**Exhibit 3.3**

 

AMENDED AND RESTATED

 

BYLAWS

 

OF

 

DIGIMARC CORPORATION

 

A DELAWARE CORPORATION

 

AMENDED AS OF JULY 15,2005

 

 

TABLE OF CONTENTS

 
| ARTICLE I  Offices                                                          |   |
|----------------------------------------------------------------------------------|--------|
| Section 1.1 Registered Office                                               |   |
| Section 1.2  Other Offices                                                  |   |
| ARTICLE II  Stockholders’ Meetings                                     |   |
| Section 2.1 Place of Meetings                                               |   |
| Section 2.2 Annual Meetings                                                 |   |
| Section 2.3 Special Meetings                                                |   |
| Section 2.4 Notice of Meetings                                              |   |
| Section 2.5 Quorum and Voting                                               |   |
| Section 2.6  Voting Rights                                                  |   |
| Section 2.7 Voting Procedures and Inspectors of Elections                   |   |
| Section 2.8 List of Stockholders                                            |   |
| Section 2.9 Stockholder Proposals at Annual Meetings                        |   |
| Section 2.10 Nominations of Persons for Election to the Board of  Directors |   |
| Section 2.11 Action Without Meeting                                         |   |
| ARTICLE III  Directors                                                      |   |
| Section 3.1 Number and Term of Office                                       |   |
| Section 3.2  Powers                                                         |   |
| Section 3.3  Vacancies                                                      |   |
| Section 3.4 Resignations and Removals                                       |   |
| Section 3.5  Meetings                                                       |   |
| Section 3.6 Quorum and Voting                                               |   |
| Section 3.7 Action Without Meeting                                          |   |
| Section 3.8 Fees and Compensation                                           |   |
| Section 3.9  Committees                                                     |   |
| ARTICLE IV  Officers                                                        |   |
| Section 4.1 Officers Designated                                             |   |
| Section 4.2 Tenure and Duties of Officers                                   |   |

 

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| ARTICLE V  Execution of Corporate Instruments, and Voting of Securities Owned by the  Corporation |   |
|--------------------------------------------------------------------------------------------------------|--------|
| Section 5.1 Execution of Corporate Instruments                                                    |   |
| Section 5.2 Voting of Securities Owned by Corporation                                             |   |
| ARTICLE VI  Shares of Stock                                                                       |   |
| Section 6.1 Form and Execution of Certificates                                               |   |
| Section 6.2 Lost Certificates                                                                     |   |
| Section 6.3  Transfers                                                                            |   |
| Section 6.4 Fixing Record Dates                                                                   |   |
| Section 6.5 Registered Stockholders                                                               |   |
| ARTICLE VII  Other Securities of the Corporation                                                  |   |
| ARTICLE VIII  Corporate Seal                                                                      |   |
| ARTICLE IX  Indemnification of Officers, Directors, Employees and Agents                          |   |
| Section 9.1 Right to Indemnification                                                              |   |
| Section 9.2 Authority to Advance Expenses                                                         |   |
| Section 9.3 Right of Claimant to Bring Suit                                                       |   |
| Section 9.4 Provisions Nonexclusive                                                               |   |
| Section 9.5 Authority to Insure                                                                   |   |
| Section 9.6 Survival of Rights                                                                    |   |
| Section 9.7 Settlement of Claims                                                                  |   |
| Section 9.8 Effect of Amendment                                                                   |   |
| Section 9.9  Subrogation                                                                          |   |
| Section 9.10 No Duplication of Payments                                                           |   |
| ARTICLE X  Notices                                                                                |   |
| ARTICLE XI  Amendments                                                                            |   |

 

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**AMENDED AND RESTATED**

 

**BYLAWS**

 

**OF**

 

**DIGIMARC CORPORATION**

**(as of July 15, 2005)**

 

**ARTICLE I**

 

**OFFICES**

 

SECTION 1.1   REGISTERED OFFICE.

 

The registered office of the corporation in theState of Delaware shall be in the City of Wilmington, County of New Castle.

 

SECTION 1.2   OTHER OFFICES.

 

The corporation shall also have and maintain anoffice or principal place of business at One Center Pointe Drive, Suite 500,Lake Oswego, Oregon 97035-8615, and may also have offices at such other places,both within and without the State of Delaware as the Board of Directors mayfrom time to time determine or the business of the corporation may require.

 

ARTICLE II

 

STOCKHOLDERS’ MEETINGS

 

SECTION 2.1   PLACE OF MEETINGS.

 

Meetings of the stockholders of the corporation shallbe held at such place, either within or without the State of Delaware, as maybe designated from time to time by the Board of Directors, or, if not sodesignated, then at the office of the corporation required to be maintainedpursuant to Section 1.2 of Article I hereof.

 

SECTION 2.2   ANNUAL MEETINGS.

 

The annual meetings of the stockholders of thecorporation, commencing with the year 2000, for the purpose of election ofdirectors and for such other business as may lawfully come before it, shall beheld on such date and at such time as may be designated from time to time bythe Board of Directors, or, if not so designated, then at 10 a.m. on March 1in each year if not a legal holiday, and, if a legal holiday, at the same hourand place on the next succeeding day not a holiday.

 

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SECTION 2.3   SPECIAL MEETINGS.

 

Special Meetings of the stockholders of thecorporation may be called, for any purpose or purposes, by the President, theSecretary, or by the Board of Directors at any time.

 

SECTION 2.4   NOTICE OF MEETINGS.

 

(a) Except as otherwise provided by law or theCertificate of Incorporation, written notice of each meeting of stockholders,specifying the place, date and hour and purpose or purposes of the meeting,shall be given not less than ten (10) nor more than sixty (60) days beforethe date of the meeting to each stockholder entitled to vote thereat, directedto his address as it appears upon the books of the corporation; except thatwhere the matter to be acted on is a merger or consolidation of the Corporationor a sale, lease or exchange of all or substantially all of its assets, suchnotice shall be given not less than twenty (20) nor more than sixty (60) daysprior to such meeting.

 

(b) If at any meeting action is proposed to betaken which, if taken, would entitle shareholders fulfilling the requirementsof section 262(d) of the Delaware General Corporation Law to anappraisal of the fair value of their shares, the notice of such meeting shallcontain a statement of that purpose and to that effect and shall be accompaniedby a copy of that statutory section.

 

(c) When a meeting is adjourned to another timeor place, notice need not be given of the adjourned meeting if the time andplace thereof are announced at the meeting at which the adjournment is takenunless the adjournment is for more than thirty days, or unless after theadjournment a new record date is fixed for the adjourned meeting, in whichevent a notice of the adjourned meeting shall be given to each stockholder ofrecord entitled to vote at the meeting.

