**Exhibit 3.2**

 

BY-LAWS

 

OF

 

JACKSON HEWITT TAX SERVICE INC.

 

A Delaware Corporation

 

Effective June 21, 2004

 

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**TABLE OF CONTENTS**

 
| ARTICLE I OFFICES                   |
|------------------------------------------|
|                                     |   |   |
| Section 1.                          | Registered Office |   |
| Section 2.                          | Other Offices |   |
|                                     |   |   |
| ARTICLE II MEETINGS OF STOCKHOLDERS |
|                                     |   |   |
| Section 1.                          | Place of Meetings |   |
| Section 2.                          | Annual Meetings |   |
| Section 3.                          | Special Meetings |   |
| Section 4.                          | Nature of Business at meetings of  Stockholders |   |
| Section 5.                          | Nomination of Directors |   |
| Section 6.                          | Notice |   |
| Section 7.                          | Adjournments |   |
| Section 8.                          | Quorum |   |
| Section 9.                          | Voting |   |
| Section 10.                         | Proxies |   |
| Section 11.                         | List of Stockholders Entitled to Vote |   |
| Section 12.                         | Record  Date |   |
| Section 13.                         | Stock Ledger |   |
| Section 14.                         | Conduct of Meetings |   |
| Section 15.                         | Inspectors of Election |   |
|                                     |   |   |
| ARTICLE III DIRECTORS               |
|                                     |   |   |
| Section 1.                          | Number and Election of Directors |   |
| Section 2.                          | Vacancies |   |
| Section 3.                          | Duties and Powers |   |
| Section 4.                          | Meetings |   |
| Section 5.                          | Organization |   |
| Section 6.                          | Resignations and Removals of Directors |   |
| Section 7.                          | Quorum |   |
| Section 8.                          | Actions of the Board by Written Consent |   |
| Section 9.                          | Meetings by Means of Conference Telephone |   |
| Section 10.                         | Committees |   |
| Section 11.                         | Compensation |   |
| Section 12.                         | Interested Directors |   |

 

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| ARTICLE IV OFFICERS            |
|-------------------------------------|
|                                |   |   |
| Section 1.                     | General |   |
| Section 2.                     | Election |   |
| Section 3.                     | Voting Securities Owned by the Corporation |   |
| Section 4.                     | Chairman of the Board of Directors |   |
| Section 5.                     | President  and Chief Executive Officer |   |
| Section 6.                     | Chief Financial Officer |   |
| Section 7.                     | Vice Presidents |   |
| Section 8.                     | Secretary |   |
| Section 9.                     | Treasurer |   |
| Section 10.                    | Assistant Secretaries |   |
| Section 11.                    | Assistant Treasurers |   |
| Section 12.                    | Other Officers |   |
|                                |   |   |
| ARTICLE V STOCK                |
|                                |   |   |
| Section 1.                     | Form of Certificates |   |
| Section 2.                     | Signatures |   |
| Section 3.                     | Lost Certificates |   |
| Section 4.                     | Transfers |   |
| Section 5.                     | Dividend Record Date |   |
| Section 6.                     | Record Owners |   |
| Section 7.                     | Transfer and Registry Agents |   |
|                                |   |   |
| ARTICLE VI NOTICES             |
|                                |   |   |
| Section 1.                     | Notices |   |
| Section 2.                     | Waivers of Notice |   |
|                                |   |   |
| ARTICLE VII GENERAL PROVISIONS |
|                                |   |   |
| Section 1.                     | Dividends |   |
| Section 2.                     | Disbursements |   |
| Section 3.                     | Fiscal  Year |   |
| Section 4.                     | Corporate Seal |   |
|                                |   |   |
| ARTICLE VIII INDEMNIFICATION   |
|                                |   |   |
| Section 1.                     | Indemnification |   |
|                                |   |   |
| ARTICLE IX AMENDMENTS          |
|                                |   |   |
| Section 1.                     | Amendments |   |
| Section 2.                     | Entire Board of Directors |   |

 

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BY-LAWS

 

OF

 

JACKSON HEWITT TAX SERVICE INC.

 

(hereinafter called the “Corporation”)

 

 

ARTICLE I

 

OFFICES

 

Section 1.                                            RegisteredOffice.  Theregistered office of the Corporation shall be in the City of Wilmington, Countyof New Castle, State of Delaware.

 

Section 2.                                            OtherOffices.  TheCorporation may also have offices at such other places, both within and withoutthe State of Delaware, as the board of directors may from time to timedetermine.

 

ARTICLE II

 

MEETINGS OF STOCKHOLDERS

 

Section 1.                                            Placeof Meetings. meetings of the stockholders for the election of directors or for anyother purpose shall be held at such time and place, either within or withoutthe State of Delaware, as shall be designated from time to time by the board ofdirectors.

 

Section 2.                                            AnnualMeetings.  Theannual meeting of stockholders for the election of directors shall be held onsuch date and at such time as shall be

 

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designatedfrom time to time by the board of directors. Any other proper business may be transacted at the annual meeting ofstockholders.

 

Section 3.                                            SpecialMeetings.  Unlessotherwise required by law, special meetings of stockholders, for any purpose orpurposes, may be called by either (i) the Chairman of the board of directors,if there be one, (ii) the President or (iii) the board of directors.  The ability of the stockholders to call aspecial meeting of stockholders is hereby specifically denied.

 

Section 4.                                            Nature of Business at meetings of Stockholders.  No business may be transacted at an annual meetingof stockholders, other than business that is either (a) specified in the noticeof meeting (or any supplement thereto) given by or at the direction of theboard of directors (or any duly authorized committee thereof), (b) otherwiseproperly brought before the annual meeting by or at the direction of the boardof directors (or any duly authorized committee thereof), or (c) otherwiseproperly brought before the annual meeting by any stockholder of theCorporation (i) who is a stockholder of record on the date of the giving of thenotice provided for in this Section 4 and on the record date forthe determination of stockholders entitled to vote at such annual meeting and(ii) who complies with the notice procedures set forth in this Section 4.

