{"id":41386,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/amended-and-restated-bylaws-accrue-software.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"amended-and-restated-bylaws-accrue-software","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/amended-and-restated-bylaws-accrue-software.html","title":{"rendered":"Amended and Restated Bylaws &#8211; Accrue Software"},"content":{"rendered":"<pre>BYLAWS\n\n                                       OF\n\n                             ACCRUE SOFTWARE, INC.\n&lt;PAGE&gt;\n                                TABLE OF CONTENTS\n\n&lt;TABLE&gt;\n&lt;CAPTION&gt;\n                                                                                                  Page\n&lt;S&gt;                                                                                               &lt;C&gt;\nARTICLE I - CORPORATE OFFICES...................................................................    1\n\n         1.1      Registered Office.............................................................    1\n         1.2      Other Offices.................................................................    1\n\nARTICLE II - MEETINGS OF STOCKHOLDERS...........................................................    1\n\n         2.1      Place Of Meetings.............................................................    1\n         2.2      Annual Meeting................................................................    1\n         2.3      Special Meeting...............................................................    1\n         2.4      Notice Of Stockholders' Meetings..............................................    2\n         2.5      Advance Notice of Stockholder Nominees and Other Stockholder Proposals........    2\n         2.6      Intentionally Omitted.........................................................    3\n         2.7      Manner Of Giving Notice; Affidavit Of Notice..................................    3\n         2.8      Quorum........................................................................    3\n         2.9      Adjourned Meeting; Notice.....................................................    4\n         2.10     Conduct Of Business...........................................................    4\n         2.11     Voting........................................................................    4\n         2.12     Waiver Of Notice..............................................................    4\n         2.13     Stockholder Action By Written Consent Without A Meeting.......................    5\n         2.14     Record Date For Stockholder Notice; Voting; Giving Consents...................    5\n         2.15     Proxies.......................................................................    5\n\nARTICLE III - DIRECTORS.........................................................................    6\n\n         3.1      Powers........................................................................    6\n         3.2      Number of Directors...........................................................    6\n         3.3      Election, Qualification and Term of Office of Directors.......................    6\n         3.4      Resignation and Vacancies.....................................................    6\n         3.5      Place of Meetings; Meetings by Telephone......................................    7\n         3.6      Regular Meetings..............................................................    8\n         3.7      Special Meetings; Notice......................................................    8\n         3.8      Quorum........................................................................    8\n         3.9      Waiver of Notice..............................................................    9\n         3.10     Board Action by Written Consent Without a Meeting.............................    9\n         3.11     Fees and Compensation of Directors............................................    9\n         3.12     Approval of Loans to Officers.................................................    9\n         3.13     Removal of Directors..........................................................    9\n         3.14     Chairman of the Board of Directors............................................   10\n&lt;\/TABLE&gt;\n\n\n                                      -i-\n&lt;PAGE&gt;\n                                TABLE OF CONTENTS\n\n&lt;TABLE&gt;\n&lt;CAPTION&gt;\n                                                                                                  Page\n&lt;S&gt;                                                                                               &lt;C&gt;\nARTICLE IV - COMMITTEES.........................................................................   10\n\n         4.1      Committees of Directors.......................................................   10\n         4.2      Committee Minutes.............................................................   11\n         4.3      Meetings and Action of Committees.............................................   11\n\nARTICLE V - OFFICERS............................................................................   11\n\n         5.1      Officers......................................................................   11\n         5.2      Appointment of Officers.......................................................   11\n         5.3      Subordinate Officers..........................................................   11\n         5.4      Removal and Resignation of Officers...........................................   12\n         5.5      Vacancies In Offices..........................................................   12\n         5.6      Chief Executive Officer.......................................................   12\n         5.7      President.....................................................................   12\n         5.8      Vice Presidents...............................................................   13\n         5.9      Secretary.....................................................................   13\n         5.10     Chief Financial Officer.......................................................   13\n         5.11     Representation Of Shares Of Other Corporations................................   14\n         5.12     Authority And Duties Of Officers..............................................   14\n\nARTICLE VI - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS................   14\n\n         6.1      Indemnification Of Directors And Officers.....................................   14\n         6.2      Indemnification Of Others.....................................................   14\n         6.3      Payment Of Expenses In Advance................................................   15\n         6.4      Indemnity Not Exclusive.......................................................   15\n         6.5      Insurance.....................................................................   15\n         6.6      Conflicts.....................................................................   15\n\nARTICLE VII - RECORDS AND REPORTS...............................................................   16\n\n         7.1      Maintenance And Inspection Of Records.........................................   16\n         7.2      Inspection By Directors.......................................................   16\n         7.3      Annual Statement To Stockholders..............................................   16\n\nARTICLE VIII - GENERAL MATTERS..................................................................   17\n\n         8.1      Checks........................................................................   17\n         8.2      Execution Of Corporate Contracts And Instruments..............................   17\n         8.3      Stock Certificates; Partly Paid Shares........................................   17\n         8.4      Special Designation On Certificates...........................................   18\n         8.5      Lost Certificates.............................................................   18\n         8.6      Construction; Definitions.....................................................   