Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
ENCORE WIRE CORPORATION

ARTICLE I.
OFFICES
     Section 1.     The registered office of the corporation shall be in the Cityof Wilmington, County of New Castle, State of Delaware.
     Section 2.     The corporation may also have offices at such other places,both within and without the State of Delaware, as the Board of Directors mayfrom time to time determine or the business of the corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
     Section 1.     All meetings of the stockholders for the election of directorsshall be held in the City of Dallas, State of Texas, at such place as may befixed from time to time by the Board of Directors, or at such other placeeither within or without the State of Delaware as shall be designated from timeto time by the Board of Directors and stated in the notice of the meeting.Meetings of stockholders for any other purpose may be held at such time andplace, within or without the State of Delaware, as shall be stated in thenotice of the meeting or in a duly executed waiver of notice thereof.
     Section 2.     Annual meetings of stockholders shall be held on the firstTuesday in April, if not a legal holiday, and if a legal holiday, then on thenext secular day following, at nine o’clock a.m., or at such other date andtime as shall be designated from time to time by the Board of Directors andstated in the notice of the meeting, at which they shall elect by a pluralityvote a Board of Directors, and transact such other business as may properly bebrought before the meeting.
     Section 3.     Written notice of the annual meeting stating the place, dateand hour of the meeting shall be given to each stockholder entitled to vote atsuch meeting not less than ten nor more than fifty days before the date of themeeting.
     Section 4.     The officer who has charge of the stock ledger of thecorporation shall prepare and make, at least ten days before each annualmeeting of stockholders, a complete list of the stockholders entitled to voteat the meeting, arranged in alphabetical order, and showing the address of eachstockholder 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 a period of atleast ten days prior to the meeting, either at a place within the city wherethe meeting is to be held, which place shall be specified in the notice of themeeting, or, if not so specified, at the place where the meeting is to be held.The list shall also be produced and kept at the time and place of the meetingduring the whole time thereof, and may be inspected by any stockholder who ispresent.
     Section 5.     Special meetings of the stockholders, for any purpose orpurposes, unless otherwise prescribed by statute or by the certificate ofincorporation, may be called by the president or the vice chairman and shall becalled by the president, the vice chairman or secretary at the request inwriting of a majority of the Board of Directors, or at the request in writingof stockholders owning a majority in amount of the entire capital stock of thecorporation issued and outstanding and entitled to vote. Such request shallstate the purpose or purposes of the proposed meeting.
     Section 6.     Written notice of a special meeting stating the place, date andhour of the meeting and the purpose or purposes for which the meeting iscalled, shall be given not less than ten nor more than sixty days before thedate of the meeting, to each stockholder entitled to vote at such meeting.
     Section 7.     Business transacted at any special meeting of stockholdersshall be limited to the purposes stated in the notice.
     Section 8.     The holders of a majority of the stock issued and outstandingand entitled to vote thereat, present in person or represented by proxy, shallconstitute a quorum at all meetings of the stockholders for the transaction ofbusiness except as otherwise provided by statute or by the certificate ofincorporation. If, however, such quorum shall not be present or represented atany meeting of the stockholders, the stockholders entitled to vote thereat,present in person or represented by proxy, shall have power to adjourn themeeting from time to time, without notice other than announcement at themeeting, until a quorum shall be present or represented. At such adjournedmeeting, at which a quorum shall be present or represented, any business may betransacted which might have been transacted at the meeting as originallynotified. If the adjournment is for more than thirty days, or if after theadjournment a new record date is fixed for the adjourned meeting, a notice ofthe adjourned meeting shall be given to each stockholder of record entitled tovote at the meeting.
     Section 9.     When a quorum is present at any meeting, the vote of theholders of a majority of the stock having voting power present in person orrepresented by proxy shall decide any question brought before such meeting,unless the question is one upon which by express provision of the statutes orof the certificate of incorporation, a different vote is required, in whichcase such express provision shall govern and control the decision of suchquestion.
     Section 10.     Each stockholder shall at every meeting of the stockholders beentitled to one vote in person or by proxy for each share of the capital stockhaving voting power held by a such stockholder, but no proxy shall be votedafter three years from its date, unless the proxy provides for a longer period.
-2-

 

