**Exhibit 3.2**

 

**BYLAWS**

 

**OF**

 

**EARTH BIOFUELS, INC.**

 

**(A Delaware Corporation)**

 

ARTICLE I

 

STOCKHOLDERS

 

Section 1.1.*    AnnualMeetings.*    If required by applicable law, anannual meeting of the holders of Common Stock shall be held each year duringthe month of May or such other month as may be designated by the board ofdirectors (the “Board of Directors”) on such date and at such time and place,if any, either within or outside the State of Delaware, as may be designated bythe Board of Directors from time to time. At such meeting, the holders of theCommon Stock shall elect the Board of Directors and shall transact such otherbusiness as may be brought properly before the meeting. Holders of non-votingstock may be invited, and to the extent there is a matter on which such holdersare entitled to vote, such holders shall be invited to attend the annualmeeting, but shall not vote except with respect to matters on which their voteis required by the General Corporation Law of the State of Delaware, as it may beamended (the “DGCL”) or the certificate of incorporation of the Corporation, asit may be amended (the “Certificate of Incorporation”).

 

Section 1.2.*    SpecialMeetings.*

 

1.2.1.    Special meetings of stockholders entitledto vote at such meeting may be called at any time by the Chairman of the Boardof Directors, the President (if he is also a member of the Board of Directors)or the Board of Directors, to be held at such date, time and place, if any,either within or outside the State of Delaware as may be determined by suchperson or persons calling the meeting and stated in the notice of the meeting.A special meeting shall be called by the President or the Secretary upon one ormore written demands (which shall state the purpose or purposes therefore)signed and dated by the holders of shares representing not less than tenpercent of all votes entitled to be cast on any issue(s) that may be properlyproposed to be considered at the special meeting. If no place is designated inthe notice, the place of the meeting shall be the principal office of theCorporation.

 

1.2.2.    Business transacted at any specialmeeting of stockholders shall be limited to the purpose or purposes stated inthe notice of such meeting.

 

Section 1.3.*    Noticeof Meetings.*    Whenever stockholders arerequired or permitted to take any action at a meeting, a notice of the meetingstating the place, if any, date and hour of the meeting, and the means ofremote communications, if any, by which

 

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stockholdersand proxy holders may be deemed to be present in person and vote at suchmeeting and, in the case of a special meeting, the purpose or purposes forwhich the meeting is called, shall be given to each stockholder entitled tovote at such meeting. Unless otherwise provided by law, the Certificate ofIncorporation or these Bylaws, the notice of any meeting shall be given notless than ten nor more than sixty days before the date of the meeting to eachstockholder entitled to vote at such meeting. If mailed, such notice shall be deemedto be given when deposited in the United States mail, postage prepaid, directedto the stockholder at such stockholder’s address as it appears on the recordsof the Corporation.

 

Section 1.4.*    Adjournments.*    Anymeeting of stockholders, annual or special, may be adjourned from time to time,to reconvene at the same or some other place, and notice need not be given ofany such adjourned meeting if the time, place thereof, if any, and the means ofremote communications, if any, by which stockholders and proxy holders may bedeemed to be present in person and vote at such adjourned meeting are announcedat the meeting at which the adjournment is taken. At the adjourned meeting theCorporation may transact any business which might have been transacted at theoriginal meeting. If the adjournment is for more than thirty days, or if afterthe adjournment a new record date is fixed for the adjourned meeting, notice ofthe adjourned meeting shall be given to each stockholder of record entitled tovote at the meeting.

 

Section 1.5.*    Quorum.*    Ateach meeting of stockholders, except where otherwise provided by law or theCertificate of Incorporation or these Bylaws, the holders of a majority invoting power of the outstanding shares of stock entitled to vote on a matter atthe meeting, present in person or represented by proxy, shall constitute aquorum. Shares entitled to vote as a separate class or series may take actionon a matter at a meeting only if a quorum of those shares is present. Forpurposes of the foregoing, where a separate vote by class or classes or aseries or multiple series is required for any matter, the holders of a majorityin voting power of the outstanding shares of such class or classes or a seriesor multiple series, present in person or represented by proxy, shall constitutea quorum to take action with respect to that vote on that matter. In theabsence of a quorum of the holders of any class or series of stock entitled tovote on a matter, the holders of such class or series so present or representedmay, by majority vote, adjourn the meeting of such class or series with respectto that matter from time to time in the manner provided by Section 1.4 ofthese Bylaws until a quorum of such class or series shall be so present orrepresented. Shares of its own capital stock belonging on the record date forthe meeting to the Corporation or to another corporation, if a majority of theshares entitled to vote in the election of directors of such other corporationis held, directly or indirectly, by the Corporation, shall neither be entitledto vote nor be counted for quorum purposes; provided, however, that theforegoing shall not limit the right of the Corporation or any subsidiary of theCorporation to vote stock, including but not limited to its own stock, held byit in a fiduciary capacity.

 

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 Section 1.6.*    Organization.*

 

1.6.1.    The chairman of the annual or any specialmeeting of the stockholders shall be the Chairman of the Board of Directors, orin the absence of the Chairman, any person designated by the Board ofDirectors. The Secretary, or in the absence of the Secretary, an AssistantSecretary, shall act as the secretary of the meeting, but in the absence of theSecretary and any Assistant Secretary, the chairman of the meeting may appointany person to act as secretary of the meeting.

 

1.6.2.    The order of business at each suchmeeting shall be as determined by the chairman of the meeting. The chairman ofthe meeting shall have the right and authority to prescribe such rules,regulations and procedures and to do all such acts and things as are necessaryor desirable for the proper conduct of the meeting, including, withoutlimitation, the adjournment of any meeting, the establishment of procedures forthe maintenance of order and safety, limitations on the time allotted toquestions or comments on the affairs of the Corporation, restrictions on entryto such meeting after the time prescribed for the commencement thereof and theopening and closing of the voting polls. The chairman of the meeting shall haveabsolute authority over matters of procedure and there shall be no appeal fromthe ruling of the chairman.

