**EXHIBIT 3.2**

 

** **

**BYLAWS**

** **

**OF**

** **

**ULTRATECH, INC.**

 

 

 

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**TABLE OF CONTENTS**

 
| ARTICLE  I  CORPORATE OFFICES         |
|--------------------------------------------|
|                                       | 1.1 | REGISTERED OFFICE |
|                                       | 1.2 | OTHER  OFFICES |
|                                       |   |   |
| ARTICLE  II  MEETINGS OF STOCKHOLDERS |
|                                       | 2.1 | PLACE OF MEETINGS |
|                                       | 2.2 | ANNUAL  MEETING |
|                                       | 2.3 | SPECIAL  MEETINGS |
|                                       | 2.4 | NOTICE OF STOCKHOLDERS’ MEETINGS |
|                                       | 2.5 | ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS |
|                                       | 2.6 | MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE |
|                                       | 2.7 | QUORUM |
|                                       | 2.8 | ADJOURNED  MEETING; NOTICE |
|                                       | 2.9 | VOTING |
|                                       | 2.10 | WAIVER  OF NOTICE |
|                                       | 2.11 | STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
|                                       | 2.12 | RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS |
|                                       | 2.13 | PROXIES |
|                                       | 2.14 | LIST OF STOCKHOLDERS ENTITLED TO VOTE |
|                                       | 2.15 | CONDUCT OF BUSINESS |
|                                       |   |   |
| ARTICLE  III  DIRECTORS               |
|                                       | 3.1 | POWERS |
|                                       | 3.2 | NUMBER OF DIRECTORS |
|                                       | 3.3 | ELECTION QUALIFICATION AND TERM OF OFFICE OF DIRECTORS |
|                                       | 3.4 | RESIGNATION AND VACANCIES |
|                                       | 3.5 | PLACE OF MEETINGS; MEETINGS BY TELEPHONE |
|                                       | 3.6 | FIRST  MEETINGS |
|                                       | 3.7 | REGULAR  MEETINGS |

 

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|                                  | 3.8    | SPECIAL MEETINGS; NOTICE                           |
|---------------------------------------|--------|----------------------------------------------------|
|                                  | 3.9    | QUORUM                                             |
|                                  | 3.10   | WAIVER OF NOTICE                                   |
|                                  | 3.11   | ADJOURNED MEETING; NOTICE                          |
|                                  | 3.12   | CONDUCT OF BUSINESS                                |
|                                  | 3.13   | BOARD  ACTION BY WRITTEN CONSENT WITHOUT A MEETING |
|                                  | 3.14   | FEES AND COMPENSATION OF DIRECTORS                 |
|                                  | 3.15   | APPROVAL OF LOANS TO OFFICERS                      |
|                                  |   |                                               |
| ARTICLE  IV  COMMITTEES          |   |
|                                  | 4.1    | COMMITTEES OF DIRECTORS                            |   |
|                                  | 4.2    | COMMITTEE MINUTES                                  |   |
|                                  | 4.3    | MEETINGS AND ACTION OF COMMITTEES                  |   |
|                                  |   |                                               |   |
| ARTICLE  V  OFFICERS             |   |
|                                  | 5.1    | OFFICERS                                           |
|                                  | 5.2    | ELECTION  OF OFFICERS                              |
|                                  | 5.3    | REMOVAL AND RESIGNATION OF OFFICERS                |
|                                  | 5.4    | CHAIRMAN OF THE BOARD                              |
|                                  | 5.5    | PRESIDENT                                          |
|                                  | 5.6    | VICE  PRESIDENTS                                   |
|                                  | 5.7    | SECRETARY                                          |
|                                  | 5.8    | CHIEF FINANCIAL OFFICER                            |
|                                  | 5.9    | ASSISTANT SECRETARY                                |
|                                  | 5.10   | AUTHORITY AND DUTIES OF OFFICERS                   |
|                                  |   |                                               |
| ARTICLE  VI  INDEMNITY           |   |
|                                  | 6.1    | INDEMNIFICATION OF DIRECTORS AND OFFICERS          |
|                                  | 6.2    | INDEMNIFICATION OF OTHERS                          |
|                                  | 6.3    | INSURANCE                                          |
|                                  |   |                                               |
| ARTICLE  VII RECORDS AND REPORTS |   |
|                                  | 7.1    | MAINTENANCE  AND INSPECTION OF RECORDS             |
|                                  | 7.2    | INSPECTION  BY DIRECTORS                           |

 

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|                                | 7.3    | REPRESENTATION OF SHARES OF OTHER CORPORATIONS |
|-------------------------------------|--------|------------------------------------------------|
|                                |   |                                           |
| ARTICLE  VIII  GENERAL MATTERS |
|                                | 8.1    | STOCK CERTIFICATES; PARTLY PAID SHARES         |
|                                | 8.2    | LOST  CERTIFICATES                             |
|                                | 8.3    | CONSTRUCTION;  DEFINITIONS                     |
|                                | 8.4    | DIVIDENDS                                      |
|                                | 8.5    | FISCAL  YEAR                                   |
|                                | 8.6    | SEAL                                           |
|                                | 8.7    | TRANSFER  OF STOCK                             |
|                                | 8.8    | STOCK TRANSFER AGREEMENTS                      |
|                                | 8.9    | REGISTERED STOCKHOLDERS                        |
|                                |   |                                           |
| ARTICLE  IX  AMENDMENTS        |
|                                |
| ARTICLE  X  DISSOLUTION        |
|                                |
| ARTICLE  XI  CUSTODIAN         |
|                                | 11.1   | APPOINTMENT  OF A CUSTODIAN IN CERTAIN CASES   |
|                                | 11.2   | DUTIES OF CUSTODIAN                            |

 

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**BYLAWS**

** **

**OF**

** **

**ULTRATECH, INC.**

 

 

ARTICLE I

CORPORATE OFFICES

 

1.1                                 REGISTEREDOFFICE.

 

The registeredoffice of the corporation in the State of Delaware shall be in the City ofWilmington, County of New Castle, State of Delaware.  The name of the registered agent of the corporation at suchlocation is The Prentice-Hall Corporation System, Inc.

