AMENDED AND RESTATEDBY-LAWSOF
BORGWARNER INC.
(as amended through April 25, 2018)___________________________ARTICLE I
OFFICESSECTION 1. REGISTERED OFFICE. The registered office of the
Corporation shall be established and maintained at the office of The Corporation
Trust Company, at 1209 West Orange Street in the City of Wilmington, County of
New Castle, State of Delaware, and said corporation shall be the registered agentof this Corporation in charge thereof.
SECTION 2. OTHER OFFICES. The Corporation may have otheroffices, either within or outside the State of Delaware, at such place or places as
the Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE IIMEETINGS OF STOCKHOLDERSSECTION 1. ANNUAL MEETINGS. Annual meetings ofstockholders for the election of directors, and for such other business as may bestated in the notice of the meeting, shall be held at such place, either within or
outside the State of Delaware, and at such time and date as the Board of Directors,
by resolution, shall determine and as set forth in the notice of the meeting. If thedate of the annual meeting shall fall upon a legal holiday, the meeting shall be heldon the next succeeding business day. At each annual meeting, the stockholders
entitled to vote shall elect a Board of Directors and they may transact such othercorporate business as shall be stated in the notice of the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any
purpose other than the election of directors may be held at such time and place,1within or outside the State of Delaware, as shall be stated in the notice of themeeting.
SECTION 3. SPECIAL MEETINGS.
(A) Subject to the rights of the holders of any series of Preferred
Stock, special meetings of the stockholders for any purpose or purposes may becalled by the Board of Directors pursuant to a resolution approved by a majority ofthe total number of directors or by any person or committee expressly so
authorized by the Board of Directors pursuant to a resolution approved by amajority of the total number of directors.
(B) (1) This Section 3(B) is the exclusive means by which one ormore stockholders of the Corporation may request the calling of a special meetingof the stockholders of the Corporation (a “Stockholder Requested Special
Meeting”). A Stockholder Requested Special Meeting shall be called by the
Secretary of the Corporation upon written request, in proper form (each such
request, a “Special Meeting Request”), by one or more stockholders of record, in
the aggregate, of at least 20% of the outstanding shares of common stock of the
Corporation (the “Requisite Percentage”) which shares are determined to be “NetLong Shares” in accordance with this Section 3(B), such stockholder(s) having
held such Net Long Shares continuously for at least one year prior to the date on
which such Special Meeting Request is delivered to the Corporation and having
complied in full with the requirements set forth in this Section 3(B) and all otherapplicable sections of these By-laws. Any Stockholder Requested Special Meeting
may be held at such date, time and place, if any, within or outside the State of
Delaware as may be designated by the Board of Directors; provided, however, thatthe meeting shall be not more than 90 days after a Special Meeting Request
satisfying the requirements set forth in these By-laws and representing theRequisite Percentage is received by the Secretary of the Corporation. In fixing adate, time and place, if any, for any Stockholder Requested Special Meeting, theBoard of Directors may consider such factors as it deems relevant, including
without limitation, the nature of the matters to be considered, the facts andcircumstances related to any request for a meeting and any plan of the Board of
Directors to call an annual meeting or special meeting.
(2) For purposes of determining the Requisite Percentage under thisSection 3(B), “Net Long Shares” shall be limited to the number of sharesbeneficially owned, directly or indirectly, by any stockholder or beneficial ownerthat constitute such person’s “net long position” as defined in Rule 14e-4 under the
Securities Exchange Act of 1934, as amended from time to time (the “ExchangeAct”), provided that (x) for purposes of such definition, in determining such
requesting party’s “short position,” the reference in Rule 14e-4 to “the date that atender offer is first publicly announced or otherwise made known by the bidder toholders of the security to be acquired” shall be the record date fixed to determine2the stockholders entitled to deliver a written request for a special meeting, and thereference to the “highest tender offer price or stated amount of the consideration
offered for the subject security” shall refer to the closing sales price of the
Corporation’s common stock on the New York Stock Exchange (or such othersecurities exchange designated by the Board of Directors if the Corporation’scommon stock is not listed for trading on the New York Stock Exchange) on suchrecord date (or, if such date is not a trading day, the next succeeding trading day)and (y) the net long position of such requesting party shall be reduced by the
number of shares as to which the Board of Directors determines that such
requesting party does not, or will not, have the right to vote or direct the vote at the
special meeting or as to which the Board of Directors determines that such
requesting party has entered into any derivative or other agreement, arrangement
or understanding that hedges or transfers, in whole or in part, directly or indirectly,
any of the economic consequences of ownership of such shares. In addition, to theextent any affiliates of the stockholder or beneficial owner are acting in concert withthe stockholder or beneficial owner with respect to the calling of the special
meeting, the determination of Net Long Shares may include the effect ofaggregating the Net Long Shares (including any negative number) of such affiliate
or affiliates. Whether shares constitute Net Long Shares shall ultimately be
decided by the Board of Directors in its reasonable determination.