 

1.6.3.    If disorder shall arise that preventscontinuation of the legitimate business of the meeting, the chairman mayannounce the adjournment of the meeting and quit the chair and upon thechairman so doing the meeting is immediately adjourned.

 

1.6.4.    The chairman may ask or require thatanyone who is not a bona fide stockholder or proxyholder leave the meeting.

 

Section 1.7.*    Inspectors.*    Priorto any meeting of stockholders, the Board of Directors may, and shall ifrequired by law, appoint one or more inspectors to act at such meeting and makea written report thereof and may designate one or more persons as alternateinspectors to replace any inspector who fails to act. If no inspector oralternate is able to act at the meeting of stockholders, the person presidingat the meeting may, and shall if required by law, appoint one or moreinspectors to act at the meeting. The inspectors need not be stockholders ofthe Corporation, and any director or officer of the Corporation may be aninspector on any matter other than a vote for or against such director’s orofficer’s election to any position with the Corporation or on any other matterin which such officer or director may be directly interested. Each inspector,before entering upon the discharge of his or her duties, shall take and sign anoath faithfully to execute the duties of inspector with strict impartiality andaccording to the best of his or her ability. The inspectors shall ascertain thenumber of shares outstanding and the voting power of each, determine the sharesrepresented at the meeting and the validity of proxies and ballots, count allvotes and ballots, determine and retain for a reasonable period a record of thedisposition of any challenges made to any determination by the inspectors andcertify their determination of the number of shares represented at the meetingand

 

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theircount of all votes and ballots. The inspectors may appoint or retain otherpersons to assist them in the performance of their duties. The date and time ofthe opening and closing of the polls for each matter upon which thestockholders will vote at a meeting shall be announced at the meeting. Noballot, proxy or vote, nor any revocation thereof or change thereto, shall beaccepted by the inspectors after the closing of the polls. In determining thevalidity and counting of proxies and ballots cast at any meeting of stockholdersof the Corporation, the inspectors may consider such information as ispermitted by applicable law.

 

Section 1.8.*    Voting;Proxies; Nominations; Stockholder Proposals.*

 

1.8.1.    Unless otherwise provided in theCertificate of Incorporation, each stockholder entitled to vote at any meetingof stockholders shall be entitled to one vote for each share of stock held bysuch stockholder which has voting power upon the matter in question. Eachstockholder entitled to vote at a meeting of stockholders or to express consentor dissent to corporate action in writing without a meeting may authorizeanother person or persons to act for such stockholder by proxy, but no suchproxy shall be voted or acted upon after three years from its date, unless theproxy provides for a longer period. A duly executed proxy shall be irrevocableif it states that it is irrevocable and if, and only as long as, it is coupledwith an interest sufficient in law to support an irrevocable power, regardlessof whether the interest with which it is coupled is an interest in the stockitself or an interest in the Corporation generally. A stockholder may revokeany proxy which is not irrevocable by attending the meeting and voting inperson or by filing an instrument in writing revoking the proxy or another dulyexecuted proxy bearing a later date with the Secretary of the Corporation.Voting at meetings of stockholders need not be by written ballot unless theholders of a majority of the outstanding shares of all classes of stock entitledto vote thereon present in person or represented by proxy at such meeting shallso determine. Except where applicable law, the Certificate of Incorporation orthese Bylaws require a different vote, if a quorum exists, action on a matterother than the election of directors is approved if the votes cast favoring theaction exceed the votes cast opposing the action. In an election of directors,a plurality of the votes of the shares present in person or represented byproxy at a meeting and entitled to vote for directors is required in order toelect a director.

 

1.8.2.    The voting rights of shares of CommonStock shall only be as required by applicable law or the Certificate ofIncorporation.

 

1.8.3.    Nomination of persons to stand forelection to the Board of Directors at any annual or special stockholdersmeeting may be made by the holders of the Corporation’s Common Stock only ifwritten notice of such stockholder’s intent to make such nomination has beengiven to the Secretary of the Company not later than 30 days prior to themeeting.

 

1.8.4.    At any meeting of stockholders, aresolution or motion shall be considered for vote only if the proposal isbrought properly before the meeting, which shall be determined by the chairmanof the meeting in accordance with the following provisions:

 

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| 1.8.4.1 |   | Notice required by these Bylaws and by all  applicable federal or state statutes or regulations shall have been given to,  or waived by, all stockholders entitled to vote on such proposal. In the  event notice periods of different lengths apply to the same proposed action  under different laws or regulations, appropriate notice shall be deemed given  if there is compliance with the greater of all applicable notice  requirements.                                                        |
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| 1.8.4.2 |   | Proposals may be made by the Board of  Directors as to matters affecting holders of any class of stock issued by the  Corporation. Proposals may also be made by the holders of shares of Common  Stock.                                                                                                                                                                                                                                                                                                |
| 1.8.4.3 |   | Any proposal made by the Board of  Directors or the holders of shares of Common Stock may be made at any time  prior to or at the meeting if only the holders of Common Stock are entitled  to vote thereon.                                                                                                                                                                                                                                                                                            |
| 1.8.4.4 |   | Holders of Common Stock may only make  a proposal with respect to which such holders are entitled to vote. Any proposal  on which holders of Common Stock are entitled to vote and concerning which  proxies may be solicited by the proponent or by management shall be filed  with the Secretary by such dates as may be required by the federal securities  proxy rules promulgated by the Securities and Exchange Commission.                                                                  |
| 1.8.4.5 |   | Any stockholder who gives notice of  any stockholder proposal shall deliver therewith the text of the proposal to  be presented and a brief written statement of the reasons why such  stockholder favors the proposal and setting forth such stockholder’s name and  address, the number and class of all shares of each class of stock of the  Corporation beneficially owned by such stockholder and any financial interest  of such stockholder in the proposal (other than as a stockholder). |

 

Section 1.9.*    FixingDate for Determination of Stockholders of Record.*

 

1.9.1.    In order that the Corporation maydetermine the stockholders entitled to notice of or to vote at any meeting ofstockholders or any adjournment thereof, the Board of Directors may fix arecord date, which record date shall not be more than sixty nor less than tendays before the date of such meeting. If no record date is fixed by the Boardof Directors, the record date for determining stockholders entitled to noticeof or to vote at a meeting of stockholders shall be at the close of business onthe day next preceding the

 

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day onwhich notice is given, or, if notice is waived, at the close of business on theday next preceding the day on which the meeting is held. A determination ofstockholders of record entitled to notice of or to vote at a meeting ofstockholders shall apply to any adjournment of the meeting; provided, however,that the Board of Directors may fix a new record date for the adjournedmeeting.