 

1.2                                 OTHER OFFICES.

 

The board ofdirectors may at any time establish other offices at any place or places wherethe corporation is qualified to do business.

 

ARTICLE II

MEETINGS OF STOCKHOLDERS

 

2.1                                 PLACE OFMEETINGS.

 

Meetings ofstockholders shall be held at the principal executive offices of thecorporation, or at any other place, within or outside the State of Delaware,designated by the board of directors.  Inthe absence of any such designation, stockholders’ meetings shall be held atthe principal executive offices of the corporation.

 

2.2                                 ANNUAL MEETING.

 

An annualmeeting of stockholders shall be held for the election of directors at suchdate, time and place, either within or without the State of Delaware, as may bedesignated by resolution of the board of directors from time to time.  Any other proper business may be transactedat the annual meeting.

 

2.3                                 SPECIAL MEETINGS.

 

A specialmeeting of the stockholders may be called at any time by the board ofdirectors, or by the chairman of the board, by the president or by the chiefexecutive officer.

 

If a specialmeeting is called by any person or persons other than the board of directors,the request shall be in writing, specifying the time of such meeting and thegeneral nature of the

 

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business proposed to betransacted, and shall be delivered personally or sent by registered mail or bytelegraphic or other facsimile transmission to the chairman of the board, thepresident, chief executive officer, or the secretary of the corporation.  No business may be transacted at suchspecial meeting otherwise than specified in such notice.  The officer receiving the request shallcause notice to be promptly given to the stockholders entitled to vote, inaccordance with the provisions of Sections 2.4 and 2.5, that a meetingwill be held at the time requested by the person or persons who called themeeting, not less than thirty-five (35) nor more than sixty (60) daysafter the receipt of the request.  Ifthe notice is not given within twenty (20) days after the receipt of therequest, the person or persons requesting the meeting may give the notice.  Nothing contained in this paragraph of thisSection 2.3 shall be construed as limiting, fixing, or affecting the timewhen a meeting of stockholders called by action of the board of directors maybe held.

 

2.4                                 NOTICEOF STOCKHOLDERS’ MEETINGS.

 

All notices ofmeetings with stockholders shall be in writing and shall be sent or otherwisegiven in accordance with Section 2.6 of these bylaws not less thanten (10) nor more than sixty (60) days before the date of the meetingto each stockholder entitled to vote at such meeting.  The notice shall specify the place, date, and hour of themeeting, and, in the case of a special meeting, the purpose or purposes forwhich the meeting is called.

 

2.5                                 ADVANCENOTICE OF STOCKHOLDERNOMINEES AND STOCKHOLDER BUSINESS.

 

To be properlybrought before an annual meeting or special meeting, nominations for theelection of director or other business must be (a) specified in the noticeof meeting (or any supplement thereto) given by or at the direction of theboard of directors, (b) otherwise properly brought before the meeting byor at the direction of the board of directors, or (c) otherwise properlybrought before the meeting by a stockholder. For such nominations or other business to be considered properly broughtbefore the meeting by a stockholder, such stockholder must have given timelynotice and in proper form of his intent to bring such business before suchmeeting.  To be timely, suchstockholder’s notice must be delivered to or mailed and received by thesecretary of the corporation not less than ninety (90) days prior to themeeting; provided, however, that in the event that less thanone-hundred (100) days notice or prior public disclosure of the date ofthe meeting is given or made to stockholders, notice by the stockholder to betimely must be so received not later than the close of business on the tenthday following the day on which such notice of the date of the meeting wasmailed or such public disclosure was made. To be in proper form, a stockholder’s notice to the secretary shall setforth:

 

(i)            the name and address of the stockholderwho intends to make the nominations or propose the business and, as the casemay be, the name and address of the person or persons to be nominated or thenature of the business to be proposed;

 

(ii)           a representation that the stockholderis a holder of record of stock of the corporation entitled to vote at suchmeeting and, if applicable, intends to appear in person or by proxy at themeeting to nominate the person or persons specified in the notice or introducethe business specified in the notice;

 

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(iii)          if applicable, a description of allarrangements or understandings between the stockholder and each nominee and anyother person or persons (naming such person or persons) pursuant to which thenomination or nominations are to be made by the stockholder;

 

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

 

(v)           if applicable, the consent of eachnominee to serve as director of the corporation if so elected.

 

The chairmanof the meeting may refuse to acknowledge the nomination of any person or theproposal of any business not made in compliance with the foregoing procedure.

 

2.6                                 MANNER OFGIVING NOTICE; AFFIDAVIT OF NOTICE.

 

Written noticeof any meeting of stockholders, if mailed, is given when deposited in theUnited States mail, postage prepaid, directed to the stockholder at his addressas it appears on the records of the corporation.  An affidavit of the secretary or an assistant secretary or of thetransfer agent of the corporation that the notice has been given shall, in theabsence of fraud, be prima facie evidence of the facts stated therein.