     Section 11.     Whenever the vote of stockholders at a meeting thereof isrequired or permitted to be taken for or in connection with any corporateaction, by any provision of the statutes, the meeting and vote of stockholdersmay be dispensed with if all of the stockholders who would have been entitledto vote upon the action if such meeting were held shall consent in writing tosuch corporate action being taken; or if the certificate of incorporationauthorizes the action to be taken with the written consent of the holders ofless than all of the stock who would have been entitled to vote upon the actionif a meeting were held, then on the written consent of the stockholders havingnot less than such percentage of the number of votes as may be authorized inthe certificate of incorporation; provided that in no case shall the writtenconsent be by the holders of stock having less than the minimum percentage ofthe vote required by statute for the proposed corporate action, and providedthat prompt notice must be given to all stockholders of the taking of corporateaction without a meeting and by less than unanimous consent.
ARTICLE III.
DIRECTORS
     Section 1.     The number of directors which shall constitute the whole boardshall be eight (8). The directors shall be elected at the annual meeting ofthe stockholders, except as provided in Section 2 of this Article, and eachdirector elected shall hold office until his successor is elected andqualified. Directors need not be stockholders.
     Section 2.     Vacancies and newly created directorships resulting from anyincrease in the authorized number of directors may be filled by a majority ofthe directors then in office, though less than a quorum, or by a sole remainingdirector, and the directors so chosen shall hold office until the next annualmeeting of stockholders and until their successors are duly elected and shallqualify, unless sooner displaced. If there are no directors in office then anelection of directors may be held in the manner provided by statute. If, atthe time of filling any vacancy or any newly created directorship, thedirectors then in office shall constitute less than a majority of the wholeboard (as constituted immediately prior to any such increase), the Court ofChancery may, upon application of any stockholder or stockholders holding atleast ten percent of the total number of the shares at the time outstandinghaving the right to vote for such directors, summarily order an election to beheld to fill any such vacancies or newly created directorships, or to replacethe directors chosen by the directors then in office.
     Section 3.     The business of the corporation shall be managed by its Boardof Directors which may exercise all such powers of the corporation and do allsuch lawful acts and things as are not by statute or by the certificate ofincorporation or by these bylaws directed or required to be exercised or doneby the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
     Section 4.     The Board of Directors of the corporation may hold meetings,both regular and special, either within or without the State of Delaware.
     Section 5.     The first meeting of each newly elected Board of Directorsshall be held immediately following and at the same place as the annual meetingof stockholders and no notice
-3-

 

of such meeting shall be necessary to the newly elected directors in orderlegally to constitute the meeting, provided a quorum shall be present. In theevent such meeting is not held at such time and place, the meeting may be heldat such time and place as shall be specified in a notice given as hereinafterprovided for special meetings of the Board of Directors, or as shall bespecified in a written waiver signed by all of the directors.
     Section 6.     Regular meetings of the Board of Directors may be held withoutnotice at such time and at such place as shall from time to time be determinedby the board.
     Section 7.     Special meetings of the Board of Directors may be called by thepresident or the vice chairman on twenty-four hours notice to each director,either personally or by mail or by telegram; special meetings shall be calledby the president, vice chairman or secretary in like manner and on like noticeon the written request of two directors.
     Section 8.     At all meetings of the Board of Directors a majority of thedirectors shall constitute a quorum for the transaction of business and the actof a majority of the directors present at any meeting at which there is aquorum, shall be the act of the Board of Directors, except as may be otherwisespecifically provided by statute or by the certificate of incorporation. If aquorum shall not be present at any meeting of the Board of Directors, thedirectors present thereat may adjourn the meeting from time to time, withoutnotice other than announcement at the meeting, until a quorum shall be present.
     Section 9.     Unless otherwise restricted by the certificate of incorporationor these bylaws, 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 10.     The members of the Board of Directors or any committee thereofmay participate in a meeting of such board or committee utilizing conferencetelephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other and such participation shallconstitute presence in person at such meeting.
COMMITTEES OF DIRECTORS
     Section 11.     The Board of Directors may, by resolution passed by a majorityof the whole board, designate one or more committees, each committee to consistof two or more of the directors of the corporation. The board may designateone or more directors as alternate members of any committee, who may replaceany absent or disqualified member at any meeting of the committee. Any suchcommittee, to the extent provided in the resolution, shall have and mayexercise the powers of the Board of Directors in the management of the businessand affairs of the corporation, and may authorize the seal of the corporationto be affixed to all papers which may require it; provided, however, that inthe absence or disqualification of any member of such committee or committeesthe member or members thereof present at any meeting and not disqualified fromvoting, whether or not he or they constitute a quorum, may unanimously appointanother member of the Board of Directors to act at the meeting in the place ofany such
-4-

