**EXHIBIT 3.2**

 

BY-LAWS

 

OF

 

MAGNETEK, INC.

 

----

 

BY-LAWS

 

OF

 

MAGNETEK, INC.

 

TABLE of CONTENTS

 
| TABLE of CONTENTS |
|-------------------|
|              |   |
| **ARTICLE I**     |
|              |   |
| SECTION 1.        | REGISTERED OFFICE |
| SECTION 2.        | OTHER OFFICES |
|              |   |
| **ARTICLE II**    |
|              |
| SECTION 1.        | PLACE OF MEETINGS |
| SECTION 2.        | ANNUAL MEETING OF STOCKHOLDERS |
| SECTION 3.        | QUORUM; ADJOURNED MEETINGS AND NOTICE  THEREOF |
| SECTION 4.        | VOTING. |
| SECTION 5.        | PROXIES |
| SECTION 6.        | SPECIAL MEETINGS |
| SECTION 7.        | NOTICE OF STOCKHOLDERS’ MEETINGS |
| SECTION 8.        | MAINTENANCE AND INSPECTION OF STOCKHOLDER  LIST |
| SECTION 9.        | STOCKHOLDER ACTION BY WRITTEN CONSENT  WITHOUT A MEETING |
| SECTION 10.       | ADVANCE NOTICE OF STOCKHOLDER PROPOSALS AND  STOCKHOLDER NOMINATIONS |
|              |   |
| **ARTICLE III**   |   |
|              |   |
| SECTION 1(A).     | NUMBER AND QUALIFICATION OF DIRECTORS |
| SECTION 1(B).     | RESTRICTIONS ON FILLING VACANCIES |
| SECTION 2.        | VACANCIES |
| SECTION 3.        | POWERS |
| SECTION 4.        | PLACE OF DIRECTORS’ MEETINGS |
| SECTION 5.        | REGULAR MEETINGS |
| SECTION 6.        | SPECIAL MEETINGS |
| SECTION 7.        | QUORUM |
| SECTION 8.        | ACTION WITHOUT MEETING |
| SECTION 9.        | TELEPHONIC MEETINGS |
| SECTION 10.       | COMMITTEES OF DIRECTORS |
| SECTION 11.       | MINUTES OF COMMITTEE MEETINGS |
| SECTION 12.       | COMPENSATION OF DIRECTORS |
| SECTION 13.       | INDEMNIFICATION |
|              |   |
| **ARTICLE IV**    |   |
|              |   |
| SECTION 1.        | OFFICERS |
| SECTION 2.        | ELECTION OF OFFICERS |
| SECTION 3.        | SUBORDINATE OFFICERS |
| SECTION 4.        | COMPENSATION OF OFFICERS |
|                   |  |  |

 

i

----

 
| SECTION 5.      | TERM OF OFFICE; REMOVAL AND VACANCIES                  |
|-----------------|--------------------------------------------------------|
| SECTION 6.      | CHAIRMAN OF THE BOARD                                  |
| SECTION 7.      | PRESIDENT                                              |
| SECTION 8.      | VICE PRESIDENT                                         |
| SECTION 9.      | SECRETARY                                              |
| SECTION 10.     | ASSISTANT SECRETARIES                                  |
| SECTION 11.     | TREASURER                                              |
| SECTION 12.     | ASSISTANT TREASURER                                    |
| SECTION 13.     | VACANCY OF PRESIDENT’S OFFICE                     |
|            |                                                   |
| **ARTICLE V**   |                                                   |
|            |                                                   |
| SECTION 1.      | CERTIFICATES                                           |
| SECTION 2.      | SIGNATURES ON CERTIFICATES                             |
| SECTION 3.      | STATEMENT  OF STOCK RIGHTS, PREFERENCES AND PRIVILEGES |
| SECTION 4.      | LOST CERTIFICATES                                      |
| SECTION 5.      | TRANSFERS OF STOCK                                     |
| SECTION 6.      | FIXING RECORD DATE                                     |
| SECTION 7.      | REGISTERED STOCKHOLDERS                                |
|            |                                                   |
| **ARTICLE VI**  |                                                   |
|            |                                                   |
| SECTION 1.      | DIVIDENDS                                              |
| SECTION 2.      | PAYMENT OF DIVIDENDS; DIRECTORS’ DUTIES           |
| SECTION 3.      | CHECKS                                                 |
| SECTION 4.      | FISCAL YEAR                                            |
| SECTION 5.      | CORPORATE SEAL                                         |
| SECTION 6.      | MANNER OF GIVING NOTICE                                |
| SECTION 7.      | WAIVER OF NOTICE                                       |
| SECTION 8.      | ANNUAL STATEMENT                                       |
| SECTION 9.      | EXEMPTION FROM SECTION 203, DELAWARE G.C.L             |
|            |                                                   |
| **ARTICLE VII** |                                                   |
|            |                                                   |
| SECTION 1.      | AMENDMENTS BY DIRECTORS OR STOCKHOLDERS                |

 

ii

----

 

BY-LAWS

 

OF

 

MAGNETEK, INC.

 

ARTICLE I

 

OFFICES

 

Section 1.  Registered Office

The registered office shall be in the City of Dover, County of Kent,State of Delaware.

 

Section 2.  Other Offices.

The corporation may also have offices at such other places both withinand without the State of Delaware as the Board of Directors may from time totime determine or the business of the corporation may require.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 1.  Place ofMeetings.

Meetings of stockholders shall be held at any place within or outsidethe State of Delaware designated by the Board of Directors.  In the absence of any such designation,stockholders’ meetings shall be held at the principal executive office of thecorporation.

 

Section 2.  Annual Meeting ofStockholders.

The annual meeting of stockholders shall be held each year on a dateand a time designated by the Board of Directors.  At each annual meeting directors shall be elected and any otherproper business may be transacted.