 

2.7                                 QUORUM.

 

The holders ofa majority of the stock issued and outstanding and entitled to vote thereat,present in person or represented by proxy, shall constitute a quorum at allmeetings of the stockholders for the transaction of business except asotherwise provided by statute or by the certificate of incorporation.  If, however, such quorum is not present orrepresented at any meeting of the stockholders, then either (i) thechairman of the meeting or (ii) the stockholders entitled to vote thereat,present in person or represented by proxy, shall have power to adjourn themeeting from time to time, without notice other than announcement at themeeting, until a quorum is present or represented.  At such adjourned meeting at which a quorum is present orrepresented, any business may be transacted that might have been transacted atthe meeting as originally noticed.

 

When a quorumis present or represented at any meeting, the vote of the holders of a majorityof the stock having voting power present in person or represented by proxyshall decide any question brought before such meeting, unless the question isone upon which, by express provisions of the statutes or of the certificate ofincorporation, a different vote is required, in which case such expressprovision shall govern and control the decision of the question.

 

2.8                                 ADJOURNED MEETING; NOTICE.

 

When a meetingis adjourned to another time or place, unless these bylaws otherwise require,notice need not be given of the adjourned meeting if the time and place thereofare announced at the meeting at which the adjournment is taken.  At the adjourned meeting the

 

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corporation may transact anybusiness that might have been transacted at the original meeting.  If the adjournment is for more thanthirty (30) days, or if after the adjournment a new record date is fixedfor the adjourned meeting, a notice of the adjourned meeting shall be given toeach stockholder of record entitled to vote at the meeting.

 

2.9                                 VOTING.

 

Thestockholders entitled to vote at any meeting of stockholders shall bedetermined in accordance with the provisions of Section 2.12 andSection 2.14 of these bylaws, subject to the provisions ofSections 217 and 218 of the General Corporation Law of Delaware (relatingto voting rights of fiduciaries, pledgors and joint owners of stock and tovoting trusts and other voting agreements).

 

Except as mayotherwise be provided in the certificate of incorporation, each stockholdershall be entitled to one vote for each share of capital stock held by suchstockholder.

 

2.10                           WAIVER OF NOTICE.

 

Whenevernotice is required to be given under any provision of the General CorporationLaw of Delaware or of the certificate of incorporation or these bylaws, awritten waiver thereof, signed by the person entitled to notice, whether beforeor after the time stated therein, shall be deemed equivalent to notice.  Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except when the person attends ameeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened.  Neither the business to betransacted at, nor the purpose of, any regular or special meeting of thestockholders need be specified in any written waiver of notice unless sorequired by the certificate of incorporation or these bylaws.

 

2.11                           STOCKHOLDERACTION BY WRITTEN CONSENTWITHOUT A MEETING.

 

Effective uponthe closing of the corporation’s initial public offering of securities pursuantto a registration statement filed under the Securities Act of 1933, as amended,the stockholders of the corporation may not take action by written consentwithout a meeting but must take any such actions at a duly called annual orspecial meeting.

 

2.12                           RECORDDATE FOR STOCKHOLDER NOTICE;VOTING; GIVING CONSENTS.

 

In order thatthe corporation may determine the stockholders entitled to notice of, or tovote at, any meeting of stockholders or any adjournment thereof or entitled toexpress consent or dissent to corporate action in writing without a meeting (ifotherwise permitted by these bylaws and the corporation’s certificate ofincorporation), or entitled to receive payment of any dividend or otherdistribution or allotment of any rights or entitled to exercise any rights inrespect of any change, conversion or exchange of stock or for the purpose ofany other lawful action, the board of directors may fix, in advance, a recorddate, which shall be not more than sixty (60) nor less than ten (10)days before the date of such meeting, nor more than sixty (60) days priorto any other action.

 

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If the boardof directors does not so fix a record date, the fixing of such record dateshall be governed by the provisions of Section 213 of the GeneralCorporation Law of Delaware.

 

Adetermination of stockholders of record entitled to notice of or to vote at ameeting of stockholders shall apply to any adjournment of the meeting;provided, however, that the board of directors may fix a new record date forthe adjourned meeting.

 

2.13                           PROXIES.

 

Eachstockholder entitled to vote at a meeting of stockholders or entitled toexpress consent or dissent to corporate action in writing without a meeting (ifotherwise permitted by these bylaws and the corporation’s certificate ofincorporation) may authorize another person or persons to act for him by awritten proxy, signed by the stockholder and filed with the secretary of thecorporation, but no such proxy shall be voted or acted upon afterthree (3) years from its date, unless the proxy provides for a longerperiod.  A proxy shall be deemed signedif the stockholder’s name is placed on the proxy (whether by manualsignature, typewriting, telegraphic transmission or otherwise) by thestockholder or the stockholder’s attorney-in-fact.  The revocability of a proxy that states on its face that it isirrevocable shall be governed by the provisions of Section 212(c) of theGeneral Corporation Law of Delaware.

 

2.14                           LISTOF STOCKHOLDERS ENTITLED TO VOTE.

 

The officerwho has charge of the stock ledger of the corporation shall prepare and make,at least ten (10) days before every meeting of stockholders, a completelist of the stockholders entitled to vote at the meeting, arranged in alphabeticalorder, and showing the address of each stockholder and the number of sharesregistered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for anypurpose germane to the meeting, during ordinary business hours, for a period ofat least ten (10) days prior to the meeting, either at a place within thecity where the meeting is to be held, which place shall be specified in thenotice of the meeting, or, if not so specified, at the place where the meetingis to be held.  The list shall also beproduced and kept at the time and place of the meeting during the whole timethereof, and may be inspected by any stockholder who is present.  The stock ledger shall be the only evidenceas to who are the stockholders entitled to examine the stock ledger, the listof stockholders or the books of the corporation, or to vote in person or byproxy at any meeting of stockholders and of the number of shares held by eachsuch stockholder.