 

absent or disqualified member. Such committee or committees shall havesuch name or names as may be determined from time to time by resolution adoptedby the Board of Directors.
     Section 12.     Each committee shall keep regular minutes of its meetings andreport the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
     Section 13.     The directors may be paid their expenses, if any, ofattendance at each meeting of the Board of Directors and may be paid a fixedsum for attendance at each meeting of the Board of Directors or a stated salaryas a director. No such payment shall preclude any director from serving thecorporation in any other capacity and receiving compensation therefor. Membersof special or standing committees may be allowed like compensation forattending committee meetings.
ARTICLE IV.
NOTICES
     Section 1.     Whenever, under the provisions of the statutes or of thecertificate of incorporation or of these bylaws, notice is required to be givento any director or stockholder, it shall not be construed to mean personalnotice, but such notice may be given in writing, by mail, addressed to suchdirector or stockholder, at his address as it appears on the records of thecorporation, with postage thereon prepaid, and such notice shall be deemed tobe given at the time when the same shall be deposited in the United Statesmail. Notice to directors may also be given by prepaid telegram.
     Section 2.     Whenever any notice is required to be given under theprovisions of the statutes or of the certificate of incorporation or of thesebylaws, a waiver thereof in writing, signed by the person or persons entitledto said notice, whether before or after the time stated therein, shall bedeemed equivalent thereto.
ARTICLE V.
OFFICERS
     Section 1.     Elected Officers. The officers of the corporation shall bechosen by the Board of Directors and shall be a chairman of the Board ofDirectors, a president, one or more vice presidents, a secretary and atreasurer. The officers of the corporation may also include a vice chairman,who shall be chosen by the Board of Directors.
     Section 2.     Election. The Board of Directors, at its first meeting aftereach annual meeting of stockholders, shall choose a chairman of the Board ofDirectors and a president from its members, and one or more vice presidents, asecretary and a treasurer, none of whom need be a member of the Board ofDirectors. The Board of Directors may also choose a vice chairman, who neednot be a member of the Board of Directors. The Board of Directors, thechairman of the Board of Directors or the president at any time may alsoappoint one or more assistant secretaries and assistant treasurers.
-5-

 

     Section 3.     Appointed Officers. The Board of Directors may appoint suchother officers and agents as it shall deem necessary, who shall hold theiroffices for such terms and shall exercise such powers and perform such dutiesas shall be determined from time to time by the Board of Directors.
     Section 4.     Compensation. The salaries of the chairman of the Board ofDirectors, of the president, of the vice chairman, of any vice president and ofthe secretary and the treasurer of the corporation shall be fixed by the Boardof Directors.
     Section 5.     Term of Office; Removal; Filling of Vacancies. Except as maybe otherwise provided by the Board of Directors or in these bylaws, eachofficer of the corporation shall hold office until the first meeting ofdirectors after the next annual meeting of stockholders following his electionor appointment and until his successor is chosen and qualified. Any officerelected or appointed by the Board of Directors may be removed at any time bythe affirmative vote of a majority of the whole Board of Directors. If theoffice of any officer becomes vacant for any reason, the vacancy shall befilled by the Board of Directors.
THE CHAIRMAN OF THE BOARD
     Section 6.     The chairman of the board shall be the chief executive officerof the corporation and shall have general and active management of the businessof the corporation. The chairman of the board shall, when present, preside atmeetings of the Board of Directors and the stockholders. He shall assist theBoard of Directors in the formulation of policies of the corporation and shallsee that all orders and resolutions of the Board of Directors and all policiesformulated by the Board of Directors are carried into effect. Whereformulation of policies of the corporation does not require action by the Boardof Directors, such policies shall be formulated by the chairman of the board incollaboration with the president. He shall also be available to other officersfor consultation and advice. He shall have power and general authority toexecute bonds, deeds and contracts in the name of the corporation and to affixthe corporate seal thereto; to sign stock certificates; to cause the employmentor appointment of such employees and agents of the corporation as the properconduct of business may require and to fix their compensation, subject to theprovisions of these bylaws; to remove or suspend any employee or agent whoshall have been employed or appointed under his authority or under theauthority of an officer subordinate to him; and to suspend for cause, pendingfinal action by the authority which shall have elected or appointed him, anyofficer subordinate to the chairman of the board. He shall have such otherpowers and duties as may, from time to time, be prescribed by the Board ofDirectors.
THE VICE CHAIRMAN
     Section 7.     The vice chairman, if one is elected, shall have the power tocall special meetings of the stockholders and of the Board of Directors for anypurpose or purposes, and, in the absence of the chairman of the board, the vicechairman shall preside at all meetings of the Board of Directors unless heshall be absent. The vice chairman shall advise and counsel the other officersof the corporation and shall exercise such powers and perform such duties asshall be assigned to or required of him from time to time by the Board ofDirectors or the chairman of the board.
-6-

