Exhibit 3.2 

 

**eUNIVERSE, INC.**

 

**BYLAWS**

 

ARTICLE I - STOCKHOLDERS

 

Section 1. Annual Meeting. 

 

An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, andat such time as the Board of Directors shall each year fix, which date shall be within thirteen (13) months of the last annual meeting of stockholders or, if no such meeting has been held, the date of incorporation. Any other proper business may betransacted at the annual meeting. 

 

Section 2. SpecialMeetings. 

 

Special meetings of the stockholders, for anypurpose or purposes prescribed in the notice of the meeting, may be called by the Chairman of the Board, if any, the Vice Chairman of the Board, if any, the Chief Executive Officer, the President or the Board of Directors, and shall be held at suchplace, on such date, and at such time as they or he or she shall fix. 

 

Section 3. Notice of Meetings. 

 

Notice of theplace, if any, date, and time of all meetings of the stockholders shall be given, not less than ten (10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, exceptas otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation including any Preferred Stock Designation,as defined therein). 

When a meeting is adjourned to another time or place, notice need not be given of the adjourned meetingif the time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which theadjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, notice of theplace, date, and time of the adjourned meeting and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting, shall be given in conformity herewith. Atany adjourned meeting, any business may be transacted which might have been transacted at the original meeting. 

 

Section 4. Quorum. 

 

At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or byproxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. Where a separate vote by a class or classes or series is required, a majority of the shares of such classor classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter. 

 

If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote who arepresent, in person or by proxy, may adjourn the meeting to another place, if any, date, or time. 

 

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Section 5. Organization. 

 

Such person as the Board of Directors may have designated or, in the absence of such a person, the Chief Executive Officeror President of the Corporation or, in his, her or their absence, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholdersand act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints. 

 

Section 6. Conduct of Business. 

 

The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting,including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall beannounced at the meeting. 

 

Section 7. Proxies andVoting. 

 

At any meeting of the stockholders, everystockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy, facsimile telecommunication orother reliable reproduction of the writing or transmission created pursuant to this paragraph may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could beused, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. 

 

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The Corporation may, and to the extent required by law, shall, in advance of any meeting of stockholders,appoint one or more inspectors to act at the meeting and make a written report thereof. The Corporation may designate one or more alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at ameeting of stockholders, the person presiding at the meeting may, and to the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take andsign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting.

 

All elections shall be determined by a plurality of the votescast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast affirmatively or negatively. 

 

Section 8. Stock List. 

 

A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing theaddress of each such stockholder and the number of shares registered in his or her name, shall be open to the examination of any such stockholder for a period of at least ten (10) days prior to the meeting in the manner provided by law. 

 

The stock list shall also be open to the examination of any stockholderduring the whole time of the meeting as provided by law. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. 

 

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Section 9. Consent of Stockholders in Lieu of Meeting.

 

To the fullest extent permitted by law, any action required to be taken atany annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if, subject to therights of the holders of any series of Preferred Stock under specified circumstances, a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than a majority of thevotes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principalplace of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be made by hand or by certified orregistered mail, return receipt requested. 

 

Every writtenconsent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the date the earliest dated consent isdelivered to the Corporation, a written consent or consents signed by a sufficient number of holders to take action are delivered to the Corporation in the manner prescribed in the first paragraph of this Section. A telegram, cablegram or otherelectronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for thepurposes of this Section to the extent permitted by law. 

 

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Any copy, facsimile, or other reliable reproduction of a consent in writing may be submitted or used inlieu of the original writing for any and all purposes for which the original writing could be use, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. 

 

ARTICLE II - BOARD OF DIRECTORS

 

Section 1. Number and Term of Office. 

 

Subject to the rights of the holders of any series of Preferred Stock toelect additional directors under specified circumstances, the number of directors shall be fixed from time to time exclusively by the board of directors pursuant to a resolution adopted by a majority of the Whole Board. For purposes of these Bylaws,the term “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships. Each director shall be elected for a term of one year and until his or hersuccessor is elected and qualified, except as otherwise provided herein or required by law. 

 

To the fullest extent permitted by law, whenever the authorized number of directors is increased between annual meetings of the stockholders, such newly created directorships may only be filled by a majority of thedirectors then in office. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of the directors then in office unless, at the time of such decrease, there shall be vacancies on the boardwhich are being eliminated by the decrease. 