 

2.15                           CONDUCT OFBUSINESS.

 

Meetings ofstockholders shall be presided over by the chairman of the board, if any, or inhis absence by the president, or in his absence by a vice president, or in theabsence of the foregoing persons by a chairman designated by the board ofdirectors, or in the absence of such designation by a chairman chosen at themeeting.  The secretary shall act assecretary of the meeting, but in his absence the chairman of the meeting mayappoint any person to act as secretary of the meeting.  The chairman of any meeting of stockholdersshall determine the order of business and the procedures at the meeting,including such matters as the regulation of the manner of voting and conduct ofbusiness.

 

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ARTICLE III

DIRECTORS

 

3.1                                 POWERS.

 

Subject to theprovisions of the General Corporation Law of Delaware and any limitations inthe certificate of incorporation or these bylaws relating to action required tobe approved by the stockholders or by the outstanding shares, the business andaffairs of the corporation shall be managed and all corporate powers shall beexercised by or under the direction of the board of directors.

 

3.2                                 NUMBER OFDIRECTORS.

 

The number ofdirectors of the corporation is fixed at eight (8)(1).  No reduction of the authorized number ofdirectors shall have the effect of removing any director before that director’sterm of office expires.

 

3.3                                 ELECTIONQUALIFICATION AND TERM OFOFFICE OF DIRECTORS.

 

Each directorshall hold office until his successor is elected and qualified or until hisearlier resignation or removal. Directors need not be stockholders unless so required by the certificateof incorporation or these bylaws. Election of directors need not be by written ballot.

 

3.4                                 RESIGNATIONAND VACANCIES.

 

Any directormay resign at any time upon written notice to the corporation.  Any vacancy occurring in the board ofdirectors may be filled by a majority of the remaining members of the board ofdirectors, although such majority is less than a quorum, or by a plurality ofthe votes cast at a meeting of stockholders, and each director so elected shallhold office until the expiration of the term of office of the director whom hehas replaced.

 

Unlessotherwise provided in the certificate of incorporation or these bylaws:

 

(i)            Vacancies and newly createddirectorships resulting from any increase in the authorized number of directorselected by all of the stockholders having the right to vote as a single classmay be filled by a majority of the directors then in office, although less thana quorum, or by a sole remaining director.

 

(ii)           Whenever the holders of any class orclasses of stock or series thereof are entitled to elect one or more directorsby the provisions of the certificate of incorporation, vacancies and newlycreated directorships of such class or classes or series may be filled by amajority of the directors elected by such class or classes or series thereofthen in office, or by a sole remaining director so elected.

 

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(1)     Amended as of September 27, 1995,March 5, 1996, July 18, 2000, April 15, 2003 and July 22, 2003.

 

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If at anytime, by reason of death or resignation or other cause, the corporation shouldhave no directors in office, then any officer or any stockholder or anexecutor, administrator, trustee or guardian of a stockholder, or otherfiduciary entrusted with like responsibility for the person or estate of astockholder may apply to the Court of Chancery for a decree summarily orderingan election as provided in Section 211 of the General Corporation Law ofDelaware.

 

If, at thetime of filling any vacancy or any newly created directorship, the directorsthen in office constitute less than a majority of the whole board (asconstituted immediately prior to any such increase), then the Court of Chancerymay, upon application of any stockholder or stockholders holding at leastten (10) percent of the total number of the shares at the time outstandinghaving the right to vote for such directors, summarily order an election to beheld to fill any such vacancies or newly created directorships, or to replacethe directors chosen by the directors then in office as aforesaid, whichelection shall be governed by the provisions of Section 211 of the GeneralCorporation Law of Delaware as far as applicable.

 

3.5                                 PLACEOF MEETINGS; MEETINGS BY TELEPHONE.

 

The board ofdirectors of the corporation may hold meetings, both regular and special,either within or outside the State of Delaware.

 

Unless otherwiserestricted by the certificate of incorporation or these bylaws, members of theboard of directors, or any committee designated by the board of directors, mayparticipate in a meeting of the board of directors, or any committee, by meansof conference telephone or similar communications equipment by means of whichall persons participating in the meeting can hear each other, and suchparticipation in a meeting shall constitute presence in person at the meeting.

 

3.6                                 FIRST MEETINGS.

 

The firstmeeting of each newly elected board of directors shall be held at such time andplace as shall be fixed by the vote of the stockholders at the annual meetingand no notice of such meeting shall be necessary to the newly elected directorsin order legally to constitute the meeting, provided a quorum shall bepresent.  In the event of the failure ofthe stockholders to fix the time or place of such first meeting of the newlyelected board of directors, or in the event such meeting is not held at thetime and place so fixed by the stockholders, the meeting may be held at suchtime and place as shall be specified in a notice given as hereinafter providedfor special meetings of the board of directors, or as shall be specified in awritten waiver signed by all of the directors.

 

3.7                                 REGULAR MEETINGS.

 

Regularmeetings of the board of directors may be held without notice at such time andat such place, within or without the State of Delaware, as shall from time totime be determined by the board.