(3) In determining whether a special meeting of stockholders has
been requested by the record holders of shares representing in the aggregate atleast the Requisite Percentage, multiple Special Meeting Requests delivered to
the Secretary of the Corporation will be considered together only if (i) each Special
Meeting Request identifies substantially the same purpose or purposes of thespecial meeting and substantially the same matters proposed to be acted on at the
special meeting, in each case as determined by the Board of Directors (which, ifsuch purpose is the nominating of a person or persons for election to the Board of
Directors, will mean that the exact same person or persons are nominated in eachrelevant Special Meeting Request), and (ii) such Special Meeting Requests havebeen dated and delivered to the Secretary of the Corporation within 60 days of theearliest dated Special Meeting Request. For purposes of this Section 3(B), thedate of delivery of the Special Meeting Request shall be the first date on which
valid Special Meeting Requests constituting not less than the Requisite
Percentage have been received by the Secretary. A stockholder may revoke aSpecial Meeting Request at any time by written revocation delivered to theSecretary of the Corporation. If, following such revocation, there are unrevokedrequests from stockholders representing in the aggregate less than the Requisite
Percentage, the Board of Directors, in its discretion, may cancel the special
meeting.
(4) A Special Meeting Request shall only be valid if it is signed anddated by each stockholder of record submitting the Special Meeting Request and3

by each of the beneficial owners, if any, on whose behalf the Special Meeting
Request is being made (each such record owner and beneficial owner, a“Requesting Stockholder”). Each Special Meeting Request must be delivered, byhand or by registered U.S. mail, postage prepaid, return receipt requested, or
courier service, postage prepaid, to the Secretary of the Corporation at the
Corporation’s principal executive offices and shall be accompanied by a written
notice setting forth the information required by Section 7(A)(2) as to the businessproposed to be conducted at the special meeting and as to the stockholder(s)proposing such business, and/or as to any nominations proposed to be presented
at the special meeting and as to the stockholder(s) proposing such nominations. In
addition to the foregoing, a Special Meeting Request must include; (x)documentary evidence of the number of Net Long Shares owned by each
Requesting Stockholder as of the date on which the Special Meeting Request isdelivered to the Secretary of the Corporation and documentary evidence that suchshares have been held continuously for one year, provided that, if any stockholder
submitting the Special Meeting Request is not the beneficial owner of such shares,
then to be valid, the Special Meeting Request must also include documentary
evidence (or, if not simultaneously provided with the Special Meeting Request,
such documentary evidence must be delivered to the Secretary of the Corporation
within 10 days after the date on which the Special Meeting Request is delivered to
the Secretary of the Corporation) of the number of Net Long Shares owned by thebeneficial owner(s) as of the date on which the Special Meeting Request isdelivered to the Secretary of the Corporation and documentary evidence that suchshares have been held continuously for one year; (y) an acknowledgment of each
Requesting Stockholder that any decrease in the number of Net Long Shares heldby such stockholder after the date on which the Special Meeting Request isdelivered to the Secretary of the Corporation shall be deemed a revocation of theSpecial Meeting Request with respect to such shares and that such shares will nolonger be included in determining whether the Requisite Percentage has beensatisfied; and (z) a commitment by each Requesting Stockholder to continue tosatisfy the Requisite Percentage through the date of the Stockholder Requested
Special Meeting and to promptly notify the Corporation upon any decrease
occurring between the date on which the Special Meeting Request is delivered to
the Secretary of the Corporation and the date of the Stockholder Requested
Special Meeting in the number of Net Long Shares owned by such stockholder.
(5) Each Requesting Stockholder is required to update andsupplement the Special Meeting Request delivered pursuant to this Section 3(B), if
necessary, so that the information provided or required to be provided in such
notice by Section 7(A)(2) as to the business proposed to be conducted at the
Stockholder Requested Special Meeting and as to the stockholder(s) proposing
such business and/or as to any nominations proposed to be presented at suchspecial meeting and as to the stockholder(s) proposing such nominations shall betrue and correct as of the record date for the Stockholder Requested Special
4Meeting. Such update and supplement shall be received by the Secretary of the
Corporation at the principal executive offices of the Corporation not later than 5business days after the record date for the proposed Stockholder Requested
Special Meeting. Each Requesting Stockholder also shall certify in writing on the
day prior to the Stockholder Requested Special Meeting as to whether such
Requesting Stockholder continues to satisfy the Requisite Percentage. In addition
to the foregoing, each Requesting Stockholder shall promptly provide any otherinformation reasonably requested by the Corporation.