18\n         8.7      Dividends.....................................................................   18\n         8.8      Fiscal Year...................................................................   19\n&lt;\/TABLE&gt;\n\n\n                                      -ii-\n&lt;PAGE&gt;\n                                TABLE OF CONTENTS\n\n&lt;TABLE&gt;\n&lt;CAPTION&gt;\n                                                                                                  Page\n&lt;S&gt;                                                                                               &lt;C&gt;\n         8.9      Seal..........................................................................   19\n         8.10     Transfer Of Stock.............................................................   19\n         8.11     Stock Transfer Agreements.....................................................   19\n         8.12     Registered Stockholders.......................................................   19\n\nARTICLE IX - AMENDMENTS.........................................................................   19\n&lt;\/TABLE&gt;\n\n\n                                     -iii-\n&lt;PAGE&gt;\n                                     BYLAWS\n\n                                       OF\n\n                             ACCRUE SOFTWARE, INC.\n\n                   (AMENDED AND RESTATED AS OF MAY 23, 1999)\n                    (AMENDED AND RESTATED AS OF MAY 1, 2001)\n\n                                   ARTICLE I\n\n                               CORPORATE OFFICES\n\n      1.1   REGISTERED OFFICE.\n\n            The registered office of the corporation shall be in the City of\nWilmington, County of New Castle, State of Delaware. The name of the registered\nagent of the corporation at such location is Prentice-Hall Corporation System,\nInc.\n\n      1.2   OTHER OFFICES.\n\n            The Board of Directors may at any time establish other offices at\nany place or places where the corporation is qualified to do business.\n\n                                   ARTICLE II\n\n                            MEETINGS OF STOCKHOLDERS\n\n      2.1   PLACE OF MEETINGS.\n\n      Meetings of stockholders shall be held at any place, within or outside the\nState of Delaware, designated by the Board of Directors. In the absence of any\nsuch designation, stockholders' meetings shall be held at the registered office\nof the corporation.\n\n      2.2   ANNUAL MEETING.\n\n      The annual meeting of stockholders shall be held on any date, time and\nplace, either within or without the State of Delaware, as may be designated by\nresolution of the Board of Directors from time to time. At the meeting,\ndirectors shall be elected and any other proper business may be transacted.\n\n      2.3   SPECIAL MEETING.\n\n      A special meeting of the stockholders may be called at any time by the\nBoard of Directors, the Chairman of the Board, the President, or the holders of\nshares entitled to cast not less than ten percent of the votes at the meeting.\nNo other person or persons are permitted to call a special meeting. No business\nmay be conducted at a special meeting other than the business\n&lt;PAGE&gt;\nbrought before the meeting by the Board of Directors, the Chairman of the Board,\nthe President or the holders of shares entitled to cast not less than ten\npercent of the votes at the meeting.\n\n      2.4   NOTICE OF STOCKHOLDERS' MEETINGS.\n\n      All notices of meetings with stockholders shall be in writing and shall be\nsent or otherwise given in accordance with Section 2.7 of these bylaws not less\nthan ten (10) nor more than sixty (60) days before the date of the meeting to\neach stockholder entitled to vote at such meeting. The notice shall specify the\nplace, date, and hour of the meeting, and, in the case of a special meeting, the\npurpose or purposes for which the meeting is called. Upon request by any person\nor persons entitled to call a special meeting, the Chairman of the Board,\nPresident, Vice President or Secretary shall cause within twenty (20) days after\nreceipt of the request cause notice to be given to the shareholders entitled to\nvote that a special meeting will be held at a time requested by the person or\npersons calling the meeting, but not less than thirty-five (35) nor more than\nsixty (60) days after receipt of the request.\n\n      2.5   ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND OTHER STOCKHOLDER\n            PROPOSALS.\n\n            Only persons who are nominated in accordance with the procedures set\nforth in this Section 2.5 shall be eligible for election as directors.\nNominations of persons for election to the Board of Directors of the Corporation\nmay be made at a meeting of stockholders by or at the direction of the Board of\nDirectors or by any stockholder of the Corporation entitled to vote for the\nelection of directors at the meeting who complies with the notice procedures set\nforth in this Section 2.5. Such nominations, other than those made by or at the\ndirection of the Board of Directors, shall be made pursuant to timely notice in\nwriting to the secretary of the Corporation. Stockholders may bring other\nbusiness before the annual meeting, provided that timely notice is provided to\nthe secretary of the Corporation in accordance with this section, and provided\nfurther that such business is a proper matter for stockholder action under the\nGeneral Corporation Law of Delaware. To be timely, a stockholder's notice shall\nbe delivered to or mailed and received at the principal executive offices of the\nCorporation not less than 90 days nor more than 120 days prior to the\nanniversary date of the prior year's meeting; provided, however, that in the\nevent that (i) the date of the annual meeting is more than 30 days prior to or\nmore than 60 days after such anniversary date, and (ii) less than 30 days notice\nor prior public disclosure of the date of the meeting is given or made to\nstockholders, notice by the stockholder to be timely must be so received not\nlater than the close of business on the 10th day following the day on which such\nnotice of the date of the meeting was mailed or such public disclosure was made.\nSuch stockholder's notice shall set forth (a) as to each person whom the\nstockholder proposes to nominate for election or re-election as a directors, (i)\nthe name, age, business address and residence address of such person, (ii) the\nprincipal occupation or employment of such person, (iii) the class and number of\nshares of the Corporation which are beneficially owned by such person and (iv)\nany other information relating to such person that is required to be disclosed\nin solicitations of proxies for election of directors, or is otherwise required,\nin each case pursuant to Regulation 14A under the Securities Exchange Act of\n1934 (including, without limitation, such person's written consent to being name\nin the proxy statement as a nominee and to serving as a director if elected);\n(b) as to any other business that the stockholder proposes to bring before the\n\n\n                                      -2-\n&lt;PAGE&gt;\nmeeting, a brief description of such business, the reasons for conducting such\nbusiness at the meeting and any material interest in such business of such\nstockholder and the beneficial owner, if any, on whose behalf the proposal is\nmade; and (c) as to the stockholder giving the notice and the beneficial owner,\nif any, on whose behalf the proposal is made (i) the name and address of the\nstockholder, as they appear on the Corporation's books, and of such beneficial\nowner and (ii) the class and number of shares of the Corporation which are owned\nof record by such stockholder and beneficially by such beneficial owner. At the\nrequest of the Board of Directors any person nominated by the Board of Directors\nfor election as a director shall furnish to the secretary of the Corporation\nthat information required to be set forth in a stockholder's notice of\nnomination which pertains to the nominee. No person shall be eligible for\nelection as a director of the Corporation unless nominated in accordance with\nthe procedures set forth in this Section 2.5. The chairman of the meeting shall,\nif the facts warrant, determine and declare to the meeting that a nomination was\nnot made in accordance with the procedures prescribed by the Bylaws, and if he\nor she should so determine, he or she shall so declare to the meeting and the\ndefective nomination shall be disregarded.