**EXHIBIT 3.2**

 

**AMENDED AND RESTATED**

**BYLAWS**

**OF**

**KOSAN BIOSCIENCES INCORPORATED**

**(a Delaware Corporation)**

 

**ARTICLE 1**

 

**CORPORATE OFFICES**

 

**1.1****Registered Office.** The registered office of the corporationshall be fixed in the certificate of incorporation of the corporation. 

 

**1.2****Other Offices.** The board of directors may at any time establish branch or subordinate offices at any place or places where the corporation is qualified to do business. 

 

**ARTICLE 2**

 

**MEETINGS OF STOCKHOLDERS**

 

**2.1****Place Of Meetings.** Meetings ofstockholders shall be held at any place within or outside the State of Delaware designated by the board of directors. In the absence of any such designation, stockholders’ meetings shall be held at the principal executive office of thecorporation. 

 

**2.2****Annual Meeting.** The annualmeeting of stockholders shall be held each year on a date and at a time designated by the board of directors. In the absence of such designation, the annual meeting of stockholders shall be held on the third Tuesday of May in each year at 10:00 a.m.However, if such day falls on a legal holiday, then the meeting shall be held at the same time and place on the next succeeding full business day. At the meeting, directors shall be elected, and any other proper business may be transacted.

 

**2.3****Special Meeting.** Except as otherwiserequired by law, a special meeting of the stockholders may be called only by the Board of Directors, the Chairman of the Board, or the President; *provided, however*, that if at any time no directors remain in office, then a special meeting forthe purpose of electing directors may be called in accordance with the procedure set forth in the Bylaws. No business may be transacted at such special meeting otherwise than as specified in the notice of such meeting. 

 

**2.4****Notice Of Stockholders’ Meetings.** All notices ofmeetings of stockholders shall be sent or otherwise given in accordance with Section 2.6 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of themeeting and (i) in the case of a special meeting, the purpose or purposes for which the meeting is called (no business other than that specified in the notice may be 

 

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transacted) or (ii) in the case of the annual meeting, those matters which the board of directors, at the time of giving the notice, intends to present foraction by the stockholders (but any proper matter may be presented at the meeting for such action). The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees who, at the time of the notice, theboard intends to present for election. 

 

**2.5****AdvanceNotice Of Stockholder Nominees And Stockholder Business.** Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation, 

 
 **(a)** ****nominations for the election of directors, and 
 
 **(b)** ****business proposed to be brought before any stockholder meeting 
 

may be made by the board of directors or proxy committee appointed by the board of directors or by any stockholder entitled to vote in the election of directors generallyif such nomination or business proposed is otherwise proper business before such meeting. However, any such stockholder may nominate one or more persons for election as directors at a meeting or propose business to be brought before a meeting, orboth, only if such stockholder has given timely notice to the secretary of the corporation in proper written form of their intent to make such nomination or nominations or to propose such business. To be timely, such stockholder’s notice mustbe delivered to or mailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of the date of the corporation’s proxy statement released to stockholders in connectionwith the previous year’s annual meeting of stockholders; *provided, however*, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from thedate contemplated at the time of the previous year’s proxy statement, notice by the stockholder to be timely must be so received a reasonable time before the solicitation is made. To be in proper form, a stockholder’s notice to thesecretary shall set forth: 

 

**(i)**the name and addressof the stockholder who intends to make the nominations or propose the business and, as the case may be, of the person or persons to be nominated or of the business to be proposed; 

 

**(ii)**a representation that the stockholder is a holder of record of stock of the corporation entitled to vote atsuch meeting and, if applicable, intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; 

 

**(iii)**if applicable, a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons(naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; 

 

**(iv)**such other information regarding each nominee or each matter of business to be proposed by such stockholder as would be required to beincluded in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission had the nominee been nominated, or intended to be nominated, or the matter been proposed, or intended to be proposed by the board of directors;and 

 

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**(v)**if applicable, the consent of each nominee to serve as director of the corporation if soelected. 

 

The chairman of the meeting shall refuse toacknowledge the nomination of any person or the proposal of any business not made in compliance with the foregoing procedure. 