(6) At any Stockholder Requested Special Meeting, the business
transacted shall be limited to the purpose(s) stated in the Special Meeting
Request; provided, however, that the Board of Directors shall have the authority inits discretion to submit additional matters to the stockholders and to cause otherbusiness to be transacted. Notwithstanding the foregoing provisions of this Section
3(B), a Stockholder Requested Special Meeting shall not be held if (i) the Special
Meeting Request does not comply with these By-laws, (ii) the business specified in
the Special Meeting Request is not a proper subject for stockholder action underapplicable law, (iii) the Board of Directors has called or calls for an annual or
special meeting of stockholders to be held within 90 days after the Secretary of the
Corporation receives the Special Meeting Request and the Board of Directors
determines that the business of such meeting includes (among any other mattersproperly brought before the annual or special meeting) the business specified in
the Special Meeting Request, (iv) the Special Meeting Request is received by the
Secretary of the Corporation during the period commencing 90 days prior to theanniversary date of the prior year’s annual meeting of stockholders and ending on
the date of the final adjournment of the next annual meeting of stockholders, (v) an
identical or substantially similar item (a “Similar Item”) was presented at any
meeting of stockholders held within 90 days prior to receipt by the Secretary of the
Corporation of the Special Meeting Request (and, for purposes of this clause (v),the nomination, election or removal of directors shall be deemed a “Similar Item”
with respect to all items of business involving the nomination, election or removalof directors, the changing the size of the Board of Directors and the filling of
vacancies and/or newly created directorships), or (vi) the Special Meeting Request
was made in a manner that involved a violation of Regulation 14A under the
Exchange Act or other applicable law.
(7) Except to the extent previously determined by the Board of
Directors in connection with a Special Meeting Request or as otherwise provided
by law, the Restated Certificate of Incorporation (“Certificate of Incorporation”), or
these By-laws, the chairman of the meeting shall have the power and duty todetermine whether a nomination or any business proposed to be brought before
the meeting was made in accordance with the procedures set forth in theseBy-laws and, if any proposed nomination or business is not in compliance withthese By-laws, to declare that such defective proposal or nomination shall be5disregarded. Notwithstanding the foregoing provisions of this Section 3(B), unlessotherwise required by law, if the Requesting Stockholder(s) does not appear at the
Stockholder Requested Special Meeting to present a nomination or otherproposed business, such nomination shall be disregarded and such proposedbusiness shall not be transacted, notwithstanding that proxies in respect of such
vote may have been received by the Corporation.
SECTION 4. VOTING. Each stockholder shall be entitled to vote inaccordance with the terms of the Certificate of Incorporation and in accordancewith the provisions of these By-Laws, in person or by proxy, but no proxy shall bevoted after three years from its date unless such proxy provides for a longer period.
A complete list of the stockholders entitled to vote at the ensuingelection, arranged in alphabetical order, with the address of each, and the numberof shares held by each, shall be open to the examination of any stockholder, forany purpose germane to the meeting, during ordinary business hours for a periodof at least 10 days prior to the meeting, either at a place within the city where themeeting is to be held, which place shall be specified in the notice of the meeting,or, if not so specified, at the place where the meeting is to be held. The list shallalso be produced and kept at the time and place of the meeting during the wholetime thereof, and may be inspected by any stockholder who is present.
SECTION 5. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or byproxy, of stockholders holding a majority of the stock of the Corporation entitled tovote shall constitute a quorum at all meetings of the stockholders. In case aquorum shall not be present at any meeting, a majority in interest of thestockholders entitled to vote thereat, present in person or by proxy, shall havepower to adjourn the meeting from time to time, without notice other thanannouncement at the meeting, until the requisite amount of stock entitled to voteshall be present.
When a meeting is adjourned to another time or place, notice neednot be given of the adjourned meeting if the time and place are announced at themeeting at which the adjournment is taken; provided, however, that if the date ofany adjourned meeting is more than 30 days after the date for which the meeting
was originally noticed, or if a new record date is fixed for the adjourned meeting,notice of the place, if any, date, and time of the adjourned meeting shall be given in
conformity herewith. At any adjourned meeting, any business may be transacted
that might have been transacted at the original meeting.
SECTION 6. NOTICE OF MEETINGS. Written notice, stating theplace, date and time of the meeting, and the nature of the business to beconsidered, shall be given to each stockholder entitled to vote thereat at his
address as it appears on the records of the Corporation, not less than 10 nor more
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than 60 days before the date of the meeting, except as otherwise provided hereinor required by law. Without limiting the manner by which notice otherwise may be
given effectively to stockholders, any notice to stockholders may be given byelectronic transmission in the manner provided in Section 232 of the General
Corporation Law of the State of Delaware. No business other than that stated in
the notice shall be transacted at any meeting without the unanimous consent of all
the stockholders entitled to vote thereat. Any previously scheduled annual
meeting of the stockholders may be postponed, and any previously scheduled
special meeting of the stockholders may be postponed or cancelled by resolutionof the Board of Directors upon public notice given prior to the time previously
scheduled for such meeting of stockholders.