\n\n            Notwithstanding the foregoing provisions of this Section 2.5, a\nstockholder shall also comply with all applicable requirements of the Securities\nExchange Act of 1934 and the rules and regulations thereunder with respect to\nmatters set forth in this Section 2.5.\n\n      2.6   Intentionally Omitted.\n\n      2.7   MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE.\n\n      Written notice of any meeting of stockholders, if mailed, is given when\ndeposited in the United States mail, postage prepaid, directed to the\nstockholder at his address as it appears on the records of the corporation. An\naffidavit of the secretary or an assistant secretary or of the transfer agent of\nthe corporation that the notice has been given shall, in the absence of fraud,\nbe prima facie evidence of the facts stated therein.\n\n      2.8   QUORUM.\n\n      The holders of a majority of the stock issued and outstanding and entitled\nto vote thereat, present in person or represented by proxy, shall constitute a\nquorum at all meetings of the stockholders for the transaction of business\nexcept as otherwise provided by statute or by the certificate of incorporation.\nIf, however, such quorum is not present or represented at any meeting of the\nstockholders, then either (i) the Chairman of the meeting or (ii) the\nstockholders entitled to vote thereat, present in person or represented by\nproxy, shall have power to adjourn the meeting from time to time, without notice\nother than announcement at the meeting, until a quorum is present or\nrepresented. At such adjourned meeting at which a quorum is present or\nrepresented, any business may be transacted that might have been transacted at\nthe meeting as originally noticed.\n\n\n                                      -3-\n&lt;PAGE&gt;\n      2.9   ADJOURNED MEETING; NOTICE.\n\n      When a meeting is adjourned to another time or place, unless these bylaws\notherwise require, notice need not be given of the adjourned meeting if the time\nand place thereof are announced at the meeting at which the adjournment is\ntaken. At the adjourned meeting the corporation may transact any business that\nmight have been transacted at the original meeting. If the adjournment is for\nmore than thirty (30) days, or if after the adjournment a new record date is\nfixed for the adjourned meeting, a notice of the adjourned meeting shall be\ngiven to each stockholder of record entitled to vote at the meeting.\n\n      2.10  CONDUCT OF BUSINESS.\n\n      The Chairman of any meeting of stockholders shall determine the order of\nbusiness and the procedure at the meeting, including such regulation of the\nmanner of voting and the conduct of business.\n\n      2.11  VOTING.\n\n      The stockholders entitled to vote at any meeting of stockholders shall be\ndetermined in accordance with the provisions of Section 2.14 of these bylaws,\nsubject to the provisions of Sections 217 and 218 of the General Corporation Law\nof Delaware (relating to voting rights of fiduciaries, pledgors and joint owners\nof stock and to voting trusts and other voting agreements).\n\n      Except as may be otherwise provided in the certificate of incorporation,\neach stockholder shall be entitled to one vote for each share of capital stock\nheld by such stockholder.\n\n      2.12  WAIVER OF NOTICE.\n\n      Whenever notice is required to be given under any provision of the General\nCorporation Law of Delaware or of the certificate of incorporation or these\nbylaws, a written waiver thereof, signed by the person entitled to notice,\nwhether before or after the time stated therein, shall be deemed equivalent to\nnotice. Attendance of a person at a meeting shall constitute a waiver of notice\nof such meeting, except when the person attends a meeting for the express\npurpose of objecting, at the beginning of the meeting, to the transaction of any\nbusiness because the meeting is not lawfully called or convened. Neither the\nbusiness to be transacted at, nor the purpose of, any regular or special meeting\nof the stockholders need be specified in any written waiver of notice unless so\nrequired by the certificate of incorporation or these bylaws.\n\n\n                                      -4-\n&lt;PAGE&gt;\n      2.13  STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.\n\n      Unless otherwise provided in the certificate of incorporation, any action\nrequired by this chapter to be taken at any annual or special meeting of\nstockholders of the corporation, or any action that may be taken at any annual\nor special meeting of such stockholders, may be taken without a meeting, without\nprior notice, and without a vote if a consent in writing, setting forth the\naction so taken, is signed by the holders of outstanding stock having not less\nthan the minimum number of votes that would be necessary to authorize or take\nsuch action at a meeting at which all shares entitled to vote thereon were\npresent and voted.\n\n      Prompt notice of the taking of the corporate action without a meeting by\nless than unanimous written consent shall be given to those stockholders who\nhave not consented in writing.\n\n      2.14  RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS.\n\n      In order that the corporation may determine the stockholders entitled to\nnotice of or to vote at any meeting of stockholders or any adjournment thereof,\nor entitled to express consent to corporate action in writing without a meeting,\nor entitled to receive payment of any dividend or other distribution or\nallotment of any rights, or entitled to exercise any rights in respect of any\nchange, conversion or exchange of stock or for the purpose of any other lawful\naction, the Board of Directors may fix, in advance, a record date, which shall\nnot be more than sixty (60) nor less than ten (10) days before the date of such\nmeeting, nor more than sixty (60) days prior to any other action.\n\n      If the Board of Directors does not so fix a record date:\n\n            (i)   The record date for determining stockholders entitled to\nnotice of or to vote at a meeting of stockholders shall be at the close of\nbusiness on the day next preceding the day on which notice is given, or, if\nnotice is waived, at the close of business on the day next preceding the day on\nwhich the meeting is held.\n\n            (ii)  The record date for determining stockholders entitled to\nexpress consent to corporate action in writing without a meeting, when no prior\naction by the Board of Directors is necessary, shall be the day on which the\nfirst written consent is expressed.\n\n            (iii) The record date for determining stockholders for any other\npurpose shall be at the close of business on the day on which the Board of\nDirectors adopts the resolution relating thereto.\n\n      A determination of stockholders of record entitled to notice of or to vote\nat a meeting of stockholders shall apply to any adjournment of the meeting;\nprovided, however, that the Board of Directors may fix a new record date for the\nadjourned meeting.\n\n      2.15  PROXIES.\n\n\n                                      -5-\n&lt;PAGE&gt;\n      Each stockholder entitled to vote at a meeting of stockholders or to\nexpress consent or dissent to corporate action in writing without a meeting may\nauthorize another person or persons to act for him by a written proxy, signed by\nthe stockholder and filed with the secretary of the corporation, but no such\nproxy shall be voted or acted upon after three (3) years from its date, unless\nthe proxy provides for a longer period. A proxy shall be deemed signed if the\nstockholder's name is placed on the proxy (whether by manual signature,\ntypewriting, telegraphic transmission or otherwise) by the stockholder or the\nstockholder's attorney-in-fact. The revocability of a proxy that states on its\nface that it is irrevocable shall be governed by the provisions of Section 212\nof the General Corporation Law of Delaware.\n\n                                   ARTICLE III\n\n                                    DIRECTORS\n\n      3.1   POWERS.