 

Section 3.  Quorum; AdjournedMeetings and Notice Thereof.

A majority of the stock issued and outstanding and entitled to vote atany meeting of stockholders, the holders of which are present in person orrepresented by proxy, shall constitute a quorum for the transaction of businessexcept as otherwise provided by law, by the Certificate of Incorporation, or bythese By-Laws.  A quorum, onceestablished, shall not be broken by the withdrawal of enough votes to leaveless than a quorum and the votes present may continue to transact businessuntil adjournment.  If, however, suchquorum shall not be present or represented at any meeting of the stockholders,a majority of the voting stock represented in person or by proxy may adjournthe meeting from time to time, without notice other than announcement at themeeting, until a quorum shall be present or represented.  At such adjourned meeting at which a quorumshall be present or represented, any business may be transacted which mighthave been

 

----

 

transacted at the meeting as originally notified.  If the adjournment is for more than thirtydays, or if after the adjournment a new record date is fixed for the adjournedmeeting, a notice of the adjourned meeting shall be given to each stockholderof record entitled to vote thereat.

 

Section 4.  Voting.

When a quorum is present at any meeting, the vote of the holders ofmajority of the stock having voting power present in person or represented byproxy shall decide any question brought before such meeting, unless thequestion is one upon which by express provision of the statutes, or theCertificate of Incorporation, or these By-Laws, a different vote is required inwhich case such express provision shall govern and control the decision of suchquestion.

 

Section 5.  Proxies.

At each meeting of the stockholders, each stockholder having the rightto vote may vote in person or may authorize another person or persons to actfor him by proxy appointed by an instrument in writing subscribed by suchstockholder and bearing a date not more than three years prior to said meeting,unless said instrument provides for a longer period.  All proxies must be filed with the Secretary of the corporationat the beginning of each meeting in order to be counted in any vote at themeeting.  Each stockholder shall haveone vote for each share of stock having voting power, registered in his name onthe books of the corporation on the record date set by the Board of Directorsas provided in Article V, Section 6 hereof. All elections shall be had and all questions decided by a pluralityvote.

 

Section 6.  Special Meetings.

Special meetings of the stockholders, for any purpose, or purposes,unless otherwise prescribed by statute or by the Certificate of Incorporation,may be called by the President and shall be called by the President or theSecretary at the request in writing of a majority of the Board of Directors, orat the request in writing of stockholders owning a majority in amount of theentire capital stock of the corporation issued and outstanding, and entitled tovote.  Such request shall state thepurpose or purposes of the proposed meeting. Business transacted at any special meeting of stockholders shall belimited to the purposes stated in the notice.

 

Section 7.  Notice ofStockholders’ Meetings.

Whenever stockholders are required or permitted to take any action at ameeting, a written notice of the meeting shall be

 

2

----

 

given which notice shall statethe place, date and hour of the meeting, and, in the case of a special meeting,the purpose or purposes for which the meeting is called.  The written notice of any meeting shall begiven to each stockholder entitled to vote at such meeting not less than tennor more than sixty days before the date of the meeting.  If mailed, notice is given when deposited inthe United States mail, postage prepaid, directed to the stockholder at hisaddress as it appears on the records of the corporation.

 

Section 8.  Maintenance andInspection of Stockholder List.

The officer who has charge of the stock ledger of the corporation shallprepare and make, at least ten days before every meeting of stockholders, acomplete list of the stockholders entitled to vote at the meeting, arranged inalphabetical order, and showing the address of each stockholder and the numberof shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder,for any purpose germane to the meeting, during ordinary business hours, for aperiod of at least ten days prior to the meeting, either at a place within thecity where the meeting is to be held, which place shall be specified in thenotice of the meeting, or, if not so specified, at the place where the meetingis to be held.  The list shall also beproduced and kept at the time and place of the meeting during the whole timethereof, and may be inspected by any stockholder who is present.

 

Section 9.  StockholderAction by Written Consent Without aMeeting.

Unless otherwise provided in the Certificate of Incorporation, anyaction required to be taken at any annual or special meeting of stockholders ofthe corporation, or any action which may be taken at any annual or specialmeeting of such stockholders, may be taken without a meeting, without priornotice and without a vote, if a consent or consents in writing, setting forththe action so taken and bearing the dates of signature of the stockholders whosigned the consent or consents, shall be signed by the holders of outstandingstock having not less than the minimum number of votes that would be necessaryto authorize or take such action at a meeting at which all shares entitled tovote thereon were present and voted and shall be delivered to the corporationby delivery to its registered office in the state of Delaware, or thecorporation’s principal place of business, or an officer or agent of thecorporation having custody of the book or books in which proceedings ofmeetings of the stockholders are recorded. Delivery made to the corporation’s registered office shall be by hand orby certified or registered mail, return

 

3

----

 

receipt requested.  All consents properly delivered inaccordance with this section shall be deemed to be recorded when sodelivered.  No written consent shall beeffective to take the corporate action referred to therein unless, within sixtydays of the earliest dated consent delivered to the corporation as required bythis section, written consents signed by the holders of a sufficient number ofshares to take such corporate action are so recorded.  Prompt notice of the taking of the corporate action without ameeting by less than unanimous written consent shall be given to thosestockholders who have not consented in writing.  Any action taken pursuant to such written consent or consents ofthe stockholders shall have the same force and effect as if taken by thestockholders at a meeting thereof.

 

Section 10.  Advance Noticeof Stockholder Proposals andStockholder Nominations.