 

1.9.2.    In order that the Corporation maydetermine the stockholders entitled to consent to corporate action in writingwithout a meeting, the Board of Directors may fix a record date, which recorddate shall not be more than ten days after the date upon which the resolutionfixing the record date is adopted by the Board of Directors. If no record datehas been fixed by the Board of Directors, the record date for determiningstockholders entitled to consent to corporate action in writing without ameeting, when no prior action by the Board of Directors is required by law,shall be the first date on which a signed written consent setting forth theaction taken or proposed to be taken is delivered to the Corporation bydelivery to its registered office in the State of Delaware, its principal placeof business, or an officer or agent of the Corporation having custody of thebook in which proceedings of meetings of stockholders are recorded. Deliverymade to the Corporation’s registered office shall be by hand or by certified orregistered mail, return receipt requested. If no record date has been fixed bythe Board of Directors and prior action by the Board of Directors is requiredby law, the record date for determining stockholders entitled to consent tocorporate action in writing without a meeting shall be at the close of businesson the day on which the Board of Directors adopts the resolution taking suchprior action.

 

1.9.3.    In order that the Corporation maydetermine the stockholders entitled to receive payment of any dividend or otherdistribution or allotment of any rights or the stockholders entitled toexercise any rights in respect of any change, conversion or exchange of stock,or for the purpose of any other lawful action, the Board of Directors may fix arecord date, which record date shall not precede the date upon which theresolution fixing the record date is adopted, and which record date shall benot more than sixty days prior to such action. If no record date is fixed, therecord date for determining stockholders for any such purpose shall be at theclose of business on the day on which the Board of Directors adopts theresolution relating thereto.

 

Section 1.10.*    Listof Stockholders Entitled to Vote.*    The officerwho has charge of the stock ledger shall prepare and make, at least ten (10) daysbefore every meeting of stockholders, a complete list of the stockholdersentitled to vote at the meeting, arranged in alphabetical order, and showingthe address of each stockholder and the number of shares registered in the nameof each stockholder. Such list shall be open to the examination of anystockholder, for any purpose germane to the meeting at least ten (10) daysprior to the meeting (i) on a reasonably accessible electronic network,provided that the information required to gain access to such list is providedwith the notice of meeting or (ii) during ordinary business hours at theprincipal place of business of the Corporation. The list of stockholders mustalso be open to examination at the meeting as required by applicable law.Except as otherwise provided by law (a) the stock ledger shall be the onlyevidence as to who are the stockholders entitled by this Section 1.10 to

 

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examinethe list of stockholders required by this Section 1.10 or to vote inperson or by proxy at any meeting of stockholders and (b) failure toprepare or make available the list of stockholders shall not affect thevalidity of actions taken at the meeting.

 

Section 1.11.*    Consentof Stockholders in Lieu of Meeting.*    Unlessotherwise restricted by the Certificate of Incorporation, any action requiredor permitted to be taken at any annual or special meeting of the stockholdersmay be taken without a meeting, without prior notice and without a vote, if aconsent or consents in writing, setting forth the action so taken, shall besigned by the holders of outstanding stock having not less than the minimumnumber of votes that would be necessary to authorize or take such action at ameeting at which all shares entitled to vote thereon were present and voted andshall be delivered to the Corporation by delivery to its registered office inthe State of Delaware, its principal place of business, or an officer or agentof the Corporation having custody of the book in which minutes of proceedingsof stockholders are recorded. Delivery made to the Corporation’s registeredoffice shall be by hand or by certified or registered mail, return receiptrequested. Every written consent shall bear the date of signature of eachstockholder who signs the consent and no written consent shall be effectiveunless, within sixty days of the earliest dated consent delivered to theCorporation in the manner provided by the previous sentence, written consentssigned by a sufficient number of holders to take action are delivered to theCorporation in the manner provided by the previous sentence. Prompt notice ofthe taking of the corporate action without a meeting by less than unanimouswritten consent shall, to the extent required by law, be given to thosestockholders who have not consented in writing and who, if the action had beentaken at a meeting, would have been entitled to notice of the meeting if therecord date for such meeting had been the date that written consents signed bya sufficient number of holders to take the action were delivered to theCorporation.

 

Section 1.12.*    Meetingby Remote Communication.*    If authorized by theBoard of Directors in its sole discretion, and subject to such guidelines andprocedures as the Board of Directors may adopt, stockholders and proxyholdersnot physically present at a meeting of stockholders may, by means of remotecommunication: (a) participate in a meeting of stockholders; and (b) bedeemed present in person and vote at a meeting of stockholders whether suchmeeting is to be held at a designated place or solely by means of remotecommunication, provided that (i) the Corporation shall implementreasonable measures to verify that each person deemed present and permitted tovote at the meeting by means of remote communication is a stockholder orproxyholder, (ii) the Corporation shall implement reasonable measures toprovide such stockholders and proxyholders a reasonable opportunity toparticipate in the meeting and to vote on matters submitted to thestockholders, including an opportunity to read or hear the proceedings of themeeting substantially concurrently with such proceedings, and (iii) if anystockholder or proxyholder votes or takes other action at the meeting by meansof remote communication, a record of such vote or other action shall bemaintained by the Corporation.