\n\n            Subject to the provisions of the General Corporation Law of Delaware\nand any limitations in the certificate of incorporation or these Bylaws relating\nto action required to be approved by the stockholders or by the outstanding\nshares, the business and affairs of the corporation shall be managed and all\ncorporate powers shall be exercised by or under the direction of the Board of\nDirectors.\n\n      3.2   NUMBER OF DIRECTORS.\n\n            Unless otherwise determined by the Board of Directors of the\nCompany, the Board of Directors shall consist of four persons until changed by a\nproper amendment of this Section 3.2. No reduction of the authorized number of\ndirectors shall have the effect of removing any director before that director's\nterm of office expires.\n\n      3.3   ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.\n\n            Except as provided in Section 3.4 of these Bylaws, directors shall\nbe elected at each annual meeting of stockholders to hold office until the next\nannual meeting. Directors need not be stockholders unless so required by the\ncertificate of incorporation or these Bylaws, wherein other qualifications for\ndirectors may be prescribed. Each director, including a director elected to fill\na vacancy, shall hold office until his or her successor is elected and qualified\nor until his or her earlier resignation or removal.\n\n            Elections of directors need not be by written ballot.\n\n      3.4   RESIGNATION AND VACANCIES.\n\n            Any director may resign at any time upon written notice to the\nattention of the Secretary of the corporation. When one or more directors so\nresigns and the resignation is effective at a future date, a majority of the\ndirectors then in office, including those who have so resigned, shall have power\nto fill such vacancy or vacancies, the vote thereon to take effect when\n\n\n                                      -6-\n&lt;PAGE&gt;\nsuch resignation or resignations shall become effective, and each director so\nchosen shall hold office as provided in this section in the filling of other\nvacancies.\n\n            Unless otherwise provided in the certificate of incorporation or\nthese Bylaws:\n\n            (i)   Vacancies and newly created directorships resulting from any\nincrease in the authorized number of directors elected by all of the\nstockholders having the right to vote as a single class may be filled by a\nmajority of the directors then in office, although less than a quorum, or by a\nsole remaining director.\n\n            (ii)  Whenever the holders of any class or classes of stock or\nseries thereof are entitled to elect one or more directors by the provisions of\nthe certificate of incorporation, vacancies and newly created directorships of\nsuch class or classes or series may be filled by a majority of the directors\nelected by such class or classes or series thereof then in office, or by a sole\nremaining director so elected.\n\n            If at any time, by reason of death or resignation or other cause,\nthe corporation should have no directors in office, then any officer or any\nstockholder or an executor, administrator, trustee or guardian of a stockholder,\nor other fiduciary entrusted with like responsibility for the person or estate\nof a stockholder, may call a special meeting of stockholders in accordance with\nthe provisions of the certificate of incorporation or these Bylaws, or may apply\nto the Court of Chancery for a decree summarily ordering an election as provided\nin Section 211 of the General Corporation Law of Delaware.\n\n            If, at the time of filling any vacancy or any newly created\ndirectorship, the directors then in office constitute less than a majority of\nthe whole board (as constituted immediately prior to any such increase), then\nthe Court of Chancery may, upon application of any stockholder or stockholders\nholding at least ten (10) percent of the total number of the shares at the time\noutstanding having the right to vote for such directors, summarily order an\nelection to be held to fill any such vacancies or newly created directorships,\nor to replace the directors chosen by the directors then in office as aforesaid,\nwhich election shall be governed by the provisions of Section 211 of the General\nCorporation Law of Delaware as far as applicable.\n\n      3.5   PLACE OF MEETINGS; MEETINGS BY TELEPHONE.\n\n            The Board of Directors of the corporation may hold meetings, both\nregular and special, either within or outside the State of Delaware.\n\n            Unless otherwise restricted by the certificate of incorporation or\nthese Bylaws, members of the Board of Directors, or any committee designated by\nthe Board of Directors, may participate in a meeting of the Board of Directors,\nor any committee, by means of conference telephone or similar communications\nequipment by means of which all persons participating in the meeting can hear\neach other, and such participation in a meeting shall constitute presence in\nperson at the meeting.\n\n      3.6   REGULAR MEETINGS.\n\n\n                                      -7-\n&lt;PAGE&gt;\n            Regular meetings of the Board of Directors may be held without\nnotice at such time and at such place as shall from time to time be determined\nby the board.\n\n      3.7   SPECIAL MEETINGS; NOTICE.\n\n            Special meetings of the Board of Directors for any purpose or\npurposes may be called at any time by the chairman of the board, the president,\nany vice president, the secretary or any two directors.\n\n            Notice of the time and place of special meetings shall be delivered\npersonally or by telephone to each director or sent by first-class mail or\ntelegram, charges prepaid, addressed to each director at that director's address\nas it is shown on the records of the corporation. If the notice is mailed, it\nshall be deposited in the United States mail at least four (4) days before the\ntime of the holding of the meeting. If the notice is delivered personally or by\ntelephone or by telegram, it shall be delivered personally or by telephone or to\nthe telegraph company at least forty-eight (48) hours before the time of the\nholding of the meeting. Any oral notice given personally or by telephone may be\ncommunicated either to the director or to a person at the office of the director\nwho the person giving the notice has reason to believe will promptly communicate\nit to the director. The notice need not specify the purpose or the place of the\nmeeting, if the meeting is to be held at the principal executive office of the\ncorporation.\n\n      3.8   QUORUM.\n\n            At all meetings of the Board of Directors, a majority of the\nauthorized number of directors shall constitute a quorum for the transaction of\nbusiness and the act of a majority of the directors present at any meeting at\nwhich there is a quorum shall be the act of the Board of Directors, except as\nmay be otherwise specifically provided by statute or by the certificate of\nincorporation. If a quorum is not present at any meeting of the Board of\nDirectors, then the directors present thereat may adjourn the meeting from time\nto time, without notice other than announcement at the meeting, until a quorum\nis present.\n\n            A meeting at which a quorum is initially present may continue to\ntransact business notwithstanding the withdrawal of directors, if any action\ntaken is approved by at least a majority of the required quorum for that\nmeeting.\n\n\n                                      -8-\n&lt;PAGE&gt;\n      3.9   WAIVER OF NOTICE.\n\n            Whenever notice is required to be given under any provision of the\nGeneral Corporation Law of Delaware or of the certificate of incorporation or\nthese Bylaws, a written waiver thereof, signed by the person entitled to notice,\nwhether before or after the time stated therein, shall be deemed equivalent to\nnotice. Attendance of a person at a meeting shall constitute a waiver of notice\nof such meeting, except when the person attends a meeting for the express\npurpose of objecting, at the beginning of the meeting, to the transaction of any\nbusiness because the meeting is not lawfully called or convened. Neither the\nbusiness to be transacted at, nor the purpose of, any regular or special meeting\nof the directors, or members of a committee of directors, need be specified in\nany written waiver of notice unless so required by the certificate of\nincorporation or these Bylaws.