 

Section 2.Vacancies. 

 

To the fullest extent permitted by law, ifthe office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, such vacancy may only be filled by a majority of the directors remaining in office, although less than a quorum. 

 

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Section 3. Regular Meetings. 

 

Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time ortimes as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required. 

 

Section 4. Special Meetings. 

 

Special meetings of the Board of Directors may be called by one-third (1/3) of the directors then in office (rounded up to the nearest whole number) or bythe Chief Executive Officer, President or Secretary and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of the place, date, and time of each such special meeting shall be given to each director bywhom it is not waived by mailing written notice not less than five (5) days before the meeting or by telegraphing or telexing or by facsimile or electronic transmission of the same not less than twenty-four (24) hours before the meeting. Unlessotherwise indicated in the notice thereof, any and all business may be transacted at a special meeting. 

 

Section 5. Quorum. 

 

At any meeting of the Board of Directors, a majority of the total number of the whole Board of Directors shall constitute a quorum for all purposes. If aquorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof. 

 

Section 6. Participation in Meetings By Conference Telephone. 

 

Members of the Board of Directors, or of any committee thereof, mayparticipate in a meeting of such Board of Directors or committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other and such participation shallconstitute presence in person at such meeting. 

 

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Section 7. Conduct of Business. 

 

At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board of Directorsmay from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if allmembers thereof consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors. Such filing shall be in paper formif the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. 

 

Section 8. Compensation of Directors. 

 

Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors,including, without limitation, their services as members of committees of the Board of Directors. 

 

ARTICLE III - COMMITTEES

 

Section 1. Committees of the Board of Directors. 

 

The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors andshall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member atany meeting of the committee. In the absence or disqualification of any member of any committee 

 

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and any alternate member in his or her place, the member or members of the committee present at the meeting and not disqualified from voting, whether or nothe or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member. 

 

Section 2. Conduct of Business. 

 

Meetings and actions of committees shall be governed by, and held and taken in accordance with, the provisions of Section 3(regular meetings), Section 4 (special meetings and notice), Section 5 (quorum), Section 6 (meetings by telephone), and Section 7 (conduct of business) of Article II of these Bylaws, with such changes in the context of such provisions as arenecessary to substitute the committee and its members for the Board of Directors and its members; provided, however, that the time of regular meetings of committees may be determined either by resolution of the Board of Directors or by resolution ofthe committee, that special meetings of committees may also be called by resolution of the Board of Directors and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend allmeetings of the committee. 

 

ARTICLE IV - OFFICERS

 

Section 1. Officers. 

 

The officers of the corporation shall be a President and Secretary. Thecorporation may also have, at the discretion of the Board of Directors, a Chief Executive Officer, a Chief Financial Officer, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers, and any such otherofficers as may be appointed in accordance with the provisions of Section 3 of Article IV of these Bylaws. Any number of offices may be held by the same person. 

 

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Section 2. Appointment of Officers. 

 

The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Sections 3 or5 of Article IV of these Bylaws, shall be appointed by the Board of Directors, subject to the rights, if any, of an officer under any contract of employment. 

 

Section 3. Subordinate Officers. 

 

The Board of Directors may appoint, or empower the Chief Executive Officer or the President to appoint, such other officers and agents as the business ofthe corporation may require, each of whom shall hold office for such period, have such authority, and perform such duties as are provided in these Bylaws or as the Board of Directors may from time to time determine. 

 

Section 4. Removal and Resignation of Officers. 

 

Subject to the rights, if any, of an officer under any contract ofemployment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board of Directors at any regular or special meeting of the board or, except in the case of an officer chosen by the Board ofDirectors, by any officer upon whom such power of removal may be conferred by the Board of Directors. 

 

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

 

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Section 5. Vacancies in Offices. 

 

Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors. 

 

Section 6. Chief Executive Officer. 

 

Subject to such supervisory powers, if any, as may be given by the Board ofDirectors to the Chairman of the Board, if any, the Chief Executive Officer of the corporation (if such an officer is appointed) shall, subject to the control of the Board of Directors, have general supervision, direction, and control of thebusiness and the officers of the corporation. He or she shall preside at all meetings of the stockholders and, in the absence or nonexistence of a Chairman of the Board, at all meetings of the Board of Directors and shall have the general powers andduties of management usually vested in the office of chief executive officer of a corporation and shall have such other powers and duties as may be prescribed by the Board of Directors or these bylaws. 

