Exhibit 3.2
**BY-LAWS**
**OF**
**THE HILLMAN COMPANIES, INC.1**
A Delaware Corporation
**ARTICLE I**
**OFFICES**
     Section 1. Registered Office. The registered office of thecorporation in the State of Delaware shall be located at 1209 Orange Street, inthe City of Wilmington, County of New Castle, 19801. The name of thecorporation’s registered agent at such address shall be The Corporation TrustCompany. The registered office and/or registered agent of the corporation maybe changed from time to time by action of the board of directors.
      Section 2. Other Offices. The corporation may also have officesat such other places, both within and without the State of Delaware, as theboard of directors may from time to time determine or the business of thecorporation may require.
**ARTICLE II**
**MEETINGS OF STOCKHOLDERS**
     Section 1. Place and Time of Meetings. An annual meeting of thestockholders shall be held each year within one hundred twenty (120) days afterthe close of the immediately preceding fiscal year of the corporation for thepurpose of electing directors and conducting such other proper business as maycome before the meeting. The date, time and place of the annual meeting shallbe determined by the chief executive officer of the corporation; provided, thatif the chief executive officer does not act, the board of directors shalldetermine the date, time and place of such meeting.
      Section 2. Special Meetings. Special meetings of stockholdersmay be called for any purpose and may be held at such time and place, within orwithout the State of Delaware, as shall be stated in a notice of meeting or ina duly executed waiver of notice thereof. Such meetings may be called at anytime by the board of directors, the chief executive officer, the president orthe holders of shares entitled to cast not less than a majority of the votes atthe meeting.
      Section 3. Place of Meetings. The board of directors maydesignate any place, either within or without the State of Delaware, as theplace of meeting for any annual meeting or for
1 Adopted March 30, 2004.
 

 

any special meeting called bythe board of directors. If no designation is made, or if a special meeting beotherwise called, the place of meeting shall be the principal executive officeof the corporation.
      Section 4. Notice. Whenever stockholders are required orpermitted to take action at a meeting, written or printed notice stating theplace, date, time, and, in the case of special meetings, the purpose orpurposes, of such meeting shall be given to each stockholder entitled to voteat such meeting (with a copy of such notice to each director) not less than ten(10) nor more than sixty (60) days before the date of the meeting. All suchnotices shall be delivered, either personally or by mail, by or at thedirection of the board of directors, the chief executive officer, the presidentor the secretary, and if mailed, such notice shall be deemed to be deliveredwhen deposited in the United States mail, postage prepaid, addressed to thestockholder at his, her or its address as the same appears on the records ofthe corporation. Attendance of a person at a meeting shall constitute a waiverof notice of such meeting except when the person attends for the expresspurpose of objecting at the beginning of the meeting to the transaction of anybusiness because the meeting is not lawfully called or convened.
      Section 5. Stockholders List. The officer having charge of thestock ledger of the corporation shall make, at least ten (10) days before everymeeting of the stockholders, a complete list of the stockholders entitled tovote at such meeting arranged in alphabetical order, showing the address ofeach stockholder and the number of shares registered in the name of eachstockholder. 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 (10) days prior to the meeting, either at a place withinthe city 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 be produced and kept at the time and placeof the meeting during the whole time thereof, and may be inspected by anystockholder who is present.
      Section 6. Quorum. The holders of a majority of the outstandingshares of voting capital stock, present in person or represented by proxy,shall constitute a quorum at all meetings of the stockholders, except asotherwise provided by applicable statute or by the certificate ofincorporation. If a quorum is not present, the holders of a majority of theshares present in person or represented by proxy at the meeting, and entitledto vote at the meeting, may adjourn the meeting to another time and/or place.When a specified item of business requires a vote by a class or series (if thecorporation shall then have outstanding shares of more than one class orseries) voting as a class, the holders of a majority of the shares of suchclass or series shall constitute a quorum (as to such class or series) for thetransaction of such item of business. When a quorum is once present tocommence a meeting of stockholders, it is not broken by the subsequentwithdrawal of any stockholders or their proxies.
      Section 7. Adjourned Meetings. When a meeting is adjourned toanother time and place, notice need not be given of the adjourned meeting ifthe time and place thereof are announced at the meeting at which theadjournment is taken. At the adjourned meeting the corporation may transactany business which might have been transacted at the original meeting. If theadjournment is for more than thirty (30) days, or if after the adjournment anew record date is fixed for the adjourned meeting, a notice of the adjournedmeeting shall be given to each stockholder of record entitled to vote at themeeting.
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      Section 8. Vote Required. Subject to the Stockholders Agreementdated as of    , 2004 by and among the corporation and certain of itsstockholders, as amended from time to time in accordance with its terms (the“ Stockholders Agreement ”) and the HCI Securities Purchase Agreementdated as of    , 2004 by and among the corporation and certain of itsstockholders, as amended from time to time in accordance with its terms (the“ Securities Purchase Agreement ”), when a quorum is present, theaffirmative vote of the majority of shares present in person or represented byproxy at the meeting and entitled to vote on the subject matter shall be theact of the stockholders, unless the question is one upon which by expressprovisions of an applicable law or of the certificate of incorporation adifferent vote is required, in which case such express provision shall governand control the decision of such question. Subject to the StockholdersAgreement and the Securities Purchase Agreement, where a separate vote by classis required, the affirmative vote of the majority of shares of such classpresent in person or represented by proxy at the meeting shall be the act ofsuch class.