 

THE PRESIDENT
     Section 8.     The President shall be the chief operating officer of thecorporation, shall, in the absence of the chairman of the board, preside (1) atall meetings of the stockholders and (2) in the absence of the vice chairman,if one is elected, at all meetings of the Board of Directors, shall havemanagement and supervision of the day-to-day operations of the corporation andshall see that all orders and resolutions of the Board of Directors and allpolicies formulated by the Board of Directors, or by the chairman of the boardin collaboration with the president, are carried into effect. The presidentshall have power and general authority to execute bonds, deeds and contracts inthe name of the corporation and to affix the corporate seal thereto; to signstock certificates; to cause the employment or appointment of such employeesand agents of the corporation as the proper conduct of operations may requireand to fix their compensation, subject to the provisions of these bylaws; toremove or suspend any employee or agent who shall have been employed orappointed under his authority or under authority of an officer subordinate tohim; to suspend for cause, pending final action by the authority which shallhave elected or appointed him, any officer subordinate to the president; and ingeneral to exercise all the powers usually appertaining to the office ofpresident and chief operating officer of a corporation, except as otherwiseprovided by statute, the certificate of incorporation or these bylaws. In theevent of the absence or disability of the president, his duties shall beperformed and his powers may be exercised by the vice presidents in the orderof their seniority, unless otherwise determined by the president, the chairmanof the board, the Executive Committee or the Board of Directors.
THE VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS
     Section 9.     In the absence of the president or in the event of hisinability or refusal to act, the vice president (or in the event there be morethan one vice president, the vice presidents in the order designated, or in theabsence of any designation, then in the order of their election) shall performthe duties of the president, and when so acting, shall have all the powers orand be subject to all the restrictions upon the president. The vice presidentsshall perform such other duties and have such other powers as the Board ofDirectors may from time to time prescribe.
     Section 10.     The assistant vice president, or if there be more than one,the assistant vice presidents in the order determined by the Board of Directors(or if there be no such determination, then in the order of their election),shall in the absence of any vice president or in the event of the inability orrefusal to act of any vice president, perform the duties and exercise thepowers of such vice president and shall perform such other duties and have suchother powers as the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
     Section 11.     The secretary shall attend all meetings of the Board ofDirectors and all meetings of the stockholders and record all the proceedingsof the meetings of the corporation and of the Board of Directors in a book tobe kept for that purpose and shall perform like duties for the standingcommittees when required. He shall give, or cause to be given, notice of allmeetings of the stockholders and special meetings of the Board of Directors,and shall perform such other duties as may be prescribed by the Board ofDirectors or president, under whose
-7-

 