 

In addition to any other applicable requirements, for business to beproperly brought before an annual meeting by a stockholder, such stockholdermust have given timely notice thereof in proper written form to the Secretaryof the Corporation.

 

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To be timely, a stockholder’s notice to the Secretary must be deliveredto or mailed and received at the principal executive offices of the Corporationnot less than ninety (90) days nor more than one hundred twenty (120) daysprior to the anniversary date of the immediately preceding annual meeting ofstockholders; provided, however, that in the event that theannual meeting is called for a date that is not within twenty-five (25) daysbefore or after such anniversary date, notice by the stockholder in order to betimely must be so received not later than the close of business on the tenth(10th) day following the day on which such notice of the date of the annualmeeting was mailed or public disclosure of the date of the annual meeting wasmade, whichever first occurs.

 

To be in proper written form, a stockholder’s notice to the Secretarymust set forth as to each matter such stockholder proposes to bring before theannual meeting (i) a brief description of the business desired to be broughtbefore the annual meeting and the reasons for conducting such business at theannual meeting, (ii) the name and record address of such stockholder, (iii) theclass and series and number of shares of each class and series of capital stockof the Corporation which are owned beneficially or of record by suchstockholder, (iv) a description of all arrangements or understandings betweensuch stockholder and any other person or persons (including their names) inconnection with the proposal of such business by such stockholder and anymaterial interest of such stockholder in such business and (v) a representationthat such stockholder is a holder of record of stock of the Corporation

 

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entitled to vote at such meeting and that the stockholder intends toappear in person or by proxy at the annual meeting to bring such businessbefore the meeting.

 

In addition, notwithstanding anything in this Section 4 tothe contrary, a stockholder intending to nominate one or more persons forelection as a director at an annual or special meeting of stockholders mustcomply with Article II, Section 5 of these By-Laws forsuch nominations to be properly brought before such meeting.

 

No business shall be conducted at the annual meeting of stockholdersexcept business brought before the annual meeting in accordance with theprocedures set forth in this Section 4; provided, however,that, once business has been properly brought before the annual meeting inaccordance with such procedures, nothing in this Section 4 shall bedeemed to preclude discussion by any stockholder of any such business.  If the chairman of an annual meetingdetermines that business was not properly brought before the annual meeting inaccordance with the foregoing procedures, the chairman shall declare to themeeting that the business was not properly brought before the meeting and suchbusiness shall not be transacted.

 

No business shall be conducted at a special meeting of stockholdersexcept for such business as shall have been brought before the meeting pursuantto the Corporation’s notice of meeting.

 

Section 5.                                            Nominationof Directors. Only persons who are nominated in accordance with the followingprocedures shall be eligible for election as directors of the Corporation,except as may be otherwise provided in the certificate of incorporation of theCorporation, as amended and restated from time to

 

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time (the “Certificateof Incorporation”), with respect to the right of holders of preferred stockof the Corporation to elect directors under specified circumstances.  Nominations of persons for election to theboard of directors may be made at any annual meeting of stockholders, or at anyspecial meeting of stockholders called for the purpose of electing directors,(a) by or at the direction of the board of directors (or any duly authorizedcommittee thereof) or (b) by any stockholder of the Corporation (i) who is astockholder of record on the date of the giving of the notice provided for inthis Section 5 and on the record date for the determination ofstockholders entitled to vote at such meeting and (ii) who complies with thenotice procedures set forth in this Section 5.

 

In addition to any other applicable requirements, for a nomination tobe made by a stockholder, such stockholder must have given timely noticethereof in proper written form to the Secretary of the Corporation.

 

To be timely, a stockholder’s notice to the Secretary must be deliveredto or mailed and received at the principal executive offices of the Corporation(a) in the case of an annual meeting, not less than ninety (90) days nor morethan one hundred twenty (120) days prior to the anniversary date of theimmediately preceding annual meeting of stockholders; provided, however,that in the event that the annual meeting is called for a date that is notwithin twenty-five (25) days before or after such anniversary date, notice bythe stockholder in order to be timely must be so received not later than theclose of business on the tenth (10th) day following the day on which suchnotice of the date of the annual meeting was mailed or public

 

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disclosure of the date of the annual meeting was made, whichever firstoccurs; and (b) in the case of a special meeting of stockholders called for thepurpose of electing directors, not later than the close of business on thetenth (10th) day following the day on which notice of the date of the specialmeeting was mailed or public disclosure of the date of the special meeting wasmade, whichever first occurs.

 

To be in proper written form, a stockholder’s notice to the Secretarymust set forth (a) as to each person whom the stockholder proposes to nominatefor election as a director (i) the name, age, business address and residenceaddress of the person, (ii) the principal occupation and employment of theperson, (iii) the class and series and number of shares of each class andseries of capital stock of the Corporation which are owned beneficially or ofrecord by the person and (iv) any other information relating to the person thatwould be required to be disclosed in a proxy statement or other filingsrequired to be made in connection with solicitations of proxies for election ofdirectors pursuant to Section 14 of the Securities Exchange Act of 1934,as amended (the “Exchange Act”) (or in any law or statute replacing suchsection), and the rules and regulations promulgated thereunder; and (b) as tothe stockholder giving the notice (i) the name and record address of suchstockholder, (ii) the class or series and number of shares of capital stock ofthe Corporation which are owned beneficially or of record by such stockholder,(iii) a description of all arrangements or understandings between suchstockholder and each proposed nominee and any other person or persons(including their names) pursuant to which the nomination(s) are to be made bysuch stockholder, (iv) a representation that such

 

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stockholder is a holder of record of stock of the Corporation entitledto vote at such meeting and that such stockholder intends to appear in personor by proxy at the meeting to nominate the persons named in its notice and (v)any other information relating to such stockholder that would be required to bedisclosed in a proxy statement or other filings required to be made inconnection with solicitations of proxies for election of directors pursuant toSection 14 of the Exchange Act (or in any law or statute replacing suchsection) and the rules and regulations promulgated thereunder.  Such notice must be accompanied by a writtenconsent of each proposed nominee to being named as a nominee and to serve as adirector if elected.