      Section 9. Voting Rights. Except as otherwise provided by theGeneral Corporation Law of the State of Delaware or by the certificate ofincorporation of the corporation or any amendments thereto and subject to Section 3 of  Article VI hereof, every stockholder shall at everymeeting of the stockholders be entitled to one (1) vote in person or by proxyfor each share of voting common stock held by such stockholder.
      Section 10. Proxies. Each stockholder entitled to vote at ameeting of stockholders or to express consent or dissent to corporate action inwriting without a meeting may authorize another person or persons to act forhim or her by proxy, but no such proxy shall be voted or acted upon after three(3) years from its date, unless the proxy provides for a longer period. A dulyexecuted proxy shall be irrevocable if it states that it is irrevocable and if,and only as long as, it is coupled with an interest sufficient in law tosupport an irrevocable power. A proxy may be made irrevocable regardless ofwhether the interest with which it is coupled is an interest in the stockitself or an interest in the corporation generally. Any proxy is suspendedwhen the person executing the proxy is present at a meeting of stockholders andelects to vote, except that when such proxy is coupled with an interest and thefact of the interest appears on the face of the proxy, the agent named in theproxy shall have all voting and other rights referred to in the proxy,notwithstanding the presence of the person executing the proxy. At eachmeeting of the stockholders, and before any voting commences, all proxies filedat or before the meeting shall be submitted to and examined by the secretary ora person designated by the secretary and no shares may be represented or votedunder a proxy that has been found to be invalid or irregular.
      Section 11. Action by Written Consent. Subject to theStockholders Agreement and the Securities Purchase Agreement, and unlessotherwise provided in the certificate of incorporation, any action required tobe taken at any annual or special meeting of stockholders of the corporation,or any action which may be taken at any annual or special meeting of suchstockholders, may be taken without a meeting, without prior notice and withouta vote, if a consent or consents in writing, setting forth the action so takenand bearing the dates of signature of the stockholders who signed the consentor consents, shall be signed by the holders of outstanding stock having notless than the minimum number of votes that would be necessary to authorize ortake such action at a meeting at which all shares entitled to vote thereon werepresent and voted and shall be delivered to the corporation by delivery to itsregistered office in the state of Delaware, or the corporation’s principalplace of business, or an officer or agent of
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the corporation having custody ofthe book or books in which proceedings of meetings of the stockholders arerecorded. Delivery made to the corporation’s registered office shall be byhand or by certified or registered mail, return receipt requested. Allconsents properly delivered in accordance with this Section shall be deemed tobe recorded when so delivered. No written consent shall be effective to takethe corporate action referred to therein unless, within sixty (60) days of theearliest dated consent delivered to the corporation as required by thissection, written consents signed by the holders of a sufficient number ofshares to take such corporate action are so recorded. Prompt notice of thetaking of the corporate action without a meeting by less than unanimous writtenconsent shall be given to those stockholders who have not consented in writing.Any action taken pursuant to such written consent or consents of thestockholders shall have the same force and effect as if taken by thestockholders at a meeting thereof.
**ARTICLE III**
**DIRECTORS**
     Section 1. General Powers. The business and affairs of thecorporation shall be managed by or under the direction of the board ofdirectors.
      Section 2. Number, Election and Term of Office. The number ofauthorized directors shall be seven (7). Subject to the Stockholders Agreementand the certificate of incorporation of the corporation, the directors shall beelected by a plurality of the votes of the shares present in person orrepresented by proxy at the meeting and entitled to vote in the election ofdirectors. The directors shall be elected in this manner at the annual meetingof the stockholders, except as provided in Section 4 of this Article III. Each director elected shall hold office until a successor isduly elected and qualified or until his or her earlier death, resignation orremoval as hereinafter provided.
      Section 3. Removal and Resignation. Subject to the StockholdersAgreement and the certificate of incorporation of the corporation, any directoror the entire board of directors may be removed at any time, with or withoutcause, by the holders of a majority of the shares then entitled to vote at anelection of directors. Whenever the holders of any class or series areentitled to elect one (1) or more directors by the provisions of thecorporation’s certificate of incorporation, the provisions of this sectionshall apply, in respect to the removal without cause of a director or directorsso elected, to the vote of the holders of the outstanding shares of that classor series and not to the vote of the outstanding shares as a whole. Anydirector may resign at any time upon written notice to the corporation.