\n\n      3.10  BOARD ACTION BY WRITTEN CONSENT WITHOUT A MEETING.\n\n            Unless otherwise restricted by the certificate of incorporation or\nthese Bylaws, any action required or permitted to be taken at any meeting of the\nBoard of Directors, or of any committee thereof, may be taken without a meeting\nif all members of the board or committee, as the case may be, consent thereto in\nwriting and the writing or writings are filed with the minutes of proceedings of\nthe board or committee. Written consents representing actions taken by the board\nor committee may be executed by telex, telecopy or other facsimile transmission,\nand such facsimile shall be valid and binding to the same extent as if it were\nan original.\n\n      3.11  FEES AND COMPENSATION OF DIRECTORS.\n\n            Unless otherwise restricted by the certificate of incorporation or\nthese Bylaws, the Board of Directors shall have the authority to fix the\ncompensation of directors. No such compensation shall preclude any director from\nserving the corporation in any other capacity and receiving compensation\ntherefor.\n\n      3.12  APPROVAL OF LOANS TO OFFICERS.\n\n            The corporation may lend money to, or guarantee any obligation of,\nor otherwise assist any officer or other employee of the corporation or of its\nsubsidiary, including any officer or employee who is a director of the\ncorporation or its subsidiary, whenever, in the judgment of the directors, such\nloan, guaranty or assistance may reasonably be expected to benefit the\ncorporation. The loan, guaranty or other assistance may be with or without\ninterest and may be unsecured, or secured in such manner as the Board of\nDirectors shall approve, including, without limitation, a pledge of shares of\nstock of the corporation. Nothing in this section contained shall be deemed to\ndeny, limit or restrict the powers of guaranty or warranty of the corporation at\ncommon law or under any statute.\n\n      3.13  REMOVAL OF DIRECTORS.\n\n            Unless otherwise restricted by statute, by the certificate of\nincorporation or by these Bylaws, any director or the entire Board of Directors\nmay be removed, with or without cause, by the holders of a majority of the\nshares then entitled to vote at an election of directors;\n\n\n                                      -9-\n&lt;PAGE&gt;\nprovided, however, that if the stockholders of the corporation are entitled to\ncumulative voting, if less than the entire Board of Directors is to be removed,\nno director may be removed without cause if the votes cast against his removal\nwould be sufficient to elect him if then cumulatively voted at an election of\nthe entire Board of Directors.\n\n            No reduction of the authorized number of directors shall have the\neffect of removing any director prior to the expiration of such director's term\nof office.\n\n      3.14  CHAIRMAN OF THE BOARD OF DIRECTORS.\n\n            The corporation may also have, at the discretion of the Board of\nDirectors, a chairman of the Board of Directors who shall not be considered an\nofficer of the corporation.\n\n                                   ARTICLE IV\n\n                                   COMMITTEES\n\n      4.1   COMMITTEES OF DIRECTORS.\n\n            The Board of Directors may, by resolution passed by a majority of\nthe whole board, designate one or more committees, with each committee to\nconsist of one or more of the directors of the corporation. The board may\ndesignate one or more directors as alternate members of any committee, who may\nreplace any absent or disqualified member at any meeting of the committee. In\nthe absence or disqualification of a member of a committee, the member or\nmembers thereof present at any meeting and not disqualified from voting, whether\nor not such member or members constitute a quorum, may unanimously appoint\nanother member of the Board of Directors to act at the meeting in the place of\nany such absent or disqualified member. Any such committee, to the extent\nprovided in the resolution of the Board of Directors or in the Bylaws of the\ncorporation, shall have and may exercise all the powers and authority of the\nBoard of Directors in the management of the business and affairs of the\ncorporation, and may authorize the seal of the corporation to be affixed to all\npapers that may require it; but no such committee shall have the power or\nauthority to (i) amend the certificate of incorporation (except that a committee\nmay, to the extent authorized in the resolution or resolutions providing for the\nissuance of shares of stock adopted by the Board of Directors as provided in\nSection 151(a) of the General Corporation Law of Delaware, fix the designations\nand any of the preferences or rights of such shares relating to dividends,\nredemption, dissolution, any distribution of assets of the corporation or the\nconversion into, or the exchange of such shares for, shares of any other class\nor classes or any other series of the same or any other class or classes of\nstock of the corporation or fix the number of shares of any series of stock or\nauthorize the increase or decrease of the shares of any series), (ii) adopt an\nagreement of merger or consolidation under Sections 251 or 252 of the General\nCorporation Law of Delaware, (iii) recommend to the stockholders the sale, lease\nor exchange of all or substantially all of the corporation's property and\nassets, (iv) recommend to the stockholders a dissolution of the corporation or a\nrevocation of a dissolution, or (v) amend the Bylaws of the corporation; and,\nunless the board resolution establishing the committee, the Bylaws or the\ncertificate of incorporation expressly so provide, no such committee shall have\nthe power or authority to declare a dividend, to authorize the\n\n\n                                      -10-\n&lt;PAGE&gt;\nissuance of stock, or to adopt a certificate of ownership and merger pursuant to\nSection 253 of the General Corporation Law of Delaware.\n\n      4.2   COMMITTEE MINUTES.\n\n            Each committee shall keep regular minutes of its meetings and report\nthe same to the Board of Directors when required.\n\n      4.3   MEETINGS AND ACTION OF COMMITTEES.\n\n            Meetings and actions of committees shall be governed by, and held\nand taken in accordance with, the provisions of Section 3.5 (place of meetings\nand meetings by telephone), Section 3.6 (regular meetings), Section 3.7 (special\nmeetings and notice), Section 3.8 (quorum), Section 3.9 (waiver of notice), and\nSection 3.10 (action without a meeting) of these Bylaws, with such changes in\nthe context of such provisions as are necessary to substitute the committee and\nits members for the Board of Directors and its members; provided, however, that\nthe time of regular meetings of committees may be determined either by\nresolution of the Board of Directors or by resolution of the committee, that\nspecial meetings of committees may also be called by resolution of the Board of\nDirectors and that notice of special meetings of committees shall also be given\nto all alternate members, who shall have the right to attend all meetings of the\ncommittee. The Board of Directors may adopt rules for the government of any\ncommittee not inconsistent with the provisions of these Bylaws.\n\n                                    ARTICLE V\n\n                                    OFFICERS\n\n      5.1   OFFICERS.\n\n            The officers of the corporation shall be a chief executive officer,\na president, a secretary, and a chief financial officer. The corporation may\nalso have, at the discretion of the Board of Directors, one or more vice\npresidents, one or more assistant secretaries, one or more assistant treasurers,\nand any such other officers as may be appointed in accordance with the\nprovisions of Section 5.3 of these Bylaws. Any number of offices may be held by\nthe same person.\n\n      5.2   APPOINTMENT OF OFFICERS.\n\n            The officers of the corporation, except such officers as may be\nappointed in accordance with the provisions of Sections 5.3 or 5.5 of these\nBylaws, shall be appointed by the Board of Directors, subject to the rights, if\nany, of an officer under any contract of employment.