<PAGE>   1
                                                                     EXHIBIT 3.3

                        FIFTH AMENDED AND RESTATED BYLAWS
                                       OF
                                CAREMARK RX, INC.



                                    ARTICLE I
                                     OFFICES

         The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.


                                   ARTICLE II
                            MEETINGS OF STOCKHOLDERS

         Section 1.        Stockholder Meetings. All meetings of the
stockholders for the election of Directors shall be held in the City of
Birmingham, State of Alabama, at such place as may be fixed from time to time by
the Board of Directors, or at such other place either within or without the
State of Delaware as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Meetings of stockholders for
any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.

         Section 2.        Annual Meetings. Annual meetings of the stockholders
shall be held at such date as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting which date shall be within
thirteen months subsequent to the last annual meeting of stockholders. At such
annual meeting, the stockholders shall elect by a plurality vote a Board of
Directors or such members of the Board as may be nominated for election at such
annual meeting, and transact such other business as may properly be brought
before the meeting.

         Section 3.        Notice of Annual Meeting. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting.

         Section 4.        Voting List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.

         Section 5.        Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chief
Executive Officer and shall be called by the Chief Executive Officer or
Secretary at the request

<PAGE>   2

in writing of a majority of the Board of Directors, or at the request in writing
of stockholders owning a majority in amount of the entire capital stock of the
Corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.

         Section 6.        Notice of Special Meeting. Written notice of a
special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called, shall be given not less than ten
nor more than sixty days before the date of the meeting, to each stockholder
entitled to vote at such meeting.

         Section 7.        Transaction of Business. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice.

         Section 8.        Quorum. The holders of a majority of the stock 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 the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, then the presiding officer of
said meeting or the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
until a quorum shall be present or represented, and the Corporation may transact
at any adjourned meeting any business which might have been transacted at the
original meeting. Notice need not be given of the adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken, unless (a) any adjournment or series of adjournments caused the original
meeting to be adjourned for more than thirty days after the date originally
fixed therefor, or (b) a new record date is fixed for the adjourned meeting. If
notice of an adjourned meeting is given, such notice shall be given to each
stockholder of record entitled to vote at the adjourned meeting in the manner
prescribed in Section 3 or Section 6 of this Article II, as the case may be, for
the giving of notice of annual meetings and special meetings, respectively, of
stockholders.

         Section 9.        Voting of Shares. Unless otherwise provided in the
Certificate of Incorporation each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period.

         Section 10.       Proposals at Annual Meetings. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, otherwise
properly brought before the meeting by or at the direction of the Board of
Directors or otherwise properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Corporation, not later than the close of
business on the day that is the 120th day prior to the anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is more than 30 days before such anniversary date,
notice by a stockholder to be timely must be so delivered not later than the
close of business on the 90th day prior to such annual meeting unless less than
sixty days notice or prior public disclosure of the date of the meeting is given
or made to stockholders in which case, notice by the stockholder to be timely
must be so received by the Corporation not later than the close of business on
the tenth day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure was made. A stockholder's notice to
the Secretary shall set forth as to each matter the


                                       2

<PAGE>   3

stockholder proposes to bring before the annual meeting, (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and record
address of the stockholder proposing such business, (iii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by the stockholder, (iv) a description of all
arrangements or understandings between the stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by the stockholder and any material interest of the stockholder in such
business, and (v) a representation that the stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.

         Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Article II, Section 10, provided, however, that
nothing in this Article II, Section 10 shall be deemed to preclude discussion by
any stockholder of any business properly brought before the annual meeting in
accordance with said procedure.

         The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Article II, Section
10, and if he should so determine, he shall so declare to the meeting and any
such business not properly brought before the meeting shall not be transacted.