 

No person shall be eligible for election as a director of theCorporation unless nominated in accordance with the procedures set forth inthis Section 5.  If theChairman of the meeting determines that a nomination was not made in accordancewith the foregoing procedures, the Chairman shall declare to the meeting thatthe nomination was defective and such defective nomination shall bedisregarded.

 

Section 6.                                            Notice.  Whenever stockholders are required orpermitted to take any action at a meeting, a written notice of the meetingshall be given which shall state the place, date and hour of the meeting, and,in the case of a special meeting, the purpose or purposes for which the meetingis called.  Unless otherwise required bylaw, written notice of any meeting shall be given not less than ten (10) normore than sixty (60) days before the date of the meeting to each stockholderentitled to notice of and to vote at such meeting.

 

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Section 7.                                            Adjournments.  Any meeting of the stockholders may beadjourned from time to time to reconvene at the same or some other place, andnotice need not be given of any such adjourned meeting if the time and placethereof are announced at the meeting at which the adjournment is taken.  At the adjourned meeting, the Corporationmay transact any business which might have been transacted at the originalmeeting.  If the adjournment is for morethan thirty (30) days, or if after the adjournment a new record date is fixedfor the adjourned meeting, notice of the adjourned meeting in accordance withthe requirements of Section 6 hereof shall be given to eachstockholder of record entitled to notice of and to vote at the meeting.

 

Section 8.                                            Quorum.  Unless otherwise required by applicable lawor the Certificate of Incorporation, the holders of one-third of theCorporation’s capital stock issued and outstanding and entitled to votethereat, present in person or represented by proxy, shall constitute a quorumat all meetings of the stockholders for the transaction of business.  A quorum, once established, shall not bebroken by the withdrawal of enough votes to leave less than a quorum.  If, however, such quorum shall not bepresent or represented at any meeting of the stockholders, the stockholdersentitled to vote thereat, present in person or represented by proxy, shall havepower to adjourn the meeting from time to time, in the manner provided in Section 7hereof, until a quorum shall be present or represented.

 

Section 9.                                            Voting.  Unless otherwise required by law, theCertificate of Incorporation or these By-Laws, any question brought before any

 

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meeting of thestockholders, other than the election of directors, shall be decided by thevote of the holders of a majority of the total number of votes of theCorporation’s capital stock represented and entitled to vote thereat, voting asa single class.  Unless otherwiseprovided in the Certificate of Incorporation, and subject to Article II,Section 12, each stockholder represented at a meeting of thestockholders shall be entitled to cast one (1) vote for each share of thecapital stock entitled to vote thereat held by such stockholder.  Such votes may be cast in person or by proxyas provided in Article, Section 10.  The board of directors, in its discretion,or the officer of the Corporation presiding at a meeting of the stockholders,in such officer’s discretion, may require that any votes cast at such meetingshall be cast by written ballot.

 

Section 10.                                      Proxies.  Each stockholder entitled to vote at ameeting of the stockholders may authorize another person or persons to act forsuch stockholder as proxy, but no such proxy shall be voted upon after threeyears from its date, unless such proxy provides for a longer period.  Without limiting the manner in which astockholder may authorize another person or persons to act for such stockholderas proxy, the following shall constitute a valid means by which a stockholdermay grant such authority:

 

(i)                                     A stockholder may execute a writingauthorizing another person or persons to act for such stockholder asproxy.  Execution may be accomplished bythe stockholder or such stockholder’s authorized officer, director, employee oragent signing such writing or causing such person’s

 

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signature to be affixed to such writing byany reasonable means, including, but not limited to, by facsimile signature.

 

(ii)                                  A stockholder may authorize anotherperson or persons to act for such stockholder as proxy by transmitting orauthorizing the transmission of a telegram or cablegram to the person who willbe the holder of the proxy or to a proxy solicitation firm, proxy supportservice organization or like agent duly authorized by the person who will bethe holder of the proxy to receive such telegram or cablegram, provided thatany such telegram or cablegram must either set forth or be submitted withinformation from which it can be determined that the telegram or cablegram wasauthorized by the stockholder.  If it isdetermined that such telegrams or cablegrams are valid, the inspectors or, ifthere are no inspectors, such other persons making that determination shallspecify the information on which they relied.

 

Any copy, facsimile telecommunication or other reliable reproduction ofthe writing, telegram or cablegram authorizing another person or persons to actas proxy for a stockholder may be substituted or used in lieu of the originalwriting, telegram or cablegram for any and all purposes for which the originalwriting, telegram or cablegram could be used; provided, however,that such copy, facsimile telecommunication or other reproduction shall be acomplete reproduction of the entire original writing, telegram or cablegram.

 

Section 11.                                      List of Stockholders Entitled to Vote.  The officer of the Corporation who hascharge of the stock ledger of the Corporation shall prepare

 

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and make, atleast ten (10) days before every meeting of the stockholders, a complete listof the stockholders entitled to vote at the meeting, arranged in alphabeticalorder, and showing the address of each stockholder and the number of sharesregistered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for anypurpose germane to the meeting, during ordinary business hours, for a period ofat least ten (10) days prior to the meeting (i) either at a place within thecity where the meeting is to be held, which place shall be specified in thenotice of the meeting, or, if not so specified, at the place where the meetingis to be held or (ii) during ordinary business hours, at the principal place ofbusiness of the Corporation.  The listshall also be produced and kept at the time and place of the meeting during thewhole time thereof, and may be inspected by any stockholder who is present.