\n\n      5.3   SUBORDINATE OFFICERS.\n\n            The Board of Directors may appoint, or empower the chief executive\nofficer or the president to appoint, such other officers and agents as the\nbusiness of the corporation may require, each of whom shall hold office for such\nperiod, have such authority, and perform such\n\n\n                                      -11-\n&lt;PAGE&gt;\nduties as are provided in these Bylaws or as the Board of Directors may from\ntime to time determine.\n\n      5.4   REMOVAL AND RESIGNATION OF OFFICERS.\n\n            Subject to the rights, if any, of an officer under any contract of\nemployment, any officer may be removed, either with or without cause, by an\naffirmative vote of the majority of the Board of Directors at any regular or\nspecial meeting of the board or, except in the case of an officer chosen by the\nBoard of Directors, by any officer upon whom such power of removal may be\nconferred by the Board of Directors.\n\n            Any officer may resign at any time by giving written notice to the\nattention of the Secretary of the corporation. Any resignation shall take effect\nat the date of the receipt of that notice or at any later time specified in that\nnotice; and, unless otherwise specified in that notice, the acceptance of the\nresignation shall not be necessary to make it effective. Any resignation is\nwithout prejudice to the rights, if any, of the corporation under any contract\nto which the officer is a party.\n\n      5.5   VACANCIES IN OFFICES.\n\n            Any vacancy occurring in any office of the corporation shall be\nfilled by the Board of Directors.\n\n      5.6   CHIEF EXECUTIVE OFFICER.\n\n            Subject to such supervisory powers, if any, as may be given by the\nBoard of Directors to the chairman of the board, if any, the chief executive\nofficer of the corporation shall, subject to the control of the Board of\nDirectors, have general supervision, direction, and control of the business and\nthe officers of the corporation. He or she shall preside at all meetings of the\nstockholders and, in the absence or nonexistence of a chairman of the board, at\nall meetings of the Board of Directors and shall have the general powers and\nduties of management usually vested in the office of chief executive officer of\na corporation and shall have such other powers and duties as may be prescribed\nby the Board of Directors or these bylaws.\n\n      5.7   PRESIDENT.\n\n            Subject to such supervisory powers, if any, as may be given by the\nBoard of Directors to the chairman of the board (if any) or the chief executive\nofficer, the president shall have general supervision, direction, and control of\nthe business and other officers of the corporation. He or she shall have the\ngeneral powers and duties of management usually vested in the office of\npresident of a corporation and such other powers and duties as may be prescribed\nby the Board of Directors or these Bylaws.\n\n\n                                      -12-\n&lt;PAGE&gt;\n      5.8   VICE PRESIDENTS.\n\n            In the absence or disability of the chief executive officer and\npresident, the vice presidents, if any, in order of their rank as fixed by the\nBoard of Directors or, if not ranked, a vice president designated by the Board\nof Directors, shall perform all the duties of the president and when so acting\nshall have all the powers of, and be subject to all the restrictions upon, the\npresident. The vice presidents shall have such other powers and perform such\nother duties as from time to time may be prescribed for them respectively by the\nBoard of Directors, these Bylaws, the president or the chairman of the board.\n\n      5.9   SECRETARY.\n\n            The secretary shall keep or cause to be kept, at the principal\nexecutive office of the corporation or such other place as the Board of\nDirectors may direct, a book of minutes of all meetings and actions of\ndirectors, committees of directors, and stockholders. The minutes shall show the\ntime and place of each meeting, the names of those present at directors'\nmeetings or committee meetings, the number of shares present or represented at\nstockholders' meetings, and the proceedings thereof.\n\n            The secretary shall keep, or cause to be kept, at the principal\nexecutive office of the corporation or at the office of the corporation's\ntransfer agent or registrar, as determined by resolution of the Board of\nDirectors, a share register, or a duplicate share register, showing the names of\nall stockholders and their addresses, the number and classes of shares held by\neach, the number and date of certificates evidencing such shares, and the number\nand date of cancellation of every certificate surrendered for cancellation.\n\n            The secretary shall give, or cause to be given, notice of all\nmeetings of the stockholders and of the Board of Directors required to be given\nby law or by these Bylaws. He or she shall keep the seal of the corporation, if\none be adopted, in safe custody and shall have such other powers and perform\nsuch other duties as may be prescribed by the Board of Directors or by these\nBylaws.\n\n      5.10  CHIEF FINANCIAL OFFICER.\n\n            The chief financial officer shall keep and maintain, or cause to be\nkept and maintained, adequate and correct books and records of accounts of the\nproperties and business transactions of the corporation, including accounts of\nits assets, liabilities, receipts, disbursements, gains, losses, capital\nretained earnings, and shares. The books of account shall at all reasonable\ntimes be open to inspection by any director.\n\n            The chief financial officer shall deposit all moneys and other\nvaluables in the name and to the credit of the corporation with such\ndepositories as may be designated by the Board of Directors. He or she shall\ndisburse the funds of the corporation as may be ordered by the Board of\nDirectors, shall render to the president, the chief executive officer, or the\ndirectors, upon request, an account of all his or her transactions as chief\nfinancial officer and of the\n\n\n                                      -13-\n&lt;PAGE&gt;\nfinancial condition of the corporation, and shall have other powers and perform\nsuch other duties as may be prescribed by the Board of Directors or the bylaws.\n\n      5.11  REPRESENTATION OF SHARES OF OTHER CORPORATIONS.\n\n            The chairman of the board, the chief executive officer, the\npresident, any vice president, the chief financial officer, the secretary or\nassistant secretary of this corporation, or any other person authorized by the\nBoard of Directors or the chief executive officer or the president or a vice\npresident, is authorized to vote, represent, and exercise on behalf of this\ncorporation all rights incident to any and all shares of any other corporation\nor corporations standing in the name of this corporation. The authority granted\nherein may be exercised either by such person directly or by any other person\nauthorized to do so by proxy or power of attorney duly executed by the person\nhaving such authority.\n\n      5.12  AUTHORITY AND DUTIES OF OFFICERS.\n\n            In addition to the foregoing authority and duties, all officers of\nthe corporation shall respectively have such authority and perform such duties\nin the management of the business of the corporation as may be designated from\ntime to time by the Board of Directors or the stockholders.\n\n                                   ARTICLE VI\n\n       INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS\n\n      6.1   INDEMNIFICATION OF DIRECTORS AND OFFICERS.\n\n            The corporation shall, to the maximum extent and in the manner\npermitted by the General Corporation Law of Delaware, indemnify each of its\ndirectors and officers against expenses (including attorneys' fees), judgments,\nfines, settlements and other amounts actually and reasonably incurred in\nconnection with any proceeding, arising by reason of the fact that such person\nis or was an agent of the corporation. For purposes of this Section 6.1, a\n\"director\" or \"officer\" of the corporation includes any person (i) who is or was\na director or officer of the corporation, (ii) who is or was serving at the\nrequest of the corporation as a director or officer of another corporation,\npartnership, joint venture, trust or other enterprise, or (iii) who was a\ndirector or officer of a corporation which was a predecessor corporation of the\ncorporation or of another enterprise at the request of such predecessor\ncorporation.