 

(d) Notice of the time, place and purpose ofany meeting of stockholders may be waived in writing, either before or aftersuch meeting, and to the extent permitted by law, will be waived by anystockholder by his attendance thereat, in person or by proxy. Any stockholderso waiving notice of such meeting shall be bound by the proceedings of any suchmeeting in all respects as if due notice thereof had been given.

 

(e) Unless and until voted, every proxy shallbe revocable at the pleasure of the person who executed it or of his legalrepresentatives or assigns, except in those cases where an irrevocable proxypermitted by statute has been given.

 

SECTION 2.5   QUORUM AND VOTING.

 

(a) At all meetings of stockholders, exceptwhere otherwise provided by law, the Certificate of Incorporation, or theseBylaws, the presence, in person or by proxy duly authorized, of the holders ofa majority of the outstanding shares of stock entitled to vote shall constitutea quorum for the transaction of business. Shares, the voting of which at saidmeeting have been enjoined, or which for any reason cannot be lawfully voted atsuch meeting, shall not be counted to determine a quorum at said meeting. Inthe absence of a quorum, any meeting of stockholders may be adjourned, fromtime to time, by vote of the holders of a majority of the shares representedthereat, but no other business shall be transacted at such meeting. At such

 

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adjournedmeeting at which a quorum is present or represented any business may betransacted which might have been transacted at the original meeting. The stockholderspresent at a duly called or convened meeting, at which a quorum is present, maycontinue to transact business until adjournment, notwithstanding the withdrawalof enough stockholders to leave less than a quorum.

 

(b) Except as otherwise provided by law, theCertificate of Incorporation or these Bylaws, all action taken by the holdersof a majority of the voting power represented at any meeting at which a quorumis present shall be valid and binding upon the corporation.

 

(c) Where a separate vote by a class or classesis required, a majority of the outstanding shares of such class or classes,present in person or represented by proxy, shall constitute a quorum entitledto take action with respect to that vote on that matter and the affirmativevote of the majority of shares of such class or classes present in person orrepresented by proxy at the meeting shall be the act of such class.

 

SECTION 2.6   VOTING RIGHTS.

 

(a) Except as otherwise provided by law, onlypersons in whose names shares entitled to vote stand on the stock records ofthe corporation on the record date for determining the stockholders entitled tovote at said meeting shall be entitled to vote at such meeting. Shares standingin the names of two or more persons shall be voted or represented in accordancewith the determination of the majority of such persons, or, if only one of suchpersons is present in person or represented by proxy, such person shall havethe right to vote such shares and such shares shall be deemed to be representedfor the purpose of determining a quorum.

 

(b) Every person entitled to vote or executeconsents shall have the right to do so either in person or by an agent oragents authorized by a written proxy executed by such person or his dulyauthorized agent, which proxy shall be filed with the Secretary of thecorporation at or before the meeting at which it is to be used. Said proxy soappointed need not be a stockholder. No proxy shall be voted on after threeyears from its date unless the proxy provides for a longer period.

 

(c) Without limiting the manner in which astockholder may authorize another person or persons to act for him as proxypursuant to subsection (b) of this section, the following shallconstitute a valid means by which a stockholder may grant such authority:

 

(1) A stockholder may execute a writingauthorizing another person or persons to act for him as proxy. Execution may beaccomplished by the stockholder or his authorized officer, director, employeeor agent signing such writing or causing his or her signature to be affixed tosuch writing by any reasonable means including, but not limited to, byfacsimile signature.

 

(2) A stockholder may authorize another personor persons to act for him as proxy by transmitting or authorizing thetransmission of a telegram, cablegram, or other means of electronictransmission to the person who will be the holder of the proxy or to a proxysolicitation firm, proxy support service organization or like agent dulyauthorized by the person who will be the holder of the proxy to receive suchtransmission, provided that any such

 

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telegram,cablegram or other means of electronic transmission must either set forth or besubmitted with information from which it can be determined that the telegram,cablegram or other electronic transmission was authorized by the stockholder.Such authorization can be established by the signature of the stockholder onthe proxy, either in writing or by a signature stamp or facsimile signature, orby a number or symbol from which the identity of the stockholder can bedetermined, or by any other procedure deemed appropriate by the inspectors orother persons making the determination as to due authorization.

 

(3) If it is determined that such telegrams,cablegrams or other electronic transmissions are valid, the inspectors or, ifthere are no inspectors, such other persons making that determination shallspecify the information upon which they relied.

 

(d) Any copy, facsimile telecommunication orother reliable reproduction of the writing or transmission created pursuant tosubsection (c) of this section may be substituted or used inlieu of the original writing or transmission for any and all purposes for whichthe original writing or transmission could be used, provided that such copy,facsimile telecommunication or other reproduction shall be a completereproduction of the entire original writing or transmission.

 

SECTION 2.7   VOTING PROCEDURES AND INSPECTORS OFELECTIONS.

 

(a) The corporation shall, in advance of anymeeting of stockholders, appoint one or more inspectors to act at the meetingand make a written report thereof. The corporation may designate one or morepersons as alternate inspectors to replace any inspector who fails to act. Ifno inspector or alternate is able to act at a meeting of stockholders, theperson presiding at the meeting shall appoint one or more inspectors to act atthe meeting. Each inspector, before entering upon the discharge of his duties,shall take and sign an oath faithfully to execute the duties of inspector withstrict impartiality and according to the best of his ability.

 

(b) The inspectors shall (i) ascertain thenumber of shares outstanding and the voting power of each, (ii) determinethe shares represented at a meeting and the validity of proxies and ballots, (iii) countall votes and ballots, (iv) determine and retain for a reasonable period arecord of the disposition of any challenges made to any determination by theinspectors, and (v) certify their determination of the number of sharesrepresented at the meeting, and their count of all votes and ballots. Theinspectors may appoint or retain other persons or entities to assist theinspectors in the performance of the duties of the inspectors.

 

(c) The date and time of the opening and theclosing of the polls for each matter upon which the stockholders will vote at ameeting shall be announced at the meeting. No ballot, proxies or votes, nor anyrevocations thereof or changes thereto, shall be accepted by the Inspectorsafter the closing of the polls unless the Court of Chancery upon application bya stockholder shall determine otherwise.

 

(d) In determining the validity and counting ofproxies and ballots, the inspectors shall be limited to an examination of theproxies, any envelopes submitted with those proxies, any information providedin accordance with Section 212(c)(2) of the Delaware GeneralCorporation Law, ballots and the regular books and records of the corporation,except that the inspectors may consider other reliable information for thelimited purpose of reconciling proxies and ballots

 

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submittedby or on behalf of banks, brokers, their nominees or similar persons whichrepresent more votes than the holder of a proxy is authorized by the recordowner to cast or more votes than the stockholder holds of record. If the inspectorsconsider other reliable information for the limited purpose permitted herein,the inspectors at the time they make their certification pursuant to subsection (b)(v) ofthis section shall specify the precise information considered by themincluding the person or persons from whom they obtained the information, whenthe information was obtained, the means by which the information was obtainedand the basis for the inspectors’ belief that such information is accurate andreliable.