supervision he shall be. He shall have custody of the corporate seal ofthe corporation and he, or an assistant secretary, shall have authority toaffix the same to any instrument requiring it and when so affixed, it may beattested by his signature or by the signature of such assistant secretary. TheBoard of Directors may give general authority to any other officer to affix theseal of the corporation and to attest the affixing by his signature.
     Section 12.     The assistant secretary, or if there be more than one, theassistant secretaries in the order determined by the Board of Directors (or ifthere be no such determination, then in the order of their election), shall, inthe absence of the secretary or in the event of his inability or refusal toact, perform the duties and exercise the powers of the secretary and shallperform such other duties and have such other powers as the Board of Directorsmay from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
     Section 13.     The treasurer shall have custody of the corporate funds andsecurities of the corporation and shall keep full and accurate accounts ofreceipts and disbursements in books belonging to the corporation and shalldeposit all moneys and other valuable effects in the name and to the credit ofthe corporation in such depositories as may be designated by the Board ofDirectors.
     Section 14.     The treasurer shall disburse the funds of the corporation asmay be ordered by the Board of Directors, taking proper vouchers for suchdisbursements, and shall render to the president and 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.
     Section 15.     If required by the Board of Directors, the treasurer shallgive the corporation a bond (which shall be renewed every six years) in suchsum and with such surety or sureties as shall be satisfactory to the Board ofDirectors for the faithful performance of the duties of his office and for therestoration to the corporation, in case of his death, resignation, retirementor removal from office, of all books, papers, vouchers, money and otherproperty of whatever kind in his possession or under his control be longing tothe corporation.
     Section 16.     The assistant treasurer, or if there shall be more than one,the assistant treasurers in the order determined by the Board of Directors (orif there be no such determination, then in the order of their election), shall,in the absence of the treasurer or in the event of his inability or refusal toact, perform the duties and exercise the powers of the treasurer and shallperform such other duties and have such other powers as the Board of Directorsmay from time to time prescribe.
ARTICLE VI.
CERTIFICATES OF STOCK
     Section 1.     Every holder of stock in the corporation shall be entitled tohave a certificate, signed by, or in the name of the corporation, by thechairman or vice-chairman of the board of directors, or the president or a vicepresident and by the treasurer or an assistant
-8-

 

treasurer, or the secretary or an assistant secretary of the corporation,certifying the number of shares owned by him in the corporation.
     Section 2.     Where a certificate is countersigned (1) by a transfer agentother than the corporation or its employee, or (2) by a registrar other thanthe corporation or its employee, any other signature on the certificate may befacsimile. In case any officer, transfer agent or registrar who has signed orwhose facsimile signature has been placed upon a certificate shall have ceasedto be such officer, transfer agent or registrar before such certificate isissued, it may be issued by the corporation with the same effect as if he weresuch officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
     Section 3.     The Board of Directors may direct a new certificate orcertificates to be issued in place of any certificate or certificatestheretofore issued by the corporation alleged to have been lost, stolen ordestroyed, upon the making of an affidavit of that fact by the person claimingthe certificate of stock to be lost, stolen or destroyed. When authorizingsuch issue of a new certificate or certificates, the Board of Directors may, inits discretion and as a condition precedent to the issuance thereof, requirethe owner of such lost, stolen or destroyed certificate or certificates, or hislegal representative, to advertise the same in such manner as it shall requireand/or to give the corporation a bond in such sum as it may direct as indemnityagainst any claim that may be made against the corporation with respect to thecertificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
     Section 4.     Upon surrender to the corporation or the transfer agent of thecorporation of a certificate for shares duly endorsed or accompanied by properevidence of succession, assignment or authority to transfer, it shall be theduty of the corporation to issue a new certificate to the person entitledthereto, cancel the old certificate and record the transaction upon its books.
FIXING RECORD DATE
     Section 5.     In order that the corporation may determine the stockholdersentitled to notice of and to vote at any meeting of stockholders or anyadjournment thereof, or to express consent to corporate action in writingwithout a meeting, or entitled to receive payment of any dividend or otherdistribution or allotment of any rights, or entitled to exercise any rights inrespect of any change, conversion or exchange of stock or for the purpose ofany other lawful action, the Board of Directors may fix, in advance, a recorddate, which shall not be more than sixty nor less than ten days before the dateof such meeting, nor more than sixty days prior to any other action. Adetermination of stockholders of record entitled to notice of and to vote at ameeting of stockholders shall apply to any adjournment of the meeting;provided, however, that the Board of Directors may fix a new record date forthe adjourned meeting.
-9-

 