(a)            At any meeting of the stockholders,only such business shall be conducted as shall have been brought before themeeting (i) by or at the direction of the Board of Directors or (ii) by anystockholder of the corporation who complies with the notice procedures set forthin this Section 10(a).  Only suchbusiness shall be conducted at a special meeting of stockholders as shall havebeen brought before the meeting pursuant to the corporation’s notice ofmeeting, as provided by Section 6 of this Article II.  Nominations of persons for election to the Board of Directors maybe made at a special meeting of stockholders at which directors are to beelected pursuant to the corporation’s notice of meeting, in accordance withclause (b) of this Section 10.  Forbusiness to be properly brought before any annual meeting of the stockholdersby a stockholder, it must be a proper matter for stockholder action and thestockholder must have given timely notice thereof in writing to the Secretaryof the corporation.  For such notice tobe timely in respect of an annual meeting, it must be delivered to theSecretary at the principal executive office of the corporation not later thanthe close of business on the 120th day prior to the first anniversary of thepreceding year’s annual meeting; provided, however, that in the event that thedate of the annual meeting is more than 30 days before or more than 60 daysafter such anniversary date, notice by the stockholder to be timely must be sodelivered not later than the close of business on the 120th day prior to suchannual meeting or, if later, the close of business on the 10th day followingthe date on which public announcement of the date of such meeting is first madeby the corporation.  A stockholder’snotice to the Secretary shall set forth as to each matter the stockholderproposes to bring before the meeting (1) a brief description of the businessdesired to be brought before

 

4

----

 

the meeting and the reasons forconducting such business at the meeting, (2) the name and address, as theyappear on the corporation’s books, of the stockholder proposing such business,(3) the class and number of shares of the corporation that are beneficiallyowned by the stockholder, and (4) any material interest of the stockholder insuch business.  In addition, thestockholder making such proposal shall promptly provide any other informationreasonably requested by the corporation. Notwithstanding anything in these By-laws to the contrary, no businessshall be conducted at any meeting of the stockholders except in accordance withthe procedures set forth in this Section 10(a).  The Chairman of any such meeting shall direct that any businessnot properly brought before the meeting shall not be considered.

 

(b)           Nominations for the election ofdirectors may be made by the Board of Directors or a committee thereof, or byany stockholder entitled to vote in the election of directors; provided,however, that a stockholder may nominate a person for election as a director ata meeting only if written notice of such stockholder’s intent to make suchnomination has been timely given to the Secretary of the corporation.  Such notice shall be timely as to an annualmeeting if it complies with clause (a) of this Section 10, and shall be timelyas to a special meeting if it is received by the Secretary at the principalexecutive office of the corporation not later than the close of business on the120th day prior to the date of the special meeting or, if later, the close of businesson the 10th day following the first public announcement of the date of suchmeeting.  Each such notice shall setforth (1) the name and address of the stockholder who intends to make thenomination and of the person or persons to be nominated, (2) a representationthat the stockholder is a holder of record of stock of the corporation entitledto vote at such a meeting and intends to appear in person or by proxy at themeeting and nominate the person or persons specified in the notice, (3) adescription of all arrangements or understandings between the stockholder andeach nominee and any other person or persons (naming such person or persons)pursuant to which the nomination or nominations are to be made by thestockholder, (4) such other information regarding each nominee proposed by suchstockholder as would be required to be included in a proxy statement filedpursuant to the proxy rules of the United States Securities and ExchangeCommission had the nominee been nominated, or intended to be nominated, by theBoard of Directors, and (5) the consent of each nominee to serve as a directorof the corporation if so elected.  Inaddition, the stockholder making such nomination shall promptly provide any

 

5

----

 

other information reasonablyrequested by the corporation.  No personshall be eligible for election as a director of the corporation unlessnominated in accordance with the procedures set forth in this Section 10(b).  The Chairman of any meeting of stockholdersshall direct that any nomination not made in accordance with these proceduresbe disregarded.  For purposes of thisSection 10, “public announcement” shall mean disclosure in a press releasereported by the Dow Jones New Service, Associated Press or comparable nationalnews service or in a document publicly filed by the corporation with theSecurities and Exchange Commission.

 

ARTICLE III

 

DIRECTORS

 

Section 1(a).  Number andQualification of Directors.

The Board of Directors shall consist of not less than five or more thannine persons and the specific number of directors shall be as fixed byresolution of the Board of Directors from time to time.  The directors need not be stockholders.  The directors shall be elected at the annualmeeting of the stockholders, except as provided in Section 2 of this Article,and each director elected shall hold office until his successor is elected andqualified; provided, however, that unless otherwise restricted by theCertificate of Incorporation or by law, any director or the entire Board ofDirectors may be removed, either with or without cause, from the Board ofDirectors at any meeting of stockholders by a majority of the stock representedand entitled to vote thereat.

 

Section 1(b).  Restrictionson Filling Vacancies.

No person shall be qualified to be elected to, or appointed to fill avacancy on, the Board of Directors of the corporation during the pendency of aBusiness Combination transaction, as defined herein, if such person is, or (inthe case of a person described in clause (i), (ii) or (iii) below) was withinthe two years preceding the date of such election or appointment:  (i) an officer, director, employee oraffiliate (as defined in Rule 144 under the Securities Act of 1933, as amended)of a party to such transaction (an “Interested Party”) or of any affiliate ofan Interested Party; (ii) an agent subject to the direction of an InterestedParty (iii) a consultant or advisor to an Interested Party; (iv) a personhaving a material financial interest in the transaction (other than through theownership of stock or securities of the corporation), or (v) a person havingany

 

6

----

 

business, financial, orfamilial relationship with any person referred to in clauses (i)-(iv)above that would reasonably be expected to affect such person’s judgment in amanner adverse to this corporation.  Aperson shall not be disqualified from election or appointment to the Board ofDirectors by reason of this Section 1(b) solely because such person is adirector or officer of this corporation who receives normal and customarycompensation as such and/or is a stockholder or affiliate of this corporation.

 

A BusinessCombination shall mean any of the following: (i) a merger or consolidation ofthis corporation with another corporation, or a sale of all or substantiallyall of the business and assets of this corporation; or (ii) an acquisition(including by tender offer or any other means) by any person (including any twoor more persons comprising a group, within the meaning of Rule 13(d)(5),of beneficial ownership, within the meaning of Rule 13(d)(3) under theSecurities Exchange Act of 1934, as amended, of 15% or more of the outstandingcommon stock of this corporation.

