**EXHIBIT 3.2**

 

 

 

 

 

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**BYLAWS**

**OF**

**ASCENDANT SOLUTIONS, INC.**

**(A Delaware corporation)**

 

 

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**BYLAWS**

**of**

**ASCENDANT SOLUTIONS, INC.**

**(a Delaware corporation)**

 

**ARTICLE I**

**Offices**

**     SECTION 1.1.**     Theregistered office of the Corporation shall be in the City ofWilmington, County of New Castle, State of Delaware.

**     SECTION 1.2.**     TheCorporation may also have offices at such other places bothwithin and without the State of Delaware as the Board ofDirectors may from time to time determine or the business of theCorporation may require.

**     ARTICLEII**

**     Meetingsof Stockholders**

**     SECTION2.1.     Annual Meetings.** The annualmeeting of the stockholders for the election of directors and forthe transaction of such other business as may properly comebefore the meeting shall be held at such place within or withoutthe State of Delaware, and on such date and at such hour of theday as the Board of Directors shall determine.

**     SECTION2.2.     Special Meetings.** Specialmeetings of the stockholders for any purpose or purposes, unlessotherwise prescribed by statute or by the Certificate ofIncorporation, may be called by order of the President, and shallbe called by the President or Secretary at the request in writingof a majority of the Board of Directors or the whole ExecutiveCommittee. Special meetings of the stockholders of theCorporation may not be called by any other person or persons.Special meetings of the stockholders shall be held at such placewithin or without the State of Delaware, on such date, and atsuch time as may be designated by the person or persons callingthe meeting.

**     SECTION2.3.     Notice of Meetings.** Writtennotice of every meeting of stockholders, stating the time, placeand purposes thereof, shall be given personally or by mail atleast ten (10), but not more than sixty (60), days (except asotherwise provided by law) before the date of such meeting toeach person who appears on the stock transfer books of theCorporation as a stockholder and who is entitled to vote at suchmeeting. If such notice is mailed, it shall be directed to suchstockholder at his address as it appears on the stock transferbooks of the Corporation.

**     SECTION2.4.     Quorum.** At any meeting ofthe stockholders the holders of a majority of the shares of theCorporation entitled to vote at such meeting, present in personor represented by proxy, shall constitute a quorum for allpurposes, except where otherwise provided by law or in theCertificate of Incorporation. A quorum, 

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once established, shall not be broken by thewithdrawal of enough votes to leave less than a quorum and thevotes present may continue to transact business untiladjournment, provided that any action (other than adjournment) isapproved by at least a majority of the shares required toconstitute a quorum.

**     SECTION2.5.     Adjournments.** If at anymeeting of stockholders a quorum shall fail to attend in personor by proxy, the holders of a majority of the shares present inperson or by proxy and entitled to vote at such meeting mayadjourn the meeting from time to time until a quorum shallattend, and thereupon any business may be transacted which mighthave been transacted at the meeting as originally called. Noticeneed not be given of the adjourned meeting if the time and placethereof are announced at the meeting at which the adjournment istaken; provided, however, that if the adjournment is for morethan thirty (30) days or if after the adjournment a new recorddate is fixed, notice of the adjourned date shall be given.

**     SECTION2.6.     Organization; Meeting Rules.**The Chairman of the Board, if one is elected, and in his absencethe President, and in their absence the Vice President, shallcall meetings of the stockholders to order and shall act aschairman thereof. The Secretary or an Assistant Secretary of theCorporation shall act as secretary at all meetings of thestockholders when present, and, in the absence of both, thepresiding officer may appoint any person to act as secretary. Thechairman of any meeting of stockholders shall determine the orderof business and the rules and procedure at the meeting, includingsuch regulation of the manner of voting and the conduct ofdiscussion as he may deem appropriate in his discretion.

**     SECTION2.7.     Voting.** At each meeting ofthe stockholders, each holder of the shares of Common Stock shallbe entitled to one vote on such matter for each such share andmay exercise such voting right either in person or by proxyappointed by an instrument in writing subscribed by suchstockholder or his duly authorized attorney. No such proxy shallbe voted or acted upon after eleven (11) months from its dateunless the proxy provides for a longer period. Voting need not beby ballot. All elections of directors shall be decided by aplurality vote and all questions decided and actions authorizedby a majority vote, except as otherwise required by law.

**     SECTION2.8.     Inspectors.** At any meetingof stockholders, inspectors of election may be appointed by thepresiding officer of the meeting for the purpose of opening andclosing the polls, receiving and taking charge of the proxies,and receiving and counting the ballots or the vote ofstockholders otherwise given. The inspectors shall be appointedby the presiding officer of the meeting, shall be sworn tofaithfully perform their duties, and shall in writing certify tothe returns. No candidate for election as director shall beappointed or act as inspector.

