<Page>
EXHIBIT 3.2
AMENDED AND RESTATED BY-LAWS
OF
VASO ACTIVE PHARMACEUTICALS, INC.
A DELAWARE CORPORATION
* * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be located at 1209 Orange Street
in the City of Wilmington, 19801, County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other places
both within and outside the State of Delaware as the board of directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of directors
shall be held at such place either within or outside the State of Delaware as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting. Meetings of stockholders for any other purpose may be
held at such time and place, within or outside the State of Delaware, as shall
be stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. Annual meetings of the stockholders shall be held on such day
during the third month after the end of the Corporation's fiscal year, or at
such other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall elect
directors by a plurality vote and transact such other business as may properly
be brought before the meeting.
Section 3. (a) Nominations of persons for election as directors and
the proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (i) pursuant to the corporation's notice of
meeting (or any supplement thereto), (ii) by or at the direction of the board of
directors or (iii) by any stockholder of the corporation who was a stockholder
of record at the time of giving of notice provided for in this Article II, who
is entitled to
<Page>
vote at the meeting and who complies with the notice procedures set forth in
this Article II.
(b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of paragraph
(a) of Section 3, the stockholder must have given timely notice thereof in
writing to the secretary of the corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the secretary at the principal
executive offices of the corporation not later than the close of business on the
ninetieth day nor earlier than the close of business on the one hundred
twentieth day prior to the first anniversary of the date of the preceding year's
annual meeting; provided, however, that if either the date of the annual meeting
is more than thirty days before or more than seventy days after such anniversary
date, notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the one hundred twentieth day prior to such annual
meeting and not later than the close of business on the later of the ninetieth
day prior to such annual meeting or the close of business on the tenth day
following the day on which public announcement of the date of such meeting is
first made by the corporation. Such stockholder's notice shall set forth (1) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule
14a--11 thereunder (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected); (2)
as to any other business that the stockholder proposes to bring before the
meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that such business
includes a proposal to amend the bylaws of the corporation, the language of the
proposed amendment), the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (3) as to the
stockholder giving the notice and the beneficial owner, if any, on whose behalf
the nomination or proposal is made (A) the name and address of such stockholder,
as they appear on the corporation's books, and of such beneficial owner, (B) the
class and number of shares of common stock of the corporation which are owned
beneficially and of record by such stockholder and such beneficial owner, (C) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to propose such business or nomination, and (D) a
representation whether the stockholder or the beneficial owner, if any, intends
or is part of a group which intends (x) to deliver a proxy statement and/or form
of proxy to holders of at least the percentage of the voting power of the
corporation's outstanding common stock required to approve or adopt the proposal
or elect the nominee and/or (y) otherwise to solicit proxies from stockholders
in support of such proposal or nomination. The corporation may require any
proposed nominee to furnish such other information as it may reasonably require
to determine the eligibility of such proposed nominee to serve as a director of
the corporation.
(c) Notwithstanding anything in the second sentence of paragraph
(b) of Section 3 to the contrary, in the event that the number of directors to
be elected to the board of directors of the corporation is increased and there
is no public announcement by the corporation naming all of the nominees for
director or specifying the size of the increased board of directors at least one
- 2 -
<Page>
hundred days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 3 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the secretary at the
principal executive office of the corporation not later than the close of
business on the tenth day following the day on which such public announcement is
first made by the corporation.
(d) (i) Only such persons who are nominated in accordance with
the procedures set forth in Sections 3 or 6 shall be eligible to be elected at
an annual or special meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in Sections 3 or 6. Except as otherwise provided by law, the
certificate of incorporation or these by-laws, the chairman of the board shall
have the power and duty (x) to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in Sections 3 or 6 (including
whether the stockholder or beneficial owner, if any, on whose behalf the
nomination or proposal is made solicited (or is part of a group which solicited)
or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (b)(iii)(D) of Section 3 and (y) if any
proposed nomination or business was not made or proposed in compliance with
Sections 3 or 6, to declare that such nomination shall be disregarded or that
such proposed business shall not be transacted.
(ii) For purposes of these by-laws, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 and 15(d) of the Exchange Act.
