**EXHIBIT 3.2**

 

AMENDED AND RESTATEDBY-LAWS

 OF

ROCK OF AGES CORPORATION(hereinafter called the"Corporation")(as amended through April6, 1999)

ARTICLE I

Offices

     Section 1.   RegisteredOffice.  The registered office of the corporation shall be in the City ofWilmington, County of New Castle, State of Delaware.

    Section 2.    OtherOffices.    The Corporation may also have offices at such other placesboth within and without the State of Delaware as the Board of Directors of theCorporation (the "Board of Directors") may from time to time determine.

 ARTICLE II

 Meetings of Stockholders

    Section 1.    Placeof Meeting.    Meetings of the stockholders for the election of directors orfor any other purpose shall be held at such time and place, either within orwithout the State of Delaware as shall be designated from time to time by theBoard of Directors.

     Section 2.    AnnualMeeting.    The Annual Meeting of Stockholders for the election of directorsshall be held on such date and at such time as shall be designated from time totime by the Board of Directors.

     Section 3.    Natureof Business at Annual Meetings.    No business may be transacted at an AnnualMeeting of Stockholders, other than business that is either (a) specified inthe notice of meeting (or any supplement thereto) given by or at the directionof the Board of Directors (or any duly authorized committee thereof), (b)otherwise properly brought before the Annual Meeting by or at the direction ofthe Board of Directors (or any duly authorized committee thereof) or (c)otherwise properly brought before the Annual Meeting by any stockholder of theCorporation (i) who is a stockholder of record on the date of the giving of thenotice provided for in this Section 3 and on the record date for thedetermination of stockholders entitled to vote at such Annual Meeting and (ii)who complies with the notice procedures set forth in this Section 3.

 

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    In addition to any other applicablerequirements, for business to be properly brought before an Annual Meeting by astockholder, such stockholder must have given timely notice thereof in properwritten form to the Secretary of the Corporation. 

     To be timely,a stockholder's notice to the Secretary must be delivered to or mailed andreceived at the principal executive offices of the Corporation not less thanninety (90) days nor more than one hundred twenty (120) days prior to theanniversary date of the immediately preceding Annual Meeting of Stockholders; provided,however, that in the event that the Annual Meeting is called for a datethat is not within thirty (30) days before or after such anniversary date,notice by the stockholder in order to be timely must be so received not laterthan the close of business on the later of (i) the ninetieth (90th) daypreceding the date of the Annual Meeting and (ii) the tenth (10th) dayfollowing the day on which such notice of the date of the Annual Meeting wasmailed or such public disclosure of the date of the Annual Meeting was made,whichever occurs first.

     To be inproper written form, a stockholder's notice to the Secretary must set forth asto each matter such stockholder proposes to bring before the Annual Meeting (i)a brief description of the business desired to be brought before the AnnualMeeting and the reasons for conducting such business at the Annual Meeting,(ii) the name and record address of such stockholder, (iii) the class or seriesand number of shares of capital stock of the Corporation which are ownedbeneficially or of record by such stockholder, (iv) a description of allarrangements or understandings between such stockholder and any other person orpersons (including their names) in connection with the proposal of suchbusiness by such stockholder and any material interest of such stockholder insuch business and (v) a representation that such stockholder intends to appearin person or by proxy at the Annual Meeting to bring such business before themeeting.

     No businessshall be conducted at the Annual Meeting of Stockholders except businessbrought before the Annual Meeting in accordance with the procedures set forthin this Section 3; provided, however, that, once business hasbeen properly brought before the Annual Meeting in accordance with suchprocedures, nothing in this Section 3 shall be deemed to preclude discussion byany stockholder of any such business. If the Chairman of an Annual Meetingdetermines that business was not properly brought before the Annual Meeting inaccordance with the foregoing procedures, the Chairman shall declare to themeeting that the business was not properly brought before the Annual Meetingand such business shall not be transacted.

     Section 4.    SpecialMeetings.    Unless otherwise required by law or by the certificate ofincorporation of the Corporation, as amended and restated from time to time(the "Certificate of Incorporation), Special Meetings of Stockholders, for anypurpose or purposes, may be called only by (i) the Chairman (if there be one),(ii) the President, (iii) any Vice President (if there be one), (iv) theSecretary or (v) any Assistant Secretary (if there be one), and shall be calledby any such officer at the request in writing of a majority of the Board ofDirectors. Such request shall state the purpose or purposes of the proposedmeeting. At a Special Meeting of Stockholders, only such business shall beconducted as shall be specified in the notice of meeting (or any supplementthereto).

 

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    Section 5.    Nominationof Directors at Annual and Special Meetings. Only persons who arenominated in accordance with the following procedures shall be eligible forelection as directors of the Corporation, except as may be otherwise providedin the Certificate of Incorporation with respect to the right of holders ofpreferred stock of the Corporation to nominate and elect a specified number ofdirectors in certain circumstances. Nominations of persons for election to theBoard of Directors may be made at any Annual Meeting of Stockholders, or at anySpecial Meeting of Stockholders called for the purpose of electing directors, (a)by or at the direction of the Board of Directors (or any duly authorizedcommittee thereof) or (b) by any stockholder of the Corporation (i) who is astockholder of record on the date of the giving of the notice provided for inthis Section 5 and on the record date for the determination of stockholdersentitled to vote at such meeting and (ii) who complies with the noticeprocedures set forth in this Section 5.

     In additionto any other applicable requirements, for a nomination to be made by a stockholder,such stockholder must have given timely notice thereof in proper written formto the Secretary of the Corporation.