      Section 4. Vacancies. Vacancies and newly created directorshipsresulting from any increase in the authorized number of directors shall befilled in accordance with the Stockholders Agreement and the certificate ofincorporation of the corporation. Each director so chosen shall hold officeuntil a successor is duly elected and qualified or until his or her earlierdeath, resignation or removal as herein provided. Subject to the StockholdersAgreement, whenever holders of any class or classes of stock or series thereofare entitled to elect one or more directors by the provisions of thecertificate of incorporation, vacancies and newly created directorships of suchclass or classes or series may be filled by a majority of the directors electedby such class or classes or series thereof then in office, or by a soleremaining director so elected.
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      Section 5. Annual Meetings. The annual meeting of each newlyelected board of directors shall be held, without other notice than this by-law(subject to Section 3 of Article II), immediately after and at the same placeas, the annual meeting of stockholders.
      Section 6. Other Meetings and Notice. Regular meetings, otherthan the annual meeting, of the board of directors may be held at such time andat such place as shall from time to time be determined by resolution of theboard, provided that whenever the time and place of a regular meeting isdetermined, prompt notice of such action shall be given, either personally, byfacsimile, by mail or telegraph or by telephone (pursuant to which the directorparticipates in the conversation), to each director who was not present at themeeting at which such action was taken. Special meetings of the board ofdirectors may be called by or at the request of the chief executive officer orany director on at least 48 hours notice to each director, either personally,by telephone (pursuant to which the director participates in the conversation),by mail or by telegraph.
      Section 7. Quorum, Required Vote and Adjournment. Subject to thecertificate of incorporation of the corporation and the Stockholders Agreement,a majority of the total number of directors shall constitute a quorum for thetransaction of business. The vote of a majority of directors present at ameeting at which a quorum is present shall be the act of the board ofdirectors. If a quorum shall not be present at any meeting of the board ofdirectors, the directors present thereat may adjourn the meeting from time totime, without notice other than announcement at the meeting, until a quorumshall be present.
      Section 8. Committees. Subject to the Stockholders Agreement andthe Securities Purchase Agreement, the board of directors may, by resolutionpassed by a majority of the whole board, designate one (1) or more committees,each committee to consist of one (1) or more of the directors of thecorporation, which to the extent provided in such resolution or these by-lawsshall have and may exercise the powers of the board of directors in themanagement and affairs of the corporation except as otherwise limited by law.Subject to the Stockholders Agreement, the board of directors may designate one(1) or more directors as alternate members of any committee, who may replaceany absent or disqualified member at any meeting of the committee. Suchcommittee or committees shall have such name or names as may be determined fromtime to time by resolution adopted by the board of directors. Each committeeshall keep regular minutes of its meetings and report the same to the board ofdirectors when required.
      Section 9. Committee Rules. Each committee of the board ofdirectors may fix its own rules of procedure and shall hold its meetings asprovided by such rules, except as may otherwise be provided by a resolution ofthe board of directors designating such committee. Subject to the StockholdersAgreement, in the event that a member and that member’s alternate, ifalternates are designated by the board of directors as provided in  Section8  of this  Article III , of such committee is or are absent ordisqualified, the member or members thereof present at any meeting and notdisqualified from voting, whether or not such member or members constitute aquorum, may unanimously appoint another member of the board of directors to actat the meeting in place of any such absent or disqualified member.
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      Section 10.  Executive Committee. Subject to theStockholders Agreement, the board of directors of the corporation may, byresolution adopted by a majority of the whole board, designate three (3)directors to constitute an executive committee. Subject to the StockholdersAgreement and the Securities Purchase Agreement, the executive committee, tothe extent provided in the resolution, shall have and may exercise all of theauthority of the board of directors in the management of the corporation,except that the committee shall have no 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;amending the by-laws of the corporation; electing or removing directors orofficers of the corporation or members of the executive committee; declaringdividends; or amending, altering, or repealing any resolution of the board ofdirectors which, by its terms, provides that it shall not be amended, alteredor repealed by the executive committee. Subject to the Stockholders Agreement,the board of directors shall have power at any time to fill vacancies in, tochange the size or membership of and to discharge the executive committee.
      Section 11.  Audit Committee. Subject to theStockholders Agreement, the audit committee shall consist of not fewer than two(2) members of the board of directors as shall from time to time be appointedby resolution of the board of directors. No member of the board of directorswho is an affiliate of the corporation (other than solely by virtue of his orher position as a director, employee of the corporation or an employee or agentof an owner of capital stock of the corporation or its subsidiaries) or anofficer or an employee of the corporation or any subsidiary of the corporationshall be eligible to serve on the audit committee. The audit committee shallreview and, as it shall deem appropriate, recommend to the board internalaccounting and financial controls for the corporation and accounting principlesand auditing practices and procedures to be employed in the preparation andreview of financial statements of the corporation. The audit committee shallmake recommendations to the board concerning the engagement of independentpublic accountants to audit the annual financial statements of the corporationand the scope of the audit to be undertaken by such accountants.