 

SECTION 2.8   LIST OF STOCKHOLDERS.

 

The officer who has charge of the stock ledger ofthe corporation shall prepare and make, at least ten days before every meetingof stockholders, a complete list of the stockholders entitled to vote at saidmeeting, arranged in alphabetical order, showing the address of and the numberof shares registered in the name of each stockholder. Such list shall be opento the examination of any stockholder, for any purpose germane to the meeting,during ordinary business hours, for a period of at least ten days prior to themeeting, either at a place within the city where the meeting is to be held andwhich place shall be specified in the notice of the meeting, or, if notspecified, at the place where said meeting is to be held, and the list shall beproduced and kept at the time and place of meeting during the whole timethereof, and may be inspected by any stockholder who is present.

 

SECTION 2.9   STOCKHOLDER PROPOSALS AT ANNUAL MEETINGS.

 

At an annual meeting of the stockholders, only suchbusiness shall be conducted as shall have been properly brought before themeeting. To be properly brought before an annual meeting, business must bespecified in the notice of meeting (or any supplement thereto) given by or atthe direction of the Board of Directors, otherwise properly brought before themeeting by or at the direction of the Board of Directors or otherwise properlybrought before the meeting by a stockholder. In addition to any otherapplicable requirements, for business to be properly brought before an annualmeeting by a stockholder, the stockholder must have given timely notice thereofin writing to the Secretary of the corporation. To be timely, a stockholder’snotice must be delivered to or mailed and received at the principal executiveoffices of the corporation, not less than 45 days nor more than 75 days priorto the date on which the corporation first mailed its proxy materials for theprevious year’s annual meeting of shareholders (or the date on which thecorporation mails its proxy materials for the current year if during the prioryear the corporation did not hold an annual meeting or if the date of theannual meeting was changed more than 30 days from the prior year). A stockholder’snotice to the Secretary shall set forth as to each matter the stockholderproposes to bring before the annual meeting (i) a brief description of thebusiness desired to be brought before the annual meeting and the reasons forconducting such business at the annual meeting, (ii) the name and recordaddress of the stockholder proposing such business, (iii) the class andnumber of shares of the corporation which are beneficially owned by thestockholder, and (iv) any material interest of the stockholder in such business.

 

Notwithstanding anything in the By-Laws to thecontrary, no business shall be conducted at the annual meeting except inaccordance with the procedures set forth in this Section 2.9,

 

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provided,however, that nothing in this Section 2.9 shall be deemed to preclude discussionby any stockholder of any business properly brought before the annual meetingin accordance with said procedure.

 

The Chairman of an annual meeting shall, if the factswarrant, determine and declare to the meeting that business was not properlybrought before the meeting in accordance with the provisions of this Section 2.9,and if he should so determine he shall so declare to the meeting, and any suchbusiness not properly brought before the meeting shall not be transacted.

 

Nothing in this Section 2.9 shall affect theright of a stockholder to request inclusion of a proposal in the corporation’sproxy statement to the extent that such right is provided by an applicable rule ofthe Securities and Exchange Commission.

 

SECTION 2.10NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF DIRECTORS.

 

In addition to any other applicable requirements,only persons who are nominated in accordance with the following proceduresshall be eligible for election as directors. Nominations of persons forelection to the Board of Directors of the corporation may be made at a meetingof stockholders by or at the direction of the Board of Directors, by anynominating committee or person appointed by the Board of Directors or by anystockholder of the corporation entitled to vote for the election of directorsat the meeting who complies with the notice procedures set forth in this Section 2.10.Such nominations, other than those made by or at the direction of the Board ofDirectors, shall be made pursuant to timely notice in writing to the Secretaryof the corporation. To be timely, a stockholder’s notice must be delivered toor mailed and received at the principal executive offices of the corporation,not less than 45 days nor more than 75 days prior to the date on which thecorporation first mailed its proxy materials for the previous year’s annualmeeting of shareholders (or the date on which the corporation mails its proxymaterials for the current year if during the prior year the corporation did nothold an annual meeting or if the date of the annual meeting was changed morethan 30 days from the prior year). Such stockholder’s notice shall set forth (a) asto each person whom the stockholder proposes to nominate for election orre-election as a director, (i) the name, age, business address andresidence address of the person, (ii) the principal occupation oremployment of the person, (iii) the class and number of shares of thecorporation which are beneficially owned by the person, and (iv) any otherinformation relating to the person that is required to be disclosed in solicitationsfor proxies for election of directors pursuant to Rule 14a under theSecurities Exchange Act of 1934; and (b) as to the stockholder giving the notice,(i) the name and record address of the stockholder, and (ii) theclass and number of shares of the corporation which are beneficially owned bythe stockholder. The corporation may require any proposed nominee to furnishsuch other information as may reasonably be required by the corporation todetermine the eligibility of such proposed nominee to serve as a director ofthe corporation. No person shall be eligible for election as a director of the corporationunless nominated in accordance with the procedures set forth herein. Theseprovisions shall not apply to nomination of any persons entitled to be separatelyelected by holders of preferred stock.

 

The Chairman of the meeting shall, if the factswarrant, determine and declare to the meeting that a nomination was not made inaccordance with the foregoing procedure, and if he

 

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shouldso determine, he shall so declare to the meeting and the defective nominationshall be disregarded.

 

SECTION 2.11  ACTION WITHOUT MEETING.

 

Unless otherwise provided in the Certificate ofIncorporation, any action required by statute to be taken at any annual orspecial meeting of stockholders of the corporation, or any action which may betaken at any annual or special meeting of such stockholders, may be takenwithout a meeting, without prior notice and without a vote, if a consent orconsents in writing, setting forth the action so taken, are signed by theholders of outstanding stock having not less than the minimum number of votesthat would be necessary to authorize or take such action at a meeting at whichall shares entitled to vote thereon were present and voted. To be effective, awritten consent must be delivered to the corporation by delivery to itsregistered office in Delaware, its principal place of business, or an officeror agent of the corporation having custody of the book in which proceedings ofmeetings of stockholders are recorded. Delivery made to a 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 effective totake the corporate action referred to therein unless, within sixty days of theearliest dated consent delivered in the manner required by this Section tothe corporation, written consents signed by a sufficient number of holders totake action are delivered to the corporation in accordance with this Section.Prompt notice of the taking of the corporate action without a meeting by lessthan unanimous written consent shall be given to those stockholders who havenot consented in writing.

 

**ARTICLE III**

 

**DIRECTORS**

 

SECTION 3.1   NUMBER AND TERM OF OFFICE.