(iii) Notwithstanding the provisions of Sections 3 and 6, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth herein. Nothing in these by-laws shall be deemed to affect any rights (i)
of stockholders to request inclusion of proposals in the corporation's proxy
statement pursuant to Rule 14a--8 under the Exchange Act.
Section 4. Written notice of the annual meeting stating the place, date
and hour of the meeting shall be given to each stockholder entitled to vote at
such meeting not less than ten nor more than sixty days before the date of the
meeting.
Section 5. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced
- 3 -
<Page>
and kept at the time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present.
Section 6. (a) Special meetings of the stockholders, for any purpose
or purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
secretary at the request in writing of a majority of the board of directors.
Such request shall state the purpose or purposes of the proposed meeting. Unless
otherwise prescribed by statute or by the certificate of incorporation,
stockholders of this corporation shall not be entitled to request a special
meeting of stockholders. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
(b) Nominations of persons for election to the board of directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the corporation's notice of meeting (i) by or at the
direction of the board of directors or (ii) provided that the board of directors
has determined that directors shall be elected at such meeting, by any
stockholder of the corporation who is a stockholder of record at the time notice
provided for in Section 3 is delivered to the secretary of the corporation, who
is entitled to vote at the meeting and upon such election, who complies with the
notice procedures set forth in Section 3. If the corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the
board of directors, any such stockholder entitled to vote in such election of
directors may nominate a person or persons (as the case may be), for election to
such position(s) as specified in the corporation's notice of meeting, if the
stockholder's notice required by paragraph (b) of Section 3 shall be delivered
to the secretary at the principal executive offices of the corporation not
earlier than the close of business on the one hundred twentieth day prior to
such special meeting and not later than the later of (x) the close of business
of the ninetieth day prior to such special meeting or (y) the close of business
of the tenth day following the day on which public announcement is first made of
the date of such special meeting and of the nominees proposed by the board of
directors to be elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above.
Section 7. Written notice of a special meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 8. The holders of a majority of the voting power of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified.
- 4 -
<Page>
If the adjournment is for more than thirty days, or if after the adjournment a
new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the voting power of the issued and outstanding shares
entitled to vote shall decide any question brought before such meeting, unless
the question is one upon which by express provision of the statutes or of the
certificate of incorporation, a different vote is required in which case such
express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation,
each holder of Class A common stock of the corporation shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the Class A common stock having voting power held by such stockholder, each
holder of Class B common stock of the corporation shall at every meeting of the
stockholders be entitled to three votes in person or by proxy for each share of
the Class B common stock having voting power held by such stockholder,
respectively, and the holders of Class A common stock and Class B common stock
shall vote together as a single class on all matters on which the stockholders
may vote, except when class voting is required by applicable law or when the
holders of Class B common stock shall be entitled to vote as a separate class in
accordance with the certificate of incorporation. No proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
ARTICLE III
DIRECTORS
Section 1. The corporation shall have less than three directorships. The
number of directorships shall be the number fixed by resolution of the directors
from time to time, or, in the absence thereof, shall be the number of directors
elected at the preceding annual meeting of stockholders or by unanimous written
consent of directors in lieu of such annual meeting. Each director shall hold
office until the next annual stockholders meeting and until his/her successor
shall have been elected and qualified, or until his/her earlier resignation, or
removal from office in accordance with the provisions of the certificate of
incorporation, death or incapacity.
Section 2. Any director may be removed from office only in accordance
with the provisions of the certificate of incorporation.
Section 3. Any vacancies in the board of directors, however occurring,
whether by death, resignation, retirement, disqualification, removal from office
in accordance with the provisions of the certificate of incorporation, or
otherwise, may be filled by the directors remaining in office acting by a
majority vote, and any director so chosen shall hold office until the next
annual stockholders meeting and until his/her successor shall have been elected
and qualified, or until his/her earlier resignation, removal from office in
accordance with the provisions of the certificate of incorporation, death or
incapacity.
- 5 -
<Page>
Section 4. The business of the corporation shall be managed by or under
the direction of its board of directors which may exercise all such powers of
the corporation and do all such lawful acts and things as are not by statute or
by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 5. The board of directors of the corporation may hold meetings,
both regular and special, either within or outside of the State of Delaware.