**     SECTION2.9.     Stockholder List.** At leastten (10) days before every meeting of stockholders, a completelist of the stockholders entitled to vote at the meeting,arranged in alphabetical order, and showing the address of eachstockholder and the number of shares registered in the name ofsuch stockholder, shall be prepared and held open to theexamination of any stockholder, for any purpose germane to themeeting, during ordinary business hours for said ten (10) dayseither at a place within the city where the meeting is to beheld, which place shall be specified in the notice of themeeting, or, if not so specified, at the place where the meetingis to be held. The list shall also be produced and kept at themeeting during the whole time thereof, and may be inspected byany stockholder who is present.

**     SECTION2.10.     Business to be Transacted atMeetings.** At a meeting of the stockholders, only suchbusiness shall be conducted as shall have been properly broughtbefore the meeting. To be properly brought before a specialmeeting, business must be specified in the notice of the meeting(or any supplement thereto). To be properly brought before anannual meeting, business must be (a) specified in the notice ofthe meeting (or any supplement thereto) given by or at thedirection of the Board of Directors, (b) otherwise properlybrought before the 

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meeting by or at the direction of the Board ofDirectors or (c) otherwise properly brought before the meeting bya stockholder. For business to be properly brought before anannual meeting by a stockholder, the stockholder must, inaddition to any requirements imposed by federal securities law orother laws, have given timely notice thereof in writing to thesecretary of the Corporation. To be timely for an annual meeting,a stockholder's notice must be delivered to or mailed andreceived at the principal executive offices of the Corporationnot less than 30 days nor more than 60 days prior to the meeting;provided, however, that in the event that less than 40 day'snotice or prior public disclosure of the date of the meeting isgiven or made to stockholders, notice by the stockholder to betimely must be so received not later than the close of businesson the 10th day following the day on which such notice of thedate of the annual meeting was mailed or such public disclosurewas made. A stockholder's notice to the Secretary shall set forthas to each matter the stockholder proposes to bring before theannual meeting, (i) a brief description of the business desiredto be brought before the annual meeting and the reasons forconducting such business at the annual meeting, (ii) the name andrecord address of the stockholder proposing such business, (iii)the class and number of shares of the Corporation that arebeneficially owned by the stockholder, and (iv) any materialinterest of the stockholder in such business. The Chairman of themeeting may refuse to bring before a meeting any business notproperly brought before the meeting in compliance with thissection.

**ARTICLE III**

**Directors**

**     SECTION3.1.     Functions and Number.** Theproperty, business and affairs of the Corporation shall bemanaged and controlled by a Board of Directors, who need not bestockholders, citizens of the United States or residents of theState of Delaware. The number of members which shall constitutethe Board of Directors shall be determined from time to time byresolution of the Board of Directors or by the stockholders at anannual or special meeting held for that purpose, but no decreasein the Board of Directors shall have the effect of shortening theterm of an incumbent director. The initial Board of Directorsshall consist of one (1) member, such number to constitute thewhole initial Board. The use of the phrase "wholeBoard" herein refers to the total number of directors whichthe Corporation would have if there were no vacancies. Except asotherwise provided by law or in these Bylaws or in theCertificate of Incorporation, the directors shall be elected bythe stockholders entitled to vote at the annual meeting ofstockholders of the Corporation. Subject to law, to theCertificate of Incorporation and to the other provisions of theseBylaws, each director shall hold office until his or her term ofoffice expires and until his or her successor shall have beenelected and qualified.

     At such time asthe number of directors comprising the Board shall become atleast five (5) for the first time, and at all times thereafteruntil this particular Bylaw shall be amended as provided herein,the directors shall be divided, with respect to the terms forwhich they severally hold office, into three (3) classes, herebydesignated as Class A, Class B and Class C. Eachclass shall have at least one (1) director and the three (3)classes shall be as nearly equal in number as possible. Theinitial term of office of the Class A, Class B andClass C directors, which are expected to be appointed inconnection with the merger of the Corporation with ASD Systems,Inc., a Texas corporation, shall expire at the 2003 annualmeeting of stockholders, the 2001 annual meeting of stockholdersand the 2002 annual meeting of stockholders, respectively. Ateach annual meeting of stockholders, the successors of the classof directors whose term expires at that meeting shall be electedto hold office for a term expiring at the annual meeting ofstockholders to be held in the third year following the year oftheir election.

**     SECTION3.2.     Removal.** Any director maybe removed by the affirmative vote of the holders of a majorityof the then outstanding shares of Common Stock only for cause.