\n\n      6.2   INDEMNIFICATION OF OTHERS.\n\n            The corporation shall have the power, to the maximum extent and in\nthe manner permitted by the General Corporation Law of Delaware, to indemnify\neach of its employees and agents (other than directors and officers) against\nexpenses (including attorneys' fees), judgments, fines, settlements and other\namounts actually and reasonably incurred in connection with any proceeding,\narising by reason of the fact that such person is or was an agent of the\ncorporation. For purposes of this Section 6.2, an \"employee\" or \"agent\" of the\ncorporation (other than a\n\n\n                                      -14-\n&lt;PAGE&gt;\ndirector or officer) includes any person (i) who is or was an employee or agent\nof the corporation, (ii) who is or was serving at the request of the corporation\nas an employee or agent of another corporation, partnership, joint venture,\ntrust or other enterprise, or (iii) who was an employee or agent of a\ncorporation which was a predecessor corporation of the corporation or of another\nenterprise at the request of such predecessor corporation.\n\n      6.3   PAYMENT OF EXPENSES IN ADVANCE.\n\n            Expenses incurred in defending any action or proceeding for which\nindemnification is required pursuant to Section 6.1 or for which indemnification\nis permitted pursuant to Section 6.2 following authorization thereof by the\nBoard of Directors shall be paid by the corporation in advance of the final\ndisposition of such action or proceeding upon receipt of an undertaking by or on\nbehalf of the indemnified party to repay such amount if it shall ultimately be\ndetermined that the indemnified party is not entitled to be indemnified as\nauthorized in this Article VI.\n\n      6.4   INDEMNITY NOT EXCLUSIVE.\n\n            The indemnification provided by this Article VI shall not be deemed\nexclusive of any other rights to which those seeking indemnification may be\nentitled under any bylaw, agreement, vote of shareholders or disinterested\ndirectors or otherwise, both as to action in an official capacity and as to\naction in another capacity while holding such office, to the extent that such\nadditional rights to indemnification are authorized in the certificate of\nincorporation\n\n      6.5   INSURANCE.\n\n            The corporation may purchase and maintain insurance on behalf of any\nperson who is or was a director, officer, employee or agent of the corporation,\nor is or was serving at the request of the corporation as a director, officer,\nemployee or agent of another corporation, partnership, joint venture, trust or\nother enterprise against any liability asserted against him or her and incurred\nby him or her in any such capacity, or arising out of his or her status as such,\nwhether or not the corporation would have the power to indemnify him or her\nagainst such liability under the provisions of the General Corporation Law of\nDelaware.\n\n      6.6   CONFLICTS.\n\n            No indemnification or advance shall be made under this Article VI,\nexcept where such indemnification or advance is mandated by law or the order,\njudgment or decree of any court of competent jurisdiction, in any circumstance\nwhere it appears:\n\n            (a)   That it would be inconsistent with a provision of the\ncertificate of incorporation, these Bylaws, a resolution of the stockholders or\nan agreement in effect at the time of the accrual of the alleged cause of the\naction asserted in the proceeding in which the expenses were incurred or other\namounts were paid, which prohibits or otherwise limits indemnification; or\n\n\n                                      -15-\n&lt;PAGE&gt;\n            (b)   That it would be inconsistent with any condition expressly\nimposed by a court in approving a settlement.\n\n                                  ARTICLE VII\n\n                              RECORDS AND REPORTS\n\n      7.1   MAINTENANCE AND INSPECTION OF RECORDS.\n\n            The corporation shall, either at its principal executive offices or\nat such place or places as designated by the Board of Directors, keep a record\nof its stockholders listing their names and addresses and the number and class\nof shares held by each stockholder, a copy of these Bylaws as amended to date,\naccounting books, and other records.\n\n            Any stockholder of record, in person or by attorney or other agent,\nshall, upon written demand under oath stating the purpose thereof, have the\nright during the usual hours for business to inspect for any proper purpose the\ncorporation's stock ledger, a list of its stockholders, and its other books and\nrecords and to make copies or extracts therefrom. A proper purpose shall mean a\npurpose reasonably related to such person's interest as a stockholder. In every\ninstance where an attorney or other agent is the person who seeks the right to\ninspection, the demand under oath shall be accompanied by a power of attorney or\nsuch other writing that authorizes the attorney or other agent to so act on\nbehalf of the stockholder. The demand under oath shall be directed to the\ncorporation at its registered office in Delaware or at its principal place of\nbusiness.\n\n      7.2   INSPECTION BY DIRECTORS.\n\n            Any director shall have the right to examine the corporation's stock\nledger, a list of its stockholders, and its other books and records for a\npurpose reasonably related to his or her position as a director. The Court of\nChancery is hereby vested with the exclusive jurisdiction to determine whether a\ndirector is entitled to the inspection sought. The Court may summarily order the\ncorporation to permit the director to inspect any and all books and records, the\nstock ledger, and the stock list and to make copies or extracts therefrom. The\nCourt may, in its discretion, prescribe any limitations or conditions with\nreference to the inspection, or award such other and further relief as the Court\nmay deem just and proper.\n\n      7.3   ANNUAL STATEMENT TO STOCKHOLDERS.\n\n            The Board of Directors shall present at each annual meeting, and at\nany special meeting of the stockholders when called for by vote of the\nstockholders, a full and clear statement of the business and condition of the\ncorporation.\n\n\n                                      -16-\n&lt;PAGE&gt;\n                                  ARTICLE VIII\n\n                                GENERAL MATTERS\n\n      8.1   CHECKS.\n\n            From time to time, the Board of Directors shall determine by\nresolution which person or persons may sign or endorse all checks, drafts, other\norders for payment of money, notes or other evidences of indebtedness that are\nissued in the name of or payable to the corporation, and only the persons so\nauthorized shall sign or endorse those instruments.\n\n      8.2   EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.\n\n            The Board of Directors, except as otherwise provided in these\nBylaws, may authorize any officer or officers, or agent or agents, to enter into\nany contract or execute any instrument in the name of and on behalf of the\ncorporation; such authority may be general or confined to specific instances.\nUnless so authorized or ratified by the Board of Directors or within the agency\npower of an officer, no officer, agent or employee shall have any power or\nauthority to bind the corporation by any contract or engagement or to pledge its\ncredit or to render it liable for any purpose or for any amount.\n\n      8.3   STOCK CERTIFICATES; PARTLY PAID SHARES.