REGISTERED STOCKHOLDERS
     Section 6.     The corporation shall be entitled to recognize the exclusiveright of a person registered on its books as the owner of shares to receivedividends, and to vote as such owner, and to hold liable for calls andassessments a person registered on its books as the owner of shares, and shallnot be bound to recognize any equitable or other claim to or interest in suchshare or shares on the part of any other person, whether or not it shall haveexpress or other notice thereof, except as otherwise provided by the laws ofDelaware.
ARTICLE VII.
GENERAL PROVISIONS
INDEMNIFICATION OF OFFICERS AND DIRECTORS
     Section 1.
     (a)     The corporation shall indemnify any person who was or is a partyor is threatened to be made a party to any threatened, pending orcompleted action, suit or proceeding, whether civil, criminal,administrative or investigative (other than an action by or in the rightof the corporation) by reason of the fact that he is or was a director,officer, employee or agent of the corporation, or is or was serving atthe request of the corporation as a director, officer, employee or agentof another corporation, partnership, joint venture, trust or otherenterprise, against expenses (including attorneys’ fees), judgments,fines and amounts paid in settlement actually and reasonably incurred byhim in connection with such action, suit or proceeding if he acted ingood faith and in a manner he reasonably believed to be in or not opposedto the best interests of the corporation, and with respect to anycriminal action or proceeding, had no reasonable cause to believe hisconduct was unlawful. The termination of any action, suit or proceedingby judgment, order, settlement, conviction, or upon a plea of nolocontendere or its equivalent, shall not, of itself, create a presumptionthat the person did not act in good faith and in a manner which hereasonably believed to be in or not opposed to the best interests of thecorporation, and, with respect to any criminal action or proceeding, hadreasonable cause to believe that his conduct was unlawful.
     (b)     The corporation shall indemnify any person who was or is a partyor is threatened to be made a party to any threatened, pending orcompleted action or suit by or in the right of the corporation to procurea judgment in its favor by reason of the fact that he is or was adirector, officer, employee or agent of the corporation, or is or wasserving at the request of the corporation as a director, officer,employee or agent of another corporation, partnership, joint venture,trust or other enterprise against expenses (including attorneys’ fees)actually and reasonably incurred by him in connection with the defense orsettlement of such action or suit if he acted in good faith and in amanner he reasonably believed to be in or not opposed to the bestinterests of the corporation and except that no indemnification shall bemade in respect of any claim, issue or matter as to which such personshall have been adjudged to be liable for negligence or misconduct in theperformance of his duty to the corporation unless and only to the extentthat the Court
-10-

 

of Chancery or the court in which such action or suit was broughtshall determine upon application that, despite the adjudication ofliability but in view of all the circumstances of the case, such personis fairly and reasonably entitled to indemnity for such expenses whichthe Court of Chancery or such other court shall deem proper.
     (c)     To the extent that a director, officer, employee or agent of thecorporation has been successful on the merits or otherwise in defense ofany action, suit or proceeding referred to in subsection (a) or (b), orin defense of any claim, issue or matter therein, he shall be indemnifiedagainst expenses (including attorneys’ fees) actually and reasonablyincurred by him in connection therewith.
     (d)     Any indemnification under subsection (a) or (b) (unless orderedby a court) shall be made by the corporation only as authorized in thespecific case upon a determination that indemnification of the director,officer, employee or agent is proper in the circumstances because he hasmet the applicable standard of conduct set forth in subsections (a) and(b). Such determination shall be made (1) by the Board of Directors by amajority vote of a quorum consisting of directors who were not parties tosuch action, suit or proceeding, or (2) if such a quorum is notobtainable, or, even if obtainable a quorum of disinterested directors sodirects, by independent legal counsel in a written opinion, or (3) by thestockholders.
     (e)     Reasonable expenses, including court costs and attorneys’ fees,incurred by a person who was or is a witness or who was or is named as adefendant or respondent in any threatened, pending or completed action,claim, suit or proceeding, whether civil, criminal, administrative orinvestigative, any appeal in such an action, suit or proceeding, and anyinquiry or investigation that could lead to such an action, suit orproceeding (a “Proceeding”), by reason of the fact that such individualis or was a director or officer of the corporation, or while a directoror officer of the corporation is or was serving at the request of thecorporation as a director, officer, partner, venturer, proprietor,trustee, employee, agent or similar functionary of another corporation,partnership, trust, employee benefit plan or other enterprise, shall bepaid by the corporation at reasonable intervals in advance of the finaldisposition of such Proceeding, and without the determination set forthin Section 1(d) of this Article VII, upon receipt by the corporation of awritten affirmation by such person of his good faith belief that he hasmet the standard of conduct necessary for indemnification under thisSection 1, and a written undertaking by or on behalf of such person torepay the amount paid or reimbursed by the corporation if it isultimately determined that he is not entitled to be indemnified by thecorporation as authorized in this Section 1. Such written undertakingshall be an unlimited obligation of such person and it may be acceptedwithout reference to financial ability to make repayment. Such expenses(including attorneys’ fees) incurred by other employees and agents may beso paid upon such terms and conditions, if any, as the Board of Directorsdeems appropriate.
     (f)     The indemnification provided by this section shall not be deemedexclusive of any other rights to which those indemnified may be entitledunder the certificate of incorporation or any agreement, vote ofstockholders or disinterested directors or otherwise, both as to actionin his official capacity and as to action in another
-11-