 

**2.6****Manner Of Giving Notice; Affidavit Of Notice.** Written notice of 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 be sent charges prepaid and shall be addressed to the stockholder at the address of that stockholder appearing on the books of the corporationor given by the stockholder to the corporation for the purpose of notice. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication.

 

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

 

**2.7****Quorum.** The holders of a majority in voting power of thestock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by thecertificate of incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then either (i) the chairman of the meeting or (ii) the stockholders entitled to vote thereat, present in person or representedby proxy, shall have power to adjourn the meeting in accordance with Section 2.7 of these bylaws. 

 

When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxyshall decide any question brought before such meeting, unless the question is one upon which, by express provision of the laws of the State of Delaware or of the certificate of incorporation or these bylaws, a different vote is required, in whichcase such express provision shall govern and control the decision of the question. 

 

If a quorum be initially present, the stockholders may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken isapproved by a majority of the stockholders initially constituting the quorum. 

 

**2.8****Adjourned Meeting; Notice.** When a meeting is adjourned to another time and place, unless these bylaws otherwise require, 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 the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days,or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 

 

**2.9****Voting.** The stockholders entitled to vote at any meeting ofstockholders shall be determined in accordance with the provisions of Section 2.11 of these bylaws, subject to the 

 

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provisions of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners, and tovoting trusts and other voting agreements). 

 

Except as may beotherwise provided in the certificate of incorporation or these bylaws, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder with respect to any matter submitted to a vote of the stockholders andstockholders shall not be entitled to cumulate their votes in the election of directors. 

 

**2.10****Waiver Of Notice.** Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiverthereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice.**** Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when theperson attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of,any regular or special meeting of the stockholders need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws. 

 

**2.11****Record Date For Stockholder Notice; Voting.** For purposes of determining the stockholders entitled tonotice of any meeting or to vote thereat, the board of directors may fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors and which shall not be morethan sixty (60) days nor less than ten (10) days before the date of any such meeting, and in such event only stockholders of record on the date so fixed are entitled to notice and to vote, notwithstanding any transfer of any shares on the books ofthe corporation after the record date. 

 

If the board ofdirectors does not so fix a record date, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice isgiven, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. 

 

A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meetingunless the board of directors fixes a new record date for the adjourned meeting, but the board of directors shall fix a new record date if the meeting is adjourned for more than thirty (30) days from the date set for the original meeting.

 

The record date for any other purpose shall be as provided inSection 8.1 of these bylaws. 

 

**2.12****Proxies.** Everyperson entitled to vote for directors, or on any other matter, shall have the right to do so either in person or by one or more agents authorized by a written proxy signed by the person and filed with the secretary of the corporation, but no suchproxy 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 on the proxy 

 

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(whether by manual signature, typewriting, telegraphic transmission, telefacsimile or otherwise) by the stockholder or the stockholder’sattorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212(e) of the General Corporation Law of Delaware. 

 

**2.13****Organization.** The president, or in the absence of thepresident, the chairman of the board, or, in the absence of the president and the chairman of the board, one of the corporation’s vice presidents, shall call the meeting of the stockholders to order, and shall act as chairman of the meeting. Inthe absence of the president, the chairman of the board, and all of the vice presidents, the stockholders shall appoint a chairman for such meeting. The chairman of any meeting of stockholders shall determine the order of business and the proceduresat the meeting, including such matters as the regulation of the manner of voting and the conduct of business. The secretary of the corporation shall act as secretary of all meetings of the stockholders, but in the absence of the secretary at anymeeting of the stockholders, the chairman of the meeting may appoint any person to act as secretary of the meeting. 

 

**2.14****List Of Stockholders Entitled To Vote.** The officer who has charge of the stock ledger of the corporation shall prepare and make, atleast ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in thename of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place withinthe city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of themeeting during the whole time thereof, and may be inspected by any stockholder who is present. 

 

**ARTICLE 3**

 

**Directors**

 

**3.1****Powers.** Subject to the provisions of theGeneral Corporation Law of Delaware and any limitations in the certificate of incorporation and these bylaws relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the corporationshall be managed and all corporate powers shall be exercised by or under the direction of the board of directors. 

 

**3.2****Number Of Directors.** The board of directors shall consist of seven members. The board of directors may increase or decrease the numberof directors constituting the board of directors upon the approval of a majority of the directors then in office. The number of directors so determined shall be the authorized number of directors of the corporation. No reduction of the authorizednumber of directors shall have the effect of removing any director before that director’s term of office expires. 