      Section 12.  Compensation Committee. Subject to theStockholders Agreement, the compensation committee shall consist of not fewerthan two (2) members of the board of directors as from time to time shall beappointed by resolution of the board of directors. No member of the board ofdirectors who is an affiliate of the corporation (other than solely by virtueof his or her position as a director, employee of the corporation or anemployee or agent of an owner of capital stock of the corporation or itssubsidiaries) or an officer or an employee of the corporation or any subsidiaryof the corporation shall be eligible to serve on the compensation committee.The compensation committee shall review and, as it deems appropriate, recommendto the president and the board of directors policies, practices and proceduresrelating to the compensation of managerial employees and the establishment andadministration of employee benefit plans. The compensation committee shallhave and exercise all authority under any employee stock option plans of thecorporation as the committee therein (unless the board of directors byresolution appoints any other committee to exercise such authority), and shallotherwise advise and consult with the officers of the corporation as may berequested regarding managerial personnel policies.
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      Section 13. Communications Equipment. Members of the board ofdirectors or any committee thereof may participate in and act at any meeting ofsuch board or committee through the use of a conference telephone or othercommunications equipment by means of which all persons participating in themeeting can hear each other, and participation in the meeting pursuant to thissection shall constitute presence in person at the meeting.
      Section 14. Waiver of Notice. Any member of the board ofdirectors or any committee thereof who is present at a meeting shall beconclusively presumed to have waived notice of such meeting except when suchmember attends for the express purpose of objecting at the beginning of themeeting to the transaction of any business because the meeting is not lawfullycalled or convened.
      Section 15. Action by Written Consent. Unless otherwiserestricted by the certificate of incorporation, any action required orpermitted to be taken at any meeting of the board of directors, or of anycommittee thereof, may be taken without a meeting if all members of the boardor committee, as the case may be, consent thereto in writing, and the writingor writings are filed with the minutes of proceedings of the board orcommittee.
**ARTICLE IV**
**OFFICERS**
     Section 1. Number. Subject to the Securities Purchase Agreement, theofficers of the corporation shall be elected by the board of directors andshall consist of a chairman, if any is elected, a chief executive officer, apresident, a vice-president, if any is elected, a secretary, a treasurer, ifany is elected, and such other officers and assistant officers as may be deemednecessary or desirable by the board of directors. Any number of offices may beheld by the same person. In its discretion, the board of directors may choosenot to fill any office for any period as it may deem advisable.
      Section 2. Election and Term of Office. The officers of thecorporation shall be elected annually by the board of directors at its firstmeeting held after each annual meeting of stockholders or as soon thereafter assuch meeting may conveniently be held. Vacancies may be filled or new officescreated and filled at any meeting of the board of directors. Each officershall hold office until a successor is duly elected and qualified or until hisor her earlier death, resignation or removal as hereinafter provided.
      Section 3. Removal. Any officer or agent elected by the board ofdirectors may be removed by the board of directors whenever in its judgment thebest interests of the corporation would be served thereby, but such removalshall be without prejudice to the contract rights, if any, of the person soremoved.
      Section 4. Vacancies. Subject to the Securities PurchaseAgreement, any vacancy occurring in any office because of death, resignation,removal, disqualification or otherwise, may be filled by the board of directorsfor the unexpired portion of the term by the board of directors then in office.
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      Section 5. Compensation. Compensation of all officers shall befixed by the board of directors, and no officer shall be prevented fromreceiving such compensation by virtue of his or her also being a director ofthe corporation.
      Section 6. Chairman of the Board. The chairman of the boardshall be the chief executive officer of the corporation, and shall have thepowers and perform the duties incident to that position. Subject to the powersof the board of directors, he or she shall be in the general and active chargeof the entire business and affairs of the corporation, and shall be its chiefpolicy making officer. He or she shall preside at all meetings of the board ofdirectors and stockholders and shall have such other powers and perform suchother duties as may be prescribed by the board of directors or provided inthese by-laws. Whenever the chief executive officer is unable to serve, byreason of sickness, absence or otherwise, the chairman of the board shallperform all the duties and responsibilities and exercise all the powers of thechief executive officer.
      Section 7. The Chief Executive Officer. The chief executiveofficer shall, if no chairman is provided for, be the chief executive officerof the corporation; shall preside at all meetings of the stockholders and boardof directors at which he or she is present; subject to the powers of the boardof directors and the chairman, shall have general and active charge of theentire business and affairs of the corporation, and shall be its chiefpolicy-making officer. The chief executive officer shall see that all ordersand resolutions of the Board are carried into effect. The chief executiveofficer shall have such other powers and perform such other duties as may beprescribed by the Board
      Section 8. The President. The president shall, subject to thepowers of the Board and the chief executive officer, be the chiefadministrative officer of the corporation and shall have general and activecharge of the entire business, affairs and property of the corporation, andcontrol over its officers (other than the chief executive officer), agents andemployees. The president shall see that all orders and resolutions of theBoard and the chief executive officer are carried into effect. The presidentshall execute bonds, mortgages and other contracts requiring a seal, under theseal of the corporation, except where required or permitted by law to beotherwise signed and executed and except where the signing and executionthereof shall be expressly delegated by the board of directors to some otherofficer or agent of the corporation. The president shall be responsible forthe employment of employees, agents and Officers (other than the chiefexecutive officer) as may be required for the conduct of the business and theattainment of the objectives of the corporation. The president shall haveauthority to suspend or to remove any employee, agent or officer (other thanthe chief executive officer) of the corporation and, in the case of thesuspension for cause of any such officer, to recommend to the Board whatfurther action should be taken. The president shall have such other powers andperform such other duties as may be prescribed by the chairman of the board,the chief executive officer or the board of directors as may be provided inthese by-laws. In the absence of the president, his or duties shall beperformed and his or her authority may be exercised by the chief executiveofficer. In the absence of the president and the chief executive officer, theduties of the president shall be performed and his or her authority may beexercised by such officer as may have been designated as the most seniorofficer of the corporation.