     To be timely,a stockholder's notice to the Secretary must be delivered to or mailed andreceived at the principal executive offices of the Corporation (a) in the caseof an Annual Meeting, not less than ninety (90) days nor more than one hundredtwenty (120) days prior to the anniversary date of the immediately precedingAnnual Meeting of Stockholders; provided,however, that in eventthat the Annual Meeting is called for a date that is not within thirty (30)days before or after such anniversary date, notice by the stockholder in orderto be timely must be so received not later than the close of business on thelater of (i) the ninetieth (90th) day preceding the date of the Annual Meetingand (ii) the tenth (10th) day following the day on which such notice of thedate of the Annual Meeting was mailed or such public disclosure of the date ofthe Annual Meeting was made, whichever first occurs; and (b) in the case of aSpecial Meeting of Stockholders called for the purpose of electing directors,not later than the close of business on the tenth (10th) day following the dayon which notice of the date of the Special Meeting was mailed or publicdisclosure of the date of the Special Meeting was made, whichever first occurs.

     To be in proper written form, astockholder's notice to the Secretary must set forth (a) as to each person whomthe stockholder proposes to nominate for election as a director, (i) the name,age, business address and residence address of the person, (ii) the principaloccupation or employment of the person, (iii) the class or series and number ofshares of capital stock of the Corporation which are owned beneficially or ofrecord by the person and (iv) any other information relating to the person thatwould be required to be disclosed in a proxy statement or other filingsrequired to be made in connection with solicitations of proxies for election ofdirectors pursuant to Section 14 of the Securities Exchange Act of 1934, asamended (the "Exchange Act"), and the rules and regulations promulgatedthereunder; and (b) as to the stockholder giving the notice, (i) the name andrecord address of such stockholder , (ii) the class or series and number ofshares of capital stock of the Corporation which are owned beneficially or ofrecord by such stockholder, (iii) a description of all arrangements orunderstandings between such stockholder and each proposed nominee and any otherperson or persons (including their names) pursuant to which the nomination(s)are to be made by such stockholder, (iv) a representation that such stockholderintends to appear in person or by proxy at the meeting to nominate the personsnamed in such stockholder's notice and (v) any other information relating tosuch stockholder that would be required to be disclosed in a proxy statement orother filings required to be made in connection with solicitations of proxiesfor election of directors pursuant to Section 14 of the Exchange Act and therules and regulations promulgated thereunder. Such notice must be accompaniedby a written consent of each proposed nominee to being named as a nominee andto serve as a director if elected.

 

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    No person shall be eligible forelection as a director of the Corporation unless nominated in accordance withthe procedures set forth in this Section 5. If the Chairman of the meetingdetermines that a nomination was not made in accordance with the foregoingprocedures, the Chairman shall declare to the meeting that the nomination wasdefective and such defective nomination shall be disregarded.

    Section 6.    Notice.   Whenever stockholders are required or permitted to take any action at ameeting, a written notice of the meeting shall be given which shall state theplace, date and hour of the meeting, and, in the case of a special meeting, thepurpose or purposes for which the meeting is called. Unless otherwise requiredby law, the written notice of any meeting shall be given not less than ten normore than sixty days before the date of the meeting to each stockholderentitled to vote at such meeting.

    Section 7.    Adjournments.   Any meeting of the stockholders may be adjourned from time to time to reconveneat the same or some other place, and notice need not be given of any suchadjourned meeting if the time and place thereof are announced at the meeting atwhich the adjournment is taken. At the adjourned meeting, the Corporation maytransact any business which might have been transacted at the originalmeeting. If the adjournment is for more than thirty days, or if after theadjournment a new record date is fixed for the adjourned meeting, notice of theadjourned meeting shall be given to each stockholder of record entitled to voteat the meeting.

   Section 8.   Quorum.   Unless otherwise required by law or the Certificate of Incorporation, theholders of capital stock of the Corporation representing a majority of thetotal votes represented by all outstanding capital stock of the Corporation,present in person or represented by proxy, shall constitute a quorum at allmeetings of the stockholders for the transaction of business. A quorum, onceestablished, shall not be broken by the withdrawal of enough votes to leaveless than a quorum. If, however, such quorum shall not be present orrepresented at any meeting of the stockholders, the stockholders entitled tovote thereat, present in person or represented by proxy, shall have power toadjourn the meeting from time to time, in the manner provided in Section 7,until a quorum shall be present or represented.

    Section 9.    Voting.  Unless otherwise required by law, the Certificate of Incorporation or theseBylaws, any question brought before any meeting of stockholders, other than theelection of directors, shall be decided by the vote of the holders of amajority of the total number of votes of the capital stock represented andentitled to vote thereat, voting as a single class. Subject to Section 5 ofArticle V hereof, each stockholder represented at a meeting of stockholdersshall be entitled to cast the number of votes as provided in the Certificate ofIncorporation. Such votes may be cast in person or by proxy shall be voted onor after three years from its date, unless such proxy provides for a longerperiod. The Board of Directors, in its discretion, or the officer of theCorporation presiding at a meeting of stockholders, in such officer'sdiscretion, may require that any votes cast at such meeting shall be cast bywritten ballot.