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**     SECTION3.3.     Vacancies.** Unless otherwiseprovided in the Certificate of Incorporation or in these Bylaws,vacancies among the directors, whether caused by resignation,death, disqualification, removal, an increase in the authorizednumber of directors or otherwise, may be filled by a majority ofthe directors then in office, although less than a quorum, or bya sole remaining director. Vacancies that occur on the Board ofDirectors during the year may be filled by the Board of Directorsas hereinabove provided for the unexpired term of the vacatingdirectors predecessor in office.

**     SECTION3.4.     Place of Meeting.** Thedirectors may hold their meetings and may have one or moreoffices and keep the books of the Corporation (except asotherwise may at any time be provided by law) at such place orplaces within or without the State of Delaware as the Board mayfrom time to time determine.

**     SECTION3.5.     Annual Meeting.** The newlyelected Board may meet for the purpose of organization, theelection of officers and the transaction of other business, atsuch time and place within or without the State of Delaware asshall be fixed as provided in Section 3.7 of this Article forspecial meetings of the Board of Directors.

**     SECTION3.6.     Regular Meetings.** Regularmeetings of the Board of Directors shall be held at such time andplace within or without the State of Delaware as the Board ofDirectors shall from time to time by resolution determine and nonotice of such regular meetings shall be required.

**     SECTION3.7.     Special Meetings.** Specialmeetings of the Board of Directors shall be held whenever calledby the direction of the President or of one-third of thedirectors then in office. The Secretary or some other officer ordirector of the Corporation shall give notice to each director ofeach special meeting of the Board of Directors by mailing thenotice at least three (3) days before the meeting or by sendingthe notice by telephone, facsimile, e-mail or other form ofelectronic transmission not later than the day before themeeting. The notice shall state the time, date and place of thespecial meeting and shall be mailed or sent to each director athis residence address or at his usual place of business. Specialmeetings of the Board shall be held at such place within orwithout the State of Delaware as shall be specified in the callfor the meeting. Unless expressly required by statute, by theCertificate of Incorporation or by the Bylaws, neither thebusiness to be transacted at, nor the purpose of, any specialmeeting of the Board of Directors need be specified in the noticeof a meeting.

**     SECTION3.8.     Quorum.** Except as otherwiseprovided by law or in the Certificate of Incorporation, amajority of the directors in office shall constitute a quorum forthe transaction of business. A majority of those present at thetime and place of any regular or special meeting, if less than aquorum be present, may adjourn from time to time without notice,until a quorum be had. The act of a majority of directors presentat any meeting at which there is a quorum shall be the act of theBoard of Directors, except as may be otherwise provided by law orin the Certificate of Incorporation.

**     SECTION3.9.     Compensation.** The Board ofDirectors shall have the authority to fix by resolution thecompensation of directors.

**     SECTION3.10.     Organization.** At allmeetings of the Board of Directors, the President, or in hisabsence the Vice President if he is a member of the Board, or intheir absence, a chairman chosen by the directors shall preside.The Secretary or an Assistant Secretary of the Corporation shallact as secretary at all meetings of the Board of Directors whenpresent, and, in the absence of both, the presiding officer mayappoint any person to act as secretary.

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**     SECTION3.11.     Telephone Meetings.** Anymember of the Board of Directors may participate in any meetingof such Board by means of conference telephone or similarcommunications equipment by means of which all personsparticipating in the meeting can hear each other, andparticipation in any meeting pursuant to this provision shallconstitute presence in person at such meeting.

**     SECTION3.12.     Informal Action.** Anyaction required or permitted to be taken at any meeting of theBoard of Directors, or any committee thereof, may be takenwithout a meeting if all the members of the Board consent theretoin writing, and the writing or writings are filed with theminutes of proceedings of the Board.

     **SECTION3.13.     Nomination of DirectorCandidates**. Subject to the rights of the holders of PreferredStock or any other class of capital stock of the Corporation(other than Common Stock) or any series of any of the foregoingthat has been outstanding, nominations for the election ofdirectors may be made by the Board of Directors, by any dulyappointed committee thereof or by any stockholder entitled tovote for the election of directors. Any stockholder entitled tovote for the election of directors at any meeting may nominatepersons for election as directors only if written notice of suchstockholder's intent to make such nomination is given, either bypersonal delivery or by United States Mail, postage prepaid, tothe Secretary of the Corporation not less than 30 days nor morethan 60 days prior to the meeting; provided, however, that in theevent that less than 40 days' notice or prior public disclosureof the date of the meeting is given or made to stockholders,notice by the stockholder to be timely must be so received notlater than the close of business on the 10th day following theday on which such notice of the date of the meeting was mailed orsuch public disclosure was made. Such stockholder's notice shallset forth (a) as to each person whom the stockholder proposes tonominate for election or re-election as a Director, (i) the name,age, business address and residence address of the person, (ii)the principal occupation or employment of the person, (iii) theclass and number of shares of the Corporation beneficially ownedby the person, and (iv) any other information relating to theperson that is required to be disclosed in solicitations forproxies for election of Directors pursuant to Regulation 14Aunder the Securities Exchange Act of 1934, as amended; and (b) asto the stockholder giving the notice, (i) the name and recordaddress of the stockholder, and (ii) the class and number ofshares of the Corporation beneficially owned by the stockholder.The Corporation may require any proposed nominee to furnish suchother information as may reasonably be required by theCorporation to determine the eligibility of such proposed nomineeto serve as a Director of the Corporation The Chairman of themeeting may refuse to acknowledge the nomination of any personnot made in compliance with this section.