Section 6. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected
board of directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for
special meetings of the board of directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 7. Regular meetings of the board of directors may be held without
notice at such time and at such place as shall from time to time be determined
by the board.
Section 8. Special meetings of the board may be called by the president
on three days' notice to each director, either personally or by telegram or
telefax, or on seven days' notice to each director by mail; special meetings
shall be called by the president or the secretary in like manner and on like
notice on the written request of two directors unless the board consists of only
one director, in which case special meetings shall be called by the president or
the secretary in like manner and on like notice on the written request of the
sole director.
Section 9. At all meetings of the board a majority of the total number of
directors shall constitute a quorum for the transaction of business, and the act
of a majority of the total number of directors shall be the act of the board of
directors, except as may be otherwise specifically provided by statute or by the
certificate of incorporation. If a quorum shall not be present at any meeting of
the board of directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present.
Section 10. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting, if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes or proceedings of the board or committee.
Section 11. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the board of directors, or any
committee designated by the board of directors, may
- 6 -
<Page>
participate in a meeting of the board of directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at the meeting.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these by-laws, notice is required to be given
to any director or stockholder, such notice may be given in writing, by mail,
addressed to such director or stockholder, at his/her address as it appears on
the records of the corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given by personal delivery,
telegram or telefax.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the board
of directors and shall be a chief executive officer, a president, a chief
financial officer and a secretary. The board of directors may elect from among
its members a chairman of the board. The board of directors may also choose a
vice-president and a treasurer, additional vice-presidents, and one or more
assistant secretaries and assistant treasurers. Any number of offices may be
held by the same person, unless the certificate of incorporation or these
by-laws otherwise provide.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose a chief executive officer, a president, a
chief financial officer and a secretary and may choose one or more
vice-presidents and a treasurer.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board.
Section 4. The salaries of all officers of the corporation shall be fixed
by the board of directors.
- 7 -
<Page>
Section 5. The officers of the corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the board
of directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation,
shall be filled by the board of directors.
THE CHIEF EXECUTIVE OFFICER/PRESIDENT
Section 6. The board of directors may, but is not obligated to, appoint a
chief executive officer. If the board of directors does not appoint a chief
executive officer, the president shall be the chief executive officer of the
corporation. The chief executive officer and the president shall individually or
jointly, as the case may be, have general responsibility for the active and
day-to-day management of the business and affairs of the corporation, shall have
such powers and perform such other duties as described from time to time by the
board of directors and shall see that all orders and resolutions of the board of
directors are carried into effect. In the absence of the chairman of the board,
the president will preside at all meetings of the stockholders and the board of
directors.
Section 7. The chief executive officer and the president shall
individually or jointly, as the case may be, be authorized to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the corporation.
THE CHAIRMAN OF THE BOARD
Section 8. Unless otherwise provided by the board of directors, the
chairman of the board shall preside at all meetings of the stockholders and the
board of directors. The chairman of the board shall have such powers and perform
such other duties as described from to time by the board of directors.
CHIEF FINANCIAL OFFICER
Section 9. The chief financial officer shall be the principal financial
and accounting officer of the corporation, shall have general responsibility for
the active and day-to-day management of the financial affairs of the
corporation, including the establishment and maintenance of internal financial
controls, and shall also have such powers and perform such other duties as
prescribed from time to time by the board of directors.
Section 10. He/she shall be authorized to execute bonds, mortgages and
other contracts requiring a seal, under the seal of the corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the board of directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
- 8 -
<Page>
Section 11. In the absence of the president or in the event of his/her
inability or refusal to act, the board of directors may designate one or more
individuals to carry out the duties of the president. If a vice-president is so
designated by the board of directors, the vice-president (or in the event there
be more than one vice president, the vice-presidents in the order designated by
the directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
president. The vice-presidents shall perform such other duties and have such
other powers as the president or board of directors may from time to time
prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 12. The secretary shall attend all meetings of the board of
directors and all meetings of the stockholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He/she shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he/she shall be. He/she shall have custody of
the corporate seal of the corporation and he/she, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by his/her signature or by the signature of such
assistant secretary. The board of directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing by
his/her signature.