 

The number of directors of the corporation shall notbe less than five (5) nor more than eleven (11) until changed by amendmentof the Certificate of Incorporation or by a Bylaw amending this Section 3.1duly adopted by the Board of Directors. The exact number of directors shall befixed from time to time, within the limits specified in the Certificate ofIncorporation or in this Section 3.1, by a bylaw or amendment thereof dulyadopted by the vote of a majority of the shares entitled to vote represented ata duly held meeting at which a quorum is present, or by the written consent ofthe holders of a majority of the outstanding shares entitled to vote, or by theBoard of Directors. Subject to the foregoing provisions for changing the numberof directors, the number of directors of the corporation has been fixed at ten (10).

 

The directors shall be divided into three classes,designated Class I, Class II, and Class III, as nearly equal innumber as the then total number of directors permits. Class I directorsshall serve until the 2000 annual meeting, Class II directors shall serveuntil the 2001 annual meeting and Class III directors shall serve untilthe 2002 annual meeting. At each succeeding annual meeting of stockholdersbeginning in 2000, successors to the class of directors whose terms expires atthat annual meeting shall be elected for a three-year term. If the number ofdirectors is changed, any increase or decrease shall be apportioned among theclasses so as to

 

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maintainthe number of directors in each class as nearly equal as possible, and anyadditional directors of any class elected to fill a vacancy resulting from anincrease in such class shall hold office for a term that shall coincide with theremaining term of that class, but in no case will a decrease in the number ofdirectors shorten the term of any incumbent director. Notwithstanding the foregoing,whenever the holders of any one or more classes or series of Preferred Stockissued by the Corporation shall have the right, voting separately by class orseries, to elect directors at an annual or special meeting of stockholders, theelection, term of office, filling of vacancies and other features of suchdirectorships shall be governed by the terms of these Bylaws applicablethereto, and such directors so elected shall not be divided into classespursuant to this Section 3.1 unless expressly provided by such terms.

 

Any amendment, change or repeal of this Section 3.1,or any other amendment to these Bylaws that will have the effect of permittingcircumvention of or modifying this Section 3.1, shall require thefavorable vote, at a stockholders’ meeting, of the holders of at least 80% ofthe then-outstanding shares of stock of the Corporation entitled to vote.

 

With the exception of the first Board of Directors,which shall be elected by the incorporators, and except as provided in Section 3.3of this Article III, the directors shall be elected by a plurality vote ofthe shares represented in person or by proxy, at the stockholders annualmeeting in each year and entitled to vote on the election of directors. Electeddirectors shall hold office until the next annual meeting for the years inwhich their terms expire and until their successors shall be duly elected andqualified. Directors need not be stockholders. If, for any cause, the Board ofDirectors shall not have been elected at an annual meeting, they may be electedas soon thereafter as convenient at a special meeting of the stockholderscalled for that purpose in the manner provided in these Bylaws.

 

SECTION 3.2   POWERS.

 

The powers of the corporation shall be exercised,its business conducted and its property controlled by or under the direction ofthe Board of Directors.

 

SECTION 3.3   VACANCIES.

 

Vacancies and newly created directorships resultingfrom any increase in the authorized number of directors may be filled by amajority of the directors then in office, although less than a quorum, or by asole remaining director, and each director so elected shall hold office for theunexpired portion of the term of the director whose place shall be vacant, anduntil his successor shall have been duly elected and qualified. A vacancy inthe Board of Directors shall be deemed to exist under this section in thecase of the death, removal or resignation of any director, or if thestockholders fail at any meeting of stockholders at which directors are to beelected (including any meeting referred to in Section 3.4 below) to electthe number of directors then constituting the whole Board.

 

SECTION 3.4   RESIGNATIONS AND REMOVALS.

 

(a) Any director may resign at any time bydelivering his written resignation to the Secretary, such resignation tospecify whether it will be effective at a particular time, upon receipt by theSecretary or at the pleasure of the Board of Directors. If no suchspecification is

 

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madeit shall be deemed effective at the pleasure of the Board of Directors. Whenone or more directors shall resign from the Board, effective at a future date,a majority of the directors then in office, including those who have so resigned,shall have power to fill such vacancy or vacancies, the vote thereon to takeeffect when such resignation or resignations shall become effective, and eachdirector so chosen shall hold office for the unexpired portion of the term ofthe director whose place shall be vacated and until his successor shall have beenduly elected and qualified.

 

(b) At a special meeting of stockholders calledfor the purpose in the manner herein above provided, the Board of Directors, orany individual director, may be removed from office, with or without cause, anda new director or directors elected by a vote of stockholders holding amajority of the outstanding shares entitled to vote at an election ofdirectors. Unless the certificate of incorporation otherwise provides, if theboard of directors is classified, shareholders may effect removal only forcause.

 

SECTION 3.5   MEETINGS.

 

(a)  An annual meeting of the Board ofDirectors shall be held for the purpose of electing officers and transactingsuch other business as may lawfully come before it.  Such annual meeting of the Board of Directorsfor any given year may be a regular or special meeting of the Board ofDirectors and may take place at the time and place determined by the Board ofDirectors, provided such annual meeting of the Board of Directors occurs afterthe annual stockholders’ meeting for such year.

 

(b) Except as hereinafter otherwise provided,regular meetings of the Board of Directors shall be held in the office of thecorporation required to be maintained pursuant to Section 1.2 of Article Ihereof. Regular meetings of the Board of Directors may also be held at anyplace within or without the State of Delaware which has been designated byresolutions of the Board of Directors or the written consent of all directors.

 

(c) Special meetings of the Board of Directorsmay be held at any time and place within or without the State of Delawarewhenever called by the Chairman of the Board or, if there is no Chairman of theBoard, by the President, or by a majority of the directors.

 

(d) Written notice of the time and place of allregular and special meetings of the Board of Directors shall be deliveredpersonally to each director or sent by telegram or facsimile transmission atleast 48 hours before the start of the meeting, or sent by first class mail atleast 120 hours before the start of the meeting. Notice of any meeting may bewaived in writing at any time before or after the meeting and will be waived byany director by attendance thereat.

 

SECTION 3.6   QUORUM AND VOTING.

 

(a) A quorum of the Board of Directors shallconsist of a majority of the exact number of directors fixed from time to timein accordance with Section 3.1 of Article III of these Bylaws, butnot less than one; provided, however, at any meeting whether a quorum bepresent or otherwise, a majority of the directors present may adjourn from timeto time until the time fixed for the next regular meeting of the Board ofDirectors, without notice other than by announcement at the meeting.

 

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(b) At each meeting of the Board at which aquorum is present all questions and business shall be determined by a vote of amajority of the directors present, unless a different vote be required by law,the Certificate of Incorporation, or these Bylaws.

 

(c) Any member of the Board of Directors, or ofany committee thereof, may participate in a meeting by means of conferencetelephone or similar communication equipment by means of which all personsparticipating in the meeting can hear each other, and participation in ameeting by such means shall constitute presence in person at such meeting.