 

Section 12.                                      RecordDate.  In orderthat the Corporation may determine the stockholders entitled to notice of or tovote at any meeting of the 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 board ofdirectors, 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 fixed by the board of directors, the recorddate for determining stockholders entitled to notice of or to vote at a meetingof the stockholders shall be at the close of business on the day next precedingthe day on which notice is given, or, if notice is waived, at the close ofbusiness on the day next preceding the day on

 

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which themeeting is held.  A determination ofstockholders of record entitled to notice of or to vote at a meeting of thestockholders shall apply to any adjournment of the meeting; provided, however,that the board of directors may fix a new record date for the adjournedmeeting.

 

Section 13.                                      StockLedger.  The stockledger of the Corporation shall be the only evidence as to who are thestockholders entitled to examine the stock ledger, the list required by Article II,Section 11 or the books of the Corporation, or to vote in person orby proxy at any meeting of the stockholders.

 

Section 14.                                      Conductof Meetings.  Theboard of directors of the Corporation may adopt by resolution such rules andregulations for the conduct of any meeting of the stockholders as it shall deemappropriate.  Except to the extentinconsistent with such rules and regulations as adopted by the board ofdirectors, the chairman of any meeting of the stockholders shall have the rightand authority to prescribe such rules, regulations and procedures and to do allsuch acts as, in the judgment of such chairman, are appropriate for the properconduct of the meeting.  Such rules,regulations or procedures, whether adopted by the board of directors orprescribed by the chairman of the meeting, may include, without limitation, thefollowing:  (i) the establishment of anagenda or order of business for the meeting; (ii) the determination of when thepolls shall open and close for any given matter to be voted on at the meeting; (iii)rules and procedures for maintaining order at the meeting and the safety ofthose present; (iv) limitations on attendance at or participation in themeeting to stockholders of record of the Corporation, their duly

 

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authorized andconstituted proxies or such other persons as the chairman of the meeting shalldetermine; (v) restrictions on entry to the meeting after the time fixed forthe commencement thereof; and (vi) limitations on the time allotted toquestions or comments by participants.

 

Section 15.                                      Inspectorsof Election.  Inadvance of any meeting of the stockholders, the board of directors, byresolution, the Chairman or the President shall appoint one or more inspectorsto act at the meeting and make a written report thereof.  One or more other persons may be designatedas alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate is able to actat a meeting of the stockholders, the chairman of the meeting shall appoint oneor more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers,employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties ofinspector, shall take and sign an oath faithfully to execute the duties ofinspector with strict impartiality and according to the best of suchinspector’s ability.  The inspectorshall have the duties prescribed by law and shall take charge of the polls and,when the vote is completed, shall make a certificate of the result of the votetaken and of such other facts as may be required by applicable law.

 

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ARTICLE III

 

DIRECTORS

 

Section 1.                                            Number and Election of Directors.  The directors shall be divided into threeclasses, designated Class I, Class II and Class III.  Each class shall consist, as nearly as may be possible, ofone-third of the total number of directors constituting the entire board ofdirectors.  The initial division of theboard of directors into classes shall be made by the decision of theaffirmative vote of a majority of the entire board of directors.  The term of the initial Class I directorsshall terminate on the date of the 2005 annual meeting; the term of the initialClass II directors shall terminate on the date of the 2006 annual meeting; andthe term of the initial Class III directors shall terminate on the date of the2007 annual meeting or, in each case, upon such director’s earlier death, resignationor removal.  At each succeeding annualmeeting of stockholders beginning in 2005, successors to the class of directorswhose term expires at that annual meeting shall be elected for a three-yearterm and until their successors are duly elected and qualified.  If the number of directors is changed, anyincrease or decrease shall be apportioned among the classes so as to maintainthe number of directors in each class as nearly equal as possible, and anyadditional director of any class elected to fill a vacancy resulting from anincrease in such class or from the removal from office, death, disability,resignation or disqualification of a director or other cause shall hold officefor a term that shall coincide with the remaining term of that class, but in nocase will a decrease in the number of directors have the effect of removing orshortening the term of any

 

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incumbentdirector.  Except as provided in Article III,Section 2, directors shall be elected by a plurality of the votescast at each annual meeting of stockholders and each director so elected shallhold office until such director’s term expires and until such director’ssuccessor is duly elected and qualified, or until such director’s earlierdeath, resignation or removal. Directors need not be stockholders.

 

Section 2.                                            Vacancies.  Any vacancy on the board of directors thatresults from an increase in the number of directors may be filled by a majorityof the board of directors then in office, provided that a quorum is present,and any other vacancy occurring on the board of directors may be filled by amajority of the board of directors then in office, even if less than a quorum,or by a sole remaining director.  Anydirector of any class elected to fill a vacancy resulting from an increase inthe number of directors of such class shall hold office for a term that shallcoincide with the remaining term of that class.  Any director elected to fill a vacancy not resulting from anincrease in the number of directors shall have the same remaining term as thatof his or her predecessor.

 

Section 3.                                            Dutiesand Powers.  Thebusiness and affairs of the Corporation shall be managed by or under thedirection of the board of directors which may exercise all such powers of theCorporation and do all such lawful acts and things as are not by statute or bythe Certificate of Incorporation or by these By-Laws required to be exercisedor done by the stockholders.

 

Section 4.                                            Meetings.  The board of directors may hold meetings,both regular and special, either within or without the State of Delaware.  Regular

 

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meetings ofthe board of directors may be held without notice at such time and at suchplace as may from time to time be determined by the board of directors.  special meetings of the board of directorsmay be called by the Chairman, if there be one, or the President.  Notice thereof stating the place, date andhour of the meeting shall be given to each director either by mail not lessthan forty-eight (48) hours before the date of the meeting, by telephone ortelegram on twenty-four (24) hours’ notice, or on such shorter notice as theperson or persons calling such meeting may deem necessary or appropriate in thecircumstances.