**     ARTICLEIV**

**     Committees**

**     SECTION4.1.     Executive Committee.** TheBoard of Directors, by a resolution passed by a vote of amajority of the whole Board, may appoint an Executive Committeeof one or more directors, which to the extent permitted by lawand in said resolution shall, during the intervals between themeetings of the Board of Directors, in all cases where specialdirections shall not have been given by the Board, have andexercise the powers of the Board of Directors, including thosepowers enumerated in these Bylaws which are not specificallyreserved to the Board of Directors, in the management of theproperty, business and affairs of the Corporation; provided,however, that the Executive Committee shall not have any power orauthority to amend the Certificate of Incorporation, to adopt anyagreement of merger or consolidation, to recommend to thestockholders the sale, lease or exchange of all or substantiallyall of the Corporation's property and assets, to recommend to thestockholders a dissolution of the Corporation or a revocation ofdissolution, to amend the Bylaws of the Corporation, to declare adividend, to authorize the issuance of stock or to adopt acertificate of ownership and merger. The Executive Committeeshall have power to authorize the seal of the Corporation to beaffixed to all papers which may require it. The Board ofDirectors 

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shall appoint the Chairman of the ExecutiveCommittee. The members of the Executive Committee shall receivesuch compensation and fees as from time to time may be fixed bythe Board of Directors.

**     SECTION4.2.     Alternates and Vacancies.**The Board of Directors may designate one or more directors asalternate members of the Executive Committee who may replace anyabsent or disqualified member at any meeting of the ExecutiveCommittee. In the absence or disqualification of a member of theExecutive Committee, the member or members thereof present at anymeeting and not disqualified from voting, whether or not he orthey constitute a quorum, may unanimously appoint another memberof the Board of Directors to act at the meeting in the place ofany such absent or disqualified member. All other vacancies inthe Executive Committee shall be filled by the Board of Directorsin the same manner as original appointments to such Committee.

**     SECTION4.3.     Committees to Report to Board.**The Executive Committee shall keep regular minutes of itsproceedings and all action by the Executive Committee shall bereported to the Board of Directors at its meeting next succeedingsuch action.

**     SECTION4.4.     Procedure.** The ExecutiveCommittee shall fix its own rules of procedure, and shall meetwhere and as provided by such rules or by resolution of the Boardof Directors. The presence of a majority of the then appointednumber of each committee created pursuant to this Article IVshall constitute a quorum and in every case an affirmative voteby a majority of the members of the committee present and notdisqualified from voting shall be the act of the committee.

**     SECTION4.5.     Other Committees.** From timeto time the Board of Directors by a resolution adopted by amajority of the whole Board may appoint any other committee orcommittees for any purpose or purposes, to the extent lawful,which shall have such powers as shall be determined and specifiedby the Board of Directors in the resolution of appointment.

**     SECTION4.6.     Termination of CommitteeMembership.** In the event any person shall cease to be adirector of the Corporation, such person shall simultaneouslytherewith cease to be a member of any committee appointed by theBoard of Directors, or any subcommittee thereof.

**ARTICLE V**

**Officers**

**     SECTION5.1.     Executive Officers.** Theexecutive officers of the Corporation may consist of a Chairmanof the Board, a President and Chief Executive Officer, one ormore Vice Presidents, a Treasurer and a Secretary, all of whomshall be elected annually by the Board of Directors. Unlessotherwise provided in the resolution of election, each officershall hold office until the next annual election of directors anduntil his successor shall have been qualified. Any two of suchoffices may be held by the same person.

**     SECTION5.2.     Subordinate Officers.** TheBoard of Directors may appoint one or more Assistant Secretaries,one or more Assistant Treasurers and such other subordinateofficers and agents as it may deem necessary or advisable, forsuch term as the Board of Directors shall fix in suchappointment, who shall have such authority and perform suchduties as may from time to time be prescribed by the Board.