 

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ARTICLE II

 

BOARD OF DIRECTORS

 

Section 2.1.*    Powers;Number; Qualifications.*    The business andaffairs of the Corporation shall be managed by or under the direction of theBoard of Directors, except as may be otherwise provided by law or in theCertificate of Incorporation. The Board of Directors shall consist of not lessthan three members, the number thereof to be determined from time to time byresolution of the Board of Directors. Directors must be natural persons atleast eighteen years of age but need not be stockholders of the Corporation.

 

Section 2.2.*    Election;Term of Office; Resignation; Removal; Newly Created Directorships; Vacancies;Director Emeritus.*

 

2.2.1.*    Election;Term of Office.*    The Board of Directors shallbe elected at each annual meeting of stockholders by the holders of the CommonStock. Each director shall hold office until his or her successor is electedand qualified or until his or her death, earlier resignation, removal ordisqualification.

 

2.2.2.*    Resignation.*    Anydirector may resign at any time upon notice to the Board of Directors or to thePresident or the Secretary of the Corporation. Such resignation shall takeeffect at the time specified therein, and unless otherwise specified therein,no acceptance of such resignation shall be necessary to make it effective.

 

2.2.3.*    Removal.*    Anydirector or the entire Board of Directors may be removed, with or withoutcause, by holders of a majority of the voting power of the outstanding sharesof the Common Stock. A vacancy on the Board of Directors caused by any suchremoval may be filled by a majority of the remaining directors at any timebefore the end of the unexpired term.

 

2.2.4.*    NewlyCreated Directorships; Vacancies.*    Unlessotherwise provided in the Certificate of Incorporation or these Bylaws, newlycreated directorships resulting from any increase in the authorized number ofdirectors between annual meetings shall be filled by the affirmative vote of amajority of the remaining members of the Board of Directors even if theremaining directors constitute less than a quorum. A director elected to fill avacancy shall be elected for the unexpired term of such director’s predecessorin office.

 

Section 2.3.*    Annualand Regular Meetings.*    The Board of Directorsshall hold its annual meeting without notice on the same day and the same placeas, but just following, the annual meeting of the holders of Common Stock, orat such other date, time and place as may be determined by the Board ofDirectors. Regular meetings of the Board of Directors shall be held withoutnotice at such dates, times and places as may be determined by the Board ofDirectors by resolution.

 

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Section 2.4.*    SpecialMeetings; Notice.*

 

2.4.1.    Special meetings of the Board ofDirectors may be held, with proper notice, upon the call of the Chairman of theBoard of Directors or by at least two members of the Board of Directors at suchtime and place as specified in the notice.

 

2.4.2.    Notice of the date, time and place ofeach special meeting of the Board of Directors shall be given to each directorat least 24 hours prior to such meeting. The notice of a special meeting of theBoard of Directors need not state the purposes of the meeting. Notice to eachdirector of any special meeting may be given in person; by telephone,telegraph, teletype, electronically transmitted facsimile, or other means ofwire or electronic transmission; or by mail or private carrier. Oral notice toa director of any special meeting is effective when communicated. Writtennotice to a director of any special meeting is effective at the earliest of: (i) thedate received; (ii) five days after it is mailed; or (iii) the dateshown on the return receipt if mailed by registered or certified mail, returnreceipt requested, if the return receipt is signed by or on behalf of thedirector to whom the notice is addressed.

 

Section 2.5.*    Participationin Meetings by Conference Telephone Permitted.*    Unlessotherwise restricted by the Certificate of Incorporation or these Bylaws,directors or members of any committee designated by the Board of Directors, mayparticipate in a meeting of the Board of Directors or of such committee, as thecase may be, by means of conference telephone or other communications equipmentby means of which all persons participating in the meeting can hear each other,and participation in a meeting pursuant to this Bylaw shall constitute presencein person at such meeting.

 

Section 2.6.*    Quorum;Vote Required for Action.*    At all meetings ofthe Board of Directors one-third of the directors then in office shallconstitute a quorum for the transaction of business at such meeting. The voteof a majority of the directors present at a meeting at which a quorum ispresent shall be the act of the Board of Directors. In case at any meeting ofthe Board of Directors a quorum shall not be present, a majority of thedirectors present may, without notice other than announcement at the meeting,adjourn the meeting from time to time until a quorum can be obtained.

 

Section 2.7.*    Organization.*    TheBoard of Directors shall elect a Chairman of the Board of Directors from amongits members. If the Board of Directors deems it necessary, it may elect aVice-Chairman of the Board of Directors from among its members to perform theduties of the Chairman of the Board of Directors in such chairman’s absence andsuch other duties as the Board of Directors may assign. The Chairman of theBoard of Directors or, in his absence, the Vice-Chairman of the Board ofDirectors, or in his absence, any director chosen by a majority of thedirectors present, shall act as chairperson of the meetings of the Board of Directors.The Secretary, any Assistant Secretary, or any other person appointed by thechairperson shall act as secretary of each meeting of the Board of Directors.

 

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Section 2.8.*    Actionby Directors 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 of Directors or of such committee, as the case may be,consent thereto in writing or by electronic transmission and the writing orwritings or electronic transmission are filed with the minutes of proceedingsof the Board of Directors or committee. Such filings shall be in paper form ifthe minutes are maintained in paper form and shall be in electronic form if theminutes are maintained in electronic form.

 

Section 2.9.*    Compensationof Directors.*    Unless otherwise restricted bythe Certificate of Incorporation or these Bylaws, the Board of Directors shalldetermine and fix the compensation, if any, and the reimbursement of expenseswhich shall be allowed and paid to the directors. Nothing herein containedshall be construed to preclude any director from serving the Corporation in anyother capacity or any of its subsidiaries in any other capacity and receivingproper compensation therefore.