Section 13. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the board of directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the secretary or in the event of his/her inability or refusal to
act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 14. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 15. He/she shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his/her transactions as treasurer and of the financial condition of the
corporation.
Section 16. If required by the board of directors, he/she shall give the
corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the board of directors for
the faithful performance of the duties of his/her office and for the restoration
to the corporation, in case of his/her death, resignation, retirement or removal
- 9 -
<Page>
from office, of all books, papers, vouchers, money and other property of
whatever kind in his/her possession or under his/her control belonging to the
corporation.
Section 17. The assistant treasurer, or if there shall be more than one,
the assistant treasurers in the order determined by the board of directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his/her inability or refusal
to act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the board of directors
may from time to time prescribe.
Section 18. In the event no treasurer or assistant treasurer is elected or
appointed by the board of directors, then the President shall exercise all
powers and duties of the treasurer and assistant treasurer as set forth herein.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by a
certificate or certificates. Certificates shall be signed by, or in the name of
the corporation by, the chairman or vice-chairman of the board of directors, the
president, or a vice-president of the corporation, and the treasurer, an
assistant treasurer, the secretary, or an assistant secretary of the
corporation.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the corporation with the same effect as if he/she
were such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates or uncertificated shares to be issued in place of any certificate
or certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates or uncertificated
shares, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his/her legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
- 10 -
<Page>
TRANSFER OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the corporation.
FIXING RECORD DATE
Section 5. In order that the corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or, unless otherwise provided in the certificate of
incorporation, to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting: provided, however,
that the board of directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 1. DEFINITIONS. For purposes of this Article VII the following
terms shall have the meanings indicated:
"Corporate Status" describes the status of a person who is or was a
director, officer, employee, agent, trustee or fiduciary of the Corporation or
of any other corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise which such person is or was serving at the request of
the Corporation.
- 11 -
<Page>
"Court" means the Court of Chancery of the State of Delaware, the court in
which the Proceeding in respect of which indemnification is sought by a Covered
Person shall have been brought or is pending, or another court having subject
matter jurisdiction and personal jurisdiction over the parties.
"Covered Person" means a person who is a present or former director or
officer of the corporation and shall include such person's legal
representatives, heirs, executors and administrators.
"Disinterested" describes any individual, whether or not that individual is
a director, officer, employee or agent of the corporation who is not and was not
and is not threatened to be made a party to the Proceeding in respect of which
indemnification, advancement of expenses or other action, is sought by a Covered
Person.
"Expenses" shall include, without limitation, all reasonable attorneys'
fees, retainers, court costs, transcript costs, fees of experts, witness fees,
travel expenses, duplicating costs, printing and binding costs, telephone
charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending,
preparing to prosecute or defend, investigating or being or preparing to be a
witness in a Proceeding.
"Good Faith" shall mean a covered Person having acted in good faith and in
a manner such Covered Person reasonably believed to be in or not opposed to the
best interests of the corporation or, in the case of an employee benefit plan,
the best interests of the participants or beneficiaries of said plan, as the
case may be, and, with respect to any Proceeding which is criminal in nature,
having had no reasonable cause to believe such Covered Person's conduct was
unlawful.
"Independent Counsel" means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and may include law firms or members
thereof that are regularly retained by the corporation but not by any other
party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the standards of professional conduct then prevailing and
applicable to such counsel, would have a conflict of interest in representing
either the corporation or Covered Person in an action to determine the Covered
Person's rights under this Article.
"Officer" means the chairman of the board, president, vice presidents,
treasurer, assistant treasurer(s), secretary, assistant secretary and such other
executive officers as are appointed by the board of directors of the corporation
and explicitly entitled to indemnification hereunder.
"Proceeding" includes any actual, threatened or completed action, suit,
arbitration, alternate dispute resolution mechanism, investigation (including
any internal corporate investigation), administrative hearing or any other
proceeding, whether civil, criminal, administrative or investigative, other than
one initiated by the Covered Person, but including one initiated by the Covered
Person for the purpose of enforcing such Covered Person's rights under this
Article to the extent provided in Section l4 of this Article. "Proceeding" shall
not include any counterclaim
- 12 -
<Page>
brought by any Covered Person other than one arising out of the same transaction
or occurrence that is the subject matter of the underlying claim.