 

(d) The transactions of any meeting of theBoard of Directors, or any committee thereof, however called or noticed, orwherever held, shall be as valid as though had at a meeting duly held afterregular call and notice, if a quorum be present and if, either before or afterthe meeting, each of the directors not present shall sign a written waiver ofnotice, or a consent to holding such meeting, or an approval of the minutesthereof. All such waivers, consents or approvals shall be filed with thecorporate records or made a part of the minutes of the meeting.

 

SECTION 3.7   ACTION WITHOUT MEETING.

 

Unless otherwise restricted by the Certificate ofIncorporation or these Bylaws, any action required or permitted to be taken atany meeting of the Board of Directors or of any committee thereof may be takenwithout a meeting, if all members of the Board or of such committee, as thecase may be, consent thereto in writing, and such writing or writings are filedwith the minutes of proceedings of the Board or committee.

 

SECTION 3.8   FEES AND COMPENSATION.

 

Directors and members of committees may receive suchcompensation, if any, for their services, and such reimbursement for expenses,as may be fixed or determined by resolution of the Board of Directors.

 

SECTION 3.9   COMMITTEES.

 

(a) EXECUTIVE COMMITTEE: The Board of Directorsmay appoint an Executive Committee of not less than one member, each of whomshall be a director. The Executive Committee, to the extent permitted by law,shall have and may exercise when the Board of Directors is not in session allpowers of the Board in the management of the business and affairs of theCorporation, except such committee shall not have the power or authority toamend these Bylaws or to approve or recommend to the stockholders any actionwhich must be submitted to stockholders for approval under the GeneralCorporation Law.

 

(b) OTHER COMMITTEES: The Board of Directorsmay, by resolution passed by a majority of the whole Board, from time to timeappoint such other committees as may be permitted by law. Such other committeesappointed by the Board of Directors shall have such powers and perform suchduties as may be prescribed by the resolution or resolutions creating suchcommittee, but in no event shall any such committee have the powers denied tothe Executive Committee in these Bylaws.

 

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(c) TERM: The members of all committees of theBoard of Directors shall serve a term coexistent with that of the Board ofDirectors which shall have appointed such committee. The Board, subject to theprovisions of subsections (a) or (b) of this Section 3.9, may atany time increase or decrease the number of members of a committee or terminatethe existence of a committee; provided, that no committee shall consist of lessthan one member. The membership of a committee member shall terminate on thedate of his death or voluntary resignation, but the Board may at any time forany reason remove any individual committee member and the Board may fill anycommittee vacancy created by death, resignation, removal or increase in thenumber of members of the committee. The Board of Directors may designate one ormore directors as alternate members of any committee, who may replace anyabsent or disqualified member at any meeting of the committee, and, inaddition, in the absence or disqualification of any member of a committee, themember or members thereof present at any meeting and not disqualified fromvoting, whether or not he or they constitute a quorum, may unanimously appointanother member of the Board of Directors to act at the meeting in the place ofany such absent or disqualified member.

 

(d) MEETINGS: Unless the Board of Directorsshall otherwise provide, regular meetings of the Executive Committee or anyother committee appointed pursuant to this Section 3.9 shall be held atsuch times and places as are determined by the Board of Directors, or by anysuch committee, and when notice thereof has been given to each member of suchcommittee, no further notice of such regular meetings need be given thereafter;special meetings of any such committee may be held at the principal office ofthe corporation required to be maintained pursuant to Section 1.2 of Article Ihereof; or at any place which has been designated from time to time byresolution of such committee or by written consent of all members thereof, andmay be called by any director who is a member of such committee, upon writtennotice to the members of such committee of the time and place of such specialmeeting given in the manner provided for the giving of written notice tomembers of the Board of Directors of the time and place of special meetings ofthe Board of Directors. Notice of any special meeting of any committee may bewaived in writing at any time after the meeting and will be waived by anydirector by attendance thereat. A majority of the authorized number of membersof any such committee shall constitute a quorum for the transaction of business,and the act of a majority of those present at any meeting at which a quorum ispresent shall be the act of such committee.

 

**ARTICLE IV**

 

**OFFICERS**

 

SECTION 4.1   OFFICERS DESIGNATED.

 

The officers of the corporation shall be aPresident, a Secretary, and a Treasurer. The Board of Directors or thePresident may also appoint a Chairman of the Board, one or moreVice-Presidents, assistant secretaries, assistant treasurers, and such otherofficers and agents with such powers and duties as it or he shall deemnecessary. The order of the seniority of the Vice- Presidents shall be in theorder of their nomination, unless otherwise determined by the Board ofDirectors. The Board of Directors may assign such additional titles to one ormore of the officers as they shall deem appropriate. Any one person may holdany number of offices of the corporation at any one time unless specificallyprohibited therefrom by law. The salaries and

 

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othercompensation of the officers of the corporation shall be fixed by or in themanner designated by the Board of Directors.

 

SECTION 4.2   TENURE AND DUTIES OF OFFICERS.

 

(a) GENERAL: All officers shall hold office atthe pleasure of the Board of Directors and until their successors shall havebeen duly elected and qualified, unless sooner removed. Any officer elected orappointed by the Board of Directors may be removed at any time by the Board ofDirectors. If the office of any officer becomes vacant for any reason, thevacancy may be filled by the Board of Directors. Nothing in these Bylaws shallbe construed as creating any kind of contractual right to employment with thecorporation.

 

(b) DUTIES OF THE CHAIRMAN OF THE BOARD OFDIRECTORS: The Chairman of the Board of Directors (if there be such an officerappointed) shall, when present, preside at all meetings of the shareholders andthe Board of Directors. The Chairman of the Board of Directors shall performsuch other duties and have such other powers as the Board of Directors shalldesignate from time to time.

 

(c) DUTIES OF PRESIDENT: The President shall bethe chief executive officer of the corporation and shall preside at allmeetings of the shareholders and at all meetings of the Board of Directors,unless the Chairman of the Board of Directors has been appointed and ispresent. The President shall perform such other duties and have such otherpowers as the Board of Directors shall designate from time to time.

 

(d) DUTIES OF VICE-PRESIDENTS: TheVice-Presidents, in the order of their seniority, may assume and perform theduties of the President in the absence or disability of the President orwhenever the office of the President is vacant. The Vice-President shallperform such other duties and have such other powers as the Board of Directorsor the President shall designate from time to time.