\n\n            The shares of a corporation shall be represented by certificates,\nprovided that the Board of Directors of the corporation may provide by\nresolution or resolutions that some or all of any or all classes or series of\nits stock shall be uncertificated shares. Any such resolution shall not apply to\nshares represented by a certificate until such certificate is surrendered to the\ncorporation. Notwithstanding the adoption of such a resolution by the Board of\nDirectors, every holder of stock represented by certificates and upon request\nevery holder of uncertificated shares shall be entitled to have a certificate\nsigned by, or in the name of the corporation by the chairman or vice-chairman of\nthe Board of Directors, or the chief executive officer or the president or\nvice-president, and by the chief financial officer or an assistant treasurer, or\nthe secretary or an assistant secretary of such corporation representing the\nnumber of shares registered in certificate form. Any or all of the signatures on\nthe certificate may be a facsimile. In case any officer, transfer agent or\nregistrar who has signed or whose facsimile signature has been placed upon a\ncertificate has ceased to be such officer, transfer agent or registrar before\nsuch certificate is issued, it may be issued by the corporation with the same\neffect as if he or she were such officer, transfer agent or registrar at the\ndate of issue.\n\n            The corporation may issue the whole or any part of its shares as\npartly paid and subject to call for the remainder of the consideration to be\npaid therefor. Upon the face or back of each stock certificate issued to\nrepresent any such partly paid shares, upon the books and records of the\ncorporation in the case of uncertificated partly paid shares, the total amount\nof the consideration to be paid therefor and the amount paid thereon shall be\nstated. Upon the declaration of any dividend on fully paid shares, the\ncorporation shall declare a dividend upon\n\n\n                                      -17-\n&lt;PAGE&gt;\npartly paid shares of the same class, but only upon the basis of the percentage\nof the consideration actually paid thereon.\n\n      8.4   SPECIAL DESIGNATION ON CERTIFICATES.\n\n            If the corporation is authorized to issue more than one class of\nstock or more than one series of any class, then the powers, the designations,\nthe preferences, and the relative, participating, optional or other special\nrights of each class of stock or series thereof and the qualifications,\nlimitations or restrictions of such preferences and\/or rights shall be set forth\nin full or summarized on the face or back of the certificate that the\ncorporation shall issue to represent such class or series of stock; provided,\nhowever, that, except as otherwise provided in Section 202 of the General\nCorporation Law of Delaware, in lieu of the foregoing requirements there may be\nset forth on the face or back of the certificate that the corporation shall\nissue to represent such class or series of stock a statement that the\ncorporation will furnish without charge to each stockholder who so requests the\npowers, the designations, the preferences, and the relative, participating,\noptional or other special rights of each class of stock or series thereof and\nthe qualifications, limitations or restrictions of such preferences and\/or\nrights.\n\n      8.5   LOST CERTIFICATES.\n\n            Except as provided in this Section 8.5, no new certificates for\nshares shall be issued to replace a previously issued certificate unless the\nlatter is surrendered to the corporation and cancelled at the same time. The\ncorporation may issue a new certificate of stock or uncertificated shares in the\nplace of any certificate previously issued by it, alleged to have been lost,\nstolen or destroyed, and the corporation may require the owner of the lost,\nstolen or destroyed certificate, or the owner's legal representative, to give\nthe corporation a bond sufficient to indemnify it against any claim that may be\nmade against it on account of the alleged loss, theft or destruction of any such\ncertificate or the issuance of such new certificate or uncertificated shares.\n\n      8.6   CONSTRUCTION; DEFINITIONS.\n\n            Unless the context requires otherwise, the general provisions, rules\nof construction, and definitions in the Delaware General Corporation Law shall\ngovern the construction of these Bylaws. Without limiting the generality of this\nprovision, the singular number includes the plural, the plural number includes\nthe singular, and the term \"person\" includes both a corporation and a natural\nperson.\n\n      8.7   DIVIDENDS.\n\n            The directors of the corporation, subject to any restrictions\ncontained in (i) the General Corporation Law of Delaware or (ii) the certificate\nof incorporation, may declare and pay dividends upon the shares of its capital\nstock. Dividends may be paid in cash, in property, or in shares of the\ncorporation's capital stock.\n\n            The directors of the corporation may set apart out of any of the\nfunds of the corporation available for dividends a reserve or reserves for any\nproper purpose and may abolish\n\n\n                                      -18-\n&lt;PAGE&gt;\nany such reserve. Such purposes shall include but not be limited to equalizing\ndividends, repairing or maintaining any property of the corporation, and meeting\ncontingencies.\n\n      8.8   FISCAL YEAR.\n\n            The fiscal year of the corporation shall be fixed by resolution of\nthe Board of Directors and may be changed by the Board of Directors.\n\n      8.9   SEAL.\n\n            The corporation may adopt a corporate seal, which may be altered at\npleasure, and may use the same by causing it or a facsimile thereof, to be\nimpressed or affixed or in any other manner reproduced.\n\n      8.10  TRANSFER OF STOCK.\n\n            Upon surrender to the corporation or the transfer agent of the\ncorporation of a certificate for shares duly endorsed or accompanied by proper\nevidence of succession, assignation or authority to transfer, it shall be the\nduty of the corporation to issue a new certificate to the person entitled\nthereto, cancel the old certificate, and record the transaction in its books.\n\n      8.11  STOCK TRANSFER AGREEMENTS.\n\n            The corporation shall have power to enter into and perform any\nagreement with any number of stockholders of any one or more classes of stock of\nthe corporation to restrict the transfer of shares of stock of the corporation\nof any one or more classes owned by such stockholders in any manner not\nprohibited by the General Corporation Law of Delaware.\n\n      8.12  REGISTERED STOCKHOLDERS.\n\n            The corporation shall be entitled to recognize the exclusive right\nof a person registered on its books as the owner of shares to receive dividends\nand to vote as such owner, shall be entitled to hold liable for calls and\nassessments the person registered on its books as the owner of shares, and shall\nnot be bound to recognize any equitable or other claim to or interest in such\nshare or shares on the part of another person, whether or not it shall have\nexpress or other notice thereof, except as otherwise provided by the laws of\nDelaware.\n\n                                   ARTICLE IX\n\n                                   AMENDMENTS\n\n            The Bylaws of the corporation may be adopted, amended or repealed by\nthe stockholders entitled to vote; provided, however, that the corporation may,\nin its certificate of incorporation, confer the power to adopt, amend or repeal\nBylaws upon the directors. The fact that such power has been so conferred upon\nthe directors shall not divest the stockholders of the power, nor limit their\npower to adopt, amend or repeal Bylaws.\n\n\n                                      -19-\n&lt;PAGE&gt;\n               CERTIFICATE OF AMENDMENT AND RESTATEMENT OF BYLAWS\n\n                                       OF\n\n                              ACCRUE SOFTWARE, INC.\n\n      The undersigned, being the Secretary of Accrue Software, Inc. (the\n\"Company\"), hereby certifies that the Bylaws of the Company were amended and\nrestated effective November 1, 2002 to read in their entirety as set forth\nabove.\n\n      Executed November 8, 2002.\n\n                                           \/s\/ John V. Bautista\n                                           -------------------------------------\n                                           John V. 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