         Section 11.       Nominations of Persons for Election to the Board of
Directors. In addition to any other applicable requirements, only persons who
are nominated in accordance with the following procedures shall be eligible for
election as Directors. Nominations of persons for election to the Board of
Directors of the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors, by any nominating committee or person
appointed by the Board of Directors or by any stockholder of the Corporation
entitled to vote for the election of Directors at the meeting who complies with
the notice procedures set forth in this Article II, Section 11. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice shall be delivered to
or mailed and received at the principal executive offices of the Corporation in
accordance with the provisions of Section 10 of this Article II. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a Director, (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of shares of
the Corporation which are beneficially owned by the person and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of Directors pursuant to Section 14 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations promulgated thereunder; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder, (ii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the stockholder, (iii) a description of
all arrangements or understandings between the stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nominations(s) are to be made by the stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in such notice and (v) any other
information relating to the stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for the election of Directors pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each proposed nominee being
named as a nominee and to serve as a Director if elected. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee


                                       3
<PAGE>   4

to serve as a Director of the Corporation. No person shall be eligible for
election as a Director of the Corporation unless nominated in accordance with
the procedures set forth herein. The provisions of this Article II, Section 11
shall not apply to Directors governed by Section 14 of Article III.

         The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.


                                   ARTICLE III
                                    DIRECTORS

         Section 1.        General Powers. The business of the Corporation shall
be managed by or under the direction of its Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.

         Section 2.        Number and Term of Office; Removal. The number of
Directors of the Corporation shall be fixed from time to time by these Bylaws.
Until these Bylaws are further amended, the number of Directors shall be no less
than nine, and no more than fifteen. The Directors shall be divided into three
classes. Each such class shall consist, as nearly as may be possible, of
one-third of the total number of Directors, and any remaining Directors shall be
included within such group or groups as the Board of Directors shall designate.
The first class will be elected for a term which expires in 1996. The second
class will be elected for a term which expires in 1997. The third class will be
elected for a term which expires in 1998. At each annual meeting of
stockholders, successors to the class of Directors whose term expires at that
annual meeting shall be elected for a three-year term. If the number of
Directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of Directors in each class as nearly equal
as possible, but in no case shall a decrease in the number of Directors shorten
the term of any incumbent Director. A Director may be removed from office for
cause only and, subject to such removal, death, resignation, retirement or
disqualification, shall hold office until the annual meeting of stockholders for
the year in which his term expires and until his successor shall be elected and
qualify. No alteration, amendment or repeal of these Bylaws shall be effective
to shorten the term of any Director holding office at the time of such
alteration, amendment or repeal, to permit any such Director to be removed
without cause, or to increase the number of Directors in any class or in the
aggregate from that existing at the time of such alteration, amendment or repeal
until the expiration of the terms of office of all Directors then holding
office, unless such alteration, amendment or repeal has been approved by either
the holders of all shares of stock entitled to vote thereon or by a vote of a
majority of the entire Board of Directors. The provisions of this Section 2
shall not apply to Directors governed by Section 14 of this Article III.

         Section 3.        Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of Directors may be filled
by a majority of the Directors then in office, though less than a quorum, or by
a sole remaining Director, in accordance with the provisions of the Certificate
of Incorporation, and the Directors so chosen shall hold office until expiration
of the respective term to which they were elected and until their successors are
duly elected and qualified, unless sooner displaced. If there are no Directors
in office, then an election of Directors may be held in the manner provided by
law. If, at the time of filling any vacancy or any newly created directorship,
the Directors then in office shall constitute less than a majority of the whole
board (as constituted immediately prior to any such increase), the Court of
Chancery of the State of Delaware may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time


                                       4
<PAGE>   5

outstanding having the right to vote for such Directors, summarily order an
election to be held to fill any such vacancies or newly created directorships,
or to replace the Directors chosen by the Directors then in office.

         Section 4.        Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.

         Section 5.        Initial Meeting. The first meeting of each newly
elected Board of Directors shall be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors, or as shall be specified in a written waiver signed by all
of the Directors.

         Section 6.        Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board of Directors.

         Section 7.        Special Meetings. Special meetings of the Board of
Directors may be called by the President on two days' notice to each Director,
either personally or by mail telegram or facsimile transmission; special
meetings shall be called by the President or Secretary in like manner and on
like notice on the written request of two Directors unless the Board of
Directors consists of only one Director, in which case special meetings shall be
called by the President or Secretary in like manner and on like notice on the
written request of the sole Director.

         Section 8.        Quorum and Meetings. At all meetings of the Board of
Directors, a majority of the Directors shall constitute a quorum for the
transaction of business, and the act of a majority of the Directors present at
any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by statute or by the
Certificate of Incorporation. The Chairman of the Board, or his designee, shall
preside at all meetings of the Board of Directors and, whether or not a quorum
is present, may adjourn the meeting from time to time without notice other than
by announcement at the meeting.