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**     SECTION5.3.     Compensation.** The Board ofDirectors shall have the power to fix the compensation of allofficers, agents and employees of the Corporation, which power,as to other than elected officers, may be delegated as the Boardof Directors shall determine.

**     SECTION5.4.     Removal.** All officers,agents and employees of the Corporation shall be subject toremoval, with or without cause, at any time by affirmative voteof the majority of the whole Board of Directors whenever, in thejudgment of the Board of Directors, the best interests of theCorporation will be served thereby. The power to remove agentsand employees, other than officers or agents elected or appointedby the Board of Directors, may be delegated as the Board ofDirectors shall determine.

**     SECTION5.5.     Chairman of the Board.** If aChairman of the Board is elected, he shall be chosen from amongthe members of the Board of Directors and shall preside at allmeetings of the directors and the stockholders of theCorporation. The Chairman of the Board shall, in general, havesupervisory power over the Chief Executive Officer and all otherofficers of the Corporation.

**     SECTION5.6.     The Chief Executive Officer.**The Chief Executive Officer shall be the chief operating officerof the Corporation and shall be responsible for insuring that thePresident of the Corporation is capable of fulfilling his dutiesto the Corporation and shall perform such other duties as theBoard of Directors shall prescribe.

**     SECTION5.7.     The President.** ThePresident shall have the general powers and duties of supervisionand management of the Corporation, shall report directly to theChief Executive Officer, and shall see that all orders andresolutions of the Board of Directors are carried into effect.The President shall preside at all meetings of the stockholdersand directors at which he is present. The President shall alsoperform such other duties as may from time to time be assigned tohim by the Board of Directors.

**     SECTION5.8.     Vice Presidents.** Each VicePresident shall perform such duties and shall have such authorityas from time to time may be assigned to him by the Board ofDirectors or the President.

**     SECTION5.9.     The Treasurer.** TheTreasurer shall have the general care and custody of all thefunds and securities of the Corporation which may come into hishands and shall deposit the same to the credit of the Corporationin such bank or banks or depositaries as from time to time may bedesignated by the Board of Directors or by an officer or officersauthorized by the Board of Directors to make such designation,and the Treasurer shall pay out and dispose of the same under thedirection of the Board of Directors. He shall have general chargeof all securities of the Corporation and shall in general performall duties incident to the position of Treasurer.

**     SECTION5.10.     The Secretary.** TheSecretary shall keep the minutes of all proceedings of the Boardof Directors and the minutes of all meetings of the stockholdersand also, unless otherwise directed by such committee, theminutes of each standing committee, in books provided for thatpurpose, of which he shall be the custodian; he shall attend tothe giving and serving of all notices for the Corporation; heshall have charge of the seal of the Corporation, of the stockcertificate books and such other books and papers as the Board ofDirectors may direct; and he shall in general perform all theduties incident to the office of Secretary and such other dutiesas may be assigned to him by the Board of Directors.

**     SECTION5.11.     Vacancies.** All vacanciesamong the officers for any cause shall be filled only by theBoard of Directors.

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**     SECTION5.12.     Bonding.** The Board ofDirectors shall have power to require any officer or employee ofthe Corporation to give bond for the faithful discharge of hisduties in such form and with such surety or sureties as the Boardof Directors may deem advisable.

**     ARTICLEVI**

**     Stock**

**     SECTION6.1.     Form and Execution ofCertificates.** The shares of stock of the Corporation shall berepresented by certificates in such form as shall be approved bythe Board of Directors; provided that the Board of Directors ofthe Corporation may provide by resolution that some or all of anyor all classes or series of its stock (other than the Commonstock of the Corporation) shall be uncertificated shares. Anysuch resolution shall not apply to shares represented by acertificate until such certificate is surrendered to theCorporation; and, notwithstanding the adoption of such aresolution by the Board of Directors, every holder of stockrepresented by certificates and every holder of uncertificatedshares shall be entitled to a certificate or certificatesrepresenting his shares upon delivery of a written requesttherefor to the Secretary of the Corporation. The certificatesshall be signed by the President or the Vice President and theTreasurer or the Secretary or an Assistant Treasurer or AssistantSecretary, except that where any such certificates shall becountersigned by a transfer agent and by a registrar, thesignatures of any of the officers above specified, and the sealof the Corporation upon such certificates, may be facsimiles,engraved or printed. In case any officer, transfer agent orregistrar who has signed or whose facsimile signature has beenplaced upon such certificate shall have ceased to be suchofficer, transfer agent or registrar before such certificate isissued, it may be issued by the Corporation with the same effectas if he were such officer, transfer agent or registrar at thedate of its issue.