 

**3.3****Election And Term Of Office Of Directors.** Except as provided in Section 3.4 of these bylaws, directors shall be elected at each annualmeeting of stockholders to hold office 

 

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until the next annual meeting. Each director, including a director elected or appointed to fill a vacancy, shall hold office until the expiration of the termfor which elected and until a successor has been elected and qualified. 

 

**3.4****Resignation And Vacancies.** Any director may resign effective on giving written notice to the chairman of the board, the president, the secretary or the board of directors, unless the notice specifies a later time for thatresignation to become effective. If the resignation of a director is effective at a future time, the board of directors may elect a successor to take office when the resignation becomes effective. 

 

All vacancies in the board of directors may be filled by a majority of theremaining directors, even if less than a quorum, or by a sole remaining director; *provided*, that whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of thecertificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remainingdirector so elected. 

 

**3.5****Place Of Meetings; MeetingsBy Telephone.** Regular meetings of the board of directors may be held at any place within or outside the State of Delaware that has been designated from time to time by resolution of the board. In the absence of such a designation, regularmeetings shall be held at the principal executive office of the corporation. Special meetings of the board may be held at any place within or outside the State of Delaware that has been designated in the notice of the meeting or, if not stated inthe notice or if there is no notice, at the principal executive office of the corporation. 

 

Any meeting, regular or special, may be held by conference telephone or similar communication equipment, so long as all directors participating in the meeting can hear one another; and all such directors shall bedeemed to be present in person at the meeting. 

 

**3.6****Regular Meetings.** Regular meetings of the board of directors may be held without notice if the times of such meetings are fixed by the board of directors. If any regular meeting day shall fall on a legal holiday, then the meeting shall beheld next succeeding full business day. 

 

**3.7****SpecialMeetings; Notice.** Special meetings of the board of directors for any purpose or purposes may be called at any time by the chairman of the board, the president, any vice president, the secretary or any two directors. 

 

Notice of the time and place of special meetings shall be deliveredpersonally or by telephone to each director or sent by first-class mail or telegram, charges prepaid, addressed to each director at that director’s address as it is shown on the records of the corporation. If the notice is mailed, it shall bedeposited in the United States mail at least four (4) days before the time of the holding of the meeting. If the notice is delivered personally or by telephone or telegram, it shall be delivered personally or by telephone or to the telegraph companyat least forty-eight (48) hours before the time of the holding of the meeting. Any oral notice given personally or by telephone may be communicated either to the director or to a person at the office of the director who the person giving the noticehas reason to believe will promptly 

 

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communicate it to the director. The notice need not specify the purpose or the place of the meeting, if the meeting is to be held at the principal executiveoffice of the corporation. 

 

**3.8****Quorum.** Amajority of the authorized number of directors shall constitute a quorum for the transaction of business, except to adjourn as provided in Section 3.10 of these bylaws. Every act or decision done or made by a majority of the directors present at aduly held meeting at which a quorum is present shall be regarded as the act of the board of directors, subject to the provisions of the certificate of incorporation and other applicable law. 

 

A meeting at which a quorum is initially present may continue to transactbusiness notwithstanding the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for that meeting. 

 

**3.9****Waiver Of Notice.** Notice of a meeting need not be given to any director (i) who signs a waiver of notice or a consent to holding themeeting or an approval of the minutes thereof, whether before or after the meeting, or (ii) who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such directors. All such waivers, consents, andapprovals shall be filed with the corporate records or made part of the minutes of the meeting. A waiver of notice need not specify the purpose of any regular or special meeting of the board of directors. 

 

**3.10****Adjournment.** A majority of the directors present, whetheror not constituting a quorum, may adjourn any meeting to another time and place. 

 

**3.11****Notice Of Adjournment.** Notice of the time and place of holding an adjourned meeting need not be given unless the meeting is adjourned for more than twenty-four (24) hours. If the meeting isadjourned for more than twenty-four (24) hours, then notice of the time and place of the adjourned meeting shall be given before the adjourned meeting takes place, in the manner specified in Section 3.7 of these bylaws, todirectors who were notpresent at the time of the adjournment. 