 

Section 7. President. 

 

Subject to such supervisory powers, if any, as may be given by the Board ofDirectors to the Chairman of the Board (if any) or the Chief Executive Officer, the President shall have general supervision, direction, and control of the business and other officers of the corporation. He or she shall have the general powers andduties of management usually vested in the office of president of a corporation and such other powers and duties as may be prescribed by the Board of Directors or these Bylaws. 

 

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Section 8. Vice Presidents. 

 

In the absence or disability of the Chief Executive Officer and President, the vice presidents, if any, in order of theirrank as fixed by the Board of Directors or, if not ranked, a vice president designated by the Board of Directors, shall perform all the duties of the President and when so acting shall have all the powers of, and be subject to all the restrictionsupon, the president. The vice presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors, these Bylaws, the President or the Chairman of the Board.

 

Section 9. Secretary. 

 

The Secretary shall keep or cause to be kept, at the principal executiveoffice of the corporation or such other place as the Board of Directors may direct, a book of minutes of all meetings and actions of directors, committees of directors, and stockholders. The minutes shall show the time and place of each meeting, thenames of those present at directors’ meetings or committee meetings, the number of shares present or represented at stockholders’ meetings, and the proceedings thereof. 

 

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

 

The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors required to be given by law orby these Bylaws. He or she shall keep the seal of the corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by these Bylaws. 

 

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Section 10. Chief Financial Officer. 

 

The Chief Financial Officer shall keep and maintain, or cause to be kept andmaintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital retained earnings, andshares. The books of account shall at all reasonable times be open to inspection by any director. 

 

The Chief Financial Officer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositories as may bedesignated by the Board of Directors. He or she shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President, the Chief Executive Officer, or the directors, upon request, an account of allhis or her transactions as Chief Financial Officer and of the financial condition of the corporation, and shall have other powers and perform such other duties as may be prescribed by the Board of Directors or the bylaws. 

 

Section 11. Representation of Shares of Other Corporations.

 

The Chairman of the Board, the Chief Executive Officer, thePresident, the Chief Financial Officer, the Secretary or assistant secretary of this corporation, or any other person authorized by the Board of Directors or the Chief Executive Officer or the President, is authorized to vote, represent, andexercise on behalf of this corporation all rights incident to any and all shares of any other corporation or corporations standing in the name of this corporation. The authority granted herein may be exercised either by such person directly or byany other person authorized to do so by proxy or power of attorney duly executed by the person having such authority. 

 

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Section 12 Authority and Duty of Officers. 

 

In addition to the foregoing authority and duties, all officers of thecorporation shall respectively have such authority and perform such duties in the management of the business of the corporation as may be designated from time to time by the Board of Directors or the stockholders. 

 

ARTICLE V - STOCK

 

Section 1. Certificates of Stock. 

 

Each stockholder shall be entitled to a certificate signed by, or in thename of the Corporation by, the President or Chief Executive Officer, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by him or her. Any or all of the signatures onthe certificate may be by facsimile. 

 

Section 2. Transfersof Stock. 

 

Transfers of stock shall be made only upon thetransfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of Article V of theseBy-laws, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor. 

 

Section 3. Record Date. 

 

In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, or to receive payment of anydividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion or 

 

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exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the dateon which the resolution fixing the record date is adopted and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for suchother action as hereinbefore described; provided, however, that if no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close ofbusiness on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining stockholders entitled to receive payment ofany dividend or other distribution or allotment of rights or to exercise any rights of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the day on which the Board of Directorsadopts a resolution relating thereto. 

 

A determination ofstockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. 

 

In order that the Corporation may determine the stockholders entitled toconsent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record dateshall be not more than ten (10) days after the date upon which the resolution fixing the record date is adopted. If no record date has been fixed by the Board of Directors and no prior action by the Board of Directors is required by the DelawareGeneral Corporation Law, the record date shall be the first date on which a signed written 

 

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consent setting forth the action taken or proposed to be taken is delivered to the Corporation in the manner prescribed by Article I, Section 9 hereof. If norecord date has been fixed by the Board of Directors and prior action by the Board of Directors is required by the Delaware General Corporation Law with respect to the proposed action by written consent of the stockholders, the record date fordetermining stockholders entitled to consent to corporate action in writing shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. 