**     SECTION6.2.     Regulations.** The Board ofDirectors may make such rules and regulations consistent with anygoverning statute as it may deem expedient concerning the issue,transfer and registration of certificates of stock and concerningcertificates of stock issued, transferred or registered in lieuor replacement of any lost, stolen, destroyed or mutilatedcertificates of stock.

**     SECTION6.3.     Fixing of Record Date.** Forthe purpose of determining the stockholders entitled to noticeof, and to vote at, any meeting of stockholders or anyadjournment thereof, or to express consent to corporate action inwriting without a meeting, or for the purpose of determiningstockholders entitled to receive payment of any dividend or otherdistribution or allotment of any rights, or to exercise anyrights in respect of any change, conversion or exchange of stock,or for the purpose of any other lawful action, the Board ofDirectors may fix, in advance, a date as the record date for anysuch determination of stockholders, and all persons who arestockholders of record on the date so fixed, and no others, shallbe entitled to notice of, and to vote at, such meeting or anyadjournment thereof, or to express consent to corporate action inwriting without a meeting, or to receive payment of any dividendor other distribution or allotment of any rights, or to exerciseany rights in respect of any change, conversion or exchange ofstock or to take any other lawful action, as the case may be.Such record date shall not be more than sixty (60) days nor lessthan ten (10) days before the date of any such meeting, nor morethan sixty (60) days prior to any other action, provided that anyrecord date established by the Board of Directors may not precedethe date of the resolution establishing the record date. Therecord date for determining stockholders entitled to consent tocorporate actions in writing shall not be more than ten (10) daysafter the date upon which the resolution fixing the record datewas adopted. If no record date is established prior to an actionundertaken by consent, the record date shall be, if no action ofthe Board of Directors is required, the first date on which asigned written consent setting forth the action taken isdelivered to the corporation. If action by the Board of Directorsis 

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required, the record date shall be the close ofbusiness on the day the board adopts the resolution taking theprior action.

**     Section6.4.     Transfer Agent and Registrar.**The Board of Directors may appoint a transfer agent or transferagents and a registrar or registrars for any or all classes ofthe capital stock of the Corporation, and may require stockcertificates of any or all classes to bear the signature ofeither or both.

**ARTICLE VII**

**Seal**

**     SECTION7.1.     Seal.** The seal of theCorporation shall be circular in form and contain the name of theCorporation, the year of its organization, and the words"CORPORATE SEAL, DELAWARE", which seal shall be incharge of the Secretary to be used as directed by the Board ofDirectors.

**ARTICLE VIII**

**Fiscal Year**

**     SECTION8.1.     Fiscal Year.** The fiscalyear of the Corporation shall be the calendar year unlessotherwise fixed by resolution of the Board of Directors.

**ARTICLE IX**

**Waiver of Notice**

**     SECTION9.1.     Waiver of Notice.** Anyperson may waive any notice required to be given by law, in theCertificate of Incorporation or under these Bylaws by attendancein person, or by proxy if a stockholder, at any meeting, exceptwhen such person attends a meeting for the express purpose ofobjecting, at the beginning of the meeting, to the transaction ofany business because the meeting is not lawfully called orconvened, or by a writing signed by the person or personsentitled to said notice, whether before or after the time statedin said notice, which waiver shall be deemed equivalent to suchnotice. Neither the business to be transacted at, nor the purposeof, any regular or special meeting of the stockholders,directors, or members of a committee appointed by the Board ofDirectors need be specified in any written waiver of notice.

**ARTICLE X**

**Checks, Notes, Drafts,Contracts, Voting of Securities, Etc.**

**     SECTION10.1.     Checks, Notes, Drafts, Etc.**All checks, notes, drafts or other orders for the payment ofmoney of the Corporation shall be signed, endorsed or accepted inthe name of the Corporation by such officer, officers, person orpersons as from time to time may be designated by the Board ofDirectors or by an officer or officers authorized by the Board ofDirectors to make such designation.

**     SECTION10.2.     Execution of Contracts, Deeds,Etc.** The Board of Directors may authorize any officer orofficers, agent or agents, in the name and on behalf of theCorporation, to enter into or execute and deliver any 

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and all deeds, bonds, mortgages, contracts andother obligations or instruments, and such authority may begeneral or confined to specific instances.