 

A BusinessCombination shall be deemed pending for purposes of this Section 1(b)commencing on the date any offer or proposal for such transaction shall be madeand until such time as the proposed transaction is abandoned or until such timeas: (i) the party proposing such transaction shall have acquired beneficialownership, as defined above, of 50% or more of this corporation’s outstandingvoting stock; and (ii) 10 business days shall have elapsed thereafter.  A business day shall mean any day other thana Saturday, a Sunday or a day on which banking institutions in the State of NewYork are authorized or obligated by law or executive order to close.

 

Section 2.  Vacancies.

Vacancies on the Board of Directors by reason of death, resignation,retirement, disqualification, removal from office, or otherwise, and newlycreated directorships may be filled by a majority of the directors then inoffice, although less than a quorum, or by a sole remaining director.  The directors so chosen shall hold officeuntil the next annual election of directors and until their successors are dulyelected and shall qualify, unless sooner displaced.  If there are no directors in office, then an election ofdirectors may be held in the manner provided by statute.  If, at the time of filling any vacancy ornewly created directorship, the directors then in office shall constitute lessthan a majority of the whole Board (as constituted immediately

 

7

----

 

prior to any such increase),the Court of Chancery may, upon application of any stockholder or stockholdersholding at least ten percent of the total number of the shares at the timeoutstanding having the right to vote for such directors, summarily order anelection to be held to fill any such vacancies or newly created directorships,or vacancies or newly created directorships, or to replace the directors chosenby the directors then in office.

 

Section 3.  Powers.

The property and business of the corporation shall be managed by orunder the direction of its Board of Directors.   In addition to the powers and authorities by these By-Lawsexpressly conferred upon them, the Board may exercise all such powers of thecorporation and do all such lawful acts and things as are not by statute or bythe Certificate of Incorporation or by these By-Laws directed or required to beexercised or done by the stockholders.

 

Section 4.  Place ofDirectors’ Meetings.

The directors may hold their meetings and have one or more offices, andkeep the books of the corporation outside of the State of Delaware.

 

Section 5.  Regular Meetings.

Regular meetings of the Board of Directors may be held without noticeat such time and place as shall from time to time be determined by the Board.

 

Section 6.  Special Meetings.

(a) Specialmeetings of the Board of Directors (or of any Committee of the Board ofDirectors) shall be held whenever called by (i): a majority of the authorizednumber of Directors, or (ii) the Chairman of the Board (or, in the case of aspecial meeting of a Committee of the Board of Directors, the Chairman of suchCommittee).

(b) Except asotherwise provided by law or by these By-Laws, written notice of the time andplace of each such special meeting shall be given to each Director (or, in thecase of a special meeting of a Committee of the Board of Directors, eachDirector who sits on such Committee): (i) by first class mail, postage prepaid, addressed to him or her at hisor her address as it is shown upon the records of the corporation, at leastfive days before the date of such meeting, or (ii) by personal delivery,telecopy, electronic mail (if the Director and the corporation are thenconnected for electronic mail transmission), or orally in person or bytelephone, in each case if received by the

 

8

----

 

Director at least twenty-four(24) hours prior to the time of the holding of the meeting.

 

Section 7.  Quorum.

At all meetings of the Board of Directors a majority of the authorizednumber of directors shall be necessary and sufficient to constitute a quorumfor the transaction of business, and the vote of a majority of the directorspresent at any meeting at which there is a quorum, shall be the act of theBoard of Directors, except as may be otherwise specifically provided bystatute, by the Certificate of Incorporation or by these By-Laws.  If a quorum shall not be present at anymeeting of the Board of Directors the directors present thereat may adjourn themeeting from time to time, without notice other than announcement at themeeting, until a quorum shall be present. If only one director is authorized, such sole director shall constitutea quorum.

 

Section 8.  Action WithoutMeeting.

Unless otherwise restricted by the Certificate of Incorporation orthese By-Laws, any action required or permitted to be taken at any meeting ofthe Board of Directors or of any committee thereof may be taken without ameeting, if all members of the Board or committee, as the case may be, consentthereto in writing, and the writing or writings are filed with the minutes ofproceedings of the Board or committee.

 

Section 9.  TelephonicMeetings.

Unless otherwise restricted by the Certificate of Incorporation orthese By-Laws, members of the Board of Directors, or any committee designatedby the Board of Directors, may participate in a meeting of the Board ofDirectors, or any committee, by means of a conference telephone or similarcommunications equipment by means of which all persons participating in themeeting can hear each other, and such participation in a meeting shallconstitute presence in person at such a meeting.

 

Section 10.  Committees ofDirectors.

The Board of Directors may, by resolution passed by a majority of thewhole Board, designate one or more committees, each such committee to consistof one or more of the directors of the corporation.  The Board may designate one or more directors as alternatemembers of any committee, who may replace any absent or disqualified member atany meeting of the committee.  In theabsence or disqualification of a member of a committee, the member or membersthereof present at any meeting and not disqualified from voting, whether or nothe or they constitute a quorum, may unanimously appoint another member of theBoard of Directors to act at the meeting in the place of any such absent

 

9

----

 

or disqualified member.  Any such committee, to the extent providedin the resolution of the Board of Directors, shall have and may exercise allthe powers and authority of the Board of Directors in the management of thebusiness and affairs of the corporation, and may authorize the seal of thecorporation to be affixed to all papers which may require it; but no suchcommittee shall have the power or authority in reference to amending theCertificate of Incorporation, adopting an agreement of merger or consolidation,recommending to the stockholders the sale, lease or exchange of all orsubstantially all of the corporation’s property and assets, recommending to thestockholders a dissolution of the corporation or a revocation of a dissolution,or amending the By-Laws of the corporation; and, unless the resolution or theCertificate of Incorporation expressly so provide, no such committee shall havethe power or authority to declare a dividend or to authorize the issuance ofstock.