         Section 9.        Unanimous Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.

         Section 10.       Telephonic Meetings. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.

         Section 11.       Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more of the Directors of the
Corporation. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of


                                       5
<PAGE>   6

the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation (except that a committee may, 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 the State of Delaware, fix any of the 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 other
series of the same or any other class or classes of stock of the Corporation),
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
Bylaws; and, unless the resolution or the Certificate of Incorporation expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock or to adopt a certificate of
ownership and merger. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of
Directors.

         Section 12.       Minutes. Each committee shall keep regular minutes of
its meetings and report the same to the Board of Directors when required.

         Section 13.       Compensation. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, the Board of Directors shall have
the authority to fix the compensation of Directors. The Directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as Director. No such payment shall preclude any
Director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.

         Section 14.       Directors Elected by Special Class or Series. To the
extent that any holders of any class or series of stock other than the Common
Stock issued by the Corporation shall have the separate right, voting as a class
or series, to elect Directors, the Directors elected by such class or series
shall be deemed to constitute an additional class of Directors and shall have a
term of office for one year or such other period as may be designated by the
provisions of such class or series providing such separate voting right to the
holders of such class or series of stock, and any such class of Directors shall
be in addition to the classes referred to in Section 2 of this Article III. Any
Directors so elected shall be subject to removal in such manner as may be
provided by law or by the Certificate of Incorporation. The provisions of
Section 11 of Article II and Sections 2 and 3 of this Article III do not apply
to Directors governed by this Article III, Section 14.

                                   ARTICLE IV
                                     NOTICES

         Section 1.        Giving Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these Bylaws, notice is
required to be given to any Director or stockholder, it shall not be construed
to mean personal notice, but such notice may be given in writing, by mail,
addressed to such Director or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to Directors may also be given by telegram or by facsimile
transmission.


                                       6
<PAGE>   7

         Section 2.        Waiver of Notice. Whenever any notice is required to
be given by law or of the Certificate of Incorporation or of these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.

                                    ARTICLE V
                                    OFFICERS

         Section 1.        Principal Officers. The principal officers of the
Corporation shall be elected by the Board of Directors and shall include a
Chairman of the Board, a Chief Executive Officer, a President, a Secretary and a
Treasurer, and may, at the discretion of the Board of Directors, also include
one or more Vice Presidents, a Controller (as well as a Vice Chairman who shall,
however, not be a formal officer of the Corporation) and such other officers as
the Board of Directors shall designate. Except as otherwise provided in the
Certificate of Incorporation or these Bylaws, one person may hold the offices
and perform the duties of any two or more principal offices except the offices
and duties of President and Vice President or of Chairman of the Board or
President and Secretary. None of the principal officers need be Directors of the
Corporation.

         Section 2.        Election and Term of Office. The officers of the
Corporation shall be elected by the Board of Directors and shall hold office at
the pleasure of the Board of Directors and until their successors are elected
and qualified. In its discretion, the Board of Directors by a vote of a majority
thereof may leave unfilled for such period as it may fix by resolution any
offices except those of President and Secretary.

         Section 3.        Vacancies and Removal. Vacancies in any office
arising from any cause may be filled by the Board of Directors at any regular or
special meeting. The Board of Directors may remove any officer, with or without
cause, at any time by an affirmative vote of a majority of the Board of
Directors.

         Section 4.        Chief Executive Officer. The Chief Executive Officer
shall be the principal executive officer of the Corporation and shall have in
his charge the general direction and promotion of the Corporation's affairs with
authority to do such acts and to make such contracts as are necessary or proper
to carry on the business of the Corporation. He shall preside over all official
meetings of the Corporation, provided no one has been specifically elected to
the office of Chairman of the Board, and shall also perform those duties which
usually devolve upon a Chief Executive Officer of a Corporation under the laws
of the State of Delaware. The Chief Executive Officer may, during the absence of
any officer, delegate said officer's duties to any other officer or Director.