 

Section 5.                                            Organization.  At each meeting of the board of directors,the Chairman of the board of directors, or, in his or her absence, a directorchosen by a majority of the directors present, shall act as chairman.  The Secretary of the Corporation shall actas secretary at each meeting of the board of directors.  In case the Secretary shall be absent fromany meeting of the board of directors, an Assistant Secretary shall perform theduties of secretary at such meeting; and in the absence from any such meetingof the Secretary and all the Assistant Secretaries, the chairman of the meetingmay appoint any person to act as secretary of the meeting.

 

Section 6.                                            Resignations and Removals of Directors.  Any director of the Corporation may resignat any time, by giving notice in writing to the Chairman of the board ofdirectors, the President or the Secretary of the Corporation.  Such resignation shall take effect at thetime therein specified or, if no time is specified, immediately; and, unlessotherwise specified in such notice, the acceptance of such resignation shallnot be necessary to make it effective. Except as

 

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otherwiserequired by applicable law and subject to the rights, if any, of the holders ofshares of preferred stock then outstanding, any director or the entire board ofdirectors may be removed from office at any time, but only for cause, and onlyby the affirmative vote of the holders of at least 60% of the voting power ofthe shares entitled to vote at an election of directors.

 

Section 7.                                            Quorum.  Except as otherwise required by law or theCertificate of Incorporation, at all meetings of the board of directors, amajority of the entire board of directors shall constitute a quorum for thetransaction of business and the act of a majority of the directors present atany meeting at which there is a quorum shall be the act of the board ofdirectors.  If a quorum shall not bepresent at any meeting of the board of directors, the directors present thereatmay adjourn the meeting from time to time, without notice other thanannouncement at the meeting of the time and place of the adjourned meeting,until a quorum shall be present.

 

Section 8.                                            Actions of the Board by Written Consent.  Unless otherwise provided in the Certificateof Incorporation or these By-Laws, any action required or permitted to be takenat any meeting of the board of directors or of any committee thereof may betaken without a meeting, if all the members of the board of directors orcommittee, as the case may be, consent thereto in writing, and the writing orwritings are filed with the minutes of proceedings of the board of directors orcommittee.

 

Section 9.                                            Meetings by Means of Conference Telephone.  Unless otherwise provided in the Certificateof Incorporation or these By-Laws, members of

 

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the board ofdirectors of the Corporation, or any committee thereof, may participate in ameeting of the board of directors or such committee by means of a conferencetelephone or other communications equipment by means of which all personsparticipating in the meeting can hear each other, and participation in ameeting pursuant to this Section 9 shall constitute presence inperson at such meeting.

 

Section 10.                                      Committees.  The board of directors may designate one ormore committees, each committee to consist of one or more of the directors ofthe Corporation.  The board of directorsmay designate one or more directors as alternate members of any committee, whomay replace any absent or disqualified member at any meeting of any suchcommittee.  In the absence ordisqualification of a member of a committee, and in the absence of adesignation by the board of directors of an alternate member to replace theabsent or disqualified member, the member or members thereof present at anymeeting and not disqualified from voting, whether or not such member or membersconstitute a quorum, may unanimously appoint another member of the board ofdirectors to act at the meeting in the place of any absent or disqualifiedmember.  Any committee, to the extentpermitted by law and provided in the resolution establishing such committee,shall have and may exercise all the powers and authority of the board ofdirectors in the management of the business and affairs of the Corporation, andmay authorize the seal of the Corporation to be affixed to all papers which mayrequire it.  Each committee shall keepregular minutes and report to the board of directors when required.

 

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Section 11.                                      Compensation.  The directors may be paid their expenses, ifany, of attendance at each meeting of the board of directors and may be paid afixed sum for attendance at each meeting of the board of directors or a statedsalary for service as director, payable in cash or securities.  No such payment shall preclude any directorfrom serving the Corporation in any other capacity and receiving compensationtherefor.  Members of special orstanding committees may be allowed like compensation for service as committeemembers.

 

Section 12.                                      InterestedDirectors.  Nocontract or transaction between the Corporation and one or more of itsdirectors or officers, or between the Corporation and any other corporation,partnership, association or other organization in which one or more of itsdirectors or officers are directors or officers or have a financial interest,shall be void or voidable solely for this reason, or solely because thedirector or officer is present at or participates in the meeting of the boardof directors or committee thereof which authorizes the contract or transaction,or solely because any such director’s or officer’s vote is counted for suchpurpose if: (i) the material facts as to the director’s or officer’srelationship or interest and as to the contract or transaction are disclosed orare known to the board of directors or the committee, and the board ofdirectors or committee in good faith authorizes the contract or transaction bythe affirmative votes of a majority of the disinterested directors, even thoughthe disinterested directors be less than a quorum; or (ii) the material factsas to the director’s or officer’s relationship or interest and as to thecontract or transaction are disclosed or are known to the stockholders entitledto vote

 

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thereon, andthe contract or transaction is specifically approved in good faith by vote ofthe stockholders; or (iii) the contract or transaction is fair as to theCorporation as of the time it is authorized, approved or ratified by the boardof directors, a committee thereof or the stockholders.  Common or interested directors may becounted in determining the presence of a quorum at a meeting of the board ofdirectors or of a committee which authorizes the contract or transaction.

 

ARTICLE IV

 

OFFICERS

 

Section 1.                                            General.  The officers of the Corporation shall bechosen by the board of directors and shall be a President, a Chief FinancialOfficer, a Secretary and a Treasurer. The board of directors, in its discretion, also may choose a Chairman ofthe board of directors (who must be a director) and one or more Vice Presidents,Assistant Secretaries, Assistant Treasurers and other officers.  Any number of offices may be held by thesame person, unless otherwise prohibited by law, the Certificate ofIncorporation or these By-Laws.  The officersof the Corporation need not be stockholders of the Corporation nor, except inthe case of the Chairman of the board of directors, need such officers bedirectors of the Corporation.