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      Section 9. The Vice-Presidents. The vice-president, or if thereshall be more than one (1), the vice-presidents in the order determined by theboard of directors, shall, in the absence or disability of the chief executiveofficer and president, act with all of the powers and be subject to all therestrictions of the president. The vice-presidents shall also perform suchother duties and have such other powers as the board of directors, thechairman, the chief executive officer, the president or these by-laws may, fromtime to time, prescribe.
      Section 10. The Secretary and Assistant Secretaries. Thesecretary shall attend all meetings of the board of directors, all meetings ofthe committees thereof and all meetings of the stockholders and record all theproceedings of the meetings in a book or books to be kept for that purpose.Under the chief executive officer and the president’s supervision, thesecretary shall give, or cause to be given, all notices required to be given bythese by-laws or by law; shall have such powers and perform such duties as theboard of directors, the chairman, the chief executive officer, the president orthese by-laws may, from time to time, prescribe; and shall have custody of thecorporate seal of the corporation. The secretary, or an assistant secretary,shall have authority to affix the corporate seal to any instrument requiring itand when so affixed, it may be attested by his or her signature or by thesignature of such 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 or her signature. The assistant secretary, or ifthere be more than one (1), the assistant secretaries in the order determinedby the board of directors, shall, in the absence or disability of thesecretary, perform the duties and exercise the powers of the secretary andshall perform such other duties and have such other powers as the board ofdirectors, the chairman, the chief executive officer, the president orsecretary may, from time to time, prescribe.
      Section 11. The Treasurer and Assistant Treasurer. The treasurershall have the custody of the corporate funds and securities; shall keep fulland accurate accounts of receipts and disbursements in books belonging to thecorporation; shall deposit all monies and other valuable effects in the nameand to the credit of the corporation as may be ordered by the board ofdirectors; shall cause the funds of the corporation to be disbursed when suchdisbursements have been duly authorized, taking proper vouchers for suchdisbursements; and shall render to the chief executive officer, the presidentand the board of directors, at its regular meeting or when the board ofdirectors so requires, an account of the corporation; shall have such powersand perform such duties as the board of directors, the chairman, the chiefexecutive officer, the president or these by-laws may, from time to time,prescribe. If required by the board of directors, the treasurer shall give thecorporation a bond (which shall be rendered every six years) in such sums andwith such surety or sureties as shall be satisfactory to the board of directorsfor the faithful performance of the duties of the office of treasurer and forthe restoration to the corporation, in case of death, resignation, retirement,or removal from office, of all books, papers, vouchers, money, and otherproperty of whatever kind in the possession or under the control of thetreasurer belonging to the corporation. The assistant treasurer, or if thereshall be more than one (1), the assistant treasurers in the order determined bythe board of directors, shall in the absence or disability of the treasurer,perform the duties and exercise the powers of the treasurer. The assistanttreasurers shall perform such other duties and have such other powers as theboard of directors, the chairman, the chief executive officer, the president ortreasurer may, from time to time, prescribe.
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      Section 12. Other Officers, Assistant Officers and Agents.Officers, assistant officers and agents, if any, other than those whose dutiesare provided for in these by-laws, shall have such authority and perform suchduties as may from time to time be prescribed by resolution of the board ofdirectors.
      Section 13. Absence or Disability of Officers. In the case ofthe absence or disability of any officer of the corporation and of any personhereby authorized to act in such officer’s place during such officer’s absenceor disability, the board of directors may by resolution delegate the powers andduties of such officer to any other officer or to any director, or to any otherperson whom it may select.
**ARTICLE V**
**INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS**
     Section 1. Nature of Indemnity. Each person who was or is made aparty or is threatened to be made a party to or is involved in any action, suitor proceeding, whether civil, criminal, administrative or investigative(hereinafter a “proceeding”), by reason of the fact that he or she, ora person of whom he or she is the legal representative, is or was a director orofficer, of the corporation or is or was serving at the request of thecorporation as a director, officer, employee, fiduciary, or agent of anothercorporation or of a partnership, joint venture, trust or other enterprise,shall be indemnified and held harmless by the corporation to the fullest extentwhich it is empowered to do so by the General Corporation Law of the State ofDelaware, as the same exists or may hereafter be amended against all expense,liability and loss (including attorneys’ fees actually and reasonably incurredby such person in connection with such proceeding) and such indemnificationshall inure to the benefit of his or her heirs, executors and administrators;provided, however, that, except as provided in Section 2 hereof, thecorporation shall indemnify any such person seeking indemnification inconnection with a proceeding initiated by such person only if such proceedingwas authorized by the board of directors of the corporation. The corporationmay, by action of its board of directors, provide indemnification to employeesand agents of the corporation with the same scope and effect as the foregoingindemnification of directors and officers.