 

Section 11.  Minutes ofCommittee Meetings.

Each committee shall keep regular minutes of its meetings and reportthe same to the Board of Directors when required.

 

Section 12.  Compensation ofDirectors.

Unless otherwise restricted by the Certificate of Incorporation or bythese By-Laws, the Board of Directors shall have the authority to fix thecompensation of directors.  Thedirectors may be paid their expenses, if any, of attendance at each meeting ofthe Board of Directors and may be paid a fixed sum for attendance at eachmeeting of the Board of Directors or a stated salary as a director.  No such payment shall preclude any directorfrom serving the corporation in any other capacity and receiving compensationtherefor.  Members of special orstanding committees may be given compensation for serving on such committees.

 

Section 13.  Indemnification.

(a)  The corporation shall, tothe fullest extent authorized by the Delaware General Corporation Law, as thesame exists or may hereafter be amended (but, in the case of any suchamendment, only to the extent that such amendment permits the Corporation toprovide broader indemnification rights than such law permitted the Corporationto provide prior to such amendment), indemnify and hold harmless any person whowas or is a party, or is threatened to be made a party to or is otherwiseinvolved in any threatened, pending or completed action, suit or proceeding,whether civil, criminal, administrative or investigative, by reason of the factthat such person is or was a director, officer, employee or agent of thecorporation, or is or was

 

10

----

 

serving at the request of thecorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, including service withrespect to an employee benefit plan, against expenses, liabilities and losses(including attorneys’ fees, judgments, fines, excise taxes or penalties paid inconnection with the Employee Retirement Income Security Act of 1974, asamended, and amounts paid in settlement) reasonably incurred or suffered bysuch individual in connection therewith; *provided,however,* that except as provided in paragraph (c) with respect toproceedings to enforce rights to indemnification, the corporation shallindemnify any such individual in connection with a proceeding (or part thereof)initiated by such individual only if such proceeding or part thereof wasauthorized in advance by the Board of Directors of the corporation.

 

(b)  The right toindemnification conferred in this Section 13 shall include the right to be paidby the corporation the expenses (including attorneys’ fees) incurred in defendingany such proceeding in advance of its final disposition; *provided, however,* that, if the DelawareGeneral Corporation Law requires, an advancement of expenses incurred by anindividual in his capacity as a Director or officer (and not in any other capacityin which service was or is rendered by such individual, including, withoutlimitation, service to an employee benefit plan) shall be made only upondelivery to the corporation of an undertaking, by or on behalf of suchindividual, to repay all amounts so advanced if it is ultimately determined byfinal judicial decision, from which there is no further right to appeal, thatsuch individual is not entitled to be indemnified for such expenses under thissection or otherwise.  The rights toindemnification and to the advancement of expenses conferred in this Section 13shall be contract rights and such rights shall continue as to an indemnifiedindividual who has ceased to be a Director, officer, employee or agent andshall inure to the benefit of the indemnified individual’s heirs, executors andadministrators.

 

(c)  If a claim under the twopreceding paragraphs of this Section 13 is not paid in full by the corporationwithin 60 days after a written claim has been received by the corporation,except in the case of a claim for an advancement of expenses, in which case theapplicable period shall be 20 days, the director, officer, employee or agentindemnified hereunder (as the case may be) may at any time thereafter bringsuit against the corporation to recover the unpaid amount of the claim.  If successful in whole or in part in anysuch suit, or in a suit brought by the

 

11

----

 

corporation to recover anadvancement of expenses pursuant to the terms of an undertaking, theindemnified individual shall be entitled to be paid also the expense ofprosecuting or defending such suit.  In(i) any suit brought by the indemnified individual to enforce a right toindemnification hereunder (but not in a suit brought by such individual toenforce a right to an advancement of expenses) and (ii) in any suit brought bythe corporation to recover an advancement of expenses pursuant to the terms ofan undertaking, the corporation shall be entitled to recover such expenses onlyupon a final adjudication that the individual has not met any applicablestandard for indemnification set forth in the Delaware General CorporationLaw.  Neither the failure of thecorporation (including its Board of Directors, independent legal counsel, or itsstockholders) to have made a determination prior to the commencement of suchsuit that indemnification of the indemnified individual is proper in thecircumstances because such individual has met the applicable standard ofconduct set forth in the Delaware General Corporation Law, nor an actualdetermination by the corporation (including its Board of Directors, independentlegal counsel, or its stockholders) that the indemnified individual has not metsuch applicable standard of conduct, shall create a presumption that theindividual has not met the applicable standard of conduct or, in the case ofsuch a suit brought by the individual, be a defense to such suit.  In any suit brought by the indemnifiedindividual to enforce a right to indemnification or to an advancement ofexpenses hereunder, or brought by the corporation to recover an advancement ofexpenses pursuant to the terms of an undertaking, the burden of proving thatthe individual is not entitled to be indemnified, or to such advancement of expensesunder this section or otherwise shall be on the corporation.

 

(d)  Any indemnification under paragraphs (a) and(b) (unless ordered by a court) shall be made by the corporation only asauthorized in the specific case upon a determination that indemnification ofthe director, officer, employee or agent is proper in the circumstances becausehe has met the applicable standard of conduct set forth in paragraphs (a) and(b).  Such determination shall be made(1) by the Board of Directors by a majority vote of a quorum consisting ofdirectors who were not parties to such action, suit or proceeding, or (2) ifsuch quorum is not obtainable, or, even if obtainable a quorum of disinteresteddirectors so directs, by independent legal counsel in a written opinion, or (3)by the stockholders.