Section 2. RIGHT TO INDEMNIFICATION IN GENERAL.
(a) COVERED PERSONS. The corporation shall indemnify, and advance Expenses
to, each Covered Person who is, was or is threatened to be made a party or is
otherwise involved in any Proceeding, as provided in this Article and to the
fullest extent permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may hereafter from time to time permit.
The indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect, and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any Proceeding
previously or thereafter brought or threatened based in whole or in part upon
any such state of facts. Such a contract right may not be modified retroactively
without the consent of such Covered Person.
(b) EMPLOYEES AND AGENTS. The corporation may, to the extent authorized
from time to time by the board of directors, grant indemnification and 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 Covered Persons.
Section 3. PROCEEDINGS OTHER THAN PROCEEDINGS BY OR IN THE RIGHT OF THE
CORPORATION. Each Covered Person shall be entitled to the rights of
indemnification provided in this Section 3 if, by reason of such Covered
Person's Corporate Status, such Covered Person is, or is threatened to be made,
a party to or is otherwise involved in any Proceeding, other than a Proceeding
by or in the right of the corporation. Such Covered Person shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement,
actually and reasonably incurred by such Covered Person or on such Covered
Person's behalf in connection with such Proceeding or any claim, issue or matter
therein, if such Covered Person acted in Good Faith.
Section 4. PROCEEDINGS BY OR IN THE RIGHT OF THE CORPORATION. Each
Covered Person shall be entitled to the rights of indemnification provided in
this Section 4 if, by reason of such Covered Person's Corporate Status, such
Covered Person is, or is threatened to be made, a party to or is otherwise
involved in any Proceeding brought by or in the right of the corporation to
procure a judgment in its favor. Such Covered Person shall be indemnified
against Expenses, judgments, penalties, fines and amounts paid in settlement,
actually and reasonably incurred by such Covered Person or on such Covered
Person's behalf in connection with such Proceeding or any claim, issue or matter
therein, if such Covered Person acted in Good Faith. Notwithstanding the
foregoing, no such indemnification shall be made in respect of any claim, issue
or matter in such Proceeding as to which such Covered Person shall have been
adjudged to be liable to the corporation if applicable law prohibits such
indemnification; provided, however, that, if applicable law so permits,
- 13 -
<Page>
indemnification shall nevertheless be made by the corporation in such event if
and only to the extent that the Court which is considering the matter shall so
determine.
Section 5. INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Article, to the extent that a
Covered Person is, by reason of such Covered Person's Corporate Status, a party
to or is otherwise involved in and is successful, on the merits or otherwise, in
any Proceeding, such Covered Person shall be indemnified to the maximum extent
permitted by law, against all Expenses, judgments, penalties, fines, and amounts
paid in settlement, actually and reasonably incurred by such Covered Person or
on such Covered Person's behalf in connection therewith. If such Covered Person
is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such
Proceeding, the corporation shall indemnify such Covered Person to the maximum
extent permitted by law, against all Expenses, judgments, penalties, fines, and
amounts paid in settlement, actually and reasonably incurred by such Covered
Person or on such Covered Person's behalf in connection with each successfully
resolved claim, issue or matter. For purposes of this Section 5 and without
limitation, the termination of any claim, issue or matter in such a Proceeding
by dismissal, with or without prejudice, shall be deemed to be a successful
result as to such claim, issue or matter.
Section 6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any
other provision of this Article, to the extent that a Covered Person is, by
reason of such Covered Person's Corporate Status, a witness in any Proceeding,
such Covered Person shall be indemnified against all Expenses actually and
reasonably incurred by such Covered Person or on such Covered Person's behalf in
connection therewith.