SECTION 7. NOTICE OF STOCKHOLDER BUSINESS ANDNOMINATIONS.
(A)Annual Meetings of Stockholders. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the proposalof other business to be considered by the stockholders may be made at an annual
meeting of stockholders (a) pursuant to the Corporation’s notice of meetingdelivered pursuant to Section 6 of this Article II (b) by or at the direction of the
Chairman or the Board of Directors or (c) by any stockholder of the Corporation
who is entitled to vote at the meeting, who complied with the notice procedures set
forth in clauses (2) and (3) of this paragraph (A) and this By-Law and who was astockholder of record at the time such notice is delivered to the Secretary of the
Corporation, this clause (c) shall be the exclusive means for a stockholder to makenominations or submit other business (other than matters brought under Rule
14a-8 under the Exchange Act and included in the Corporation’s notice of meeting)
before an annual meeting of stockholders.
(2)
For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this By-Law, the stockholder must have given timely notice inwriting to the Secretary of the Corporation and such other business must otherwise
be a proper matter for stockholder action. To be timely, a stockholder’s notice shallbe delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior to nor later than theclose of business on the 90th day prior to the first anniversary of the preceding
year’s annual meeting; provided, however, that in the event that the date of theannual meeting is more than 30 days before, or more than 60 days after suchanniversary date, notice by the stockholder to be timely must be so delivered notearlier than the close of business on the 120th day prior to such annual meetingand not later than the close of business on the 90th day prior to such annual
meeting or, if the first public announcement of the date of such annual meeting isless than 100 days prior to the date of such annual meeting, the 10th day following
7the day on which public announcement of the date of such meeting is first made.
In no event shall any adjournment or postponement of an annual meeting or theannouncement thereof commence a new time period for the giving of astockholder’s notice as described above. Such stockholder’s notice shall set forth(a) as to each person whom the stockholder proposes to nominate for election orreelection as a director (i) all information relating to such person that is required tobe disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder, (ii) such person’s written consent tobeing named in the proxy statement as a nominee and to serving as a director if
elected, (iii) a description of all direct and indirect compensation and other material
monetary agreements, arrangements and understandings during the past three
years, and any other material relationships, between or among such stockholder
and beneficial owner, if a proposal is being made on the behalf of such an owner,
and their respective affiliates and associates, or others acting in concert therewith,on the one hand, and each proposed nominee, and his or her respective affiliates
and associates, or others acting in concert therewith, on the other hand, including,
without limitation all information that would be required to be disclosed pursuant toRule 404 promulgated under Regulation S-K if the stockholder making thenomination and any beneficial owner on whose behalf the nomination is made, ifany, or any affiliate or associate thereof or person acting in concert therewith, werethe “registrant” for purposes of such rule and the nominee were a director or
executive officer of such registrant; (iv) a statement whether such person, if
elected, intends to tender, promptly following such person’s election or re-election,
an irrevocable resignation effective upon such person’s failure to receive therequired vote for re-election at the next meeting at which such person would facere-election and upon acceptance of such resignation by the Board of Directors, inaccordance with the Corporation’s Corporate Governance Guideline on Director
Elections and (v) with respect to each nominee for election or re-election to theBoard of Directors, a completed and signed questionnaire; representation andagreement required by Article II, Section 8 of these By-Laws and any otherinformation the Corporation may require to determine the eligibility of suchproposed nominee to serve as an independent director of the Corporation or that
could be material to a reasonable stockholder’s understanding of the
independence, or lack thereof, of such nominee; (b) as to any other business thatthe stockholder proposes to bring before the meeting, set forth (i) a brief
description of the business desired to be brought before the meeting, the reasonsfor conducting such business at the meeting, any material interest in suchbusiness of such stockholder, the beneficial owner, if any, on whose behalf the
proposal is made and (ii) a description of all agreements, arrangements andunderstandings between such stockholder and beneficial owner, if any and anyother person or persons (including their names) in connection with the proposal ofsuch business by such stockholder; and (c) as to the stockholder giving the noticeand the beneficial owner, if any, on whose behalf the nomination or proposal is8made (i) the name and address of such stockholder, as they appear on the
Corporation’s books, and of such beneficial owner, if any, (ii) (1) the class andnumber of shares of the Corporation that are directly or indirectly owned
beneficially and of record by such stockholder and such beneficial owner, (2) any
option, warrant, convertible security, stock appreciation right, or similar right withan exercise or conversion privilege or a settlement payment or mechanism at a
price related to any class or series of shares of the Corporation or with a value
derived in whole or in part from the value of any class or series of shares of the