 

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3.8                                 SPECIALMEETINGS; NOTICE.

 

Specialmeetings of the board of directors may be held at such time and at such place,within or without the State of Delaware, whenever called by the chairman of theboard, the president, the secretary or any two directors.

 

Notice of thetime and place of special meetings shall be delivered personally or bytelephone or facsimile to each director or sent by first-class mail ortelegram, charges prepaid, addressed to each director at that director’s addressas it is shown on the records of the corporation.  If the notice is mailed, it shall be deposited in the UnitedStates mail at least four (4) days before the time of the holding of themeeting.  If the notice is deliveredpersonally or by telephone, facsimile or by telegram, it shall be deliveredpersonally or by telephone, facsimile or to the telegraph company at leastforty-eight (48) hours before the time of the holding of the meeting.  Any oral notice given personally or bytelephone may be communicated either to the director or to a person at theoffice of the director who the person giving the notice has reason to believewill promptly communicate it to the director. The notice need not specify the place of the meeting, if the meeting isto be held at the principal executive office of the corporation.

 

3.9                                 QUORUM.

 

At allmeetings of the board of directors, a majority of the number of authorizeddirectors shall constitute a quorum for the transaction of business and the actof a majority of the directors present at any meeting at which there is aquorum shall be the act of the board of directors, except as may be otherwisespecifically provided by statute or by the certificate of incorporation.

 

3.10                           WAIVER OF NOTICE.

 

Whenevernotice is required to be given under any provision of the General CorporationLaw of Delaware or of the certificate of incorporation or these bylaws, awritten waiver thereof, signed by the person entitled to notice, whether beforeor after the time stated therein, shall be deemed equivalent to notice.  Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except when the person attends ameeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened.  Neither the business to betransacted at, nor the purpose of, any regular or special meeting of thedirectors, or members of a committee of directors, need be specified in anywritten waiver of notice unless so required by the certificate of incorporationor these bylaws.

 

3.11                           ADJOURNED MEETING; NOTICE.

 

If a quorum isnot present at any meeting of the board of directors, then the directorspresent thereat may adjourn the meeting from time to time, without notice otherthan announcement at the meeting, until a quorum is present.

 

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3.12                           CONDUCT OF BUSINESS.

 

Meetings ofthe board of directors shall be presided over by the chairman of the board, ifany, or in his absence by the president, or in their absence by a chairmanchosen at the meeting.  The secretaryshall act as secretary of the meeting, but in his absence the chairman of themeeting may appoint any person to act as secretary of the meeting.  The chairman of any meeting shall determinethe order of business and the procedures at the meeting.

 

3.13                           BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.

 

Unlessotherwise restricted by the certificate of incorporation or these bylaws, anyaction required or permitted to be taken at any meeting of the board ofdirectors, or of any committee thereof, may be taken without a meeting if allmembers of the board or committee, as the case may be, consent thereto inwriting and the writing or writings are filed with the minutes of proceedingsof the board or committee.

 

3.14                           FEES ANDCOMPENSATION OF DIRECTORS.

 

Unlessotherwise restricted by the certificate of incorporation or these bylaws, theboard of directors shall have the authority to fix the compensation ofdirectors.  The directors may be paidtheir expenses, if any, of attendance at each meeting of the board of directorsand may be paid a fixed sum for attendance at each meeting of the board ofdirectors or a stated salary as director. No such payment shall preclude any director from serving the corporationin any other capacity and receiving compensation therefor.  Members of special or standing committeesmay be allowed like compensation for attending committee meetings.

 

3.15                           APPROVAL OF LOANS TO OFFICERS.

 

Thecorporation may lend money to, or guarantee any obligation of, or otherwiseassist any officer or other employee of the corporation or of its subsidiary,including any officer or employee who is a director of the corporation or itssubsidiary, whenever, in the judgment of the directors, such loan, guaranty orassistance may reasonably be expected to benefit the corporation.  The loan, guaranty or other assistance maybe with or without interest and may be unsecured, or secured in such manner asthe board of directors shall approve, including, without limitation, a pledgeof shares of stock of the corporation. Nothing in this section shall be deemed to deny, limit or restrict thepowers of guaranty or warranty of the corporation at common law or under anystatute.

 

ARTICLE IV

COMMITTEES

 

4.1                                 COMMITTEESOF DIRECTORS.

 

The board ofdirectors may, by resolution passed by a majority of the whole board, designateone or more committees, with each committee to consist of one or more of thedirectors of the corporation.  The boardmay designate one or more directors as alternate members of any committee, whomay replace any absent or disqualified member at any meeting

 

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of the committee.  In the absence or disqualification of amember of a committee, the member or members thereof present at any meeting andnot disqualified from voting, whether or not he or they constitute a quorum,may unanimously appoint another member of the board of directors to act at themeeting in the place of any such absent or disqualified member.  Any such committee, to the extent providedin the resolution of the board of directors or in the bylaws of thecorporation, shall have and may exercise all the powers and authority of theboard of directors in the management of the business and affairs of thecorporation, and may authorize the seal of the corporation to be affixed to allpapers that may require it; but no such committee shall have the power orauthority to (i) amend the certificate of incorporation (except that acommittee may, to the extent authorized in the resolution or resolutionsproviding for the issuance of shares of stock adopted by the board of directorsas provided in Section 151(a) of the General Corporation Law 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 theconversion into, or the exchange of such shares for, shares of any other classor classes or any other series of the same or any other class or classes ofstock of the corporation), (ii) adopt an agreement of merger orconsolidation under Sections 251 or 252 of the General Corporation Law ofDelaware, (iii) recommend to the stockholders the sale, lease or exchangeof all or substantially all of the corporation’s property and assets,(iv) recommend to the stockholders a dissolution of the corporation or arevocation of a dissolution, or (v) amend the bylaws of the corporation;and, unless the board resolution establishing the committee, the bylaws or thecertificate of incorporation expressly so provide, no such committee shall havethe power or authority to declare a dividend, to authorize the issuance ofstock, or to adopt a certificate of ownership and merger pursuant toSection 253 of the General Corporation Law of Delaware.