 

Section 2.                                            Election.  The board of directors, at its first meetingheld after each annual meeting of stockholders, shall elect the officers of theCorporation who shall hold their offices for such terms and shall exercise such

 

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powers andperform such duties as shall be determined from time to time by the board ofdirectors; and each officer of the Corporation shall hold office until suchofficer’s successor is elected and qualified, or until such officer’s earlierdeath, resignation or removal.  Anyofficer elected by the board of directors may be removed at any time by theboard of directors.  Any vacancyoccurring in any office of the Corporation shall be filled by the board ofdirectors.  The salaries of all officersof the Corporation shall be fixed by the board of directors.

 

Section 3.                                            Voting Securities Owned by the Corporation.  Powers of attorney, proxies, waivers ofnotice of meeting, consents and other instruments relating to securities ownedby the Corporation may be executed in the name of and on behalf of theCorporation by the President or any Vice President or any other officer authorizedto do so by the board of directors and any such officer may, in the name of andon behalf of the Corporation, take all such action as any such officer may deemadvisable to vote in person or by proxy at any meeting of security holders ofany corporation in which the Corporation may own securities and at any suchmeeting shall possess and may exercise any and all rights and power incident tothe ownership of such securities and which, as the owner thereof, theCorporation might have exercised and possessed if present.  The board of directors may, by resolution,from time to time confer like powers upon any other person or persons.

 

Section 4.                                            Chairman of the Board of Directors.  The Chairman of the board of directors, ifthere be one, shall preside at all meetings of the stockholders and of theboard of directors.  The Chairman of theboard of directors

 

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shall be theChief Executive Officer of the Corporation, unless the board of directorsdesignates the President as the Chief Executive Officer, and, except where bylaw the signature of the President is required, the Chairman of the board ofdirectors shall possess the same power as the President to sign all contracts,certificates and other instruments of the Corporation which may be authorizedby the board of directors.  During theabsence or disability of the President, the Chairman of the board of directorsshall exercise all the powers and discharge all the duties of thePresident.  The Chairman of the board ofdirectors shall also perform such other duties and may exercise such otherpowers as may from time to time be assigned by these By-Laws or by the board ofdirectors.

 

Section 5.                                            President.  The President shall, subject to the controlof the board of directors and, if there be one, the Chairman of the board ofdirectors, have general supervision of the business of the Corporation andshall see that all orders and resolutions of the board of directors are carriedinto effect.  The President shallexecute all bonds, mortgages, contracts and other instruments of theCorporation requiring a seal, under the seal of the Corporation, except whererequired or permitted by law to be otherwise signed and executed and exceptthat the other officers of the Corporation may sign and execute documents whenso authorized by these By-Laws, the board of directors or the President.  In the absence or disability of the Chairmanof the board of directors, or if there be none, the President shall preside atall meetings of the stockholders and, provided the President is also adirector, the board of directors.  Ifthere be no Chairman of the board of

 

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directors, orif the board of directors shall otherwise designate, the President shall be theChief Executive Officer of the Corporation. The President shall also perform such other duties and may exercise suchother powers as may from time to time be assigned to such officer by theseBy-Laws or by the board of directors.

 

Section 6.                                            ChiefFinancial Officer. The Chief Financial Officer shall have the responsibility for thefinancial affairs of the Corporation and shall exercise supervisoryresponsibility for the performance of the duties of the Treasurer and the controller,if any, of the Corporation.  The ChiefFinancial Officer shall also perform such other duties and may exercise suchother powers as may from time to time be assigned to such officer by theseBy-Laws or by the board of directors, all in accordance with the basic policiesestablished by and subject to the oversight of the board of directors, theChairman of the board of directors and the President.

 

Section 7.                                            VicePresidents.  Atthe request of the President or in the President’s absence or in the event ofthe President’s inability or refusal to act (and if there be no Chairman of theboard of directors), the Vice President, or the Vice Presidents if there aremore than one (in the order designated by the board of directors), shallperform the duties of the President, and when so acting, shall have all thepowers of and be subject to all the restrictions upon the President.  Each Vice President shall perform such otherduties and have such other powers as the board of directors from time to timemay prescribe.  If there be no Chairmanof the board of directors and no Vice President, the board of directors shalldesignate the officer of the Corporation who, in the absence of the Presidentor in the event of the inability or

 

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refusal of thePresident to act, shall perform the duties of the President, and when soacting, shall have all the powers of and be subject to all the restrictionsupon the President.

 

Section 8.                                            Secretary.  The Secretary shall attend all meetings ofthe board of directors and all meetings of the stockholders and record all theproceedings thereat in a book or books to be kept for that purpose; theSecretary shall also perform like duties for committees of the board ofdirectors when required.  The Secretaryshall give, or cause to be given, notice of all meetings of the stockholdersand special meetings of the board of directors, and shall perform such otherduties as may be prescribed by the board of directors, the Chairman of the boardof directors or the President, under whose supervision the Secretary shallbe.  If the Secretary shall be unable orshall refuse to cause to be given notice of all meetings of the stockholdersand special meetings of the board of directors, and if there be no AssistantSecretary, then either the board of directors or the President may chooseanother officer to cause such notice to be given.  The Secretary shall have custody of the seal of the Corporationand the Secretary or any Assistant Secretary, if there be one, shall haveauthority to affix the same to any instrument requiring it and when so affixed,it may be attested by the signature of the Secretary or by the signature of anysuch Assistant Secretary.  The board ofdirectors may give general authority to any other officer to affix the seal ofthe Corporation and to attest to the affixing by such officer’s signature.  The Secretary shall see that all books,reports, statements,

 

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certificatesand other documents and records required by law to be kept or filed areproperly kept or filed, as the case may be.