**     SECTION10.3.     Provision Regarding Conflictsof Interests.** No contract or transaction between theCorporation and one or more of its directors or officers, orbetween the Corporation and any other corporation, partnership,association, or other organization in which one or more of itsdirectors or officers are directors or officers, or have afinancial interest, shall be void or voidable solely for thisreason, or solely because the director or officer is present ator participates in the meeting of the Board of Directors orcommittee thereof which authorizes the contract or transaction,or solely because his or their votes are counted for suchpurpose, if:

                     (a)     Thematerial facts as to his relationship or interest and as to thecontract or transaction are disclosed or are known to the      Board of Directors or thecommittee, and the Board or committee in good faith authorizesthe contract or transaction by the affirmative      votes of a majority of thedisinterested directors, even though the disinterested directorsbe less than a quorum; or

                    (b)     Thematerial facts as to his relationship or interest and as to thecontract or transaction are disclosed or are known to the     shareholders entitled to votethereon, and the contract or transaction is specifically approvedin good faith by vote of the shareholders; or

                    (c)     Thecontract or transaction is fair as to the Corporation as of thetime it is authorized, approved or ratified by the Board of     Directors, a committee thereof, orthe shareholders.

     Common orinterested directors may be counted in determining the presenceof a quorum at a meeting of the Board of Directors or of acommittee which authorizes the contract or transaction.

**     SECTION10.4.     Voting of Securities Owned bythe Corporation.** Subject always to the specific directions ofthe Board of Directors, any share or shares of stock or othersecurities issued by any other corporation and owned orcontrolled by the Corporation may be voted, whether by writtenconsent as set forth hereinbelow or at any meeting of such othercorporation, by the President of the Corporation, or in theabsence of the President, by any Vice President of theCorporation who may be present at such meeting or available tosign such written consent. Whenever in the judgment of thePresident, or in his absence, of any Vice President, it shall bedesirable for the Corporation to execute a proxy or give aconsent with respect to any share or shares of stock or othersecurities issued by any other corporation and owned by theCorporation, such proxy or consent shall be executed in the nameof the Corporation by the President or one of the Vice Presidentsof the Corporation without necessity of any authorization by theBoard of Directors. Any person or persons so designated as theproxy or proxies of the Corporation shall have full right, powerand authority to vote the share or shares of stock or othersecurities issued by such other corporation and owned by theCorporation.

**ARTICLE XI**

**Indemnification and Insurance**

**     SECTION11.1.     Third-Party Actions.** TheCorporation shall indemnify and hold harmless any person who wasor is a party or is threatened to be made a party to anythreatened, pending or completed proceeding (other than an actionby or in the right of the Corporation) by reason of the fact thathe or she is or was a director or officer of the Corporation,against expenses (including reasonable attorneys' fees),judgments, fines, liabilities, losses and amounts paid insettlement actually and reasonably incurred by him or her inconnection with such proceeding if he 

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or she acted in good faith and in a manner heor she reasonably believed to be in or not opposed to the bestinterests of the Corporation and, with respect to any criminalproceeding, had no reasonable cause to believe his or her conductwas unlawful. The termination of any proceeding by judgment,order, settlement, conviction or upon a plea of nolo contendereor its equivalent, shall not, of itself, create a presumptionthat the person did not act in good faith and in a manner he orshe reasonably believed to be in, or not opposed to, the bestinterest of the Corporation, and, with respect to any criminalproceeding, had reasonable cause to believe that his or herconduct was unlawful.

**     SECTION11.2.     Derivative Actions.** TheCorporation shall indemnify and hold harmless any person who wasor is a party or is threatened to be made a party to anythreatened, pending or completed proceeding by or in the right ofthe Corporation to procure a judgment in its favor by reason ofthe fact that he or she is or was a director or officer of theCorporation, against expenses (including reasonable attorneys'fees) actually and reasonably incurred by him or her inconnection with the defense or settlement of such proceeding ifhe or she acted in good faith and in a manner he or shereasonably believed to be in or not opposed to the best interestsof the Corporation and except that no indemnification shall bemade in respect of any claim, issue or matter as to which suchperson shall have been adjudged to be liable to the Corporationunless and only to the extent that the court in which suchproceeding was brought shall determine upon application that,despite the adjudication of liability but in view of all thecircumstances of the case, such person is fairly and reasonablyentitled to indemnity for such expenses that the court shall deemproper.

**     SECTION11.3.     Right to Indemnification ofExpenses.** To the extent that a director or officer of theCorporation has been successful on the merits or otherwise indefense of any proceeding referred to in Sections 11.1 and 11.2or in defense of any claim, issue or matter therein, he or sheshall be indemnified against expenses (including reasonableattorneys' fees) actually and reasonably incurred by him or herin connection therewith.

     **SECTION11.4     Determination ofIndemnification**. Any indemnification under Sections 11.1 and11.2 (unless ordered by a court) shall be made by the Corporationonly as authorized in the specific case upon a determination thatindemnification of the director or officer is proper in thecircumstances because he or she has meet the applicable standardsof conduct set forth in Sections 11.1 and 11.2. Suchdetermination shall be made (A) by the Board of Directors by amajority vote of a quorum consisting of directors who were notparties to such action, suit or proceeding, (B) if such a quorumis not obtainable, or, even if obtainable, if a quorum ofdisinterested directors so directs, by independent legal counselin a written opinion or (C) by the stockholders.