 

4.2                                 COMMITTEEMINUTES.

 

Each committeeshall keep regular minutes of its meetings and report the same to the board ofdirectors when required.

 

4.3                                 MEETINGS AND ACTIONOF COMMITTEES.

 

Meetings andactions of committees shall be governed by, and held and taken in accordancewith, the provisions of Article III of these bylaws, Section 3.5(place of meetings and meetings by telephone), Section 3.7 (regularmeetings), Section 3.8 (special meetings and notice), Section 3.9(quorum), Section 3.10 (waiver of notice), Section 3.11 (adjournmentand notice of adjournment), Section 3.12 (conduct of business) andSection 3.13 (action without a meeting), with such changes in the contextof those bylaws as are necessary to substitute the committee and its membersfor the board of directors and its members; provided, however, that the time ofregular meetings of committees may also be called by resolution of the board ofdirectors and that notice of special meetings of committees shall also be givento all alternate members, who shall have the right to attend all meetings ofthe committee.  The board of directorsmay adopt rules for the government of any committee not inconsistent with theprovisions of these bylaws.

 

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ARTICLE V

OFFICERS

 

5.1                                 OFFICERS.

 

The officersof the corporation shall be a president, one or more vice presidents, asecretary, and a chief financial officer. The corporation may also have, at the discretion of the board ofdirectors, a chairman of the board, one or more assistant vice presidents,assistant secretaries and any such other officers as may be appointed inaccordance with the provisions of Section 5.2 of these bylaws.  Any number of offices may be held by thesame person.

 

5.2                                 ELECTION OF OFFICERS.

 

Except asotherwise provided in this Section 5.2, the officers of the corporationshall be chosen by the board of directors, subject to the rights, if any, of anofficer under any contract of employment. The board of directors may appoint, or empower the president to appoint(whether or not such officer is described in this Article V), suchofficers and agents of the business as the corporation may require, each ofwhom shall hold office for such period, have such authority, and perform suchduties as are provided in these bylaws or as the board of directors may fromtime to time determine.  Any vacancyoccurring in any office of the corporation shall be filled by the board ofdirectors or may be filled by the president (if the president appointed suchofficer).

 

5.3                                 REMOVAL ANDRESIGNATION OF OFFICERS.

 

Subject to therights, if any, of an officer under any contract or employment, any officer maybe removed, either with or without cause, by an affirmative vote of themajority of the board of directors at any regular or special meeting of theboard or, except in the case of an officer chosen by the board of directors, byany officer upon whom such power of removal may be conferred by the board ofdirectors or, in the case of an officer appointed by the president, by thepresident.

 

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

 

5.4                                 CHAIRMAN OF THEBOARD.

 

The chairmanof the board, if such an officer be elected, shall, if present, preside atmeetings of the board of directors and exercise and perform such other powersand duties as may from time to time be assigned to him by the board ofdirectors or as may be prescribed by these bylaws.  If there is no president, then the chairman of the board shallalso be the chief executive officer of the corporation and shall have thepowers and duties prescribed in Section 5.5 of these bylaws.

 

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5.5                                 PRESIDENT.

 

Subject tosuch supervisory powers, if any, as may be given by the board of directors tothe chairman of the board, if there be such an officer, the president, unlessotherwise determined by the board of directors, shall be the chief executiveofficer of the corporation and shall, subject to the control of the board ofdirectors, have general supervision, direction, and control of the business andthe officers of the corporation.  Heshall preside at all meetings of the stockholders and, in the absence ornonexistence of a chairman of the board, at all meetings of the board ofdirectors.  He shall have the generalpowers and duties of management usually vested in the office of president of acorporation and shall have such other powers and duties as may be prescribed bythe board of directors or these bylaws.

 

5.6                                 VICE PRESIDENTS.

 

In the absenceor disability of the president, the vice presidents, if any, in order of theirrank as fixed by the board of directors or, if not ranked, a vice presidentdesignated by the board of directors, shall perform all the duties of thepresident and when so acting shall have all the powers of, and be subject toall the restrictions upon, the president. The vice presidents shall have such other powers and perform such otherduties as from time to time may be prescribed for them respectively by theboard of directors, these bylaws, the president or the chairman of the board.

 

5.7                                 SECRETARY.

 

The secretaryshall keep or cause to be kept, at the principal executive office of thecorporation or such other place as the board of directors may direct, a book ofminutes of all meetings and actions of directors, committees of directors, andstockholders.  The minutes shall showthe time and place of each meeting, whether regular or special (and, ifspecial, how authorized and the notice given), the names of those present atdirectors’ meetings or committee meetings, the number of shares present orrepresented at stockholders’ meetings, and the proceedings thereof.

 

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

 

The secretaryshall give, or cause to be given, notice of all meetings of the stockholdersand of the board of directors required to be given by law or by thesebylaws.  He shall keep the seal of thecorporation, if one be adopted, in safe custody and shall have such otherpowers and perform such other duties as may be prescribed by the board ofdirectors or by these bylaws.