 

ARTICLE III

 

COMMITTEES

 

Section 3.1.*    Committees.*    TheBoard of Directors may, by a vote of the majority of the directors then inoffice, designate one or more committees, each committee to consist of one ormore of the directors of the Corporation. The Board of Directors may designateone or more directors as alternate members of any committee, who may replaceany absent or disqualified member at any meeting of the committee. In theabsence or disqualification of a member of a committee, the member or membersthereof present at any meeting and not disqualified from voting, whether or notsuch member or members constitute a quorum, may unanimously appoint anothermember of the Board of Directors to act at the meeting in the place of any suchabsent or disqualified member. Any such committee, to the extent permitted bylaw and provided in the resolution of the Board of Directors or in these Bylaws,shall have and may exercise all the powers and authority of the Board ofDirectors in the management of the business and affairs of the Corporation, andmay authorize the seal of the Corporation to be affixed to all papers which mayrequire it.

 

Section 3.2.*    CommitteeRules.*    Unless the Board of Directorsotherwise provides, each committee designated by the Board of Directors mayadopt, amend and repeal rules for the conduct of its business. In theabsence of a provision by the Board of Directors or a provision in the rules ofsuch committee to the contrary, a majority of the entire authorized number ofmembers of such committee shall constitute a quorum for the transaction ofbusiness, the vote of a majority of the members present at a meeting at thetime of such vote if a quorum is then present shall be the act of suchcommittee, and in other respects each committee shall conduct its business inthe same manner as the Board of Directors conducts its business pursuant to Article IIof these Bylaws. Each committee

 

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shallprepare minutes of its meetings, which shall be delivered to the Secretary ofthe Corporation for inclusion in the Corporation’s records.

 

ARTICLE IV

 

OFFICERS

 

Section 4.1.*    Officers;Election.*    The Board of Directors shall, annuallyor at such times as the Board of Directors may designate, appoint a President,a Secretary and a Treasurer, and elect from among its members a Chairman. TheBoard of Directors may also appoint one or more Vice Presidents, one or moreAssistant Vice Presidents, one or more Assistant Secretaries, and one or moreAssistant Treasurers and such other officers as the Board of Directors may deemdesirable or appropriate and may give any of them such further designations oralternate titles as it considers desirable. The Board of Directors maydelegate, by specific resolution, to an officer the power to appoint otherspecified officers or assistant officers. Any number of offices may be held bythe same person unless the Certificate of Incorporation or these Bylaws provideotherwise. Each officer shall be a natural person who is eighteen years of ageor older.

 

Section 4.2.*    Termof Office; Resignation; Removal; Vacancies.*    Unlessotherwise provided in the resolution of the Board of Directors appointing anyofficer, each officer shall hold office until the next annual meeting of theBoard of Directors at which his or her successor is appointed and qualified oruntil his or her earlier resignation or removal. Any officer may resign at anytime upon notice given in writing or by electronic transmission to theCorporation. Such resignation shall take effect at the time specified therein,and unless otherwise specified therein no acceptance of such resignation shallbe necessary to make it effective. The Board of Directors may remove anyofficer with or without cause at any time. Any such removal shall be withoutprejudice to the contractual rights of such officer, if any, with theCorporation, but the appointment of an officer shall not of itself createcontractual rights. The Board of Directors may also delegate to an officer thepower to remove other specified officers or assistant officers. Any vacancyoccurring in any office of the Corporation by death, resignation, removal orotherwise may be filled by the Board of Directors. An officer appointed to filla vacancy shall serve for the unexpired term of such officer’s predecessor, oruntil such officer’s earlier death, resignation or removal.

 

Section 4.3.*    TemporaryDelegation of Duties.*    In the case of theabsence of any officer, or his inability to perform his duties, or for anyother reason deemed sufficient by the Board of Directors, the Board ofDirectors may delegate the powers and duties of such officer to any otherofficer or to any director temporarily, provided that a majority of thedirectors then in office concur and that no such delegation shall result ingiving to the same person conflicting duties.

 

Section 4.4.*    Chairman.*    TheChairman of the Board of Directors shall preside at all meetings of the Boardof Directors and of the stockholders at which he or she shall be

 

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presentand shall have and may exercise such powers as may, from time to time, beassigned to him or her by the Board of Directors or as may be provided by law.

 

Section 4.5.*    ChiefExecutive Officer.*    The Chief ExecutiveOfficer (the “CEO”), if one is appointed by the Board of Directors, shallperform all duties customarily delegated to the chief executive officer of acorporation and such other duties as may from time to time be assigned to theCEO by the Board of Directors and these Bylaws.

 

Section 4.6.*    President.*    Ifthere is no separate CEO, the President shall be the CEO of the Corporation;otherwise, the President shall be responsible to the CEO for the day-to-dayoperations of the Corporation. The President shall have general and activemanagement of the business of the Corporation; shall see that all orders andresolutions of the Board of Directors are carried into effect; and shallperform all duties as may from time to time be assigned by the Board ofDirectors or the CEO.

 

Section 4.7.*    VicePresidents.*    The Vice President or VicePresidents shall have such powers and shall perform such duties as may, fromtime to time, be assigned to him or her or them by the Board of Directors, theCEO or the President or as may be provided by law.

 

Section 4.8.*    Secretary.*    TheSecretary shall have the duty to record the proceedings of the meetings of thestockholders, the Board of Directors and any committees thereof in a book to bekept for that purpose, shall authenticate records of the Corporation, shall seethat all notices are duly given in accordance with the provisions of theseBylaws or as required by law, shall be custodian of the records of the Corporation,may affix the corporate seal to any document the execution of which, on behalfof the Corporation, is duly authorized, and when so affixed may attest thesame, and, in general, shall perform all duties incident to the office ofsecretary of a corporation and such other duties as may, from time to time, beassigned to him or her by the Board of Directors, the CEO or the President oras may be provided by law.