Corporation, whether or not such instrument or right shall be subject to settlementin the underlying class or series of capital stock of the Corporation or otherwise (a“Derivative Instrument”) directly or indirectly owned beneficially by suchstockholder and any other direct or indirect opportunity to profit or share in any
profit derived from any increase or decrease in the value of shares of the
Corporation, (3) any proxy, contract, arrangement, understanding, or relationshippursuant to which such stockholder has a right to vote any shares of any security of
the Corporation, (4) any short interest in any security of the Corporation (forpurposes of this By-Law a person shall be deemed to have a short interest in asecurity if such person directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has the opportunity to profit or share inany profit derived from any decrease in the value of the subject security), (5) any
rights to dividends on the shares of the Corporation owned beneficially by suchstockholder that are separated or separable from the underlying shares of thecorporation, (6) any proportionate interest in shares of the Corporation or
Derivative Instruments held, directly or indirectly, by a general or limited
partnership in which such stockholder is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner and (7) any performance-related
fees (other than an asset-based fee) that such stockholder is entitled to based onany increase or decrease in the value of shares of the Corporation or Derivative
Instruments, if any, as of the date of such notice, including without limitation any
such interests held by members of such stockholder’s immediate family sharing
the same household (which information shall be supplemented by suchstockholder and beneficial owner, if any, not later than 10 days after the record
date for the meeting to disclose such ownership as of the record date), and (iii) any
other information relating to such stockholder and beneficial owner, if any, thatwould be required to be disclosed in a proxy statement or other filings required tobe made in connection with solicitations of proxies for, as applicable, the proposal
and/or for the election of directors pursuant to Section 14 of the Exchange Act andthe rules and regulations promulgated thereunder; and (iv) whether either suchstockholder or beneficial owner intends to deliver a proxy statement and form ofproxy to holders of, in the case of a proposal, at least the percentage of the
Corporation’s voting shares required under applicable law to carry the proposal or,in the case of a nomination or nominations, a sufficient number of holders of the
Corporation’s voting shares to elect such nominee or nominees (an affirmative
statement of such intent, a “Solicitation Notice”).
9(3)Notwithstanding anything in the second sentence ofparagraph (A)(2) of this By-Law to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is increased andthere is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation atleast 100 days prior to the first anniversary of the preceding year’s annual meeting,a stockholders notice required by this By-Law shall also be considered timely, but
only, with respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 10th day following the dayon which such public announcement is first made by the Corporation.
(B)
Special Meetings of Stockholders. Only such business shallbe conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation’s notice of meeting pursuant to
Section 7 of this Article II. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors areto be elected pursuant to the Corporation’s notice of meeting (a) by or at thedirection of the Board of Directors or (b) by any stockholder of the Corporation who
is entitled to vote at the meeting, who complies with the procedures set forth inthese By-Laws and who is a stockholder of record at the time such notice isdelivered to the Secretary of the Corporation. Nominations by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders if the stockholder’s notice as required by paragraph (A) (2)of this By-Law shall be delivered to the Secretary at the principal executive officesof the Corporation not earlier than the close of business on the 120th day prior tosuch special meeting and not later than the close of business on the later of the90th day prior to such special meeting or the 10th day following the day on which
public announcement is first made of the date of the special meeting and of thenominees proposed by the Board of Directors to be elected at such meeting. In no
event shall any adjournment or postponement of a special meeting or theannouncement thereof commence a new time period for the giving of astockholder’s notice as described above.
(C)
General. (1) Only persons who are nominated in accordancewith the procedures set forth in this By-Law shall be eligible to serve as director
and only such business shall be conducted at a meeting of stockholders as shallhave been brought before the meeting in accordance with the procedures set forthin this By-Law. Except as otherwise provided by law, the Certificate ofIncorporation or these By-Laws, the chairman of the meeting shall have the powerand duty to determine whether a nomination or any business proposed to bebrought before the meeting was made in accordance with the procedures set forthin this By-Law and, if any proposed nomination or business is not in compliance10with this By-Law, to declare that such defective proposal or nomination shall be
disregarded.
(2)
For purposes of this By-Law, “public announcement”
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(3)
Notwithstanding the foregoing provisions of thisBy-Law, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the mattersset forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of theholders of any series of Preferred Stock if and to the extent provided for under law,
the Certificate of Incorporation or this By-Law.