      Section 2. Procedure for Indemnification of Directors and Officers. Any indemnification of a director or officer of the corporation underSection 1 of this Article V or advance of expenses under Section 5 of thisArticle V shall be made promptly, and in anyevent within 30 days, upon the written request of the director or officer. Ifa determination by the corporation that the director or officer is entitled toindemnification pursuant to this Article V is required, and thecorporation fails to respond within sixty (60) days to a written request forindemnity, the corporation shall be deemed to have approved the request. Ifthe corporation denies a written request for indemnification or advancing ofexpenses, in whole or in part, or if payment in full pursuant to such requestis not made within 30 days, the right to indemnification or advances as grantedby this Article V shall be enforceable by the director or officer inany court of competent jurisdiction. Such person’s costs and expenses incurredin connection with successfully establishing his or her right toindemnification, in whole or in part, in any such action shall also beindemnified by the corporation. It shall be a defense to any such action(other than an action brought to enforce a claim for expenses incurred indefending any
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proceeding in advance of its final disposition where the requiredundertaking, if any, has been tendered to the corporation) that the claimanthas not met the standards of conduct which make it permissible under theGeneral Corporation Law of the State of Delaware for the corporation toindemnify the claimant for the amount claimed, but the burden of such defenseshall be on the corporation. Neither the failure of the corporation (includingits board of directors, independent legal counsel, or its stockholders) to havemade a determination prior to the commencement of such action thatindemnification of the claimant is proper in the circumstances because he orshe has met the applicable standard of conduct set forth in the GeneralCorporation Law of the State of Delaware, nor an actual determination by thecorporation (including its board of directors, independent legal counsel, orits stockholders) that the claimant has not met such applicable standard ofconduct, shall be a defense to the action or create a presumption that theclaimant has not met the applicable standard of conduct.
      Section 3. Article Not Exclusive. The rights to indemnificationand the payment of expenses incurred in defending a proceeding in advance ofits final disposition conferred in this  Article V  shall not beexclusive of any other right which any person may have or hereafter acquireunder any statute, provision of the certificate of incorporation, by-law,agreement, vote of stockholders or disinterested directors or otherwise.
      Section 4. Insurance. The corporation may purchase and maintaininsurance on its own behalf and on behalf of any person who is or was adirector, officer, employee, fiduciary, or agent of the corporation or wasserving at the request of the corporation as a director, officer, employee oragent of another corporation, partnership, joint venture, trust or otherenterprise against any liability asserted against him or her and incurred byhim or her in any such capacity, whether or not the corporation would have thepower to indemnify such person against such liability under this Article V.
      Section 5. Expenses. Expenses incurred by any person describedin Section 1 of this Article V in defending a proceedingshall be paid by the corporation in advance of such proceeding’s finaldisposition unless otherwise determined by the board of directors in thespecific case upon receipt of an undertaking by or on behalf of the director orofficer to repay such amount if it shall ultimately be determined that he orshe is not entitled to be indemnified by the corporation. Such expensesincurred by other employees and agents may be so paid upon such terms andconditions, if any, as the board of directors deems appropriate.
      Section 6. Employees and Agents. Persons who are not covered bythe foregoing provisions of this Article V and who are or wereemployees or agents of the corporation, or who are or were serving at therequest of the corporation as employees or agents of another corporation,partnership, joint venture, trust or other enterprise, may be indemnified tothe extent authorized at any time or from time to time by the board ofdirectors.
     Section 7. Contract Rights. The provisions of this Article V shall be deemed to be a contract right between the corporation and eachdirector or officer who serves in any such capacity at any time while this Article V and the relevant provisions of the General Corporation Law ofthe State of Delaware or other applicable law are in effect, and any repeal ormodification of this Article V or any such law shall not affect anyrights or obligations then existing with respect to any state of facts orproceeding then existing.
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      Section 8. Merger or Consolidation. For purposes of this Article V , references to “the corporation” shall include, in addition tothe resulting corporation, any constituent corporation (including anyconstituent of a constituent) absorbed in a consolidation or merger which, ifits separate existence had continued, would have had power and authority toindemnify its directors, officers, and employees or agents, so that any personwho is or was a director, officer, employee or agent of such constituentcorporation, or is or was serving at the request of such constituentcorporation as a director, officer, employee or agent of another corporation,partnership, joint venture, trust or other enterprise, shall stand in the sameposition under this Article V with respect to the resulting or survivingcorporation as he or she would have with respect to such constituentcorporation if its separate existence had continued.