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    Section 10.Actionby Consent of Stockholders in Lieu of Meeting.Unless otherwise providedin the Certificate of Incorporation, any action required or permitted to betaken at any Annual or Special Meeting of Stockholders of the Corporation, maybe taken without a meeting, without prior notice and without at vote, if aconsent or consents in writing, setting forth the action so taken, shall besigned by the holders of outstanding stock having not less than the minimumnumber of votes that would be necessary to authorize or take such action at ameeting at which all shares entitled to vote thereon were present and voted andshall be delivered to the Corporation by delivery to its required office in theState of Delaware, its principal place of business, or an officer or agent ofthe Corporation having custody of the book in which proceedings of meetings ofstockholders are recorded. Delivery made to the Corporation's registered officeshall be by hand or by certified or registered mail, return receipt requested.Every written consent shall bear the date of signature of each stockholder whosigns the consent and no written consent shall be effective to take thecorporate action referred to therein unless, within sixty days of the earliestdated consent delivered in the manner required by this Section 10 to theCorporation, written consents signed by a sufficient number of holders to takeaction are delivered to the Corporation by delivery to its registered office inthe State of Delaware, its principal place of business, or an officer or agentof the Corporation having custody of the book in which proceedings of meetingsof stockholders are recorded. Prompt notice of the taking of the corporateaction without a meeting by less than unanimous written consent shall be givento those stockholders who have not consented in writing and who, if the actionhad been taken at a meeting, would have been entitled to notice of the meetingif the record date for such meeting had been the date that written consents signedby a sufficient number of holders to take the action were delivered to theCorporation as provided above in this section.

    Section 11.    Listof Stockholders Entitled to Vote.    The officer of the Corporation who hascharge of the stock ledger of the Corporation shall prepare and make, at leastten days before every meeting of stockholders, a complete list of thestockholders entitled to vote at each meeting, arranged in alphabetical order,and showing the address of each stockholder and the number of shares registeredin the name of each stockholder. Such list shall be open to the examination ofany stockholder, for any purpose germane to the meeting, during ordinarybusiness hours, for a period of at least ten days prior to the meeting eitherat a place within the city where the meeting is to be held, which place shallbe specified in the notice of the meeting, or, if not so specified, at theplace where the meeting is to be held. The list shall also be produced andkept at the time and place of the meeting during the whole time thereof, andmay be inspected by any stockholder of the Corporation who is present.

    Section12.    Stock Ledger.    The stock ledger of the Corporation shallbe the only evidence as to who are the stockholders entitled to examine the stockledger, the list required by Section 11 of this Article II or the books of theCorporation, or to vote in person by proxy at any meeting of stockholders.

 

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Section13.Conduct of Meetings.    The Board of Directors of theCorporation may adopt by resolution such rules and regulations for the conductof the meeting of the stockholders as it shall deem appropriate. Except to theextent inconsistent with such rules and regulations as adopted by the Board ofDirectors, the chairman of any meeting of the stockholders shall have the rightand authority to prescribe such rules, regulations and procedures and to do allsuch acts as, in the judgment of such chairman, are appropriate for the properconduct of the meeting. Such rules, regulations or procedures, whether adoptedby the Board of Directors or prescribed by the chairman of the meeting, mayinclude, without limitation, the following: (i) the establishment of an agendaor order of business for the meeting; (ii) the determination of when the pollsshall open and close for any given matter to be voted on at the meeting; (iii)rules and procedures for maintaining order at the meeting and the safety ofthose present; (iv) limitations on attendance at or participation in themeeting to stockholders of record of the Corporation, their duly authorized andconstituted proxies or such other persons as the chairman of the meeting shalldetermine; (v) restrictions on entry to the meeting after the time fixed forthe commencement thereof; and (vi) limitations on the time allotted toquestions or comments by participants.

 ARTICLE III

 Directors

    Section 1.    Electionof Directors. Except as otherwise required by law or the Certificate ofIncorporation, directors shall be elected by a plurality of the votes cast atthe Annual Meetings of Stockholders and each director so elected shall holdoffice until the next Annual Meeting of Stockholders and until such director'ssuccessor is duly elected and qualified, or until such director's earlierdeath, resignation or removal. Any director may resign at any time uponwritten notice to the Corporation. Directors need not be stockholders.

    Section 2.    Dutiesand Powers.    The business and affairs of the Corporation shall be managedby or under the direction of the Board of Directors which may exercise all suchpowers of the Corporation and do all such lawful acts and things as are not bystatute or by the Certificate of Incorporation or by these By-Laws required tobe exercise or done by the stockholders.

     Section 3.    Meetings.   The Board of Directors may hold meetings, both regular and special, eitherwithin or without the State of Delaware. Regular meetings of the Board ofDirectors may be held without notice at such time and at such place as may fromtime to time be determined by the Board of Directors. Special meetings of theBoard of Directors may be called by the Chairman (if there be one), the ChiefExecutive Officer (if there be one), the President, or by any other officer ofthe Corporation upon the request of a majority of the directors then inoffice. Notice thereof stating the place, date and hour of the meeting shallbe given to each director either by mail not less than forty-eight (48) hoursbefore the date of the meeting, by telephone or telegram on twenty-four (24)hours' notice, or on such shorter notice as the person or persons calling suchmeeting may deem necessary or appropriate in the circumstances.

 

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    Section 4.    Quorum.   Except as otherwise required by law or the Certificate of Incorporation, at allmeetings of the Board of Directors, a majority of the entire Board of Directorsshall constitute a quorum for the transaction of business and the act of amajority of the directors present at any meeting at which there is a quorumshall be the act of the Board of Directors. If a quorum shall not be presentat any meeting of the Board of Directors, the directors present thereat mayadjourn the meeting from time to time, without notice other than announcementat the meeting of the time and place of the adjourned meeting, until a quorumshall be present.

   Section 5.   Actionsby Written Consent.    Any action required or permitted to be taken at anymeeting of the Board of Directors or of any committee thereof may be takenwithout a meeting, if all the members of the Board of Directors or committee,as the case may be, consent thereto in writing, and the writing or writings arefiled with the minutes of proceedings of the Board of Directors or committee.