 

Section 4. Lost, Stolen or Destroyed Certificates. 

 

In the event of the loss, theft or destruction of any certificate of stock,another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity. 

 

Section 5. Regulations. 

 

The issue, transfer, conversion and registration of certificates of stockshall be governed by such other regulations as the Board of Directors may establish. 

 

ARTICLE VI - NOTICES

 

Section 1. Notices. 

 

If mailed, notice tostockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise maybe given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law. 

 

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Section 2. Waivers. 

 

Whenever notice is required to be given under any provision of the General Corporation Law of Delaware or of the certificateof incorporation or these Bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiverof notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither thebusiness to be transacted at, nor the purpose of, any regular or special meeting of the directors, or members of a committee of directors, need be specified in any written waiver of notice unless so required by the certificate of incorporation orthese Bylaws. 

 

ARTICLE VII - MISCELLANEOUS

 

Section 1. Facsimile Signatures. 

 

In addition to the provisions for use of facsimile signatures elsewherespecifically authorized in these By-laws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof. 

 

Section 2. Corporate Seal. 

 

The Board of Directors may provide a suitable seal, containing the name ofthe Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or AssistantTreasurer. 

 

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Section 3. Reliance upon Books, Reports and Records. 

 

Each director, each member of any committee designated by the Board ofDirectors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports orstatements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or committee member reasonably believes are within suchother person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation. 

 

Section 4. Fiscal Year. 

 

The fiscal year of the Corporation shall be as fixed by the Board of Directors. 

 

Section 5. Time Periods. 

 

In applying any provision of these By-laws which requires that an act be done or not be done a specified number of days prior to an event or that an actbe done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included. 

 

ARTICLE VIII - INDEMNIFICATION OF DIRECTORS AND OFFICERS

 

Section 1. Right to Indemnification. 

 

Each person who was or is made a party or is threatened to be made a partyto or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of theCorporation or is or was serving at the request of the Corporation as a director, officer, or trustee of another corporation or of a partnership, joint venture, trust or other 

 

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enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding isalleged action in an official capacity as a director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by theDelaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such lawpermitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or sufferedby such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this ARTICLE VIII with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee inconnection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. 

 

Section 2. Right to Advancement of Expenses. 

 

In addition to the right to indemnification conferred in Section 1 of this ARTICLE VIII an indemnitee shall also have theright to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if theDelaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, withoutlimitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by 

 

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or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is nofurther right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise. 

 

Section 3. Right of Indemnitee to Bring Suit. 

 

If a claim under Section 1 or 2 of this ARTICLE VIII is not paid in full by the Corporation within sixty (60) days after awritten claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the indemnitee may at any time thereafter bring suit against theCorporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall beentitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancementof expenses) it shall be a defense that, and (ii) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a finaladjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its directors who are not parties to such action, acommittee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met theapplicable standard of conduct set forth in the Delaware General Corporation Law, 

 

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nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legalcounsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by theindemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the termsof an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this ARTICLE VIII or otherwise shall be on the Corporation. 

 

Section 4. Non-Exclusivity of Rights. 

 

The rights to indemnification and to the advancement of expenses conferredin this ARTICLE VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, By-laws, agreement, vote of stockholders or disinterested directorsor otherwise. 

 

Section 5. Insurance. 

 

The Corporation may maintain insurance, at its expense, to protect itselfand any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnifysuch person against such expense, liability or loss under the Delaware General Corporation Law. 

 

Section 6. Indemnification of Employees and Agents of the Corporation. 

 

The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnificationand to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.

 

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Section 7. Nature of Rights. 

 

The rights conferred upon indemnitees in this ARTICLE VIII shall be contract rights and such rights shall continue as to anindemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this ARTICLE VIII that adversely affects any right ofan indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to suchamendment, alteration or repeal. 

 

ARTICLE IX -AMENDMENTS

 

These Bylaws may be amended or repealed bythe Board of Directors at any meeting or by the stockholders at any meeting. 

 

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