 

5.8                                 CHIEFFINANCIAL OFFICER.

 

The chieffinancial officer shall keep and maintain, or cause to be kept and maintained,adequate and correct books and records of accounts of the properties andbusiness transactions of

 

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the corporation, includingaccounts 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 inspectionby any director.

 

The chieffinancial officer shall deposit all money and other valuables in the name andto the credit of the corporation with such depositaries as may be designated bythe board of directors.  He shalldisburse the funds of the corporation as may be ordered by the board ofdirectors, shall render to the president and directors, whenever they requestit, an account of all of his directors, whenever they request it, an account ofall of his transactions as treasurer and of the financial condition of thecorporation, and shall have such other powers and perform such other duties asmay be prescribed by the board of directors or these bylaws.

 

5.9                                 ASSISTANTSECRETARY.

 

The assistantsecretary, or, if there is more than one, the assistant secretaries in theorder determined by the stockholders or board of directors (of if there be nosuch determination, then in the order of their election) shall, in the absenceof the secretary or in the event of his or her inability or refusal to act,perform the duties and exercise the powers of the secretary and shall performsuch other duties and have such other powers as the board of directors or thestockholders may from time to time prescribe.

 

5.10                           AUTHORITY ANDDUTIES OF OFFICERS.

 

In addition tothe foregoing authority and duties, all officers of the corporation shallrespectively have such authority and perform such duties in the management ofthe business of the corporation as may be designated from time to time by theboard of directors or the stockholders.

 

ARTICLE VI

INDEMNITY

 

6.1                                 INDEMNIFICATIONOF DIRECTORS AND OFFICERS.

 

Thecorporation shall, to the maximum extend and in the manner permitted by theGeneral Corporation Law of Delaware, indemnify each of its directors andofficers against expenses (including attorneys’ fees), judgments, fines,settlements, and other amounts actually and reasonably incurred in connectionwith any proceeding, arising by reason of the fact that such person is or wasan agent of the corporation.  Forpurposes of this Section 6.1, a “director” or “officer” of the corporationincludes any person (i) who is or was a director or officer of thecorporation, (ii) who is or was serving at the request of the corporationas a director or officer of another corporation, partnership, joint venture,trust or other enterprise, including, without limitation, any direct orindirect subsidiary of the corporation, or (iii) who was a director orofficer of a corporation which was a predecessor corporation of the corporationor of another enterprise at the request of such predecessor corporation.

 

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6.2                                 INDEMNIFICATIONOF OTHERS.

 

Thecorporation shall have the power, to the extent and in the manner permitted bythe General Corporation Law of Delaware, to indemnify each of its employees andagents (in addition to directors and officers) against expenses (includingattorneys’ fees), judgments, fines, settlements, and other amounts actually andreasonably incurred in connection with any proceeding, arising by reason of thefact that such person is or was an agent of the corporation.  For purposes of this Section 6.2, an“employee” or “agent” of the corporation includes any person (i) who is orwas an employee or agent of the corporation, (ii) who is or was serving atthe request of the corporation as an employee or agent of another corporation,partnership, joint venture, trust or other enterprise, including, withoutlimitation, any direct or indirect subsidiary of the corporation, or(iii) who was an employee or agent of a corporation which was apredecessor corporation of the corporation or of another enterprise at therequest of such predecessor corporation.

 

6.3                                 INSURANCE.

 

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

 

ARTICLE VII

RECORDS AND REPORTS

 

7.1                                 MAINTENANCE AND INSPECTION OF RECORDS.

 

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

 

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

 

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7.2                                 INSPECTION BY DIRECTORS.

 

Any directorshall have the right to examine the corporation’s stock ledger, a list of itsstockholders, and its other books and records for a purpose reasonably relatedto his position as a director.  TheCourt of Chancery is hereby vested with the exclusive jurisdiction to determinewhether a director is entitled to the inspection sought.  The Court may summarily order thecorporation to permit the director to inspect any and all books and records,the stock ledger, and the stock list and to make copies or extractstherefrom.  The Court may, in itsdiscretion, prescribe any limitations or conditions with reference to theinspection, or award such other and further relief as the Court may deem justand proper.

 

7.3                                 REPRESENTATION OF SHARES OF OTHER CORPORATIONS.

 

The chairmanof the board, the president, any vice president, the treasurer, the secretaryor assistant secretary of this corporation, or any other person authorized bythe board of directors or the president or a vice president, is authorized tovote, represent, and exercise on behalf of this corporation all rights incidentto any and all shares of any other corporation or corporations standing in thename of this corporation.  The authoritygranted herein may be exercised either by such person directly or by any otherperson authorized to do so by proxy or power of attorney duly executed by suchperson having the authority.

 

ARTICLE VIII

GENERAL MATTERS

 

8.1                                 STOCKCERTIFICATES; PARTLY PAIDSHARES.

 

The shares ofa corporation shall be represented by certificates, provided that the board ofdirectors of the corporation may provide by resolution or resolutions that someor all of any or all classes or series of its stock shall be uncertificatedshares.  Any such resolution shall notapply to shares represented by a certificate until such certificate issurrendered to the corporation. Notwithstanding the adoption of such a resolution by the board of directors,every holder of stock represented by certificates and, upon request, everyholder of uncertificated shares, shall be entitled to have a certificate signedby, or in the name of the corporation by the chairman the board of directors,or the president or vice-president, and by the chief financial officer, or thesecretary or an assistant secretary of such corporation representing the numberof shares registered in certificated form. Any or all of the signatures on the certificate may be a facsimile.  In case any officer, transfer agent orregistrar who has signed or whose facsimile signature has been placed upon acertificate has ceased to be such officer, transfer agent or registrar beforesuch certificate is issued, it may be issued by the corporation with the sameeffect as if he were such officer, transfer agent or registrar at the date ofissue.