 

**3.12****BoardAction By Written Consent Without A Meeting.** Any action required or permitted to be taken by the board of directors may be taken without a meeting, *provided* that all members of the board individually or collectively consent in writing tothat action. Such action by written consent shall have the same force and effect as a unanimous vote of the board of directors. Such written consent and any counterparts thereof shall be filed with the minutes of the proceedings of the board.

 

**3.13****Fees And Compensation Of Directors.**Directors and members of committees may receive such compensation, if any, for their services and such reimbursement of expenses as may be fixed or determined by resolution of the board of directors. This Section 3.13 shall not be construed topreclude any director from serving the corporation in any other capacity as an officer, agent, employee or otherwise and receiving compensation for those services. 

 

**3.14****Approval Of Loans To Officers.** The corporation may lend money to, or guarantee any obligation of, orotherwise assist any officer or other employee of the corporation or any of its subsidiaries, including any officer or employee who is a director of the corporation or any of its subsidiaries, whenever, in the judgment of the directors, such loan,guaranty or 

 

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assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest and may beunsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing contained in this section shall be deemed to deny, limit or restrict the powers ofguaranty or warranty of the corporation at common law or under any statute. 

 

**ARTICLE 4**

 

**Committees**

 

**4.1****Committees Of Directors.** The board ofdirectors may, by resolution adopted by a majority of the authorized number of directors, designate one (1) or more committees, each consisting of two or more directors, 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 absent member at any meeting of the committee. The appointment of members or alternate members of a committee requires the vote of a majority of the authorized number of directors.Any committee, to the extent provided in the resolution of the board, shall have and may exercise all the powers and authority of the board, but no such committee shall have the power of authority to: 

 

**(a)**amend the certificate of incorporation (except that a committeemay, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the board of directors as provided in Section 151(a) of the General Corporation Law of Delaware, fix the designations and any ofthe preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the corporation or the conversion into, or the exchange 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); 

 

**(b)**adopt an agreement of merger or consolidation under Sections 251 or 252 of the General Corporation Law of Delaware; 

 

**(c)**recommend to the stockholders the sale, lease or exchange of all or substantially all of the corporation’s property and assets;

 

**(d)**recommend to the stockholders a dissolution of thecorporation or a revocation of a dissolution; or 

 

**(e)**amend the bylaws of the corporation; and, unless the board resolution establishing the committee, the bylaws or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend, toauthorize the issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law of Delaware. 

 

**4.2****Meetings And Action Of Committees.** Meetings and actions of committees shall be governed by, and held and taken in accordance with, theprovisions of Article III of these bylaws, Section 3.5 (place of meetings), Section 3.6 (regular meetings), Section 3.7 (special meetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), Section 3.10 (adjournment), Section 3.11(notice of adjournment), and Section 3.12 (action without meeting), 

 

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with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board of directors and its members;*provided, however*, that the time of regular meetings of committees may be determined either by resolution of the board of directors or by resolution of the committee, that special meetings of committees may also be called by resolution of theboard of directors, and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The board of directors may adopt rules for the government of anycommittee not inconsistent with the provisions of these bylaws. 

 

**4.3****Committee Minutes.** Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. 

 

**ARTICLE 5**

 

**Officers**

 

**5.1****Officers.** The officers of the corporation shall be a president, a secretary, and a chief financial officer. The corporation may alsohave, at the discretion of the board of directors, a chairman of the board, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and such other officers as may be appointed in accordance with theprovisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person. 

 

**5.2****Election Of Officers.** The officers of the corporation, except such officers as may be appointed in accordance with the provisions ofSection 5.3 or Section 5.5 of these bylaws, shall be chosen by the board, subject to the rights, if any, of an officer under any contract of employment. 

 

**5.3****Subordinate Officers.** The board of directors may appoint, or may empower the president to appoint, such other officers as the businessof the corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these bylaws or as the board of directors may from time to time determine. 

 

**5.4****Removal And Resignation Of Officers.** Subject to the rights,if any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the board of directors at any regular or special meeting of the board or, except in case of an officer chosen by the board ofdirectors, by any officer upon whom such power of removal may be conferred by the board of directors. 