         Section 5.        President. In the absence or disability of the Chief
Executive Officer, or if there is none, the President shall perform all of the
duties of the Chief Executive Officer, and when so acting shall have all of the
power of and be subject to all of the restrictions upon the Chief Executive
Officer. The President shall have such other duties as from time to time may be
assigned to him by the Board of Directors or the Chief Executive Officer.

         Section 6.        Vice-President. The Vice-President, in the absence or
disability of the President, shall perform the duties of the President and shall
perform such other duties as may be delegated to him from time to time by the
Board of Directors, the Chief Executive Officer, or the President.

         Section 6 SECTION 7.       Secretary. The Secretary shall issue notices
of all meetings of stockholders and all meetings of the Board of Directors,
shall keep the minutes of all such meetings, shall


                                       7
<PAGE>   8

have charge of the seal of the Corporation, shall serve as custodian for all
corporate records, and shall make such reports and perform such duties as are
incident to his office or which may be delegated to him by the Board of
Directors, the Chief Executive Officer, or the President.

         Section 8.        Treasurer. The Treasurer shall render to the Board of
Directors, the Chief Executive Officer and the President at such times as may be
requested, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. The Treasurer shall perform such other duties as
are incident to the office or as may be delegated to that office by the Board of
Directors, the Chief Executive Officer, or the President.

         Section 9.        Salaries. The salaries of the officers may be fixed
from time to time by the Board of Directors, and no officer shall be prevented
from receiving such salary by reason of the fact that he is also a Director or
stockholder of the Corporation.

                                   ARTICLE VI
                      CONTRACTS, LOANS, CHECKS AND DEPOSITS

         Section 1.        Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or execute and
deliver any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.

         Section 2.        Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the Board of Directors. Such authority may be
general or confined to specific instances.

         Section 3.        Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the Corporation shall be signed by such officer or officers,
agent or agents of the Corporation and in such manner as shall from time to time
be determined by resolution of the Board of Directors.

         Section 4.        Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may select.


                                   ARTICLE VII
                   CERTIFICATES FOR SHARES AND THEIR TRANSFER

         Section 1.        Certificates. Ownership of the capital shares of the
Corporation shall be represented by certificates, in such form as shall be
determined by the Board of Directors. Each certificate shall be signed by two of
the officers of the Corporation and may be sealed with the seal of the
Corporation or a facsimile thereof. A record of such certificates shall be kept.

         Section 2.        Cancellation. All certificates transferred on the
books of the Corporation shall be surrendered and cancelled. No new certificates
shall be issued until the former certificate, or certificates, for the same
number of shares have been surrendered and cancelled, except in case of lost or
destroyed certificates, when new certificates therefor may be issued under such
conditions as the Board of Directors may prescribe.


                                       8
<PAGE>   9

         Section 3.        Transfer of Shares. Transfer of shares of the
Corporation shall be made only on the stock transfer books of the Corporation by
the holder of record thereof or by his legal representatives, who shall furnish
proper evidence of their authority in writing, upon the surrender for
cancellation of the certificate for such shares.

         Section 4.        Fixing Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise 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 shall not be more than sixty nor less than ten
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.

         Section 5.        Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.


                                  ARTICLE VIII
                                    DIVIDENDS

         Section 1.        Paying Dividends. The Board of Directors may from
time to time declare, and the Corporation may pay, dividends on the outstanding
shares of the Corporation in the manner and upon the terms and conditions
provided by law and by the Certificate of Incorporation of the Corporation or
any amendments thereto. Dividends may be paid in cash, in property, or in shares
of the capital stock, subject to the provisions of the Certificate of
Incorporation.

         Section 2.        Setting Aside Funds. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available for
dividends such sum or sums as the Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Directors shall think conducive to
the interest of the Corporation, and the Directors may modify or abolish any
such reserve in the manner in which it was created.


                                   ARTICLE IX
                                 INDEMNIFICATION

         Section 1.        Mandatory Indemnification of Directors and Officers.

                  (a)      The Corporation shall indemnify, and shall pay in
advance the expenses of, each Director and officer of the Corporation and each
person who is serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise to
the fullest extent permissible under Delaware law, as the same exists or may
hereafter exist in the future (but,


                                       9
<PAGE>   10

in the case of any future change, only to the extent that such change permits
the Corporation to provide broader indemnification rights than the law permitted
prior to such change) and such obligation to indemnify and to advance expenses
shall continue as to a person who has ceased to be a Director or officer of the
Corporation or a director or officer of any other such corporation, partnership,
joint venture, trust or other enterprise and shall inure to the benefit of his
or her heirs, executors and administrators.