 

Section 4.9.*    Treasurer.*    TheTreasurer shall have charge of and be responsible for all funds, securities,receipts and disbursements of the Corporation and shall deposit or cause to bedeposited, in the name of the Corporation, all moneys or other valuable effectsin such banks, trust companies or other depositories as shall, from time to time,be selected by or under authority of the Board of Directors. If required by theBoard of Directors, the Treasurer shall give a bond for the faithful dischargeof his or her duties, with such surety or sureties as the Board of Directorsmay determine. The Treasurer shall keep or cause to be kept full and accuraterecords of all receipts and disbursements in books of the Corporation, shallmaintain books of account and records and exhibit such books of account andrecords to any of the directors of the Corporation at any reasonable time,shall receive and give receipts for monies due and payable to the Corporationfrom any source whatsoever, shall render to the CEO, the President and to theBoard of Directors, whenever requested, an account of the financial conditionof the Corporation, and, if called to do so, make a full financial report atthe annual meeting of the stockholders, and, in general, shall perform all theduties incident to the office of

 

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treasurerof a corporation and such other duties as may, from time to time, be assignedto him or her by the Board of Directors, the CEO or the President or as may beprovided by law.

 

Section 4.10.*    AssistantSecretaries and Assistant Treasurers.*    TheAssistant Secretaries and Assistant Treasurers, if any, shall perform suchduties as shall be assigned to them by the Secretary or the Treasurer,respectively, or by the President, the CEO or the Board of Directors. In theabsence or at the request of the Secretary or the Treasurer, the AssistantSecretaries or Assistant Treasurers, respectively, shall perform the duties andexercise the powers of the Secretary or Treasurer, as the case may be.

 

Section 4.11.*    OtherOfficers.*    The other officers, if any, of theCorporation shall have such powers and duties in the management of theCorporation as shall be stated in a resolution of the Board of Directors whichis not inconsistent with these Bylaws and, to the extent not so stated, asgenerally pertain to their respective offices, subject to the control of theBoard of Directors.

 

Section 4.12.*     Compensation.*    Thesalaries and other compensation of the officers shall be fixed or authorizedfrom time to time by the Board of Directors. No officer shall be prevented fromreceiving such salary or other compensation by reason of the fact that he isalso a director of the Corporation.

 

ARTICLE V

 

STOCK

 

Section 5.1.*    StockCertificates and Uncertificated Shares.*    Theshares of stock in the Corporation shall be represented by certificates,provided that the Board of Directors may provide by resolution or resolutionsthat some or all of any or all classes or series of the Corporation’s stockshall be uncertificated shares. Any such resolution shall not apply to sharesrepresented by a certificate theretofore issued until such certificate issurrendered to the Corporation. Notwithstanding the adoption of such aresolution by the Board of Directors, every holder of stock represented bycertificates, and upon request every holder of uncertificated shares, shall beentitled to have a certificate signed by or in the name of the Corporation bythe Chairman of the Board of Directors, if any, or the President or a VicePresident, and by the Treasurer or an Assistant Treasurer, or the Secretary oran Assistant Secretary, of the Corporation, representing the number of sharesof stock registered in certificate form owned by such holder. Any and all thesignatures on the certificate may be by a facsimile. In case any officer,transfer agent or registrar who has signed or whose facsimile signature hasbeen placed upon a certificate shall have ceased to be such officer, transferagent or registrar before such certificate is issued, it may be issued by theCorporation with the same effect as if such person were such officer, transferagent or registrar at the date of issue.

 

Section 5.2.*    Lost,Stolen or Destroyed Stock Certificates; Issuance of New Certificates.*    TheCorporation may issue a new certificate of stock or uncertificated

 

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sharesin the place of any certificate theretofore issued by it, alleged to have beenlost, stolen or destroyed, and the Corporation may require the owner of thelost, stolen or destroyed certificate, or such owner’s legal representative, togive the Corporation a bond in such form and amount (not exceeding twice thevalue of the stock represented by such certificate) and with such surety andsureties as the secretary may require in order to indemnify it against anyclaim that may be made against it on account of the alleged loss, theft or destructionof any such certificate or the issuance of such new certificate oruncertificated shares.

 

Section 5.3.*    Transferof Stock.*    Subject to any transferrestrictions set forth or referred to on the stock certificate or of which theCorporation otherwise has notice, shares of the Corporation shall betransferable on the books of the Corporation upon presentation to theCorporation or to the Corporation’s transfer agent of a stock certificatesigned by, or accompanied by an executed assignment form, the holder of recordthereof, his duly authorized legal representative, or other appropriate personas permitted by the DGCL. The Corporation may require that any transfer ofshares be accompanied by proper evidence reasonably satisfactory to theCorporation or to the Corporation’s transfer agent that such endorsement isgenuine and effective. Upon presentation of shares for transfer as providedabove, the payment of all taxes, if any, therefor, and the satisfaction of anyother requirement of law, including inquiry into and discharge of any adverseclaims of which the Corporation has notice, the Corporation shall issue a newcertificate to the person entitled thereto and cancel the old certificate.Every transfer of stock shall be entered on the stock books of the Corporationto accurately reflect the record ownership of each share. The Board ofDirectors also may make such additional rules and regulations as it maydeem expedient concerning the issue, transfer, and registration of certificatesfor shares of the capital stock of the Corporation.

 

Section 5.4.*    PreferredStock.*    Shares of preferred stock shall beissued by the Corporation only after filing a Preferred Stock Designationdescribed in paragraph (c) of the Fourth Article of theCorporation’s Certificate of Incorporation with the Delaware Secretary of Stateand satisfying all other requirements of the Certificate of Incorporation andthe DGCL with respect thereto.

 

Section 5.5.*    Holdersof Record.*    The Corporation shall be entitledto treat the holder of record of any share of stock as the holder in factthereof and, accordingly, shall not be bound to recognize any equitable orother claim to or interest in such share on the part of any other person,whether or not it shall have express or other notice thereof, except as may beallowed by these Bylaws or required by the laws of Delaware.

 

ARTICLE VI

 

EXECUTION OF INSTRUMENTS; CHECKS AND ENDORSEMENTS; DEPOSITS; ETC.