SECTION 8. SUBMISSION OF QUESTIONNAIRE,
REPRESENTATION AND AGREEMENT. To be eligible to be a nominee forelection or reelection as a director of the Corporation, a person must deliver (inaccordance with the time periods prescribed for delivery of notice under Section 7of this Article II of these By-Laws) to the Secretary at the principal executive officesof the Corporation a written questionnaire with respect to the background andqualification of such person and the background of any other person or entity on
whose behalf the nomination is being made (which questionnaire shall be provided
by the Secretary upon written request) and a written representation andagreement (in the form provided by the Secretary upon written request) that such
person (A) is not and will not become a party to (1) any agreement, arrangement or
understanding with, and has not given any commitment or assurance to, any
person or entity as to how such person, if elected as a director of the Corporation,
will act or vote on any issue or question (a “Voting Commitment”) that has not been
disclosed to the Corporation or (2) any Voting Commitment that could limit orinterfere with such person’s ability to comply, if elected as a director of the
Corporation, with such person’s fiduciary duties under applicable law, (B) is not
and will not become a party to any agreement, arrangement or understanding withany person or entity other than the Corporation with respect to any direct or indirectcompensation, reimbursement or indemnification in connection with service or
action as a director that has not been disclosed therein, (C) beneficially owns, oragrees to acquire within one year if elected as a director of the Corporation, notless than 1,000 common shares of the Corporation (“Qualifying Shares”) (subject
to adjustment for any stock splits or stock dividends occurring after date of such
representation or agreement), will not dispose of such minimum number of shares11

so long as such person is a director, and has disclosed therein whether all or any
portion of the Qualifying Shares were purchased with any financial assistanceprovided by any other person and whether any other person has any interest in the
Qualifying Shares, and (D) in such person’s individual capacity and on behalf ofany person or entity on whose behalf the nomination is being made, would be incompliance, if elected as a director of the Corporation, and will comply with allapplicable publicly disclosed corporate governance, conflict of interest,
confidentiality and stock ownership and trading policies and guidelines of the
Corporation.
SECTION 9. PROCEDURE FOR ELECTION OF DIRECTORS;VOTE REQUIRED. Election of directors at all meetings of the stockholders at
which directors are to be elected shall be by written ballot. Except as otherwise set
forth in the Certificate of Incorporation with respect to the right of the holders of any
series of Preferred Stock or any other series or class of stock to elect directors
under specified circumstances, a nominee for director shall be elected to theBoard of Directors if the votes cast “for” such nominee’s election exceed the votes
cast “against” such nominee’s election; provided, however, that directors shall beelected by a plurality of the votes cast at any meeting of stockholders for which (a)the Secretary of the Corporation receives a notice that a stockholder has
nominated a person for election to the Board of Directors in compliance with theadvance notice requirements for stockholder nominees for director set forth in
Article II, Section 7(A) of these By-Laws and (b) such nomination has not been
withdrawn by such stockholder on or prior to the 10th day before the date the
Corporation first mails its notice of meeting for such meeting to the stockholders. If
directors are to be elected by a plurality of the votes cast, stockholders shall not be
permitted to vote “against” a nominee. The Corporate Governance Committee has
established procedures under which any director who is not elected shall tender
his or her resignation to the Board of Directors. The Corporate GovernanceCommittee will make a recommendation to the Board of Directors on whether toaccept or reject the resignation, or whether other action should be taken. The
Board of Directors will act on the Corporate Governance Committee’s
recommendation and publicly disclose its decision and the rationale behind it
within 90 days from the date of the certification of the election results.
Except as otherwise provided by law, the Certificate of Incorporationor these By-Laws, all matters other than the election of directors submitted to thestockholders at any meeting shall be decided by a majority of the votes castaffirmatively or negatively with respect thereto.
SECTION 10. INSPECTORS OF ELECTIONS; OPENING AND
CLOSING THE POLLS.

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(A) The Board of Directors by resolution shall appoint one or moreinspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meetings ofstockholders and make a written report thereof. One or more persons may bedesignated as alternate inspectors to replace any inspector who fails to act. If noinspector or alternate has been appointed to act, or if all inspectors or alternates
who have been appointed are unable to act, at a meeting of stockholders, thechairman of the meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before discharging his or her duties, shall take and sign an oathfaithfully to execute the duties of inspector with strict impartiality and according to
the best of his or her ability. The inspectors shall have the duties prescribed by theGeneral Corporation Law of the State of Delaware.
(B)
The chairman of the meeting shall fix and announce at themeeting the date and time of the opening and the closing of the polls for eachmatter upon which the stockholders will vote at a meeting.
SECTION 11. STOCKHOLDER ACTION BY WRITTEN CONSENT.
Subject to the rights of the holders of any series of Preferred Stock or any otherseries or class of stock as set forth in the Certificate of Incorporation to electdirectors under specific circumstances, any action required or permitted to betaken by the stockholders of the Corporation may be effected by the writtenconsent of such holders pursuant to Section 228 of the Delaware General
Corporation Code as provided by, and subject to the limitations in, the Certificate ofIncorporation.