 

Any officer may resign at any time by giving written notice to the corporation. Any resignation shall take effect at the date of the receipt of thatnotice or at any later time specified in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of thecorporation under any contract to which the officer is a party. 

 

**5.5****Vacancies In Offices.** A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in these bylaws for regular appointments to that office.

 

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**5.6****Chairman Of The Board.** The chairman of the board, if such an officer be elected, shall,if present, preside at meetings of the board of directors and exercise and perform such other powers and duties as may from time to time be assigned to him by the board of directors or as may be prescribed by these bylaws. If there is no president,then the chairman of the board shall also be the chief executive officer of the corporation and shall have the powers and duties prescribed in Section 5.7 of these bylaws. 

 

**5.7****President.** Subject to such supervisory powers, if any, as may be given by the board of directors to thechairman of the board, if there be such an officer, the president shall be the chief executive officer of the corporation and shall, subject to the control of the board of directors, have general supervision, direction, and control of the businessand the officers of the corporation. He shall preside at all meetings of the stockholders and, in the absence or non-existence of a chairman of the board, at all meetings of the board of directors. He shall have the general powers and duties ofmanagement usually vested in the office of president of a corporation, and shall have such other powers and duties as may be prescribed by the board of directors or these bylaws. 

 

**5.8****Vice Presidents.** In the absence or disability of the president, the vice presidents, if any, in order oftheir rank as fixed by the board of directors or, if not ranked, a vice president designated by the board of directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject to all therestrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the board of directors, these bylaws, the president or the chairman ofthe board. 

 

**5.9****Secretary.** The secretary shallkeep or cause to be kept, at the principal executive office of the corporation or such other place as the board of directors may direct, a book of minutes of all meetings and actions of directors, committees of directors and stockholders. Theminutes shall show the time 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 orrepresented at stockholders’ meetings, and the proceedings thereof. 

 

The secretary shall keep, or cause to be kept, at the principal executive office of the corporation or at the office of the corporation’s transfer agent or registrar, as determined by resolution of the board ofdirectors, a share register, or a duplicate share register, showing the names of all stockholders and their addresses, the number and classes of shares held by each, the number and date of certificates evidencing such shares, and the number and dateof cancellation of every certificate surrendered for cancellation. 

 

The secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the board of directors required to be given by law or by these bylaws. He shall keep the seal of the corporation, if one be adopted, in safecustody and shall have such other powers and perform such other duties as may be prescribed by the board of directors or by these bylaws. 

 

**5.10****Chief Financial Officer.** The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correctbooks and records of accounts of the 

 

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properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital,retained earnings, and shares. The books of account shall at all reasonable times be open to inspection by any director. 

 

The chief financial officer shall deposit all money and other valuables in the name and to the credit of the corporation with such depositaries as may bedesignated by the board of directors. He shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever they request it, an account of all of his transactions as chieffinancial officer and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws. 

 

**ARTICLE 6**

 

**INDEMNIFICATION OF DIRECTORS,OFFICERS, EMPLOYEES,**

**AND OTHER AGENTS**

 

**6.1****Indemnification Of Directors And Officers.** The corporationshall, to the maximum extent and in the manner permitted by the General Corporation Law of Delaware as the same now exists or may hereafter be amended, indemnify any person against expenses (including attorneys’ fees), judgments, fines, andamounts paid in settlement actually and reasonably incurred in connection with any threatened, pending or completed action, suit, or proceeding in which such person was or is a party or is threatened to be made a party by reason of the fact thatsuch person is or was a director or officer of the corporation. For purposes of this Section 6.1, a “director” or “officer” of the corporation shall mean 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 director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was a director or officer of a corporation which was a predecessorcorporation of the corporation or of another enterprise at the request of such predecessor corporation. 

 

The corporation shall be required to indemnify a director or officer in connection with an action, suit, or proceeding (or part thereof) initiated by suchdirector or officer only if the initiation of such action, suit, or proceeding (or part thereof) by the director or officer was authorized by the Board of Directors of the corporation. 

 

The corporation shall pay the expenses (including attorney’s fees) incurred by a director or officer of the corporationentitled to indemnification hereunder in defending any action, suit or proceeding referred to in this in advance of its final disposition; *provided, however*, that payment of expenses incurred by a director or officer of the corporation inadvance of the final disposition of such action, suit or proceeding shall be made only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should ultimately be determined that the director of officer is notentitled to be indemnified under this Section 6.1 or otherwise. 