 

(e) DUTIES OF SECRETARY: The Secretary shallattend all meetings of the shareholders and of the Board of Directors and anycommittee thereof, and shall record all acts and proceedings thereof in theminute book of the corporation. The Secretary shall give notice, in conformitywith these Bylaws, of all meetings of the shareholders, and of all meetings ofthe Board of Directors and any Committee thereof requiring notice. TheSecretary shall perform such other duties and have such other powers as theBoard of Directors shall designate from time to time. The President may directany Assistant Secretary to assume and perform the duties of the Secretary inthe absence or disability of the Secretary, and each Assistant Secretary shall performsuch other duties and have such other powers as the Board of Directors or thePresident shall designate from time to time.

 

(f) DUTIES OF TREASURER: The Treasurer shallkeep or cause to be kept the books of account of the corporation in a thoroughand proper manner, and shall render statements of the financial affairs of thecorporation in such form and as often as required by the Board of Directors orthe President. The Treasurer, subject to the order of the Board of Directors,shall have the custody of all funds and securities of the corporation. TheTreasurer shall perform all other duties commonly incident to his office andshall perform such other duties and have such

 

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otherpowers as the Board of Directors or the President shall designate from time totime. The President may direct any Assistant Treasurer to assume and performthe duties of the Treasurer in the absence or disability of the Treasurer, and eachAssistant Treasurer shall perform such other duties and have such other powersas the Board of Directors or the President shall designate from time to time.

 

**ARTICLE V**

 

**EXECUTION OF CORPORATEINSTRUMENTS, AND**

**VOTING OF SECURITIES OWNED BY THECORPORATION**

 

SECTION 5.1   EXECUTION OF CORPORATE INSTRUMENTS.

 

(a) The Board of Directors may, in itsdiscretion, determine the method and designate the signatory officer orofficers, or other person or persons, to execute any corporate instrument ordocument, or to sign the corporate name without limitation, except whereotherwise provided by law, and such execution or signature shall be bindingupon the corporation.

 

(b) Unless otherwise specifically determined bythe Board of Directors or otherwise required by law, formal contracts of thecorporation, promissory notes, deeds of trust, mortgages and other evidences ofindebtedness of the corporation, and other corporate instruments or documentsrequiring the corporate seal, and certificates of shares of stock owned by thecorporation, shall be executed, signed or endorsed by the Chairman of the Board(if there be such an officer appointed) or by the President; such documents mayalso be executed by any Vice-President and by the Secretary or Treasurer or anyAssistant Secretary or Assistant Treasurer. All other instruments and documentsrequiring the corporate signature, but not requiring the corporate seal, may beexecuted as aforesaid or in such other manner as may be directed by the Boardof Directors.

 

(c) All checks and drafts drawn on banks orother depositaries on funds to the credit of the corporation, or in specialaccounts of the corporation, shall be signed by such person or persons as theBoard of Directors shall authorize so to do.

 

SECTION 5.2   VOTING OF SECURITIES OWNED BY CORPORATION.

 

All stock and other securities of other corporationsowned or held by the corporation for itself, or for other parties in anycapacity, shall be voted, and all proxies with respect thereto shall beexecuted, by the person authorized so to do by resolution of the Board ofDirectors or, in the absence of such authorization, by the Chairman of theBoard (if there be such an officer appointed), or by the President, or by anyVice-President.

 

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**ARTICLE VI**

 

**SHARES OF STOCK**

 

SECTION 6.1   FORM AND EXECUTION OF CERTIFICATES.

 

Certificates for the shares of stock of thecorporation shall be in such form as is consistent with the Certificate ofIncorporation and applicable law. Every holder of stock in the corporationshall be entitled to have a certificate signed by, or in the name of thecorporation by, the Chairman of the Board (if there be such an officerappointed), or by the President or any Vice-President and by the Treasurer orAssistant Treasurer or the Secretary or Assistant Secretary, certifying thenumber of shares owned by him in the corporation. Any or all of the signatureson 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 shall have ceased to be such officer, transfer agent, or registrarbefore such certificate is issued, it may be issued with the same effect as ifhe were such officer, transfer agent, or registrar at the date of issue. If thecorporation shall be authorized to issue more than one class of stock or morethan one series of any class, the powers, designations, preferences andrelative, participating, optional or other special rights of each class ofstock or series thereof and the qualifications, limitations or restrictions ofsuch preferences and/or rights shall be set forth in full or summarized on theface or back of the certificate which the corporation shall issue to representsuch class or series of stock, provided that, except as otherwise provided in section 202of the Delaware General Corporation Law, in lieu of the foregoing requirements,there may be set forth on the face or back of the certificate which thecorporation shall issue to represent such class or series of stock, a statementthat the corporation will furnish without charge to each stockholder who sorequests the powers, designations, preferences and relative, participating,optional or other special rights of each class of stock or series thereof andthe qualifications, limitations or restrictions of such preferences and/orrights.

 

SECTION 6.2   LOST CERTIFICATES.

 

The Board of Directors may direct a new certificateor certificates to be issued in place of any certificate or certificatestheretofore issued by the corporation alleged to have been lost or destroyed,upon the making of an affidavit of that fact by the person claiming thecertificate of stock to be lost or destroyed. When authorizing such issue of anew certificate or certificates, the Board of Directors may, in its discretionand as a condition precedent to the issuance thereof, require the owner of suchlost or destroyed certificate or certificates, or his legal representative, toindemnify the corporation in such manner as it shall require and/or to give thecorporation a surety bond in such form and amount as it may direct as indemnityagainst any claim that may be made against the corporation with respect to thecertificate alleged to have been lost or destroyed.

 

SECTION 6.3   TRANSFERS.

 

Transfers of record of shares of stock of thecorporation shall be made only upon its books by the holders thereof, in personor by attorney duly authorized, and upon the surrender of a certificate orcertificates for a like number of shares, properly endorsed.

 

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SECTION 6.4   FIXING RECORD DATES.

 

(a) In order that the corporation may determinethe stockholders entitled to notice of or to vote at any meeting of stockholdersor any adjournment thereof, the Board of Directors may fix a record date, whichrecord date shall not precede the date upon which the resolution fixing therecord date is adopted by the Board of Directors, and which record date shallnot be more than sixty nor less than ten days before the date of such meeting.If no record date is fixed by the Board of Directors, the record date fordetermining stockholders entitled to notice of or to vote at a meeting ofstockholders shall be at the close of business on the day next preceding theday on which notice is given, or, if notice is waived, at the close of businesson the day next preceding the date on which the meeting is held. Adetermination of stockholders of record entitled 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.