SECTION 12. INCLUSION OF DIRECTOR NOMINATIONS BY
STOCKHOLDERS IN THE CORPORATION’S PROXY MATERIALS.
A)
Whenever the Board of Directors solicits proxies with respect
to the election of directors at an annual meeting of stockholders (following the2016 annual meeting of stockholders), subject to the provisions of this Section 12,
the Corporation shall include in its proxy statement for such annual meeting, inaddition to any persons nominated for election by or at the direction of the Board of
Directors, the name, together with the Required Information (as defined below), of
any person nominated for election (a “Stockholder Nominee”) to the Board of
Directors by an Eligible Stockholder (as defined in Section 12(D)) who expressly
elects at the time of providing the notice required by this Section 12 to have suchnominee included in the Corporation’s proxy materials pursuant to this Section 12.
For purposes of this Section 12, the “Required Information” that the Corporation
will include in its proxy statement is (i) the information provided to the Secretary of
the Corporation concerning the Stockholder Nominee and the Eligible Stockholderthat is required to be disclosed in the Corporation’s proxy statement pursuant to13Section 14 of the Exchange Act, and the rules and regulations promulgatedthereunder, and (ii) if the Eligible Stockholder so elects, a Supporting Statement(as defined in Section 12(H)). For the avoidance of doubt, nothing in this Section
12 shall limit the Corporation’s ability to solicit against any Stockholder Nominee or
include in its proxy materials the Corporation’s own statements or otherinformation relating to any Eligible Stockholder or Stockholder Nominee, including
any information provided to the Corporation pursuant to this Section 12. Subject tothe provisions of this Section 12, the name of any Stockholder Nominee includedin the Corporation’s proxy statement for an annual meeting of stockholders shallalso be set forth on the form of proxy distributed by the Corporation in connection
with such annual meeting.
B)
To nominate a Stockholder Nominee, the Eligible Stockholder
must provide a notice that expressly elects to have its Stockholder Nominee
included in the Corporation’s proxy materials pursuant to this Section 12 (the“Notice of Proxy Access Nomination”). To be timely, a Notice of Proxy Access
Nomination must be delivered to, or mailed and received by, the Secretary at the
principal executive offices of the Corporation not earlier than the one hundred
fiftieth (150th) calendar day and no later than the close of business on the one
hundred twentieth (120th) calendar day prior to the anniversary of the date the
Corporation commenced mailing of its proxy materials in connection with the mostrecent annual meeting of Stockholders (the last day on which a Notice of Proxy
Access Nomination may be delivered, the “Final Proxy Access Nomination Date”).
In no event shall the adjournment or postponement of the annual meeting, or the
public announcement of such an adjournment or postponement, commence a newtime period (or extend any time period) for the giving of a Notice of Proxy Access
Nomination pursuant to this Section 12. In addition to other requirements set forthin this Section 12, the Notice of Proxy Access Nomination must include the nameand address of the Eligible Stockholder (including each Stockholder and/or
beneficial owner whose stock ownership is counted for the purposes of qualifying
as an Eligible Stockholder).
C)
The maximum number of Stockholder Nominees nominatedby all Eligible Stockholders that will be included in the Corporation’s proxymaterials with respect to an annual meeting of stockholders shall not exceed thegreater of (i) two or (ii) 20% of the number of directors in office as of the Final Proxy
Access Nomination Date or, if such amount is not a whole number, the closest
whole number below 20% (such number, as it may be adjusted pursuant to thisSection 12(C), the “Permitted Number”). In the event that one or more vacancies
for any reason occurs on the Board of Directors after the Final Proxy Access
Nomination Date but before the date of the annual meeting and the Board of
Directors resolves to reduce the size of the Board of Directors in connection
therewith, the Permitted Number shall be calculated based on the number of
directors in office as so reduced. In addition, the Permitted Number shall be
14

reduced by (i) the number of individuals who will be included in the Corporation’s
proxy materials as nominees recommended by the Board of Directors pursuant toan agreement, arrangement or other understanding with a stockholder or group of
stockholders (other than any such agreement, arrangement or understanding
entered into in connection with an acquisition of stock from the Corporation bysuch stockholder or group of stockholders) and (ii) the number of directors in office
as of the Final Proxy Access Nomination Date who were included in the
Corporation’s proxy materials as Stockholder Nominees for any of the two
preceding annual meetings of stockholders (including any persons counted as
Stockholder Nominees pursuant to the immediately succeeding sentence) andwhom the Board of Directors decides to nominate for re-election to the Board of
Directors. For purposes of determining when the Permitted Number has beenreached, any individual nominated by an Eligible Stockholder for inclusion in the
Corporation’s proxy materials pursuant to this Section 12 whose nomination issubsequently withdrawn or whom the Board of Directors decides to nominate forelection to the Board of Directors shall be counted as one of the Stockholder