 

The rights conferred on any person by this Article shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the corporation’s Certificate of Incorporation, these bylaws,agreement, vote of the stockholders or disinterested directors or otherwise. 

 

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Any repeal or modification of the foregoing provisions of this Article shall not adversely affect anyright or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. 

 

**6.2****Indemnification Of Others.** The corporation shall have the power, to the maximum extent and in the manner permitted by the GeneralCorporation Law of Delaware as the same now exists or may hereafter be amended, to indemnify any person (other than directors and officers) against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actuallyand reasonably incurred in connection with any threatened, pending or completed action, suit, or proceeding, in which such person was or is a party or is threatened to be made a party by reason of the fact that such person is or was an employee oragent of the corporation. For purposes of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or officer) shall mean any person (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 of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who was an employee or agent of a corporation which was a predecessor corporation ofthe corporation or of another enterprise at the request of such predecessor corporation. 

 

**6.3****Insurance.** The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request ofthe corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising outof his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability under the provisions of the General Corporation Law of Delaware. 

 

**ARTICLE 7**

 

**RECORDS AND REPORTS**

 

**7.1****Maintenance And Inspection Of Records.**The corporation shall, either at its principal executive office or at such place or places as designated by the board of directors, keep a record of its stockholders listing their names and addresses and the number and class of shares held by eachstockholder, a copy of these bylaws as amended to date, accounting books and other records of its business and properties. 

 

Any stockholder of record, in person or by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the rightduring the usual hours for business to inspect for any proper purpose the corporation’s stock ledger, a list of its stockholders, and its other books and records 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 other agent is the person who seeks the right to inspection, the demand under oath shall be accompanied by a power of attorney or such otherwriting that authorizes 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 registered office in Delaware or at its principal place of business. 

 

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**7.2****Inspection By Directors.** Any director shall have the right to examine (and to makecopies of) the corporation’s stock ledger, a list of its stockholders and its other books and records for a purpose reasonably related to his or her position as a director. 

 

**7.3****Annual Statement To Stockholders.** The board of directors shall present at each annual meeting, and at anyspecial meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. 

 

**7.4****Representation Of Shares Of Other Corporations.** The chairman of the board, if any, the president, any vice president, the chieffinancial officer, the secretary or any assistant secretary of this, or any other person authorized by the board of directors or the president or a vice president, is authorized to vote, represent and exercise on behalf of this corporation allrights incident to any and all shares of the stock of any other corporation or corporations standing in the name of this corporation. The authority herein granted may be exercised either by such person directly or by any other person authorized todo so by proxy or power of attorney duly executed by such person having the authority. 

 

**7.5****Certification And Inspection Of Bylaws.** The original or a copy of these bylaws, as amended or otherwise altered to date, certified by the secretary, shall be kept at the corporation’s principalexecutive office and shall be open to inspection by the stockholders of the corporation, at all reasonable times during office hours. 

 

**ARTICLE 8**

 

**GENERAL MATTERS**

 

**8.1****Record Date For Purposes Other Than Notice And Voting.** For purposes of determining the stockholders entitled to receive payment of anydividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60)days before any such action. In that case, only stockholders of record at the close of business on the date so fixed are entitled to receive the dividend, distribution or allotment of rights, or to exercise such rights, as the case may be,notwithstanding any transfer of any shares on the books of the corporation after the record date so fixed, except as otherwise provided in the General Corporation Law of Delaware. 

 

If the board of directors does not so fix a record date, then the record date for determining stockholders for any suchpurpose shall be at the close of business on the day on which the board adopts the applicable resolution. 

 

**8.2****Checks; Drafts; Evidences Of Indebtedness.** From time to time, the board of directors shall determine by resolution which person orpersons may sign or endorse all checks, drafts, other orders for payment of money, notes or other evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign or endorse thoseinstruments. 

 

**8.3****Corporate Contracts AndInstruments: How Executed.** The board of directors, except as otherwise provided in these bylaws, may authorize any officer or officers, or 

 

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agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation; such authority may be general orconfined to specific instances. Unless so authorized or ratified by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind the corporation by any contract orengagement or to pledge its credit or to render it liable for any purpose or for any amount. 