 

(e)  The indemnification and advancement ofexpenses provided by this Section 13 shall not be deemed exclusive of any

 

12

----

 

other rights to which thoseseeking indemnification or advancement of expenses may be entitled under anyby-law, agreement, vote of stockholders or disinterested directors orotherwise, both as to action in his official capacity and as to action inanother capacity while holding such office, and shall continue as to a personwho has ceased to be a director, officer, employee or agent and shall inure tothe benefit of the heirs, executors and administrators of such a person.

 

(f)  The corporation may purchase and maintaininsurance on behalf of any person who is or was a director, officer, employeeor agent of the corporation, or is or was serving at the request of thecorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise against any liabilityasserted against him and incurred by him in any such capacity, or arising outof his status as such, whether or not the corporation would have the power toindemnify him against such liability under the provisions of this Section 13.

 

(g)  For the purposes of this Section 13,references to “the corporation” shall include, in addition to the resultingcorporation, any constituent corporation (including any constituent of aconstituent) absorbed in a consolidation or merger which, if its separate existencehad continued, would have had power and authority to indemnify its directors,officers, and employees or agents, so that any person who is or was a director,officer, employee or agent of such constituent corporation, or is or wasserving at the request of such constituent corporation as a director, officer,employee or agent of another corporation, partnership, joint venture, trust orother enterprise, shall stand in the same position under the provisions of thisSection with respect to the resulting or surviving corporation as he would havewith respect to such constituent corporation if its separate existence hadcontinued.

 

(h)  For purposes of this section, references to“other enterprises” shall include employee benefit plans; references to “fines”shall include any excise taxes assessed on a person with respect to an employeebenefit plan; and references to “serving at the request of the corporation”shall include service as a director, officer, employee or agent of thecorporation which imposes duties on, or involves services by, such director,officer, employee or agent with respect to an employee benefit plan, itsparticipants or beneficiaries; and a person who acted in good faith and in amanner he reasonably believed to be in the interest of the participants andbeneficiaries of an employee

 

13

----

 

benefit plan shall be deemed tohave acted in a manner “not opposed to the best interests of the corporation.”

 

ARTICLE IV

 

OFFICERS

 

Section 1.  Officers.

The officers of this corporation shall be chosen by the Board ofDirectors and shall include a President, a Secretary, and a Treasurer.  The corporation may also have at thediscretion of the Board of Directors such other officers as are desired, includinga Chairman of the Board, one or more Vice Presidents, one or more AssistantSecretaries and Assistant Treasurers, and such other officers as may beappointed in accordance with the provisions of Section 3 hereof.  In the event there are two or more VicePresidents, then one or more may be designated as Executive Vice President,Senior Vice President, or other similar or dissimilar title.  At the time of the election of officers, thedirectors may by resolution determine the order of their rank.  Any number of offices may be held by thesame person, unless the Certificate of Incorporation or these By-Laws otherwiseprovide.

 

Section 2.  Election ofOfficers.

The Board of Directors, at its first meeting after each annual meetingof stockholders, shall choose the officers of the corporation.

 

Section 3.  SubordinateOfficers.

The Board of Directors may appoint such other officers and agents as itshall deem necessary who shall hold their offices for such terms and shallexercise such powers and perform such duties as shall be determined from timeto time by the Board.

 

Section 4.  Compensation ofOfficers.

The salaries of all officers and agents of the corporation shall befixed by the Board of Directors.

 

Section 5.  Term of Office;Removal and Vacancies.

The officers of the corporation shall hold office until theirsuccessors are chosen and qualify in their stead.  Any officer elected or appointed by the Board of Directors may beremoved at any time by the affirmative vote of a majority of the Board of Directors.  If the office of any officer or officersbecomes

 

14

----

 

vacant for any reason, thevacancy shall be filled by the Board of Directors.

 

Section 6.  Chairman of theBoard.

The Chairman of the Board, if such an officer be elected, shall, ifpresent, preside at all meetings of the Board of Directors and exercise andperform such other powers and duties as may be from time to time assigned tohim by the Board of Directors or prescribed by these By-Laws.  If so designated by the Board of Directors,the Chairman of the Board may in addition be the Chief Executive Officer of thecorporation and have such powers and duties prescribed by the Board ofDirectors.

 

Section 7.  President.

Subject to such supervisory powers, if any, as may be given by theBoard of Directors to the Chairman of the Board, if there be such an officer,the President shall, subject to the control of the Board of Directors, havegeneral supervision, direction and control of the business and officers of thecorporation and, if so designated by the Board of Directors, be the ChiefExecutive Officer of the corporation. He shall preside at all meetings of the stockholders and, in the absenceof the Chairman of the Board, or if there be none, at all meetings of the Boardof Directors.  He shall be an ex-officiomember of all committees and shall have the general powers and duties ofmanagement usually vested in the office of President and, if so designated,Chief Executive Officer of the corporation, and shall have such other powersand duties as may be prescribed by the Board of Directors or these By-Laws.

 

Section 8.  Vice President.

In the absence or disability of the President, the Vice Presidents inorder of their rank as fixed by the Board of Directors, or if not ranked, theVice President designated by the Board of Directors, shall perform all theduties of the President, and when so acting shall have all the powers of and besubject to all the restrictions upon the President.  The Vice Presidents shall have such other duties as from time totime may be prescribed for them, respectively, by the Board of Directors.

 

Section 9.  Secretary.

The Secretary shall attend all sessions of the Board of Directors andall meetings of the stockholders and record all votes and the minutes of allproceedings in a book to be kept for that purpose; and shall perform likeduties for the standing committees when required by the Board ofDirectors.  He shall give, or cause tobe given, notice of all meetings of the stockholders and of the

 

15

----

 

Board of Directors, and shallperform such other duties as may be prescribed by the Board of Directors orthese By-Laws.  He shall keep in safecustody the seal of the corporation, and when authorized by the Board, affixthe same to any instrument requiring it, and when so affixed it shall beattested by his signature or by the signature of an Assistant Secretary.  The Board of Directors may give generalauthority to any other officer to affix the seal of the corporation and toattest the affixing by his signature.