                  (b)      If a claim under Section 1(a) of this Article IX is
not paid in full by the Corporation within thirty (30) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. Neither the failure of
the Corporation (including its Board of Directors, independent legal counsel or
its stockholders) to have made a determination that indemnification of the
claimant is permissible in the circumstances because the claimant has met the
applicable standard of conduct, if any, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met the standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
standard of conduct.

         Section 2.        Discretionary Indemnification of Employees and
Agents. The Corporation may, but shall have no obligation to, indemnify and may
pay in advance the expenses of employees and agents of the Corporation and
persons who are serving at the request of the Corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise to the fullest extent permissible under Delaware law and to the
extent approved by the Board of Directors from time to time.


         Section 3.        Expenses as a Witness. To the extent that any
Director, officer, employee or agent of the Corporation, or any person who is
serving at the request of the Corporation as an officer, director, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise is, by reason of such position or position with such other entity, a
witness in any action, suit or proceeding, he or she shall be indemnified
against all costs and expenses actually and reasonably incurred by him or her or
on his or her behalf in connection therewith.

         Section 4.        Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any Director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expenses, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under Delaware law.

         Section 5.        Indemnity Agreements. The Corporation may enter into
agreements with any Director, officer, employee or agent of the Corporation and
with any person who is or was serving at the request of the Corporation as an
officer, director, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, providing for indemnification to the fullest
extent permissible under Delaware law.

         Section 6.        Separability. Each and every paragraph, sentence,
term and provision of this Article IX is separate and distinct, so that if any
paragraph, sentence, term or provision hereof shall be held to be invalid or
unenforceable for any reason, such invalidity or unenforceability shall not
affect the validity or unenforceability of any other paragraph, sentence, term
or provision hereof. To the extent required, any paragraph, sentence, term or
provision of this Article IX may be modified by a court of competent
jurisdiction to preserve its validity and to provide the claimant with, subject
to the limitations


                                       10
<PAGE>   11

set forth in this Article IX and any agreement between the Corporation and
claimant, the broadest possible indemnification permitted under applicable law.

         Section 7.        Contract Right. Each of the rights conferred by
Sections 1 and 3 of this Article IX shall be a contract right, and any repeal or
amendment of the provisions of this Article shall not adversely affect any right
hereunder of any person existing at the time of such repeal or amendment with
respect to any act or omission occurring prior to the time of such repeal or
amendment, and, further, shall not apply to any proceeding, irrespective of when
the proceeding is initiated, arising from the service of such person prior to
such repeal or amendment. Further, the mandatory indemnification and expense
advancement for officers of the Corporation and such other persons who serve at
the request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise set forth in Section 1 of
this Article IX shall apply solely with respect to acts or omissions of such
officers and directors occurring on or after August 6, 1998.

         Section 8.        Nonexclusivity. The rights conferred in this Article
shall not be exclusive of any other rights that any person may have or hereafter
acquire under any statute, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.


                                    ARTICLE X
                                   AMENDMENTS

         These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the stockholders or by the Board of Directors, when such power is
conferred upon the Board of Directors by the Certificate of Incorporation, at
any regular meeting of the stockholders or Board of Directors, or at any special
meeting of the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal Bylaws is
conferred upon the Board of Directors by the Certificate of Incorporation, it
shall not divest or limit the power of the stockholders to adopt, amend or
repeal these Bylaws.


                                   ARTICLE XI
                                  MISCELLANEOUS

         Section 1.        Fiscal Year. The initial taxable year of the
Corporation shall commence on the date the Certificate of Incorporation is
filed, and end on such date as the Board of Directors may determine, in
accordance with all applicable provisions of the Internal Revenue Code of 1986,
as amended.

         Section 2.        Seal. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.



                  The above Fifth Amended and Restated Bylaws were approved by
                  resolution of the Board of Directors of the Corporation on the
                  31st day of May, 2000.


                                       11