 

Section 9.                                            Treasurer.  The Treasurer shall have the custody of thecorporate funds and securities and shall keep full and accurate accounts of receiptsand disbursements in books belonging to the Corporation and shall deposit allmoneys and other valuable effects in the name and to the credit of theCorporation in such depositories as may be designated by the board ofdirectors.  The Treasurer shall disbursethe funds of the Corporation as may be ordered by the board of directors,taking proper vouchers for such disbursements, and shall render to thePresident and the board of directors, at its regular meetings, or when theboard of directors so requires, an account of all transactions as Treasurer andof the financial condition of the Corporation. If required by the board of directors, the Treasurer shall give theCorporation a bond in such sum and with such surety or sureties as shall besatisfactory to the board of directors for the faithful performance of theduties of the office of the Treasurer and for the restoration to theCorporation, in case of the Treasurer’s death, resignation, retirement orremoval from office, of all books, papers, vouchers, money and other propertyof whatever kind in the Treasurer’s possession or under the Treasurer’s controlbelonging to the Corporation.

 

Section 10.                                      AssistantSecretaries. Assistant Secretaries, if there be any, shall perform such duties andhave such powers as from time to time may be assigned to them by the board ofdirectors, the President, any Vice President, if there be one, or theSecretary, and in the absence of the Secretary or in the event of the

 

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Secretary’sinability or refusal to act, shall perform the duties of the Secretary, andwhen so acting, shall have all the powers of and be subject to all therestrictions upon the Secretary.

 

Section 11.                                      AssistantTreasurers. Assistant Treasurers, if there be any, shall perform such duties andhave such powers as from time to time may be assigned to them by the board ofdirectors, the President, any Vice President, if there be one, or theTreasurer, and in the absence of the Treasurer or in the event of theTreasurer’s inability or refusal to act, shall perform the duties of theTreasurer, and when so acting, shall have all the powers of and be subject toall the restrictions upon the Treasurer. If required by the board of directors, an Assistant Treasurer shall givethe Corporation a bond in such sum and with such surety or sureties as shall besatisfactory to the board of directors for the faithful performance of theduties of the office of Assistant Treasurer and for the restoration to the Corporation,in case of the Assistant Treasurer’s death, resignation, retirement or removalfrom office, of all books, papers, vouchers, money and other property ofwhatever kind in the Assistant Treasurer’s possession or under the AssistantTreasurer’s control belonging to the Corporation.

 

Section 12.                                      OtherOfficers.  Suchother officers as the board of directors may choose shall perform such dutiesand have such powers as from time to time may be assigned to them by the boardof directors.  The board of directorsmay delegate to any other officer of the Corporation the power to choose suchother

 

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VicePresidents, Assistant Secretaries, Assistant Treasurers and other officers andto prescribe their respective duties and powers in accordance with theseBy-Laws.

 

ARTICLE V

 

STOCK

 

Section 1.                                            Formof Certificates. Every holder of stock in the Corporation shall be entitled to have acertificate signed by, or in the name of the Corporation (i) by the Chairman ofthe board of directors, or the President or a Vice President and (ii) by theTreasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretaryof the Corporation, certifying the number of shares owned by such stockholderin the Corporation.

 

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

 

Section 3.                                            LostCertificates.  Theboard of directors may direct a new certificate to be issued in place of anycertificate theretofore issued by the Corporation alleged to have been lost,stolen or destroyed, upon the making of an affidavit of that fact by the personclaiming the certificate of stock to be lost, stolen or destroyed.  When authorizing such issue of a newcertificate, the board of

 

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directors may,in its discretion and as a condition precedent to the issuance thereof, requirethe owner of such lost, stolen or destroyed certificate, or such owner’s legalrepresentative, to advertise the same in such manner as the board of directorsshall require and/or to give the Corporation a bond in such sum as it maydirect as indemnity against any claim that may be made against the Corporationon account of the alleged loss, theft or destruction of such certificate or theissuance of such new certificate.

 

Section 4.                                            Transfers.  Stock of the Corporation shall betransferable in the manner prescribed by applicable law and in theseBy-Laws.  Transfers of stock shall bemade on the books of the Corporation only by the person named in thecertificate or by such person’s attorney lawfully constituted in writing and uponthe surrender of the certificate therefor, properly endorsed for transfer andpayment of all necessary transfer taxes; provided, however, that such surrenderand endorsement or payment of taxes shall not be required in any case in whichthe officers of the Corporation shall determine to waive such requirement.  Every certificate exchanged, returned orsurrendered to the Corporation shall be marked “Cancelled,” with the date ofcancellation, by the Secretary or Assistant Secretary of the Corporation or thetransfer agent thereof.  No transfer ofstock shall be valid as against the Corporation for any purpose until it shallhave been entered in the stock records of the Corporation by an entry showingfrom and to whom transferred.

 

Section 5.                                            DividendRecord Date.  Inorder that the Corporation may determine the stockholders entitled to receivepayment of any dividend or other

 

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distributionor allotment of any rights or the stockholders entitled to exercise any rightsin respect of any change, conversion or exchange of stock, or for the purposeof any other lawful action, the board of directors may fix a record date, whichrecord date shall not precede the date upon which the resolution fixing therecord date is adopted, and which record date shall be not more than sixty (60)days prior to such action.  If no recorddate is fixed, the record date for determining stockholders for any suchpurpose shall be at the close of business on the day on which the board ofdirectors adopts the resolution relating thereto.

 

Section 6.                                            RecordOwners.  TheCorporation shall be entitled to recognize the exclusive right of a personregistered on its books as the owner of shares to receive dividends, and tovote as such owner, and to hold liable for calls and assessments a personregistered on its books as the owner of shares, and shall not be bound torecognize any equitable or other claim to or interest in such share or shareson the part of any other person, whether or not it shall have express or othernotice thereof, except as otherwise required by law.