    Section 6.    Meetingsby Means of Conference Telephone.    Members of the Board of Directors of theCorporation, or any committee thereof, may participate in a meeting of theBoard of Directors or such committee by means of a conference telephone orsimilar communications equipment by means of which all persons participating inthe meeting can hear each other, and participation in a meeting pursuant tothis Section 6 shall constitute presence in person at such meeting.

    Section 7.Committees.The Board of Directors may designate one or more committees, each committee toconsist of one or more of the directors of the Corporation. The Board ofDirectors may designate one or more directors as alternate members of anycommittee, who may replace any absent or disqualified member at any meeting ofany such committee. In the absence or disqualification of a member of acommittee, and in the absence of a designation by the Board of Directors of analternate member to replace the absent or disqualified member, the member ormembers thereof present at any meeting and not disqualified from voting,whether or not such member or members constitute a quorum, may unanimouslyappoint another member of the Board of Directors to act at the meeting in theplace of any absent or disqualified member. Any committee, to the extentpermitted by law and provided in the resolution establishing such committee,shall have and may exercise all the powers and authority of the Board ofDirectors in the management of the business and affairs of the Corporation, andmay authorize the seal of the Corporation to be affixed to all papers which mayrequire it. Each committee shall keep regular minutes and report to the Boardof Directors when required.

   Section 8.    Compensation.   The directors may be paid their expenses, if any, of attendance at each meetingof the Board of Directors and may be paid such other compensation as may bedetermined by the Board of Directors from time to time.

 

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    Section 9.    InterestedDirectors.    No contract or transaction between the Corporation and oneor more of its directors or officers, or between the Corporation and any othercorporation, partnership, association or other organization in which one ormore of its directors or officers are directors or officers or have a financialinterest, shall be void or voidable solely for this reason, or solely becausethe director or officer is present at or participates in the meeting of theBoard of Directors or committee thereof which authorizes the contract ortransaction, or solely because the director or officer's vote is counted for suchpurpose if (i) the material facts as to the director or officer's relationshipor interest and as to the contract or transaction are disclosed or are known tothe Board of Directors or the committee, and the Board of Directors orcommittee in good faith authorizes the contract or transaction by theaffirmative votes of a majority of the disinterested directors, even though thedisinterested directors be less than a quorum; or (ii) the material facts as tothe director or officer's relationship or interest and as to the contract ortransaction are disclosed or are known to the stockholders entitled to votethereon, and the contract or transaction is specifically approved in good faithby vote of the stockholders; or (iii) the contract or transaction is fair as tothe Corporation as of the time it is authorized, approved or ratified by theBoard of Directors, a committee thereof or the stockholders. Common orinterested directors may be counted in determining the presence of a quorum ata meeting of the Board of Directors or of a committee which authorizes thecontract or transaction.

ARTICLE IV

 Officers

    Section 1.    General.   The officers of the Corporation shall be chosen by the Board of Directors andshall be a President, a Secretary and a Treasurer. The Board of Directors, inits discretion, also may choose a Chief Executive Officer, Chairman of theBoard of Directors (who must be a director) and one or more Vice Presidents,Assistant Secretaries, Assistant Treasurers and other officers. Any number ofoffices may be held by the same person, unless otherwise prohibited by law orthe Certificate of Incorporation. The officers of the Corporation need not bestockholders of the Corporation nor, except in the case of the Chairman of theBoard of Directors, need such officers be directors of the Corporation.

    Section 2.    Election.   The Board of Directors, at its first meeting held after each Annual Meeting ofStockholders (or action by written consent of stockholders in lieu of theAnnual Meeting of Stockholders), shall elect the officers of the Corporationwho shall hold their offices for such terms and shall exercise such powers andperform such duties as shall be determined from time to time by the Board ofDirectors; and all officers of the Corporation shall hold office until theirsuccessors are chosen and qualified, or until their earlier death, resignationor removal. Any officer elected by the Board of Directors may be removed atany time by the affirmative vote of the Board of Directors. Any vacancy occurringin any office of the Corporation shall be filled by the Board of Directors.

    Section 3.    VotingSecurities Owned by the Corporation.    Powers of attorney, proxies, waiversof notice of meeting, consents and other instruments relating to securities ownedby the Corporation may be executed in the name of and on behalf of theCorporation by the Chief Executive Officer (if there be one), the President orany Vice President or any other officer authorized to do so by the Board ofDirectors and any such officer may, in the name of and on behalf of theCorporation, take all such action as any such officer may deem advisable tovote in person or by proxy at any meeting of security holders of anycorporation in which the Corporation may own securities and at any such meetingshall possess and may exercise any and all rights and power incident to theownership of such securities and which, as the owner thereof, the Corporationmight have exercised and possessed if present. The Board of Directors may, byresolution, from time to time confer like powers upon any other person orpersons.

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    Section 4.    Chairman of the Board of Directors; Chief Executive Officer.   The Chairman of theBoard of Directors (if any there be one) shall preside at all meetings of thestockholders and of the Board of Directors. Except where by law the signatureof the President is required, each of the Chairman of the Board of Directors(if there be one) and the Chief Executive Officer (if there be one) shallpossess the same power as the President to sign all contracts, certificates andother instruments of the Corporation which may be authorized by the Board ofDirectors. During the absence or disability of the President, the Chairman ofthe Board of Directors or the Chief Executive Officer, as the Board ofDirectors shall determine, shall exercise all the powers and discharge all theduties of the President. The Chairman of the Board of Directors and the ChiefExecutive Officer shall also perform such other duties and may exercise suchother powers as may from time to time be assigned by these By-Laws for by theBoard of Directors.

