officers, Other Officers, Employees and Other Agents**.

(a)           **Directors and ExecutiveOfficers.** The corporation shall indemnify its directors andexecutive officers (for the purposes of this Article XI, executiveofficers shall have the meaning defined in Rule 3b-7 promulgated under the1934 Act) and officers to the fullest extent not prohibited by the DelawareGeneral Corporation Law; provided, however, that the corporation may modify theextent of such indemnification by individual contracts with its directors andexecutive officers and officers; and, provided, further, that the corporationshall not be required to indemnify any director or executive officer or officerin connection with any proceeding (or part thereof) initiated by such personunless (i) such indemnification is expressly required to be made by law,(ii) the proceeding was authorized by the Board of Directors of thecorporation, (iii) such indemnification is provided by the corporation, inits sole discretion, pursuant to the powers vested in the corporation under theDelaware General Corporation Law or (iv) such indemnification is requiredto be made under subsection (d).

(b)           **Other Officers, Employeesand Other Agents.** The corporation shall have power to indemnify itsother officers, employees and other agents as set forth in the Delaware GeneralCorporation Law.

(c)           **Expenses.** Thecorporation shall advance to any person who was or is a party or is threatenedto be made a party to any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative, by reasonof the fact that he is or was a director or executive officer or officer, ofthe corporation, or is or was serving at the request of the corporation as adirector or executive officer of another corporation, partnership, jointventure, 

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trust or other enterprise, priorto the final disposition of the proceeding, promptly following request therefore,all expenses incurred by any director or executive officer or officer inconnection with such proceeding upon receipt of an undertaking by or on behalfof such person to repay said amounts if it should be determined ultimately thatsuch person is not entitled to be indemnified under this Bylaw or otherwise.

Notwithstanding the foregoing,unless otherwise determined pursuant to paragraph (e) of this Bylaw, noadvance shall be made by the corporation to an executive officer of thecorporation (except by reason of the fact that such executive officer is or wasa director of the corporation in which event this paragraph shall not apply) inany action, suit or proceeding, whether civil, criminal, administrative orinvestigative, if a determination is reasonably and promptly made (i) bythe Board of Directors by a majority vote of a quorum consisting of directorswho were not parties to the proceeding, or (ii) if such quorum is notobtainable, or, even if obtainable, a quorum of disinterested directors sodirects, by independent legal counsel in a written opinion, that the factsknown to the decision-making party at the time such determination is madedemonstrate clearly and convincingly that such person acted in bad faith or ina manner that such person did not believe to be in or not opposed to the bestinterests of the corporation.

(d)           **Enforcement.**Without the necessity of entering into an express contract, all rights toindemnification and advances to directors and executive officers and officersunder this Bylaw shall be deemed to be contractual rights and be effective tothe same extent and as if provided for in a contract between the corporationand the director or executive officer or officer. Any right to indemnificationor advances granted by this Bylaw to a director or executive officer or officershall be enforceable by or on behalf of the person holding such right in anycourt of competent jurisdiction if (i) the claim for indemnification oradvances is denied, in whole or in part, or (ii) no disposition of suchclaim is made within ninety (90) days of request therefor. The claimant insuch enforcement action, if successful in whole or in part, shall be entitledto be paid also the expense of prosecuting his claim. In connection with anyclaim for indemnification, the corporation shall be entitled to raise as adefense to any such action that the claimant has not met the standards ofconduct that make it permissible under the Delaware General Corporation Law forthe corporation to indemnify the claimant for the amount claimed. Neither thefailure of the corporation (including its Board of Directors, independent legalcounsel or its stockholders) to have made a determination prior to thecommencement of such action that indemnification of the claimant is proper inthe circumstances because he has met the applicable standard of conduct setforth in the Delaware General Corporation Law, nor an actual determination bythe corporation (including its Board of Directors, independent legal counsel orits stockholders) that the claimant has not met such applicable standard ofconduct, shall be a defense to the action or create a presumption that claimanthas not met the applicable standard of conduct. In any suit brought by adirector or executive officer to enforce a right to indemnification or to anadvancement of expenses hereunder, the burden of proving that the director orexecutive officer is not entitled to be indemnified, or to such advancement ofexpenses, under this Article XI or otherwise shall be on the corporation.

(e)           **Non-Exclusivity of Rights.**The rights conferred on any person by this Bylaw shall not be exclusive of anyother right which such person may have or hereafter acquire under any statute,provision of the Certificate of Incorporation, Bylaws, agreement, vote ofstockholders or disinterested directors or otherwise, both as to action in hisofficial capacity and as to action in another capacity while holding office.The corporation is specifically authorized to enter into individual contractswith any or all of its directors, officers, employees or agents respectingindemnification and advances, to the fullest extent not prohibited by theDelaware General Corporation Law.