Section 7. ADVANCEMENT OF EXPENSES. Notwithstanding any provision to the
contrary in this Article, the corporation shall advance all reasonable Expenses
which, by reason of a Covered Person's Corporate Status, were incurred by or on
behalf of such Covered Person in connection with any Proceeding, within twenty
(20) days after the receipt by the corporation of a statement or statements from
such Covered Person requesting such advance or advances, whether prior to or
after final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by the Covered Person and shall
include or be preceded or accompanied by an undertaking by or on behalf of the
Covered Person to repay any Expenses if such Covered Person shall be adjudged to
be not entitled to be indemnified against such Expenses. Any advance and
undertakings to repay made pursuant to this Section 7 shall be unsecured and
interest-free. Advancement of Expenses pursuant to this Section 7 shall not
require approval of the board of directors or the stockholders of the
corporation, or of any other person or body. The secretary of the corporation
shall promptly advise the Board in writing of the request for advancement of
Expenses, of the amount and other details of the advance and of the undertaking
to make repayment provided pursuant to this Section 7.
- 14 -
<Page>
Section 8. NOTIFICATION AND DEFENSE OF CLAIM. Promptly after receipt by a
Covered Person of notice of the commencement of any Proceeding, such Covered
Person shall, if a claim is to be made against the corporation under this
Article, notify the corporation of the commencement of the Proceeding. The
omission of such notice will not relieve the corporation from any liability
which it may have to such Covered Person otherwise than under this Article. With
respect to any such Proceedings of which such Covered Person has provided notice
to the corporation:
(a) The corporation will be entitled to participate in the defense at its
own expense.
(b) Except as otherwise provided below, the corporation (jointly with any
other indemnifying party similarly notified) will be entitled to assume the
defense with counsel reasonably satisfactory to the Covered Person. After notice
from the corporation to the Covered Person of its election to assume the defense
of a suit, the corporation will not be liable to the Covered Person under this
Article for any legal or other expenses subsequently incurred by the Covered
Person in connection with the defense of the Proceeding other than reasonable
costs of investigation or as otherwise provided below.
The Covered Person shall have the right to employ his/her own counsel in
such Proceeding but the fees and expenses of such counsel incurred after notice
from the corporation of its assumption of the defense shall be at the expense of
the Covered Person except as follows. The fees and expenses of counsel shall be
at the expense of the corporation if (i) the employment of counsel by the
Covered Person has been authorized by the corporation, (ii) the Covered Person
shall have concluded reasonably that there may be a conflict of interest between
the corporation and the Covered Person in the conduct of the defense of such
action and such conclusion is confirmed in writing by the corporation's outside
counsel regularly employed by it in connection with corporate matters, or (iii)
the corporation shall not in fact have employed counsel to assume the defense of
such Proceeding. The corporation shall be entitled to participate in, but shall
not be entitled to assume the defense of, any Proceeding brought by or in the
right of the corporation or as to which the Covered Person shall have made the
conclusion provided for in (ii) above and such conclusion shall have been so
confirmed by the corporation's said outside counsel.
(c) Notwithstanding any provision of this Article to the contrary, the
corporation shall not be liable to indemnify the Covered Person under this
Article for any amounts paid in settlement of any Proceeding effected without
its written consent. The corporation shall not settle any Proceeding or claim in
any manner which would impose any penalty, limitation or disqualification of the
Covered Person for any purpose without such Covered Person's written consent.
Neither the corporation nor the Covered Person will unreasonably withhold their
consent to any proposed settlement.
(d) If it is determined that the Covered Person is entitled to
indemnification other than as afforded under subparagraph (b) above, payment to
the Covered Person of the additional amounts for which he/she is to be
indemnified shall be made within ten (l0) days after such determination.
Section 9. PROCEDURES.
- 15 -
<Page>
(a) METHOD OF DETERMINATION. A determination (as provided for by this
Article or if required by applicable law in the specific case) with respect to a
Covered Person's entitlement to indemnification shall be made either (a) by the
board of directors by a majority vote of a quorum consisting of Disinterested
directors, or (b) in the event that a quorum of the board of directors
consisting of Disinterested directors is not obtainable or, even if obtainable,
such quorum of Disinterested directors so directs, by Independent Counsel in a
written determination to the board of directors, a copy of which shall be
delivered to the Covered Person seeking indemnification, or (c) by the vote of
the holders of a majority of the corporation's capital stock outstanding at the
time entitled to vote thereon.
(b) INITIATING REQUEST. A Covered Person who seeks indemnification under
this Article shall submit a Request for Indemnification, including such
documentation and information as is reasonably available to such Covered Person
and is reasonably necessary to determine whether and to what extent such Covered
Person is entitled to indemnification.