 

(b) In order that the corporation may determinethe stockholders entitled to consent to corporate action in writing without ameeting, the Board of Directors may fix a record date, which record date shallnot precede the date upon which the resolution fixing the record date isadopted by the Board of Directors, and which date shall not be more than tendays after the date upon which the resolution fixing the record date is adoptedby the Board of Directors. If no record date has been fixed by the Board ofDirectors, the record date for determining stockholders entitled to consent tocorporate action in writing without a meeting, when no prior action by theBoard of Directors is required by the Delaware General Corporation Law, shallbe the first date on which a signed written consent setting forth the actiontaken or proposed to be taken is delivered to the corporation by delivery toits registered office in Delaware, its principal place of business, or anofficer or agent of the corporation having custody of the book in whichproceedings of meetings of stockholders are recorded. Delivery made to acorporation’s registered office shall be by hand or by certified or registeredmail, return receipt requested. If no record date has been fixed by the Boardof Directors and prior action by the Board of Directors is required by law, therecord date for determining stockholders entitled to consent to corporateaction in writing without a meeting shall be at the close of business on theday on which the Board of Directors adopts the resolution taking such prioraction.

 

(c) In order that the corporation may determinethe 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 6.5   REGISTERED STOCKHOLDERS.

 

The corporation shall be entitled to recognize theexclusive right of a person registered on its books as the owner of shares toreceive dividends, and to vote as such owner, and shall not be bound torecognize any equitable or other claim to or interest in such share or shareson the part

 

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ofany other person, whether or not it shall have express or other notice thereof,except as otherwise provided by the laws of Delaware.

 

**ARTICLE VII**

 

**OTHER SECURITIES OF THE CORPORATION**

 

All bonds, debentures and other corporate securitiesof the corporation, other than stock certificates, may be signed by theChairman of the Board (if there be such an officer appointed), or the Presidentor any Vice-President or such other person as may be authorized by the Board ofDirectors and the corporate seal impressed thereon or a facsimile of such seal imprintedthereon and attested by the signature of the Secretary or an Assistant Secretary,or the Treasurer or an Assistant Treasurer; provided, however, that where anysuch bond, debenture or other corporate security shall be authenticated by themanual signature of a trustee under an indenture pursuant to which such bond,debenture or other corporate security shall be issued, the signature of thepersons signing and attesting the corporate seal on such bond, debenture orother corporate security may be the imprinted facsimile of the signatures ofsuch persons. Interest coupons appertaining to any such bond, debenture orother corporate security, authenticated by a trustee as aforesaid, shall besigned by the Treasurer or an Assistant Treasurer of the corporation, or suchother person as may be authorized by the Board of Directors, or bear imprintedthereon the facsimile signature of such person. In case any officer who shallhave signed or attested any bond, debenture or other corporate security, orwhose facsimile signature shall appear thereon or before the bond, debenture orother corporate security so signed or attested shall have been delivered, suchbond, debenture or other corporate security nevertheless may be adopted by thecorporation and issued and delivered as though the person who signed the sameor whose facsimile signature shall have been used thereon had not ceased to besuch officer of the corporation.

 

**ARTICLE VIII**

 

**CORPORATE SEAL**

 

The corporate seal shall consist of a die bearingthe name of the corporation and the state and date of its incorporation. Saidseal may be used by causing it or a facsimile thereof to be impressed oraffixed or reproduced or otherwise.

 

**ARTICLE IX**

 

**INDEMNIFICATION OF OFFICERS,DIRECTORS, EMPLOYEES AND AGENTS**

 

SECTION 9.1   RIGHT TO INDEMNIFICATION.

 

Each person who was or is a party or is threatenedto be made a party to or is involved (as a party, witness, or otherwise), inany threatened, pending, or completed action, suit, or proceeding, whethercivil, criminal, administrative, or investigative (hereinafter a “Proceeding”),by reason of the fact that he, or a person of whom he is the legal representative,is or was a director, officer, employee, or agent of the corporation or is orwas serving at the request of the

 

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corporationas a director, officer, employee, or agent of another corporation or of apartnership, joint venture, trust, or other enterprise, including service withrespect to employee benefit plans, whether the basis of the Proceeding is allegedaction in an official capacity as a director, officer, employee, or agent or inany other capacity while serving as a director, officer, employee, or agent(hereafter an “Agent”), shall be indemnified and held harmless by the corporationto the fullest extent authorized by the Delaware General Corporation Law, asthe same exists or may hereafter be amended or interpreted (but, in the case ofany such amendment or interpretation, only to the extent that such amendment orinterpretation permits the corporation to provide broader indemnificationrights than were permitted prior thereto) against all expenses, liability, andloss (including attorneys’ fees, judgments, fines, ERISA excise taxes orpenalties, and amounts paid or to be paid in settlement, and any interest,assessments, or other charges imposed thereon, and any federal, state, local, orforeign taxes imposed on any Agent as a result of the actual or deemed receiptof any payments under this Article) reasonably incurred or suffered by suchperson in connection with investigating, defending, being a witness in, or participatingin (including on appeal), or preparing for any of the foregoing in, anyProceeding (hereinafter “Expenses”); PROVIDED, HOWEVER, that except as toactions to enforce indemnification rights pursuant to Section 9.3 of this Article,the corporation shall indemnify any Agent seeking indemnification in connectionwith a Proceeding (or part thereof) initiated by such person only if theProceeding (or part thereof) was authorized by the Board of Directors of the corporation.The right to indemnification conferred in this Article shall be a contractright.

 

SECTION 9.2   AUTHORITY TO ADVANCE EXPENSES.

 

Expenses incurred by an officer or director (actingin his capacity as such) in defending a Proceeding shall be paid by thecorporation in advance of the final disposition of such Proceeding, PROVIDED,HOWEVER, that if required by the Delaware General Corporation Law, as amended,such Expenses shall be advanced only upon delivery to the corporation of anundertaking by or on behalf of such director or officer to repay such amount ifit shall ultimately be determined that he is not entitled to be indemnified bythe corporation as authorized in this Article or otherwise. Expensesincurred by other Agents of the corporation (or by the directors or officersnot acting in their capacity as such, including service with respect toemployee benefit plans) may be advanced upon such terms and conditions as theBoard of Directors deems appropriate. Any obligation to reimburse thecorporation for Expense advances shall be unsecured and no interest shall becharged thereon.

 

SECTION 9.3   RIGHT OF CLAIMANT TO BRING SUIT.

 

If a claim under Section 9.1 or 9.2 of this Article isnot paid in full by the corporation within 180 days after a written claim hasbeen received by the corporation, the claimant may at any time thereafter bringsuit against the corporation to recover the unpaid amount of the claim and, ifsuccessful in whole or in part, the claimant shall be entitled to be paid alsothe expense (including attorneys’ fees) of prosecuting such claim. It shall bea defense to any such action (other than an action brought to enforce a claimfor expenses incurred in defending a Proceeding in advance of its finaldisposition where the required undertaking has been tendered to thecorporation) that the claimant has not met the standards of conduct that makeit permissible under the Delaware General Corporation Law for the corporationto indemnify the claimant for the amount claimed. The burden of proving such adefense shall be on the corporation. Neither

 

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thefailure of the corporation (including its Board of Directors, independent legalcounsel, or its stockholders) to have made a determination prior to the commencementof such action that indemnification of the claimant is proper under thecircumstances because he has met the applicable standard of conduct set forthin the Delaware General Corporation Law, nor an actual determination by thecorporation (including its Board of Directors, independent legal counsel, or itsstockholders) that the claimant had not met such applicable standard of conduct,shall be a defense to the action or create a presumption that claimant has notmet the applicable standard of conduct.