 

Section 10.  AssistantSecretaries.

The Assistant Secretary, or if there be more than one, the AssistantSecretaries in the order determined by the Board of Directors, or if there beno such determination, the Assistant Secretary designated by the Board ofDirectors, shall, in the absence or disability of the Secretary, perform theduties and exercise the powers of the Secretary and shall perform such otherduties and have such other powers as the Board of Directors may from time totime prescribe.

 

Section 11.  Treasurer.

The Treasurer shall have the custody of the corporate funds andsecurities and shall keep full and accurate accounts of receipts anddisbursements in books belonging to the corporation and shall deposit allmoneys, and other valuable effects in the name and to the credit of thecorporation, in such depositories as may be designated by the Board ofDirectors.  He shall disburse the fundsof the corporation as may be ordered by the Board of Directors, taking propervouchers for such disbursements, and shall render to the Board of Directors, atits regular meetings, or when the Board of Directors so requires, an account ofall his transactions as Treasurer and of the financial condition of thecorporation.  If required by the Boardof Directors, he shall give the corporation a bond, in such sum and with suchsurety or sureties as shall be satisfactory to the Board of Directors, for thefaithful performance of the duties of his office and for the restoration to thecorporation, in case of his death, resignation, retirement or removal fromoffice, of all books, papers, vouchers, money and other property of whateverkind in his possession or under his control belonging to the corporation.

 

Section 12.  AssistantTreasurer.

The Assistant Treasurer, or if there shall be more than one, theAssistant Treasurers in the order determined by the Board of Directors, or ifthere be no such determination, the Assistant Treasurer designated by the Boardof Directors, shall, in the absence or disability of the Treasurer, perform theduties and

 

16

----

 

exercise the powers of theTreasurer and shall perform such other duties and have such other powers as theBoard of Directors may from time to time prescribe.

 

Section 13.  Vacancy ofPresident’s Office.

Wherever an action is required, by these By-Laws or otherwise, to betaken by the President of the corporation and such office is vacant, suchaction may, to the extent permitted under the General Corporation Law of theState of Delaware, be taken by the Chairman of the Board or by any ExecutiveVice President.

 

ARTICLE V

 

CERTIFICATES OF STOCK

 

Section 1.  Certificates.

Every holder of stock of the corporation shall be entitled to have acertificate signed by, or in the name of the corporation by, the Chairman orVice Chairman of the Board of Directors, or the President or a Vice President,and by the Secretary or Assistant Secretary, or the Treasurer or an AssistantTreasurer of the corporation, certifying the number of shares represented bythe certificate owned by such stockholder in the corporation.

 

Section 2.  Signatures onCertificates.

Any or all of the signatures on the certificate may be afacsimile.  In case any officer,transfer agent, or registrar who has signed or whose facsimile signature hasbeen placed upon a certificate shall have ceased to be such officer, transferagent, or registrar before such certificate is issued, it may be issued by thecorporation with the same effect as if he were such officer, transfer agent, orregistrar at the date of issue.

 

Section 3.Statement of Stock Rights, Preferences and Privileges.

 

If the corporation shall be authorized to issue more than one class ofstock or more than one series of any class, the powers, designations,preferences and relative, participating, optional or other special rights ofeach class of stock or series thereof and the qualification, limitations orrestrictions of such preferences and/or rights shall be set forth in full orsummarized on the face or back of the certificate which the corporation shallissue to represent such class or series of stock, provided that, except asotherwise provided in Section 202 of the General Corporation Law of Delaware,in lieu of the foregoing requirements, there may be set forth on the face or

 

17

----

 

back of the certificate whichthe corporation shall issue to represent such class or series of stock, astatement that the corporation will furnish without charge to each stockholderwho so requests the power, designations, preferences and relative,participating, optional or other special rights of each class of stock orseries thereof and the qualifications, limitations or restrictions of suchpreferences and/or rights.

 

Section 4.  Lost Certificates.

The Board of Directors may direct a new certificate or certificates tobe issued in place of any certificate or certificates theretofore issued by thecorporation alleged to have been lost, stolen or destroyed, upon the making ofan affidavit of that fact by the person claiming the certificate of stock to belost, stolen or destroyed.  Whenauthorizing such issue of a new certificate or certificates, 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 orcertificates, or his legal representative, to advertise the same in such manneras it shall require and/or to give the corporation a bond in such sum as it maydirect as indemnity against any claim that may be made against the corporationwith respect to the certificate alleged to have been lost, stolen or destroyed.

 

Section 5.  Transfers ofStock.

Upon surrender to the corporation, or the transfer agent of thecorporation, of a certificate for shares duly endorsed or accompanied by properevidence of succession, assignation or authority to transfer, it shall be theduty of the corporation, subject to the terms of the agreement under which suchshares were purchased if the

corporation is a party thereto, to issue a new certificate to theperson entitled thereto, cancel the old certificate and record the transactionupon its books.

 

Section 6.  Fixing RecordDate.

In order that the corporation may determine the stockholders entitledto notice of or to vote at any meeting of the stockholders, or any adjournmentthereof, or to express consent to corporate action in writing without a meeting,or entitled to receive payment of any dividend or other distribution orallotment of any rights, or entitled to exercise any rights in respect of anychange, conversion or exchange of stock or for the purpose of any other lawfulaction, the Board of Directors may fix a record date which shall not be morethan sixty nor less than ten days before the date of such meeting, nor morethan

 

18

----

 

sixty days prior to any other action. A determination of stockholders of record entitled to notice of or tovote at a meeting of stockholders shall apply to any adjournment of themeeting; provided, however, that the Board of Directors may fix a new recorddate for the adjourned meeting.

 

Section 7.  RegisteredStockholders.