    Section 5.    President.   The President shall, subject to the control of the Board of Directors, and, ifthere be one, the Chief Executive Officer, have general supervision of thebusiness of the Corporation and shall see that all orders and resolutions ofthe Board of Directors are carried into effect. The President shall executeall bonds, mortgages, contracts and other instruments of the Corporationrequiring a seal, under the seal of the Corporation, except where required orpermitted by law to be otherwise signed and executed and except that the otherofficers of the Corporation may sign and execute documents when so authorizedby these By-Laws, the Board of Directors or the President. In the absence ordisability of the Chairman of the Board of Directors, or if there be none, thePresident shall preside at all meetings of the stockholders and the Board ofDirectors. The President shall also perform such other duties and may exercisesuch other powers as may from time to time be assigned to such officer by theseBy-Laws or by the Board of Directors.

    Section 6.    Vice-Presidents.   At the request of the President or in the President's absence or in the event ofthe President's inability or refusal to act (and if there be no Chief ExecutiveOfficer or Chairman of the Board of Directors), the Vice President, or the VicePresidents if there is more than one (in the order designated by the Board ofDirectors), shall perform the duties of the President, and when so acting,shall have all the powers of and be subject to all the restrictions upon thePresident. Each Vice President shall perform such other duties and have suchother powers as the Board of Directors from time to time prescribe. If therebe no Chairman of the Board of Directors, Chief Executive Officer or VicePresident, the Board of Directors shall designate the officer of theCorporation who, in the absence of the President or in the event of the inabilityor refusal of the President to act, shall perform the duties of the President,and when so acting, shall have all the powers of and be subject to all therestrictions upon the President.

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    Section 7.    Secretary.   The Secretary shall attend all meetings of the Board of Directors and allmeetings of stockholders and record all the proceedings thereat in a book orbooks to be kept for that purpose; the Secretary shall also perform like dutiesfor committees of the Board of Directors when required. The Secretary shallgive, or cause to be given, notice of all meetings of the stockholders andspecial meetings of the Board of Directors, and shall perform such other dutiesas may be prescribed by the Board of Directors, the Chairman of the Board ofDirectors (if there be one), the Chief Executive Officer (if there be one) orthe President, under whose supervision the Secretary shall be. If theSecretary shall be unable or shall refuse to cause to be given notice of allmeetings of the stockholders and special meetings of the Board of Directors,and if there be no Assistant Secretary, than either the Board of Directors, theChief Executive Officer (if there be one) or the President may choose anotherofficer to cause such notice to be given. The Secretary shall have custody ofthe seal of the Corporation, and the Secretary or any Assistant Secretary (ifthere be one) shall have authority to affix the same to any instrumentrequiring it and when so affixed, it may be attested by the signature of theSecretary or by the signature of any such Assistant Secretary. The Board ofDirectors may give general authority to any other officer to affix the seal ofthe Corporation and to attest to the affixing by such officer's signature. TheSecretary shall see that all books, reports, statements, certificates and otherdocuments and records required by law to be kept or filed are properly kept orfiled, as the case may be.

   Section 8.   Treasurer.   The Treasurer shall have the custody of the corporate funds and securities andshall keep full and accurate accounts of receipts and disbursements in booksbelonging to the Corporation and shall deposit all moneys and other valuableeffects in the name and to the credit of the Corporation in such depositoriesas may be designated by the Chief Executive Officer (if there be one), thePresident or the Board of Directors. The Treasurer shall disburse the funds ofthe Corporation as may be ordered by the Chief Executive Officer (if there beone), the President or the Board of Directors, taking proper vouchers for suchdisbursements, and shall render to the Chief Executive Officer (if there beone), the President and the Board of Directors, at its regular meetings, orwhen the Board of Directors so requires an account of all transactions asTreasurer and of the financial condition of the Corporation. If required bythe Board of Directors, the Treasurer shall give the Corporation a bond in suchsum and with such surety or sureties as shall be satisfactory to the Board ofDirectors for the faithful performance of the duties of the office of theTreasurer and for the restoration to the Corporation, in case of theTreasurer's death, resignation, retirement or removal from office, of allbooks, papers, vouchers, money and other property of whatever kind in theTreasurer's possession or under the Treasurer's control belonging to theCorporation.

    Section 9.AssistantSecretaries.Assistant secretaries, if there be any, shall perform suchduties and have such powers as from time to time may be assigned to them by theBoard of Directors, the Chief Executive Officer (if there be one), thePresident, any Vice President (if there be one) or the Secretary, and in theabsence of the Secretary or in the event of the Secretary's disability orrefusal to act, shall perform the duties of the Secretary, and when so acting,shall have all the powers of and be subject to all the restrictions upon theSecretary.

    Section10.    Assistant Treasurers    Assistant Treasurers, if therebe any, shall perform such duties and have such powers as from time to time maybe assigned to them by the Board of Directors, the Chief Executive Officer (ifthere be one), the President, any Vice President (if there be one) or theTreasurer, and in the absence of the Treasurer or in the event of theTreasurer's disability or refusal to act, shall perform the duties of theTreasurer, and when so acting, shall have all the powers of and be subject toall the restrictions upon the Treasurer. If required by the Board ofDirectors, an Assistant Treasurer shall give the Corporation a bond in such sumand with such surety or sureties as shall be satisfactory to the Board ofDirectors for the faithful performance of the duties of the office of AssistantTreasurer and for the restoration to the Corporation, in case of the AssistantTreasurer's death, resignation, retirement or removal from office, of allbooks, papers, vouchers, money and other property of whatever kind in theAssistant Treasurer's possession or under the Assistant Treasurer's controlbelonging to the Corporation.