**ARTICLE VI**
**CERTIFICATES OF STOCK**
     Section 1. Form. Every holder of stock in the corporation shall beentitled to have a certificate, signed by, or in the name of the corporation bythe chairman, the chief executive officer, the president or a vice-presidentand the secretary or an assistant secretary of the corporation, certifying thenumber of shares of a specific class or series owned by such holder in thecorporation. If such a certificate is countersigned (1) by a transfer agent oran assistant transfer agent other than the corporation or its employee or (2)by a registrar, other than the corporation or its employee, the signature ofany such chairman, chief executive officer, president, vice-president,secretary, or assistant secretary may be facsimiles. In case any officer orofficers who have signed, or whose facsimile signature or signatures have beenused on, any such certificate or certificates shall cease to be such officer orofficers of the corporation whether because of death, resignation or otherwisebefore such certificate or certificates have been delivered by the corporation,such certificate or certificates may nevertheless be issued and delivered asthough the person or persons who signed such certificate or certificates orwhose facsimile signature or signatures have been used thereon had not ceasedto be such officer or officers of the corporation. All certificates for sharesshall be consecutively numbered or otherwise identified. The name of theperson to whom the shares represented thereby are issued, with the number ofshares and date of issue, shall be entered on the books of the corporation.Shares of stock of the corporation shall only be transferred on the books ofthe corporation by the holder of record thereof or by such holder’s attorneyduly authorized in writing, upon surrender to the corporation of thecertificate or certificates for such shares endorsed by the appropriate personor persons, with such evidence of the authenticity of such endorsement,transfer, authorization, and other matters as the corporation may reasonablyrequire, and accompanied by all necessary stock transfer stamps. In thatevent, it shall be the duty of the corporation to issue a new certificate tothe person entitled thereto, cancel the old certificate or certificates, andrecord the transaction on its books. The board of directors may appoint a bankor trust company organized under the laws of the United States or any statethereof to act as its transfer agent or registrar, or both in connection withthe transfer of any class or series of securities of the corporation.
      Section 2. Lost Certificates. The board of directors may directa new certificate or certificates to be issued in place of any certificate orcertificates previously issued by the corporation alleged to have been lost,stolen, or destroyed, upon the making of an affidavit of
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that fact by theperson claiming the certificate of stock to be lost, stolen, or destroyed.When authorizing 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 or her legal representative, to give the corporation abond sufficient to indemnify the corporation against any claim that may be madeagainst the corporation on account of the loss, theft or destruction of anysuch certificate or the issuance of such new certificate.
      Section 3. Fixing a Record Date for Stockholder Meetings. 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 (60) nor lessthan ten (10) days before the date of such meeting. If no record date is fixedby the board of directors, the record date for determining stockholdersentitled to notice of or to vote at a meeting of stockholders shall be theclose of business on the next day preceding the day on which notice is given,or if notice is waived, at the close of business on the day next preceding theday on which the meeting is held. A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply toany adjournment of the meeting; provided, however, that the board of directorsmay fix a new record date for the adjourned meeting.
      Section 4. Fixing a Record Date for Action by Written Consent.In order that the corporation may determine the stockholders entitled toconsent to corporate action in writing without a meeting, the board ofdirectors may fix a record date, which record date shall not precede the dateupon which the resolution fixing the record date is adopted by the board ofdirectors, and which date shall not be more than ten (10) days after the dateupon which the resolution fixing the record date is adopted by the board ofdirectors. If no record date has been fixed by the board of directors, therecord date for determining stockholders entitled to consent to corporateaction in writing without a meeting, when no prior action by the board ofdirectors is required by statute, shall be the first date on which a signedwritten consent setting forth the action taken or proposed to be taken isdelivered to the corporation by delivery to its registered office in the Stateof Delaware, its principal place of business, or an officer or agent of thecorporation having custody of the book in which proceedings of meetings ofstockholders are recorded. Delivery made to the corporation’s registeredoffice shall be by hand or by certified or registered mail, return receiptrequested. If no record date has been fixed by the board of directors andprior action by the board of directors is required by statute, the record datefor determining stockholders entitled to consent to corporate action in writingwithout a meeting shall be at the close of business on the day on which theboard of directors adopts the resolution taking such prior action.
      Section 5. Fixing a Record Date for Other Purposes. In orderthat the corporation may determine the stockholders entitled to receive paymentof any dividend or other distribution or allotment or any rights or thestockholders entitled to exercise any rights in respect of any change,conversion or exchange of stock, or for the purposes of any other lawfulaction, 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, and which record date shall be not more than sixty (60) days prior tosuch action. If no record date is fixed, the record date for determining
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stockholders for any such purpose shall be at the close of business on the dayon which the board of directors adopts the resolution relating thereto.
      Section 6. Registered Stockholders. Prior to the surrender tothe corporation of the certificate or certificates for a share or shares ofstock with a request to record the transfer of such share or shares, thecorporation may treat the registered owner as the person entitled to receivedividends, to vote, to receive notifications, and otherwise to exercise all therights and powers of an owner.