     **SECTION11.5     Expenses of ContestedIndemnification Claims**. If a claim under Section 11.1 or 11.2is not paid in full by the Corporation within thirty (30) daysafter a written claim has been received by the Corporation, theclaimant may at any time thereafter bring suit against theCorporation to recover the unpaid amount of the claim and, ifsuccessful in whole or in part, the claimant shall also beentitled to be paid the expenses of prosecuting such claim.

     **SECTION11.6     Advancement of Expenses**.Expenses (including reasonable attorneys' fees) incurred by adirector or officer in defending any proceeding or prosecuting aclaim under Section 11.5 shall be paid by the Corporation inadvance of the final disposition of such proceeding or suit uponreceipt of a written affirmation by the director or officer ofhis or her good faith belief that he or she has met the standardof conduct necessary for indemnification and a writtenundertaking by or on behalf of the director or officer to repaysuch amount if it shall ultimately be determined that he or sheis not entitled to be indemnified by the Corporation asauthorized in this Article.

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     **SECTION11.7     Indemnification Not Exclusive**.The indemnification and advancement of expenses provided by, orgranted pursuant to, this Article shall not be deemed exclusiveof any other rights to which those seeking indemnification oradvancement of expenses may be entitled under the Certificate ofIncorporation, any other bylaw, agreement, vote of stockholdersor disinterested directors or otherwise, both as to action in hisor her official capacity and as to action in another capacitywhile holding such office.

     **SECTION11.8     Survival of Indemnification andAdvancement of Expenses**. The indemnification and advancementof expenses provided by, or granted pursuant to, this Articleshall, unless otherwise provided when authorized or ratified,continue as to a person who has ceased to be a director orofficer and shall inure to the benefit of the heirs, executorsand administrators of such person.

     **SECTION11.9     Employees, Agents and Others**.The Corporation may, to the fullest extent of the provisions ofthis Article with respect to directors and officers and to theextent authorized from time to time by the Board of Directors,grant rights of indemnification and advancement of expenses toany employee or agent of the Corporation or any other person whois or was serving at the request of the Corporation as adirector, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise.

     **SECTION11.10     Contract Right**. Each ofthe rights of indemnification and advancement of expensesprovided by, or granted pursuant to, this Article shall be acontract right and any repeal or amendment of the provisions ofthis Article shall not adversely affect any such right of anyperson existing at the time of such repeal or amendment withrespect to any act or omission occurring prior to the time ofsuch repeal or amendment, and further, shall not apply to anyproceeding, irrespective of when the proceeding is initiated,arising from the service of such person prior to such repeal oramendment.

     **SECTION11.11     Insurance**. The Corporationshall have power to purchase and maintain insurance on behalf ofany person who is or was a director, officer, employee or agentof the Corporation or is or was serving at the request of theCorporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or otherenterprise against any liability asserted against him or her andincurred by him or her in any such capacity, or arising out ofhis or her status as such, whether or not the Corporation wouldhave the power to indemnify him or her against such liabilityunder the provisions of this Article.

     **SECTION11.12     Certain References UnderArticle XI**. For purposes of this Article, the followingreferences shall have the following meanings:

                       (A)     "theCorporation" shall include, in addition to the resultingcorporation, any constituent corporation (including anyconstituent of a constituent) absorbed in a consolidation ormerger that, if its separate existence had continued, would havehad power and authority to indemnify its directors, officers,employees or agents so that any person who is or was a director,officer, employee or agent of such constituent corporation, or isor was serving at the request of such constituent corporation asa director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise shall standin the same position under the provisions of this Article withrespect to the resulting or surviving corporation as he or shewould have with respect to such constituent corporation if itsseparate existence had continued;

                     (B)     "fines"shall include any excise taxes assessed on a person with respectto an employee benefit plan;

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                     (C)     aperson who acted in good faith and in a manner he or shereasonably believed to be in the best interest of theparticipants and beneficiaries of an employee benefit plan shallbe deemed to have acted in a manner "not opposed to the bestinterests of the corporation;"

                     (D)     "otherenterprises" shall include employee benefit plans;

                     (E)     "proceeding"shall include any pending or completed action, suit orproceeding, whether formal or informal or civil, criminal,administrative, arbitrative or investigative, any appeal in suchan action, suit or proceeding, and any inquiry or investigationthat could lead to such an action, suit or proceeding;

                     (F)     "servingat the request of the Corporation" shall include any serviceas a director, officer, employee or agent of the Corporation thatimposes duties on, or involves services by, such director,officer, employee or agent with respect to an employee benefitplan, its participants or beneficiaries.