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    Section11.    Other Officers.    Such other officers as the Board ofDirectors may choose shall perform such duties and have such powers as fromtime to time may be assigned to them by the Board of Directors. The Board ofDirectors may delegate to any other officer of the Corporation the power tochoose such other officers and to prescribe their respective duties and powers.

 ARTICLE V

Stock

    Section 1.    Formof Certificates.    Every holder of stock in the Corporation shall beentitled to have a certificate signed, in the name of the Corporation (i) bythe Chairman of the Board of Directors, the President or Vice President and(ii) by the Treasurer or an Assistant Treasurer, or the Secretary or anAssistant Secretary of the Corporation, certifying the number of shares ownedby such stockholder in the Corporation.

    Section 2.    Signatures.   Any or all of the signatures on a certificate may be a facsimile. In case anyofficer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate shall have ceased to be suchofficer, transfer agent or registrar before such certificate is issued, it maybe issued by the Corporation with the same effect as if such person were suchofficer, transfer agent or registrar at the date of issue.

     Section 3.    LostCertificates.    The Board of Directors may direct a new certificate to beissued in place of any certificate theretofore issued by the Corporationalleged to have been lost, stolen or destroyed, upon the making of an affidavitof that fact by the person claiming the certificate of stock to be lost, stolenor destroyed. When authorizing such issue of a new certificate, the Board ofDirectors may, in its discretion and as a condition precedent to the issuancethereof, require the owner of such lost, stolen or destroyed certificate, orthe owner's legal representative, to advertise the same in such manner as theBoard of Directors shall require and/or to give the Corporation a bond in such sumas it may direct as indemnity against any claim that may be made against theCorporation with respect to the certificate alleged to have been lost, stolenor destroyed or the issuance of such new certificate.

 

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    Section 4.    Transfers.   Stock of the Corporation shall be transferable in the manner prescribed by lawand in these By-Laws. Transfers of stock shall be made on the books of theCorporation only by the person named in the certificate or by such person'sattorney lawfully constituted in writing and upon the surrender of thecertificate therefore, which shall be cancelled before a new certificate shallbe issued. No transfer of stock shall be valid against the Corporation for anypurpose until it shall have been entered in the stock records of the Corporationby an entry showing from and to whom transferred.

     Section 5.    RecordDate.

     (a)    Inorder that the Corporation may determine the stockholders entitled to notice ofor to vote at any meeting of stockholders or any adjournment thereof, the Boardof Directors may fix a record date, which record date shall not precede thedate upon which the resolution fixing the record date is adopted by the Boardof Directors, and which record date shall not be more than sixty nor less thanten days before the date of such meeting. If no record date is fixed by theBoard of Directors, the record date for determining stockholders entitled tonotice of or to vote at a meeting of stockholders shall be at the close ofbusiness on the day next preceding the day on which the meeting is held. Adetermination of stockholders of record entitled to notice of or to vote at ameeting of stockholders shall apply to any adjournment of the meeting;provided, however, that the Board of Directors may fix a new record date for theadjourned meeting.

    (b)    In order thatthe Corporation may determine the stockholders entitled to receive payment ofany dividend or other distribution or allotment of any rights or thestockholders entitled to exercise any rights in respect of any change,conversion or exchange of stock, or for the purpose of any other lawful action,the Board of Directors may fix a record date, which record date shall notprecede the date upon which the resolution fixing the record date is adopted,and which record date shall be not more than sixty days prior to such action. Ifno record date is fixed, the record date for determining stockholders for anysuch purpose shall be at the close of business on the day on which the Board ofDirectors adopts the resolution relating thereto.

    Section 6.    RecordOwners.    The Corporation shall be entitled to recognize the exclusive rightof a person registered on its books as the owner of shares to receivedividends, and to vote as such owner, and to hold liable for calls and assessmentsa person registered on its books as the owner of shares, and shall not be boundto recognize any equitable or other claim to or interest in such share orshares on the part of any other person, whether or not it shall have express orother notice thereof, except as otherwise required by law.

ARTICLE VI

Notices

    Section 1.    Notices.   Whenever written notice is required by law, the Certificate of Incorporation orthese By-Laws, to be given to any director, member of a committee orstockholder, such notice may be given by mail or by a nationally recognizedovernight delivery service, addressed to such director, member of a committeeor stockholder, at such person's address as it appears on the records of theCorporation, with postage thereon prepaid if by mail, and such notice shall bedeemed to be given at the time when the same shall be deposited in the UnitedStates mail or if applicable, entrusted to such nationally recognized overnightdelivery service. Written notice may also be given personally or by telegram,telex or cable.

 

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    Section 2.    Waiversof Notice.    Whenever any notice is required by law, the Certificate ofIncorporation or these By-Laws, to be given to any director, member of acommittee or stockholder, a waiver thereof in writing, signed, by the person orpersons entitled to said notice, whether before or after the time statedtherein, shall be deemed equivalent thereto. Attendance of a person at ameeting, present in person or represented by proxy, shall constitute a waiverof notice of such meeting, except where the person attends the meeting for theexpress purpose of objecting at the beginning of the meeting to the transactionof any business because the meeting is not lawfully called or convened.