 

Section 6.1.*    Executionof Instruments.*    Except as otherwise providedby the Board of Directors, the Chairman, the CEO, the President, any VicePresident, the

 

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Treasureror the Secretary shall have the power to execute and deliver on behalf of andin the name of the Corporation any instrument requiring the signature of anofficer of the Corporation. Unless authorized to do so by these Bylaws or bythe Board of Directors, no assistant officer, agent or employee shall have anypower or authority to bind the Corporation in any way, to pledge its credit orto render it liable pecuniarily for any purpose or in any amount.

 

Section 6.2.*    Checksand Endorsements.*    All checks, drafts or otherorders for the payment of money, obligations, notes or other evidences ofindebtedness issued in the name of the Corporation and other such instrumentsshall be signed or endorsed for the Corporation by such officers or agents ofthe Corporation as shall from time to time be determined by resolution of theBoard of Directors, which resolution may provide for the use of facsimilesignatures.

 

Section 6.3.*    Deposits.*    Allfunds of the Corporation not otherwise employed shall be deposited from time totime to the Corporation’s credit in such banks or other depositories as shallfrom time to time be determined by resolution of the Board of Directors, whichresolution may specify the officers or agents of the Corporation who shall havethe power, and the manner in which such power shall be exercised, to make suchdeposits and to endorse, assign and deliver for collection and deposit checks,drafts and other orders for the payment of money payable to the Corporation orits order.

 

Section 6.4.*    Votingof Securities and Other Entities.*    Unlessotherwise provided by resolution of the Board of Directors, the Chairman, ChiefExecutive Officer, or the President, or any officer designated in writing byany of them, is authorized to attend in person, or may execute writteninstruments appointing a proxy or proxies to represent the Corporation, at allmeetings of any corporation, partnership, limited liability company,association, joint venture, or other entity in which the Corporation holds anysecurities or other interests and may execute written waivers of notice withrespect to any such meetings. At all such meetings, any of the foregoingofficers, in person or by proxy as aforesaid and subject to the instructions,if any, of the Board of Directors, may vote the securities or interests so heldby the Corporation, may execute any other instruments with respect to suchsecurities or interests, and may exercise any and all rights and powersincident to the ownership of said securities or interests. Any of the foregoingofficers may execute one or more written consents to action taken in lieu of aformal meeting of such corporation, partnership, limited liability company,association, joint venture, or other entity.

 

ARTICLE VII

 

DIVIDENDS AND OTHER DISTRIBUTIONS

 

Section 7.1.*    Dividendsand Other Distributions.*    Subject to theprovisions of the DGCL, dividends and other distributions may be declared by theBoard of Directors in such form, frequency and amounts as the condition of theaffairs of the Corporation shall render advisable.

 

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ARTICLE VIII

 

MISCELLANEOUS

 

Section 8.1.*    FiscalYear.*    The fiscal year of the Corporationshall be determined by the Board of Directors.

 

Section 8.2.*    Seal.*    TheCorporation may have a corporate seal and shall be in such form as may beapproved from time to time by the Board of Directors. The corporate seal may beused by causing it or a facsimile thereof to be impressed or affixed or in anyother manner reproduced. The impression of the seal may be made and attested byeither the Secretary or any Assistant Secretary for the authentication ofcontracts or other papers requiring the seal.

 

Section 8.3.*    Waiverof Notice of Meetings of Stockholders, Directors and Committees.*    Whenevernotice is required to be given by law or under any provision of the Certificateof Incorporation or these Bylaws, a written waiver thereof, signed by theperson entitled to notice, or a waiver by electronic transmission by the personentitled to notice, whether before or after the time stated therein, shall bedeemed equivalent to notice. Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except (i) in the case whenthe person attends a meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business because themeeting is not lawfully called or convened and (ii) in the case when theperson attends the meeting for the purpose of objecting to consideration of aparticular matter at the meeting that is not within the purpose or purposesdescribed in the notice of the meeting, the person objects to considering thematter when it is presented. Neither the business to be transacted at, nor thepurpose of, any regular or special meeting of the stockholders, directors ormembers of a committee of directors need be specified in any written waiver ofnotice or any waiver by electronic transmission unless so required by theCertificate of Incorporation or these Bylaws.

 

Section 8.4.*    Indemnificationof Directors and Officers.*

 

8.4.1.*    Directorsand Officers.*    The Corporation shall indemnifyand hold harmless, to the fullest extent permitted by applicable law as itpresently exists or may hereafter be amended, any person who was or is made oris threatened to be made a party or is otherwise involved in any action, suitor proceeding, whether civil, criminal, administrative or investigative (a “proceeding”),by reason of the fact that he or she, or a person for whom he or she is thelegal representative, is or was a director or officer of the Corporation or,while a director or officer of the Corporation, is or was serving at therequest of the Corporation as a director, officer, employee or agent of anothercorporation or of a partnership, joint venture, trust, enterprise or nonprofitentity, including service with respect to employee benefit plans (a “CoveredPerson”), against all liability and loss suffered and expenses (includingattorneys’ fees) reasonably incurred by such Covered Person. Notwithstandingthe preceding sentence, the Corporation shall be required to indemnify aCovered Person in connection with a proceeding (or part thereof)

 

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commencedby such Covered Person only if the commencement of such proceeding (or partthereof) by the Covered Person was authorized in the specific case by the Boardof Directors.

 

8.4.2.*    Prepaymentof Expenses.*    The Corporation shall to thefullest extent not prohibited by applicable law promptly pay the expenses(including attorneys’ fees) incurred by a Covered Person in defending anyproceeding in advance of its final disposition, provided, however, that, to theextent required by law, such payment of expenses in advance of the finaldisposition of the proceeding shall be made only upon receipt of an undertakingby such Covered Person to repay all amounts advanced if it should be ultimatelydetermined that such Covered Person is not entitled to be indemnified underthis Section 8.4 or otherwise.

 

8.4.3.*    Nonexclusivityof Rights.*    The rights conferred on anyCovered Person by this Section 8.4 shall not be exclusive of any otherrights which such Covered Person may have or hereafter acquire under anystatute, provision of the Certificate of Incorporation, these Bylaws,agreement, vote of stockholders or disinterested directors or otherwise.