 

SECTION 9.4   PROVISIONS NONEXCLUSIVE.

 

The rights conferred on any person by this Article shallnot be exclusive of any other rights that such person may have or hereafteracquire under any statute, provision of the Certificate of Incorporation,agreement, vote of stockholders or disinterested directors, or otherwise, bothas to action in an official capacity and as to action in another capacity whileholding such office. To the extent that any provision of the Certificate,agreement, or vote of the stockholders or disinterested directors isinconsistent with these bylaws, the provision, agreement, or vote shall takeprecedence.

 

SECTION 9.5   AUTHORITY TO INSURE.

 

The corporation may purchase and maintain insuranceto protect itself and any Agent against any Expense, whether or not the corporationwould have the power to indemnify the Agent against such Expense underapplicable law or the provisions of this Article.

 

SECTION 9.6   SURVIVAL OF RIGHTS.

 

The rights provided by this Article shallcontinue as to a person who has ceased to be an Agent and shall inure to thebenefit of the heirs, executors, and administrators of such a person.

 

SECTION 9.7   SETTLEMENT OF CLAIMS.

 

The corporation shall not be liable to indemnify anyAgent under this Article (a) for any amounts paid in settlement ofany action or claim effected without the corporation’s written consent, whichconsent shall not be unreasonably withheld; or (b) for any judicial awardif the corporation was not given a reasonable and timely opportunity, at itsexpense, to participate in the defense of such action.

 

SECTION 9.8   EFFECT OF AMENDMENT.

 

Any amendment, repeal, or modification of this Article shallnot adversely affect any right or protection of any Agent existing at the timeof such amendment, repeal, or modification.

 

SECTION 9.9   SUBROGATION.

 

In the event of payment under this Article, thecorporation shall be subrogated to the extent of such payment to all of therights of recovery of the Agent, who shall execute all papers required andshall do everything that may be necessary to secure such rights, including the

 

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executionof such documents necessary to enable the corporation effectively to bring suitto enforce such rights.

 

SECTION 9.10  NO DUPLICATION OF PAYMENTS.

 

The corporation shall not be liable under this Article tomake any payment in connection with any claim made against the Agent to theextent the Agent has otherwise actually received payment (under any insurancepolicy, agreement, vote, or otherwise) of the amounts otherwise indemnifiablehereunder.

 

**ARTICLE X**

 

**NOTICES**

 

Whenever, under any provisions of these Bylaws,notice is required to be given to any stockholder, the same shall be given inwriting, timely and duly deposited in the United States Mail, postage prepaid,and addressed to his last known post office address as shown by the stockrecord of the corporation or its transfer agent. Any notice required to begiven to any director may be given by the method herein above stated, or bytelegram or other means of electronic transmission, except that such noticeother than one which is delivered personally, shall be sent to such address or(in the case of facsimile telecommunication) facsimile telephone number as suchdirector shall have filed in writing with the Secretary of the corporation, or,in the absence of such filing, to the last known post office address of suchdirector. If no address of a stockholder or director be known, such notice maybe sent to the office of the corporation required to be maintained pursuant to Section 1.2of Article I hereof. An affidavit of mailing, executed by a dulyauthorized and competent employee of the corporation or its transfer agentappointed with respect to the class of stock affected, specifying the name andaddress or the names and addresses of the stockholder or stockholders, directoror directors, to whom any such notice or notices was or were given, and thetime and method of giving the same, shall be conclusive evidence of thestatements therein contained. All notices given by mail, as above provided,shall be deemed to have been given as at the time of mailing and all noticesgiven by telegram or other means of electronic transmission shall be deemed tohave been given as at the sending time recorded by the telegraph company orother electronic transmission equipment operator transmitting the same. Itshall not be necessary that the same method of giving be employed in respect ofall directors, but one permissible method may be employed in respect of any oneor more, and any other permissible method or methods may be employed in respectof any other or others. The period or limitation of time within which anystockholder may exercise any option or right, or enjoy any privilege orbenefit, or be required to act, or within which any director may exercise anypower or right, or enjoy any privilege, pursuant to any notice sent him in themanner above provided, shall not be affected or extended in any manner by thefailure of such a stockholder or such director to receive such notice. Wheneverany notice is required to be given under the provisions of the statutes or ofthe Certificate of Incorporation, or of these Bylaws, a waiver thereof inwriting signed by the person or persons entitled to said notice, whether beforeor after the time stated therein, shall be deemed equivalent thereto. Whenevernotice is required to be given, under any provision of law or of theCertificate of Incorporation or Bylaws of the corporation, to any person withwhom communication is unlawful, the giving of such notice to such person shallnot be required and there shall be no duty to apply to any

 

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governmentalauthority or agency for a license or permit to give such notice to such person.Any action or meeting which shall be taken or held without notice to any suchperson with whom communication is unlawful shall have the same force and effectas if such notice had been duly given. In the event that the action taken bythe corporation is such as to require the filing of a certificate under anyprovision of the Delaware General Corporation Law, the certificate shall state,if such is the fact and if notice is required, that notice was given to allpersons entitled to receive notice except such persons with whom communicationis unlawful.

 

**ARTICLE XI**

 

**AMENDMENTS**

 

These Bylaws may be repealed, altered or amended ornew Bylaws adopted by written consent of stockholders in the manner authorizedby Section 2.11 of Article II, or at any meeting of the stockholders,either annual or special, by the affirmative vote of a majority of the stockentitled to vote at such meeting, unless a larger vote is required by theseBylaws or the Certificate of Incorporation. The Board of Directors shall alsohave the authority to repeal, alter or amend these Bylaws or adopt new Bylaws(including, without limitation, the amendment of any Bylaws setting forth thenumber of directors who shall constitute the whole Board of Directors) byunanimous written consent or at any annual, regular, or special meeting by theaffirmative vote of a majority of the whole number of directors, subject to thepower of the stockholders to change or repeal such Bylaws and provided that theBoard of Directors shall not make or alter any Bylaws fixing thequalifications, classifications, or term of office of directors.

 

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**CERTIFICATE OF SECRETARY**

 

The undersigned, Secretary of Digimarc Corporation,a Delaware corporation, hereby certifies that the foregoing is a full, true andcorrect copy of the Bylaws of said corporation, with all amendments to date ofthis Certificate.

 

WITNESS the signature of the undersigned this 15thday of July, 2005.

 
|   | By:    | /s/ Robert Chamness        |   |
|--------|--------|----------------------------|--------|
|   |   | Robert Chamness, Secretary |

 

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