ARTICLE VII

 GeneralProvisions

    Section 1.    Dividends.   Dividends upon the capital stock of the Corporation, subject to therequirements of the General Corporation Law of the State of Delaware and theprovisions of the Certificate of Incorporation, if any, may be declared by theBoard of Directors at any regular or special meeting of the Board of Directors(or any action by written consent in lieu thereof in accordance with Section 5of Article III hereof), and may be paid in cash, in property or in shares ofthe Corporation's capital stock. Before payment of any dividend, there may beset aside out of any funds of the Corporation available for dividends such sumor sums as the Board of Directors from time to time, in its absolutediscretion, deems proper as a reserve or reserves to meet contingencies, or forequalizing dividends, or for repairing or maintaining any property of theCorporation, or for any proper purpose, and the Board of Directors may modifyor abolish any such reserve.

     Section 2.    Disbursements.   All checks or demands for money and notes of the Corporation shall be signed bysuch officer or officers or such other person or persons as the Board ofDirectors may from time to time designate.

    Section 3.    FiscalYear.    The fiscal year of the Corporation shall be fixed by resolution ofthe Board of Directors.

    Section 4.    CorporateSeal.    The corporate seal shall have inscribed thereon the name of theCorporation, the year of its organization and the words "Corporate Seal,Delaware". The seal may be used by causing it or a facsimile thereof to beimpressed or affixed or reproduced or otherwise.

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 ARTICLE VIII

Indemnification

    Section 1.    Powerto Indemnify in Actions, Suits or Proceedings other than Those by or in theRight of the Corporation.Subject to Section 3 of this Article VIII, theCorporation shall indemnify any person who was or is a party or is threatenedto be made a party to any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative (otherthan an action by or in the right of the Corporation) by reason of the factthat such person is or was a director or officer of the Corporation, or is orwas a director or officer of the Corporation serving at the request of theCorporation as a director or officer, employee or agent of another corporation,partnership, joint venture, trust, employee benefit plan or other enterprise,against expenses (including attorneys' fees), judgments, fines and amounts paidin settlement actually and reasonably incurred by such person in connectionwith such action, suit or proceeding if such person acted in good faith and ina manner such person reasonably believed to be in or not opposed to the bestinterests of the Corporation, and, with respect to any criminal action orproceeding, had no reasonable cause to believe such person's conduct wasunlawful. The termination of any action, suit or proceeding by judgment,order, settlement, conviction, or upon a plea of nolo contender or itsequivalent, shall not, of itself, create a presumption that the person did notact in good faith and in a manner which such person reasonably believed to bein or not opposed to the best interest of the Corporation, and, with respect toany criminal action or proceeding, had reasonable cause to believe that suchperson's conduct was unlawful.

    Section 2.    Powerto Indemnify in Actions, Suits or Proceedings by or in the Right of theCorporation.    Subject to Section 3 of this Article VIII, the Corporationshall indemnify any person who was or is a party or is threatened to be made aparty to any threatened, pending or completed action or suit by or in the rightof the Corporation to procure a judgment in its favor by reason of the factthat such person is or was a director or officer of the Corporation, or is orwas a director or officer of the Corporation serving at the request of theCorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust, employee benefit plan or other enterpriseagainst expenses (including attorneys' fees) actually and reasonably incurredby such person in connection with the defense or settlement of such action orsuit if such person acted in good faith and in a manner such person reasonablybelieved to be in or not opposed to the best interests of the Corporation;except that no indemnification shall be made in respect of any claim, issue ormatter as to which such person shall have been adjudged to be liable to theCorporation unless and only to the extent that the Court of Chancery or thecourt in which such action or suite was brought shall determine uponapplication that, despite the adjudication of liability but in view of all thecircumstances of the case, such person is fairly and reasonably entitled toindemnity for such expenses which the Court of Chancery or such other courtshall deem proper.

    Section 3.    Authorizationof Indemnification.    Any indemnification under this Article VIII (unlessordered by a court) shall be made by the Corporation only as authorized in thespecific case upon a determination that indemnification of the director orofficer is proper in the circumstances because such person has met theapplicable standard of conduct set forth in Section 1 or Section 2 of thisArticle VIII, as the case may be. Such determination shall be made (i) by amajority vote of the directors who are not parties to such action, suit orproceeding, even though less than a quorum, or (ii) if there are no suchdirectors, or if such directors so direct, by independent legal counsel in awritten opinion or (iii) by the stockholders. To the extent, however, that adirector or officer of the Corporation has been successful on the merits orotherwise in defense of any action, suit or proceeding described above, or indefense of any claim, issue or matter therein, such person shall be indemnifiedagainst expense (including attorneys' fees) actually and reasonably incurred bysuch person in connection therewith, without the necessity of authorization inthe specific case.

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    Section 4.    GoodFaith Defined.    For purposes of any determination under Section 3 ofthis Article VIII, a person shall be deemed to have acted in good faith and ina manner such person reasonably believed to be in or not opposed to the bestinterests of the Corporation, or, with respect to any criminal action orproceeding, to have had no reasonable cause to believe such person's conductwas unlawful, if such person's action is based on the records or books ofaccount of the Corporation of another enterprise, or on information supplied tosuch person by the officers of the Corporation or another enterprise in thecourse of their duties, or on the advice of legal counsel for the Corporationor another enterprise or on information or records given or reports made to theCorporation or another enterprise by an independent certified public accountantor by an appraiser or other expert selected with reasonable care by theCorporation or another enterprise. The term "another enterprise" as used inthis Section 4 shall mean any other corporation or partnership, joint venture,trust, employee benefit plan or other enterprise of which such person is or wasserving at the request of the Corporation as a director, officer, employee oragent. The provisions of this Section 4 shall not be deemed to be exclusive orto limit in any way the circumstances in which a person may be deemed to havemet the applicable standard of conduct set forth in Section 1 or 2 of thisArticle VIII, as the case may be.