The corporation shall be entitled to treat the holder of record of anyshare or shares of stock as the holder in fact thereof and accordingly shallnot be bound to recognize any equitable or other claim or interest in suchshare on the part of any other person, whether or not it shall have express orother notice thereof, save as expressly provided by the laws of the State ofDelaware.

 

ARTICLE VI

 

GENERAL PROVISIONS

 

Section 1.  Dividends.

Dividends upon the capital stock of the corporation, subject to theprovisions of the Certificate of Incorporation, if any, may be declared by theBoard of Directors at any regular or special meeting, pursuant to law.  Dividends may be paid in cash, in property,or in shares of the capital stock, subject to the provisions of the Certificateof Incorporation.

 

Section 2.  Payment ofDividends; Directors’ Duties.

Before payment of any dividend there may be set aside out of any fundsof the corporation available for dividends such sum or sums as the directorsfrom time to time, in their absolute discretion, think proper as a reserve fundto meet contingencies, or for equalizing dividends, or for repairing ormaintaining any property of the corporation, or for such other purpose as thedirectors shall think conducive to the interests of the corporation, and thedirectors may abolish any such reserve.

 

Section 3.  Checks.

All checks or demands for money and notes of the corporation shall besigned by such officer or officers as the Board of Directors may from time totime designate.

 

Section 4.  Fiscal Year.

The fiscal year of the corporation shall be fixed by resolution of theBoard of Directors.

 

19

----

 

Section 5.  Corporate Seal.

The corporate seal shall have inscribed thereon the name of thecorporation, the year of its organization and the words “Corporate Seal,Delaware.”  Said seal may be used bycausing it or a facsimile thereof to be impressed or affixed or reproduced orotherwise.

 

Section 6.  Manner of GivingNotice.

(a) In order that the corporation may determine the stockholdersentitled to notice of or to vote at any meeting of stockholders or anyadjournment thereof, the Board of Directors may fix a record date, which recorddate shall not precede the date upon which the resolution fixing the recorddate is adopted by the Board of Directors, and which record date shall not bemore than sixty nor less than ten days before the date of such meeting.  If no record date is fixed by the Board ofDirectors, the record date for determining stockholders entitled to notice ofor to vote at a meeting of stockholders shall be the close of business on thenext day preceding the day on which notice is given, or if notice is waived, atthe close of business on the day next preceding the day on which the meeting isheld.  A determination of stockholdersor record entitled to notice of or to vote at a meeting of stockholders shallapply to any adjournment of the meeting; provided, however, that the Board ofDirectors may fix a new record date for the adjourned meeting.

 

(b)  In order that the corporation may determinethe stockholders entitled to consent to corporate action in writing without ameeting, the Board of Directors may fix a record date, which record date shallnot precede the date upon which the resolution fixing the record date isadopted by the Board of Directors, and which date shall not be more than tendays after the date upon which the resolution fixing the record date is adoptedby the Board of Directors.  If no recorddate has been fixed by the Board of Directors, the record date for determiningstockholders entitled to consent to corporate action in writing without ameeting, when no prior action by the Board of Directors is required by statute,shall be the first date on which a signed written consent setting forth theaction taken or proposed to be taken is delivered to the corporation bydelivery to its registered office in the State of Delaware, its principal placeof business, or an officer or agent of the corporation having custody of thebook in which proceedings of meetings of stockholders are recorded.  Delivery made to the corporation’sregistered office shall be by hand or by certified or registered mail, returnreceipt requested.  If no record datehas been fixed by the Board of Directors and prior action by the Board of

 

20

----

 

Directors is required bystatute, the record date for determining stockholders entitled to consent tocorporate action in writing without a meeting shall be at the close of businesson the day on which the Board of Directors adopts the resolution taking suchprior action.

 

(c)  In order that the corporation may determinethe stockholders entitled to receive payment of any dividend or other distributionor allotment or any rights or the stockholders entitled to exercise any rightsin respect of any change, conversion or exchange of stock, or for the purposesof any other lawful action, the Board of Directors may fix a record date, whichrecord date shall not precede the date upon which the resolution fixing therecord date is adopted, and which record date shall not be more than sixty daysprior to such action.  If no record dateis fixed, the record date for determining stockholders for any such purposeshall be at the close of business on the day on which the Board of Directorsadopts the resolution relating thereto.

 

Section 7.  Waiver of Notice.

Whenever any notice is required to be given under the provisions of thestatutes or of the Certificate of Incorporation or of these By-Laws, a waiverthereof in writing, signed by the person or persons entitled to said notice,whether before or after the time stated therein, shall be deemed equivalentthereto.

 

Section 8.  Annual Statement.

The Board of Directors shall present at each annual meeting, and at anyspecial meeting of the stockholders when called for by vote of thestockholders, a full and clear statement of the business and condition of thecorporation.

 

Section9.  Exemptionfrom Section 203, Delaware G.C.L.

The corporation expressly elects not to be governed by Section 203 ofthe General Corporation Law of Delaware. This Section of the By-Laws shall notbe further amended by the Board of Directors of the corporation.

 

ARTICLE VII

 

AMENDMENTS

 

Section 1.  Amendments byDirectors or Stockholders.

These By-Laws may be altered, amended or repealed or new By-Laws may beadopted by the stockholders or by the Board of Directors,

 

21

----

 

when such power is conferred upon the Board of Directors by theCertificate of Incorporation, at any regular meeting of the stockholders or ofthe Board of Directors or at any special meeting of the stockholders or of theBoard of Directors if notice of such alteration, amendment, repeal or adoptionof new By-Laws be contained in the notice of such special meeting.  If the power to adopt, amend or repealBy-Laws is conferred upon the Board of Directors by the Certificate of Incorporationit shall not divest or limit the power of the stockholders to adopt, amend orrepeal By-Laws.

 

END OF BY-LAWS

 

22

----