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(f)            **Survival of Rights.**The rights conferred on any person by this Bylaw shall continue as to a personwho has ceased to be a director, officer, employee or other agent and shallinure to the benefit of the heirs, executors and administrators of such aperson.

(g)           **Insurance.** Tothe fullest extent permitted by the Delaware General Corporation Law, the corporation,upon approval by the Board of Directors, may purchase insurance on behalf ofany person required or permitted to be indemnified pursuant to this Bylaw.

(h)           **Amendments.** Anyrepeal or modification of this Bylaw shall only be prospective and shall notaffect the rights under this Bylaw in effect at the time of the allegedoccurrence of any action or omission to act that is the cause of any proceedingagainst any agent of the corporation.

(i)            **Saving Clause.**If this Bylaw or any portion hereof shall be invalidated on any ground by anycourt of competent jurisdiction, then the corporation shall neverthelessindemnify each director and executive officer to the full extent not prohibitedby any applicable portion of this Bylaw that shall not have been invalidated,or by any other applicable law.

(j)            **Certain Definitions.**For the purposes of this Bylaw, the following definitions shall apply:

(i)            The term “proceeding” shall bebroadly construed and shall include, without limitation, the investigation,preparation, prosecution, defense, settlement, arbitration and appeal of, andthe giving of testimony in, any threatened, pending or completed action, suitor proceeding, whether civil, criminal, administrative or investigative.

(ii)           The term “expenses” shall be broadlyconstrued and shall include, without limitation, court costs, attorneys’ fees,witness fees, fines, amounts paid in settlement or judgment and any other costsand expenses of any nature or kind incurred in connection with any proceeding.

(iii)          The term the “corporation” shallinclude, in addition to the resulting corporation, any constituent corporation(including any constituent of a constituent) absorbed in a consolidation ormerger which, if its separate existence had continued, would have had power andauthority to indemnify its directors, officers, and employees or agents, sothat any person who is or was a director, officer, employee or agent of suchconstituent corporation, or is or was serving at the request of suchconstituent corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterprise, shall standin the same position under the provisions of this Bylaw with respect to theresulting or surviving corporation as he would have with respect to suchconstituent corporation if its separate existence had continued.

(iv)          References to a “director,” “executiveofficer,” “officer, “employee,” or “agent” of the corporation shall include,without limitation, situations where such person is serving at the request ofthe corporation as, respectively, a director, executive officer, officer,employee, trustee or agent of another corporation, partnership, joint venture,trust or other enterprise.

(v)           References to “other enterprises”shall include employee benefit plans; references to “fines” shall include anyexcise taxes assessed on a person with respect to an employee benefit plan; andreferences to “serving at the request of the corporation” shall include anyservice as a director, officer, employee or agent of the corporation whichimposes duties on, or involves services by, such director, officer, employee,or agent with respect to an employee benefit plan, its participants, orbeneficiaries; and a person who acted in good faith and in a manner hereasonably believed to be in the interest of the participants and beneficiariesof an employee benefit plan shall be deemed to have acted in a manner “notopposed to the best interests of the corporation” as referred to in this Bylaw.

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**ARTICLE XII**

**NOTICES**

Section 43. **Notices**.

(a)           **Notice to Stockholders.**Whenever, under any provisions of these Bylaws, notice is required to be givento any stockholder, it shall be given in writing, timely and duly deposited inthe United States mail, postage prepaid, and addressed to his last known postoffice address as shown by the stock record of the corporation or its transferagent.

(b)           **Notice to directors.**Any notice required to be given to any director may be given by the methodstated in subsection (a), or by facsimile, telex or telegram, except thatsuch notice other than one which is delivered personally shall be sent to suchaddress as such director shall have filed in writing with the Secretary, or, inthe absence of such filing, to the last known post office address of suchdirector.

(c)           **Affidavit of Mailing.**An affidavit of mailing, executed by a duly authorized and competent employeeof the corporation or its transfer agent appointed with respect to the class ofstock affected, specifying the name and address or the names and addresses ofthe stockholder or stockholders, or director or directors, to whom any suchnotice or notices was or were given, and the time and method of giving thesame, shall in the absence of fraud, be prima facie evidence of the factstherein contained.

(d)           **Time Notices Deemed Given.**All notices given by mail, as above provided, shall be deemed to have beengiven as at the time of mailing, and all notices given by facsimile, telex ortelegram shall be deemed to have been given as of the sending time recorded attime of transmission.

(e)           **Methods of Notice.**It shall not be necessary that the same method of giving notice be employed inrespect of all directors, but one permissible method may be employed in respectof any one or more, and any other permissible method or methods may be employedin respect of any other or others.

(f)            **Failure to Receive Notice.**The period or limitation of time within which any stockholder may exercise anyoption or right, or enjoy any privilege or benefit, or be required to act, orwithin which any director may exercise any power or right, or enjoy anyprivilege, pursuant to any notice sent him in the manner above provided, shallnot be affected or extended in any manner by the failure of such stockholder orsuch director to receive such notice.