    Section 5.    Indemnificationby a Court.    Notwithstanding any contrary determination in the specificcase under Section 3 of this Article VIII, and notwithstanding the absence ofany determination thereunder, any director or officer may apply to the Court ofChancery in the State of Delaware for indemnification to the extent otherwisepermissible under Sections 1 and 2 of this Article VIII. The basis of suchindemnification by a court shall be a determination by such court thatindemnification of the director or officer is proper in the circumstancesbecause such person has met the applicable standards of conduct set forth inSection 1 or 2 of this Article VIII, as the case may be. Neither a contrarydetermination in the specific case under Section 3 of this Article VIII nor theabsence of any determination thereunder shall be a defense to such applicationor create a presumption that the director or officer seeking indemnificationhas not met any applicable standard of conduct. Notice of any application forindemnification pursuant to this Section 5 shall be given to the Corporationpromptly upon the filing of such application. If successful, in whole or inpart, the director or officer seeking indemnification shall also be entitled tobe paid the expense of prosecuting such application.

    Section 6.    ExpensesPayable in Advance.    Expenses incurred by a director or officer indefending any civil, criminal, administrative or investigative action, suit orproceeding shall be paid by the Corporation in advance of the final dispositionof such action, suit or proceeding upon receipt of an undertaking by or onbehalf of such director or officer to repay such amount if it shall ultimatelybe determined that such person is not entitled to be indemnified by theCorporation as authorized in this Article VIII.

 

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    Section 7.    Nonexclusivityof Indemnification and Advancement of Expenses.    The indemnification andadvancement of expenses provided by or granted pursuant to this Article VIIIshall not be deemed exclusive of any other rights to which those seeking indemnificationor advancement of expenses may be entitled under the Certificate ofIncorporation, any By-Law, agreement, vote of stockholders or disinteresteddirectors or otherwise, both as to action in such person's official capacityand as to action in another capacity while holding such office, it being thepolicy of the Corporation that indemnification of the persons specified inSections 1 and 2 of this Article VIII shall be made to the fullest extentpermitted by law. The provisions of this Article VIII shall not be deemed topreclude the indemnification of any person who is not specified in Section 1 or2 of this Article VIII but whom the Corporation has the power or obligation toindemnify under the provisions of the General Corporation Law of the State ofDelaware, or otherwise.

    Section 8.    Insurance.   The Corporation may purchase and maintain insurance on behalf of any person whois or was a director or officer of the Corporation, or is or was a director orofficer of the Corporation serving at the request of the Corporation as adirector, officer, employee or agent of another corporation, partnership, jointventure, trust, employee benefit plan or other enterprise against any liabilityasserted against such person and incurred by such person in any such capacity,or arising out of such person's status as such, whether or not the Corporationwould have the power or the obligation to indemnify such person against suchliability under the provisions of this Article VIII.

    Section 9.    CertainDefinitions.    For purposes of this Article VIII, references to "theCorporation" shall include, in addition to the resulting corporation, anyconstituent corporation (including any constituent of a constituent) absorbedin a consolidation or merger which, if its separate existence had continued,would have had power and authority to indemnify its directors or officers, sothat any person who is or was a director or officer of such constituentcorporation, or is or was a director or officer of such constituent corporationserving at the request of such constituent corporation as a director, officer,employee or agent of another corporation, partnership, joint venture, trust,employee benefit plan or other enterprise, shall stand in the same positionunder the provisions of this Article VIII with respect to the resulting orsurviving corporation as such person would have with respect to suchconstituent corporation if its separate existence had continued. For purposesof this Article VIII, references to "fines" shall include any excise taxesassessed on a person with respect to an employee benefit plan; and referencesto "serving at the request of the Corporation" shall include any service as adirector, officer, employee or agent of the Corporation which imposes dutieson, or involves services by, such director or officer with respect to anemployee benefit plan, its participants or beneficiaries; and a person whoacted in good faith and in a manner such person reasonably believed to be inthe interest of the participants and beneficiaries of an employee benefit planshall be deemed to have acted in a manner "not opposed to the best interests ofthe Corporation" as referred to in this Article VIII.

    Section10.Survival of Indemnification and Advancement of Expenses.The indemnification and advancement of expenses provided by, or grantedpursuant to, this Article VIII shall, unless otherwise provided when authorizedor ratified, continue as to a person who has ceased to be a director or officerand shall inure to the benefit of the heirs, executors and administrators ofsuch a person.

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    Section11.    Limitation on Indemnification.    Notwithstanding anythingcontained in this Article VIII to the contrary, except for proceedings toenforce rights to indemnification (which shall be governed by Section 5hereof), the Corporation shall not be obligated to indemnify any director orofficer in connection with a proceeding (or part thereof) initiated by suchperson unless such proceeding (or part thereof) was authorized or consented toby the Board of Directors of the Corporation.

    Section12.    Indemnification of Employees and Agents.    The Corporationmay, to the extent authorized from time to time by the Board of Directors,provide rights to indemnification and to the advancement of expenses toemployees and agents of the Corporation similar to those conferred in thisArticle VIII to directors and officers of the Corporation.

 ARTICLE IX

 Amendments

    Section 1.    Amendments.   Subject to the voting requirements set forth in the Certificate ofIncorporation, these By-Laws may be altered, amended or repealed, in whole orin part, or new By-Laws may be adopted by the stockholders or by the Board ofDirectors.

    Section 2.    EntireBoard of Directors.    As used in this Article IX and in these By-Lawsgenerally, the term "entire Board of Directors" means the total number ofdirectors which the Corporation would have if there were no vacancies.

 

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