 

capacity while holding such office, and shall continue as to aperson who has ceased to be a director, officer, employee or agent andshall inure to the benefit of the heirs, executors and administrators ofsuch a person.
     (g)     The corporation shall have power to purchase and maintaininsurance on behalf of any person who is or was a director, officer,employee or agent of the corporation, or is or was serving at the requestof the corporation as a director, officer, employee or agent of anothercorporation, partnership, joint venture, trust or other enterpriseagainst any liability asserted against him and incurred by him in anysuch capacity, or arising out of his status as such, whether or not thecorporation would have the power to indemnify him against such liabilityunder the provisions of this section.
     (h)     For purposes of this section, references to “the corporation”shall include, in addition to the resulting corporation, any constituentcorporation (including any constituent of a constituent) absorbed in aconsolidation or merger which, if its separate existence had 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, jointventure, trust or other enterprise, shall stand in the same positionunder the provisions of this section with respect to the resulting orsurviving corporation as he would have with respect to such constituentcorporation if its separate existence had continued.
INTERESTED DIRECTORS AND OFFICERS; QUORUM
     Section 2.     No contract or transaction between the corporation and one ormore of its directors or officers, or between the corporation and any othercorporation, partnership, association or other organization in which one ormore of its directors or officers are directors or officers or have a financialinterest, shall be void or voidable solely for this reason, or solely becausethe director or officer is present at or participates in the meeting of theBoard of Directors or committee thereof which authorizes the contract ortransaction, or solely because his or their votes are counted for such purpose,if (i) the material facts as to his relationship or interest and as to thecontract or transaction are disclosed or are known to the board or thecommittee, and the board or committee in good faith authorizes the contract ortransaction by the affirmative votes of a majority of the disinteresteddirectors, even though the disinterested directors be less than a quorum; or(ii) the material facts as to his relationship or interest and as to thecontract or transaction are disclosed or are known to the stockholders entitledto vote thereon, and the contract or transaction is specifically approved ingood faith by vote of the stockholders; or (iii) the contract or transaction isfair as to the corporation as of the time it is authorized, approved orratified by the board, a committee thereof or the stockholders. Common orinterested directors may be counted in determining the presence of a quorum ata meeting of the board or of a committee which authorizes the contract ortransaction.
-12-

 

DIVIDENDS
     Section 3.     Dividends upon the capital stock of the corporation, subject tothe provisions of the certificate of incorporation, if any, may be declared bythe Board 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 certificate of incorporation.
     Section 4.     Before payment of any dividend, there may be set aside out ofany funds 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 for such otherpurpose as the directors shall think conducive to the interest of thecorporation, and the directors may modify or abolish any such reserve in themanner in which it was created.
CHECKS
     Section 5.     All checks or demands for money and notes of the corporationshall be signed by such officer or officers or such other person or persons asthe Board of Directors may from time to time designate.
FISCAL YEAR
     Section 6.     The fiscal year of the corporation shall be fixed by resolutionof the Board of Directors.
SEAL
     Section 7.     The corporate seal shall have inscribed thereon the name of thecorporation and shall be in such form as may be approved from time to time bythe Board of Directors. The seal may be used by causing it or a facsimilethereof to be impressed, affixed, imprinted or in any manner reproduced.
ARTICLE VIII.
AMENDMENTS
     These bylaws may be altered, amended or repealed or new bylaws may beadopted by the stockholders or by the Board of Directors at any regular meetingof the stockholders or of the Board of Directors or at any special meeting ofthe stockholders or of the Board of Directors if notice of such alteration,amendment, repeal or adoption of new bylaws be contained in the notice of suchspecial meeting.
     AMENDED AND RESTATED on the 20th day of July, 2004.
-13-