(g)           **Notice to Person with WhomCommunication Is Unlawful.** Whenever notice is required to be given,under any provision of law or of the Certificate of Incorporation or Bylaws ofthe corporation, to any person with whom communication is unlawful, the givingof such notice to such person shall not be required and there shall be no dutyto apply to any governmental authority or agency for a license or permit togive such notice to such person. Any action or meeting which shall be taken orheld without notice to any such person with whom communication is unlawfulshall have the same force and effect as if such notice had been duly given. Inthe event that the action taken by the corporation is such as to require thefiling of a certificate under any provision of the Delaware General CorporationLaw, the certificate shall state, if such is the fact and if notice isrequired, that notice was given to all persons entitled to receive noticeexcept such persons with whom communication is unlawful.

(h)           **Notice to Person withUndeliverable Address.** Whenever notice is required to be given,under any provision of law or the Certificate of Incorporation or Bylaws of thecorporation, to any stockholder to whom (i) notice of two consecutiveannual meetings, and all notices of meetings or of the taking of action bywritten consent without a meeting to such person during the period 

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between such two consecutiveannual meetings, or (ii) all, and at least two, payments (if sent by firstclass mail) of dividends or interest on securities during a twelve-monthperiod, have been mailed addressed to such person at his address as shown onthe records of the corporation and have been returned undeliverable, the givingof such notice to such person shall not be required. Any action or meetingwhich shall be taken or held without notice to such person shall have the sameforce and effect as if such notice had been duly given. If any such personshall deliver to the corporation a written notice setting forth his thencurrent address, the requirement that notice be given to such person shall bereinstated. In the event that the action taken by the corporation is such as torequire the filing of a certificate under any provision of the Delaware GeneralCorporation Law, the certificate need not state that notice was not given topersons to whom notice was not required to be given pursuant to this paragraph.

**ARTICLE XIII**

**AMENDMENT**

Section 44. **Amendments**.Subject to paragraph (h) of Section 43 of the Bylaws, the Bylawsmay be altered or amended or new Bylaws adopted by the affirmative vote of atleast sixty-six and two-thirds percent (66 2¤3%) of the voting power of all of thethen-outstanding shares of the Voting Stock. The Board of Directors shall alsohave the power to adopt, amend, or repeal Bylaws.

**ARTICLE XIV**

**LOANS TOOFFICERS**

Section 45. **Loansto Officers**. The corporation may lend money to, or guarantee anyobligation of, or otherwise assist any officer or other employee of thecorporation or of its subsidiaries, including any officer or employee who is aDirector of the corporation or its subsidiaries, whenever, in the judgment ofthe Board of Directors, such loan, guarantee or assistance may reasonably beexpected to benefit the corporation. The loan, guarantee or other assistancemay be with or without interest and may be unsecured, or secured in such manneras the Board of Directors shall approve, including, without limitation, apledge of shares of stock of the corporation. Nothing in these Bylaws shall bedeemed to deny, limit or restrict the powers of guaranty or warranty of thecorporation at common law or under any statute.

**ARTICLE XV**

**MISCELLANEOUS**

Section 46. **AnnualReport**.

(a)           Subject to the provisions ofparagraph (b) of this Bylaw, the Board of Directors shall cause anannual report to be sent to each stockholder of the corporation not later thanone hundred twenty (120) days after the close of the corporation’s fiscalyear. Such report shall include a balance sheet as of the end of such fiscal yearand an income statement and statement of changes in financial position for suchfiscal year, accompanied by any report thereon of independent accounts or, ifthere is no such report, the certificate of an authorized officer of thecorporation that such statements were prepared without audit from the books andrecords of the corporation. Such report shall be sent to stockholders at leastfifteen (15) days prior to the next annual meeting of stockholders afterthe end of the fiscal year to which it relates.

(b)           If and so long as there are fewerthan 100 holders of record of the corporation’s shares, the requirement ofsending of an annual report to the stockholders of the corporation is herebyexpressly waived.

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**FIRSTAMENDMENT TO BYLAWS****OF ALLOS THERAPEUTICS, INC.****(A DELAWARE CORPORATION)**

Section 22 of theBylaws of Allos Therapeutics, Inc. is amended and restated to read in itsentirety as follows:

**“**Section 22.   **Action Without Meeting.** Unless otherwise restricted by the Certificate of Incorporation or theseBylaws, any action required or permitted to be taken at any meeting of theBoard 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 such writing orwritings or transmission or transmissions are filed with the minutes ofproceedings of the Board of Directors or committee.  Such filing shall be in paper form if theminutes are maintained in paper form and shall be in electronic form if theminutes are maintained in electronic form.”

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