(c) PRESUMPTIONS. In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that the Covered Person is entitled to
indemnification under this Article.
(d) BURDEN OF PROOF. The person or entity opposing a Covered Person's
claim for indemnification shall have the burden of proof to overcome the
presumption described by Section 9(c) above in connection with the making by any
person, persons or entity of any determination contrary to that presumption.
(e) EFFECT OF OTHER PROCEEDINGS. The termination of any proceeding or of
any claim, issue or matter therein, by judgment, order, settlement of
conviction, or upon a plea of guilty or of NOLO CONTENDERE or its equivalent,
shall not (except as otherwise expressly provided in this Article) of itself
adversely affect the right of a Covered Person to indemnification or create a
presumption that a Covered Person did not act in Good Faith.
Section 10. . ACTION BY THE CORPORATION. Any action, payment, advance
determination other than a determination made pursuant to Section 9,
authorization, requirement, grant of indemnification or other action taken by
the Corporation pursuant to this Article shall be effected exclusively through
any Disinterested person so authorized by the board of directors of the
Corporation, including the president or any vice president of the corporation.
Section 11. NON-EXCLUSIVITY. The rights to indemnification and to receive
advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Certificate of Incorporation, these By-Laws,
any agreement, a vote of stockholders, a resolution of the board of directors,
or otherwise. No amendment, alteration, rescission or replacement of this
Article or any provision hereof shall be effective as to a Covered Person with
respect to any action taken or omitted by such Covered Person in such Covered
Person's Corporate Status or with respect to any state of facts then or
previously existing or any Proceeding previously or thereafter brought or
threatened based in
- 16 -
<Page>
whole or to the extent based in part upon any such state of facts existing prior
to such amendment, alteration, rescission or replacement.
Section 12. INSURANCE. The corporation may maintain, at its expense, an
insurance policy or policies to protect itself and any Covered Person, officer,
employee or agent of the corporation or another enterprise against liability
arising out of this Article or otherwise, whether or not the corporation would
have the power to indemnify any such person against such liability under the
Delaware General Corporation Law.
Section 13. NO DUPLICATIVE PAYMENT. The corporation shall not be liable
under this Article to make any payment of amounts otherwise indemnifiable
hereunder if and to the extent that a Covered Person has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
Section 14. EXPENSES OF ADJUDICATION. In the event that any Covered Person
seeks a judicial adjudication, or an award in arbitration, to enforce such
Covered Person's rights under, or to recover damages for breach of, this
Article, the Covered Person shall be entitled to recover from the corporation,
and shall be indemnified by the corporation against, any and all expenses (of
the types described in the definition of Expenses in Section l of this Article)
actually and reasonably incurred by such Covered Person in seeking such
adjudication or arbitration, but only if such Covered Person prevails therein.
If it shall be determined in such adjudication or arbitration that the Cover
Person is entitled to receive part but not all of the indemnification of
expenses sought, the expenses incurred by such Covered Person in connection with
such adjudication or arbitration shall be appropriately prorated.
Section 15. SEVERABILITY. If any provision or provisions of this Article
shall be held to be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions
of this Article (including without limitation, each portion of any Section of
this Article containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby; and
(b) to the fullest extent possible, the provisions of this Article
(including, without limitation, each portion of any Section of this Article
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
- 17 -
<Page>
Section 1. Dividends upon the capital stock of the corporation, subject
to the provisions of the certificate of incorporation, if any, may be declared
by the board of directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each annual meeting,
and at any special meeting of the stockholders when called for by vote of the
stockholders, a full and clear statement of the business and condition of the
corporation.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE IX
AMENDMENTS
Section 6. These by-laws may be altered, amended or repealed or new
by-laws may be adopted by the stockholders or by the board of directors, when
such power is conferred upon the board of directors by the certificate of
incorporation, at any regular meeting of the stockholders or of the board of
directors or at any special meeting of the stockholders or of the board of
directors if notice of such alteration, amendment, repeal or adoption of new
by-laws be contained in the notice of such special meeting. If the power to
adopt, amend or repeal by-laws is conferred upon the board of directors by the
certificate of incorporation it shall not divest or limit the power of the
stockholders to adopt, amend or repeal by-laws.
- 18 -