      Section 7. Subscriptions for Stock. Unless otherwise providedfor in the subscription agreement, subscriptions for shares shall be paid infull at such time, or in such installments and at such times, as shall bedetermined by the board of directors. Any call made by the board of directorsfor payment on subscriptions shall be uniform as to all shares of the sameclass or as to all shares of the same series. In case of default in thepayment of any installment or call when such payment is due, the corporationmay proceed to collect the amount due in the same manner as any debt due thecorporation.
**ARTICLE VII**
**GENERAL PROVISIONS**
     Section 1. Dividends. Dividends upon the capital stock of thecorporation, subject to the provisions of the certificate of incorporation andthe Securities Purchase Agreement, if any, may be declared by the board ofdirectors at any regular or special meeting, pursuant to law. Dividends may bepaid in cash, in property, or in shares of the capital stock, subject to theprovisions of the certificate of incorporation and the Securities PurchaseAgreement. Before payment of any dividend, there may be set aside out of anyfunds of the corporation available for dividends such sum or sums as thedirectors from time to time, in their absolute discretion, think proper as areserve or reserves to meet contingencies, or for equalizing dividends, or forrepairing or maintaining any property of the corporation, or any other purposeand the directors may modify or abolish any such reserve in the manner in whichit was created.
      Section 2. Checks, Drafts or Orders. All checks, drafts, orother orders for the payment of money by or to the corporation and all notesand other evidences of indebtedness issued in the name of the corporation shallbe signed by such officer or officers, agent or agents of the corporation, andin such manner, as shall be determined by resolution of the board of directorsor a duly authorized committee thereof.
      Section 3. Contracts. Subject to the Securities PurchaseAgreement, the board of directors may authorize any officer or officers, or anyagent or agents, of the corporation to enter into any contract or to executeand deliver any instrument in the name of and on behalf of the corporation, andsuch authority may be general or confined to specific instances.
      Section 4. Loans. Subject to the Securities Purchase Agreementand applicable law, regulation or stock exchange rule, the corporation may lendmoney to, or guarantee any obligation of, or otherwise assist any officer orother employee of the corporation or of its subsidiary, including any officeror employee who is a director of the corporation or its
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subsidiary, whenever,in the judgment of the directors, such loan, guaranty or assistance mayreasonably be expected to benefit the corporation. The loan, guaranty or otherassistance may be with or without interest, and may be unsecured, or secured insuch manner as the board of directors shall approve, including, withoutlimitation, a pledge of shares of stock of the corporation. Nothing in thissection contained shall be deemed to deny, limit or restrict the powers ofguaranty or warranty of the corporation at common law or under any statute.
      Section 5. Fiscal Year. The fiscal year of the corporation shallbe fixed by resolution of the board of directors.
      Section 6. Corporate Seal. The board of directors shall providea corporate seal which shall be in the form of a circle and shall haveinscribed thereon the name of the corporation 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.
      Section 7. Voting Securities Owned By Corporation. Votingsecurities in any other corporation held by the corporation shall be voted bythe chief executive officer, unless the board of directors specifically confersauthority to vote with respect thereto, which authority may be general orconfined to specific instances, upon some other person or officer. Any personauthorized to vote securities shall have the power to appoint proxies, withgeneral power of substitution.
      Section 8. Inspection of Books and Records. Any stockholder ofrecord, in person or by attorney or other agent, shall, upon written demandunder oath stating the purpose thereof, have the right during the usual hoursfor business to inspect for any proper purpose the corporation’s stock ledger,a list of its stockholders, and its other books and records, and to make copiesor extracts therefrom. A proper purpose shall mean any purpose reasonablyrelated to such person’s interest as a stockholder. In every instance where anattorney or other agent shall be the person who seeks the right to inspection,the demand under oath shall be accompanied by a power of attorney or such otherwriting which authorizes the attorney or other agent to so act on behalf of thestockholder. The demand under oath shall be directed to the corporation at itsregistered office in the State of Delaware or at its principal place ofbusiness.
      Section 9. Section Headings. Section headings in these by-lawsare for convenience of reference only and shall not be given any substantiveeffect in limiting or otherwise construing any provision herein.
      Section 10. Inconsistent Provisions. In the event that anyprovision of these by-laws is or becomes inconsistent with any provision of thecertificate of incorporation, the Stockholders Agreement, the SecuritiesPurchase Agreement, the General Corporation Law of the State of Delaware or anyother applicable law, the provision of these by-laws shall not be given anyeffect to the extent of such inconsistency but shall otherwise be given fullforce and effect.
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**ARTICLE VIII**
**AMENDMENTS**
     Subject to the Securities Purchase Agreement and with the exceptionof the provisions of  Article III  hereof, these by-laws may be amended,altered, or repealed and new by-laws adopted at any meeting of the board ofdirectors by a majority vote. The fact that the power to adopt, amend, alter,or repeal the by-laws has been conferred upon the board of directors shall notdivest the stockholders of the same powers.
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