 

Section 7.                                            Transferand Registry Agents. The Corporation may from time to time maintain one or more transferoffices or agencies and registry offices or agencies at such place or places asmay be determined from time to time by the board of directors.

 

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ARTICLE VI

 

NOTICES

 

Section 1.                                            Notices.  Whenever written notice is required by law,the Certificate of Incorporation or these By-Laws, to be given to any director,member of a committee or stockholder, such notice may be given by mail,addressed to such director, member of a committee or stockholder, at suchperson’s address as it appears on the records of the Corporation, with postagethereon prepaid, and such notice shall be deemed to be given at the time whenthe same shall be deposited in the United States mail.  Written notice may also be given personallyor by telegram, telex or cable.

 

Section 2.                                            Waiversof Notice. Whenever any notice is required by applicable law, the Certificate ofIncorporation or these By-Laws, to be given to any director, member of acommittee or stockholder, a waiver thereof in writing, signed by the person orpersons entitled to notice, whether before or after the time stated therein,shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented byproxy, shall constitute a waiver of notice of such meeting, except where theperson attends the meeting for the express purpose of objecting at thebeginning of the meeting to the transaction of any business because the meetingis not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any annualor special meeting of stockholders or any regular or special meeting of thedirectors or members of a

 

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committee ofdirectors need be specified in any written waiver of notice unless so requiredby law, the Certificate of Incorporation or these By-Laws.

 

ARTICLE VII

 

GENERAL PROVISIONS

 

Section 1.                                            Dividends.  Dividends upon the capital stock of theCorporation, subject to the requirements of the General Corporation Law of theState of Delaware (the “DGCL”) and the provisions of the Certificate ofIncorporation, if any, may be declared by the board of directors at any regularor special meeting of the board of directors (or any action by written consentin lieu thereof in accordance with Article II, Section 8),and may be paid in cash, in property, or in shares of the Corporation’s capitalstock.  Before payment of any dividend,there may be set aside out of any funds of the Corporation available fordividends such sum or sums as the board of directors from time to time, in itsabsolute discretion, deems proper as a reserve or reserves to meetcontingencies, or for purchasing any of the shares of capital stock, warrants,rights, options, bonds, debentures, notes, scrip or other securities orevidences of indebtedness of the Corporation, or for equalizing dividends, or forrepairing or maintaining any property of the Corporation, or for any properpurpose, and the board of directors may modify or abolish any such reserve.

 

Section 2.                                            Disbursements.  All checks or demands for money and notes ofthe Corporation shall be signed by such officer or officers or such otherperson or persons as the board of directors may from time to time designate.

 

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Section 3.                                            FiscalYear.  The fiscalyear of the Corporation shall be fixed by resolution of the board of directors.

 

Section 4.                                            CorporateSeal.  Thecorporate seal shall have inscribed thereon the name of the Corporation, theyear of its organization and the words “Corporate Seal, Delaware”.  The seal may be used by causing it or a facsimilethereof to be impressed or affixed or reproduced or otherwise.

 

ARTICLE VIII

 

INDEMNIFICATION

 

Section 1.                                            Indemnification.  The Corporation shall indemnify itsdirectors and officers to the fullest extent authorized or permitted by law, asnow or hereafter in effect, and such right to indemnification shall continue asto a person who has ceased to be a director or officer of the Corporation andshall inure to the benefit of his or her heirs, executors and personal andlegal representatives; provided, however, that, except forproceedings to enforce rights to indemnification, the Corporation shall not beobligated to indemnify any director or officer (or his or her heirs, executorsor personal or legal representatives) in connection with a proceeding (or partthereof) initiated by such person unless such proceeding (or part thereof) wasauthorized or consented to by the board of directors.  The right to indemnification conferred by this Article VIIIshall include the right to be paid by the Corporation the expenses incurred indefending or otherwise participating in any proceeding in advance of its finaldisposition upon receipt by the Corporation of an undertaking by

 

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or on behalfof the director or officer receiving advancement to repay the amount advancedif it shall ultimately be determined that such person is not entitled to beindemnified by the Corporation under this Article VIII.

 

The Corporation may, to the extent authorized from time to time by theboard of directors, provide rights to indemnification and to the advancement ofexpenses to employees and agents of the Corporation similar to those conferredin this Article VIII to directors and officers of the Corporation.

 

The rights to indemnification and to the advancement of expensesconferred in this Article VIII shall not be exclusive of any otherright which any person may have or hereafter acquire under the Certificate ofIncorporation, these By-Laws of the Corporation, any statute, agreement, voteof stockholders or disinterested directors or otherwise.

 

Any repeal or modification of this Article VIII shall notadversely affect any rights to indemnification and to the advancement ofexpenses of a director or officer of the Corporation existing at the time ofsuch repeal or modification with respect to any acts or omissions occurringprior to such repeal or modification.

 

ARTICLE IX

 

AMENDMENTS

 

Section 1.                                            Amendments.  In furtherance and not in limitation of thepowers conferred upon it by the laws of the State of Delaware, the board ofdirectors shall have the power to adopt, amend, alter or repeal theCorporation’s By-Laws.

 

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Theaffirmative vote of at least a majority of the entire board of directors shallbe required to adopt, amend, alter, change or repeal the Corporation’sBy-Laws.  The Corporation’s By-Laws alsomay be adopted, amended, altered, changed or repealed by the affirmative voteof the holders of at least 60% of the voting power of the shares entitled tovote at an election of directors.

 

Section 2.                                            EntireBoard of Directors. As used in this Article IX and in these By-Laws generally,the term “entire board of directors” means the total number of directors whichthe Corporation would have if there were no vacancies.

 

* * *

 

Adopted as of: June 21, 2004

 

Last Amended as of:                                       

 

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