 

8.4.4.*    OtherSources.*    The Corporation’s obligation, ifany, to indemnify or to advance expenses to any Covered Person who was or isserving at its request as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust, enterprise or nonprofit entityshall be reduced by any amount such Covered Person may collect asindemnification or advancement of expenses from such other corporation,partnership, joint venture, trust, enterprise or non-profit enterprise.

 

8.4.5.*    Amendmentor Repeal.*    Any repeal or modification of theforegoing provisions of this Section 8.4 shall not adversely affect anyright or protection hereunder of any Covered Person in respect of any act oromission occurring prior to the time of such repeal or modification.

 

8.4.6.*    OtherIndemnification and Prepayment of Expenses.*    ThisSection 8.4 shall not limit the right of the Corporation, to the extentand in the manner permitted by law, to indemnify persons other than CoveredPersons and to advance expenses to such other persons when and as authorized byappropriate corporate action.

 

8.4.7.*    Insurance.*    TheCorporation may purchase and maintain insurance on behalf of any person thatthe Corporation is permitted to indemnify in accordance with these Bylawsagainst any liability asserted against any such person and incurred by suchperson whether or not the Corporation would have the power to indemnify suchperson against such liability under the DGCL. Any such insurance may beprocured from any insurance company designated by the Board of Directors,whether such insurance company is formed under the laws of this state or anyother jurisdiction of the United States or elsewhere, including any insurancecompany in which the Corporation has an equity interest through stock ownershipor otherwise.

 

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8.4.8.*    Selectionof Counsel.*    Notwithstanding any other provisionof this Section 8.4, the Corporation may condition the right toindemnification of, and the advancement of expenses to, a Covered Person on itsright to select legal counsel representing such Covered Person on the terms ofthis Subsection 8.4.8. The Corporation shall have the right to selectcounsel for any Covered Person in any legal action that may give rise toindemnification under this Section 8.4 provided that: (a) theCorporation consults with the Covered Person seeking indemnification with respectto the selection of competent legal counsel; and (b) the Corporation paysall reasonable fees and costs incurred by the attorney in defending the CoveredPerson (subject to the Corporation’s right to recover such fees and costs if itis determined at the conclusion of the action, suit or proceeding that there isno right of indemnification). Notwithstanding any other provision of this Section 8.4,the Corporation shall not be responsible for indemnification of, or theadvancement of expenses to, any Covered Person who declines to use counselreasonably selected by the Corporation as provided in this Subsection 8.4.8.Counsel shall be deemed to be reasonably selected by the Corporation if suchcounsel is a competent attorney who can independently represent the CoveredPerson consistent with the applicable ethical standards of the Code ofProfessional Responsibility.

 

Section 8.5.*    InterestedDirectors; Quorum.*    No contract or transactionbetween the Corporation and one or more of its directors or officers, orbetween the Corporation and any other corporation, partnership, association orother organization in which one or more of its directors or officers aredirectors or officers, or have a financial interest, shall be void or voidablesolely for this reason, or solely because the director or officer is present ator participates in the meeting of the Board of Directors or committee thereofwhich authorizes the contract or transaction, or solely because any suchdirector’s or officer’s votes are counted for such purpose, if: (1) thematerial facts as to the director’s or officer’s relationship or interest andas to the contract or transaction are disclosed or are known to the Board ofDirectors or the committee, and the Board of Directors or committee in goodfaith authorizes the contract or transaction by the affirmative votes of amajority of the disinterested directors, even though the disinteresteddirectors be less than a quorum; or (2) the material facts as to thedirector’s or officer’s relationship or interest and as to the contract ortransaction are disclosed or are known to the stockholders entitled to votethereon, and the contract or transaction is specifically approved in good faithby vote of the stockholders; or (3) the contract or transaction is fair asto the Corporation as of the time it is authorized, approved or ratified, bythe Board of Directors, a committee thereof or the stockholders. Common orinterested directors may be counted in determining the presence of a quorum ata meeting of the Board of Directors or of a committee which authorizes thecontract or transaction.

 

Section 8.6.*    Form ofRecords.*    Any records maintained by theCorporation in the regular course of its business, including its stock ledger,books of account and minute books, may be kept on, or by means of, or be in theform of, any information storage device or method, provided that the records sokept can be converted into clearly legible paper form within a reasonable time.

 

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Section 8.7.*    Recordof Stockholders.*    The Secretary shallmaintain, or shall cause to be maintained, a record of the names and addressesof the Corporation’s stockholders, in a form that permits preparation of a listof stockholders that is arranged by class of stock entitled to vote and, withineach such class, by series of shares, that is alphabetical within each class orseries, and that shows the address of, and the number of shares of each classor series held by, each stockholder.

 

Section 8.8.*    Addressesof Stockholders.*    Each stockholder shallfurnish to the Secretary of the Corporation or the Corporation’s transfer agentan address to which notices from the Corporation, including notices ofmeetings, may be directed and if any stockholder shall fail so to designatesuch an address, it shall be sufficient for any such notice to be directed tosuch stockholder at such stockholder’s address last known to the Secretary ortransfer agent.

 

Section 8.9.*    Amendmentof Bylaws.*    The Board of Directors isauthorized to adopt, amend or repeal these Bylaws at any annual meeting of theBoard of Directors or any other meeting called for that purpose. The holders ofshares of Common Stock entitled to vote also may adopt additional Bylaws andmay amend or repeal any Bylaw, whether or not adopted by them, at an annualstockholders meeting or a special meeting called, wholly or in part, for suchpurpose. The power of the Board of Directors to adopt, amend or repeal Bylawsmay be limited by an amendment to the Certificate of Incorporation or anamendment to the Bylaws adopted by the holders of Common Stock that providesthat a particular Bylaw or Bylaws may only be adopted, amended or repealed bythe holders of Common Stock.

 

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