 

Thecorporation may issue the whole or any part of its shares as partly paid andsubject to call for the remainder of the consideration to be paid therefor.  Upon the face or back of each stockcertificate issued to represent any such partly paid shares, or upon the booksand records of the corporation in the case of uncertificated partly paidshares, the total amount of the consideration to be paid therefor and theamount paid thereon shall be stated. Upon the

 

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declaration of any dividend onfully paid shares, the corporation shall declare a dividend upon partly paidshares of the same class, but only upon the basis of the percentage of theconsideration actually paid thereon.

 

8.2                                 LOST CERTIFICATES.

 

Except asprovided in this Section 8.2, no new certificates for shares shall beissued to replace a previously issued certificate unless the latter is surrenderedto the corporation and cancelled at the same time.  The corporation may issue a new certificate of stock oruncertificated shares in the place of any certificate theretofore issued by it,alleged to have been lost, stolen or destroyed, and the corporation may requirethe owner of the lost, stolen or destroyed certificate, or his legalrepresentative, to give the corporation a bond sufficient to indemnify itagainst any claim that may be made against it on account of the alleged loss,theft or destruction of any such certificate or the issuance of such newcertificate or uncertificated shares.

 

8.3                                 CONSTRUCTION; DEFINITIONS.

 

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

 

8.4                                 DIVIDENDS.

 

The directorsof the corporation, subject to any restrictions contained in the certificate ofincorporation, may declare and pay dividends upon the shares of its capitalstock pursuant to the General Corporation Law of Delaware.  Dividends may be paid in cash, in property,or in shares of the corporation’s capital stock.

 

The directorsof the corporation may set apart out of any of the funds of the corporationavailable for dividends a reserve or reserves for any proper purpose and mayabolish any such reserve.

 

8.5                                 FISCAL YEAR.

 

The fiscalyear of the corporation shall be fixed by resolution of the board of directorsand may be changed by the board of directors.

 

8.6                                 SEAL.

 

Thecorporation may adopt a corporate seal, which may be altered at pleasure, andmay use the same by causing it or a facsimile thereof to be impressed oraffixed or in any other manner reproduced.

 

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8.7                                 TRANSFER OF STOCK.

 

Upon surrenderto the corporation or the transfer agent of the corporation of a certificatefor shares duly endorsed or accompanied by proper evidence of succession,assignation or authority to transfer, it shall be the duty of the corporationto issue a new certificate to the person entitled thereto, cancel the oldcertificate, and record the transaction in its books.

 

8.8                                 STOCKTRANSFER AGREEMENTS.

 

Thecorporation shall have power to enter into and perform any agreement with anynumber of stockholders of any one or more classes of stock of the corporationto restrict the transfer of shares of stock of the corporation of any one ormore classes owned by such stockholders in any manner not prohibited by theGeneral Corporation Law of Delaware.

 

8.9                                 REGISTEREDSTOCKHOLDERS.

 

Thecorporation shall be entitled to recognize the exclusive right of a personregistered on its books as the owner of shares to receive dividends and to voteas such owner, shall be entitled to hold liable for calls and assessments theperson registered on its books as the owner of shares, and shall not be boundto recognize any equitable or other claim to or interest in such share orshares on the part of another person, whether or not it shall have express orother notice thereof, except as otherwise provided by the laws of Delaware.

 

ARTICLE IX

AMENDMENTS

 

The originalor other bylaws of the corporation may be adopted, amended or repealed by thestockholders entitled to vote; provided, however, that the corporation may, inits certificate of incorporation, confer the power to adopt, amend or repealbylaws upon the directors.  The factthat such power has been so conferred upon the directors shall not divest thestockholders of the power, nor limit their power to adopt, amend or repealbylaws.

 

ARTICLE X

DISSOLUTION

 

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

 

At the meetinga vote shall be taken for and against the proposed dissolution.  If a majority of the outstanding stock ofthe corporation entitled to vote thereon votes for the proposed dissolution,then a certificate stating that the dissolution has been authorized in accordancewith the provisions of Section 275 of the General Corporation Law ofDelaware and setting forth the names and residences of the directors andofficers shall be executed,

 

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acknowledged, and filed andshall become effective in accordance with Section 103 of the GeneralCorporation Law of Delaware.  Upon suchcertificate’s becoming effective in accordance with Section 103 of theGeneral Corporation Law of Delaware, the corporation shall be dissolved.

 

ARTICLE XI

CUSTODIAN

 

11.1                           APPOINTMENT OF A CUSTODIAN IN CERTAIN CASES.

 

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

 

(i)            at any meeting held for the electionof directors the stockholders are so divided that they have failed to electsuccessors to directors whose terms have expired or would have expired uponqualification of their successors; or

 

(ii)           the business of the corporation issuffering or is threatened with irreparable injury because the directors are sodivided respecting the management of the affairs of the corporation that therequired vote for action by the board of directors cannot be obtained and thestockholders are unable to terminate this division; or

 

(iii)          the corporation has abandoned itsbusiness and has failed within a reasonable time to take steps to dissolve,liquidate or distribute its assets.

 

11.2                           DUTIES OFCUSTODIAN.

 

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

 

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