 

**8.4****Stock Certificates; Transfer; Partly Paid Shares.** The shares of the corporation shall be represented by certificates, *provided* that the board of directors of the corporation may provide byresolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to thecorporation. Notwithstanding the adoption of such a resolution by the board of directors, every holder of stock represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate signed by,or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of such corporationrepresenting the number of shares registered in certificate form. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon acertificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.

 

Certificates for shares shall be of such form and device asthe board of directors may designate and shall state the name of the record holder of the shares represented thereby; its number; date of issuance; the number of shares for which it is issued; a summary statement or reference to the powers,designations, preferences or other special rights of such stock and the qualifications, limitations or restrictions of such preferences and/or rights, if any; a statement or summary of liens, if any; a conspicuous notice of restrictions upontransfer or registration of transfer, if any; a statement as to any applicable voting trust agreement; if the shares be assessable, or, if assessments are collectible by personal action, a plain statement of such facts. 

 

Upon surrender to the secretary or transfer agent of the corporation of acertificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificateand record the transaction upon its books. 

 

The corporation mayissue the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the face or back of each stock certificate issued to represent any such partly paid shares, or upon thebooks and records of the corporation in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon shall be stated. Upon the declaration of any dividend on fully paid shares,the corporation shall declare a dividend upon partly paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon. 

 

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**8.5****Special Designation On Certificates.** If the corporation is authorized to issue morethan one class of stock or more than one series of any class, then the powers, the designations, the preferences and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications,limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate that the corporation shall issue to represent such class or series of stock; *provided, however*,that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that the corporation shall issue to represent suchclass or series of stock a statement that the corporation will furnish without charge to each stockholder who so requests 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 restrictions of such preferences and/or rights. 

 

**8.6****Lost Certificates.** Except as provided in this Section 8.6, no new certificates for shares shall be issued to replace a previously issuedcertificate unless the latter is surrendered to the corporation and canceled at the same time. The board of directors may, in case any share certificate or certificate for any other security is lost, stolen or destroyed, authorize the issuance ofreplacement certificates on such terms and conditions as the board may require; the board may require indemnification of the corporation secured by a bond or other adequate security sufficient to protect the corporation against any claim that may bemade against it, including any expense or liability, on account of the alleged loss, theft or destruction of the certificate or the issuance of the replacement certificate. 

 

**8.7****Transfer Agents And Registrars.** The board of directors may appoint one or more transfer agents or transferclerks, and one or more registrars, each of which shall be an incorporated bank or trust company—either domestic or foreign, who shall be appointed at such times and places as the requirements of the corporation may necessitate and the board ofdirectors may designate. 

 

**8.8****Construction;Definitions.** Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the General Corporation Law of Delaware shall govern the construction of these bylaws. Without limiting the generality of thisprovision, the singular number includes the plural, the plural number includes the singular, and the term “person” includes both a corporation and a natural person. 

 

**ARTICLE 9**

 

**AMENDMENTS**

 

**9.1****Amendments By Stockholders And Directors.** The original or other bylaws of the corporation may be adopted, amended or repealed by thestockholders entitled to vote or by the board of directors of the corporation. The fact that such power has been so conferred upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.

 

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Whenever an amendment or new bylaw is adopted, it shall be copied in the book of bylaws with the originalbylaws, in the appropriate place. If any bylaw is repealed, the fact of repeal with the date of the meeting at which the repeal was enacted or the filing of the operative written consent(s) shall be stated in said book. 

 

**9.2****Supermajority Vote.** Notwithstanding anything to thecontrary in the bylaws, neither Section 2.3 (special meeting), Section 2.5 (advance notice of stockholder nominees and stockholder business), nor this Section 9.2 (supermajority vote) of the bylaws shall be repealed or amended, nor shall anyprovision inconsistent with the aforementioned provisions be adopted and added to the bylaws except upon the affirmative vote of not less than two-thirds of the shares of the corporation issued and outstanding. 

 

Amended and Restated Bylaws adopted by the Board of Directors of theCorporation at Hayward, California, this 25th day of April, 2003. 

 

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