Nominees. Any Eligible Stockholder submitting more than one Stockholder
Nominee for inclusion in the Corporation’s proxy materials pursuant to this Section
12 shall rank such Stockholder Nominees based on the order in which the Eligible
Stockholder desires such Stockholder Nominees to be selected for inclusion in the
Corporation’s proxy materials in the event that the total number of Stockholder
Nominees submitted by Eligible Stockholders pursuant to this Section 12 exceeds
the Permitted Number. In the event that the number of Stockholder Nominees
submitted by Eligible Stockholders pursuant to this Section 12 exceeds thePermitted Number, the highest ranking Stockholder Nominee who meets therequirements of this Section 12 from each Eligible Stockholder will be selected forinclusion in the Corporation’s proxy materials until the Permitted Number isreached, going in order of the amount (largest to smallest) of shares of stock of the
Corporation each Eligible Stockholder disclosed as owned in its Notice of Proxy
Access Nomination. If the Permitted Number is not reached after the highest
ranking Stockholder Nominee who meets the requirements of this Section 12 fromeach Eligible Stockholder has been selected, then the next highest ranking
Stockholder Nominee who meets the requirements of this Section 12 from each
Eligible Stockholder will be selected for inclusion in the Corporation’s proxymaterials, and this process will continue as many times as necessary, following thesame order each time, until the Permitted Number is reached. Notwithstanding
anything to the contrary contained in this Section 12, the Corporation shall not be
required to include any Stockholder Nominees in its proxy materials pursuant tothis Section 12 for or any meeting of stockholders for which the Secretary of the
Corporation receives notice that a stockholder intends to nominate one or more
persons for election to the Board of Directors pursuant to the advance noticerequirements for stockholder nominees set forth in Section 7 of these By-Laws.

15

D)
An “Eligible Stockholder” is a stockholder or group of no morethan twenty-five (25) stockholders (counting as one stockholder, for this purpose,
any two or more funds that are part of the same Qualifying Fund Group (as defined
below)) that (i) has owned (as defined in Section 12(E)) continuously for at least
three years (the “Minimum Holding Period”) a number of shares of stock of the
Corporation that represents at least three (3) percent of the voting power of allshares of stock of the Corporation issued and outstanding and entitled to vote in
the election of directors as of the date the Notice of Proxy Access Nomination isreceived by the Secretary at the principal executive offices of the Corporation inaccordance with this Section 12 (the “Required Shares”), (ii) continues to own theRequired Shares through the date of the annual meeting and (iii) satisfies all otherrequirements of, and complies with all applicable procedures set forth in, thisSection 12. A “Qualifying Fund Group” means two or more funds that are (A)under common management and investment control, (B) under common
management and funded primarily by the same employer or (C) a “group ofinvestment companies” as such term is defined in Section 12(d)(1)(G)(ii) of theInvestment Company Act of 1940, as amended. Whenever the Eligible
Stockholder consists of a group of stockholders (including a group of funds that arepart of the same Qualifying Fund Group), (x) each provision in this Section 12 that
requires the Eligible Stockholder to provide any written statements,
representations, undertakings, agreements or other instruments or to meet anyother conditions shall be deemed to require each stockholder (including eachindividual fund) that is a member of such group to provide such statements,
representations, undertakings, agreements or other instruments and to meet suchother conditions (except that the members of such group may aggregate theshares that each member has owned continuously for the Minimum Holding Period
in order to meet the three percent ownership requirement of the “Required Shares”
definition) and (y) a breach of any obligation, agreement or representation under
this Section 12 by any member of such group shall be deemed a breach by the
Eligible Stockholder. No person may be a member of more than one group of
stockholders constituting an Eligible Stockholder with respect to any annual
meeting.
E)
For purposes of calculating the Required Shares, “ownership”
shall be deemed to consist of and include only the outstanding shares as to which
a person possesses both (i) the full voting and investment rights pertaining to the
Shares and (ii) the full economic interest in (including the opportunity for profit andrisk of loss on) such Shares; provided that the number of shares calculated inaccordance with clauses (i) and (ii) shall not include any shares (x) sold by suchstockholder or any of its affiliates in any transaction that has not been settled orclosed, (y) borrowed by such stockholder or any of its affiliates for any purposes orpurchased by such stockholder or any of its affiliates pursuant to an agreement toresell or (z) subject to any option, warrant, forward contract, swap, contract of sale,other derivative or similar instrument or agreement entered into by such16

stockholder or any of its affiliates, whether any such instrument or agreement is tobe settled with shares or with cash based on the notional amount or value ofshares of outstanding stock of the Corporation, in any such case which instrument
or agreement has, or is intended to have, the purpose or effect of (1) reducing in
any manner, to any extent or at any time in the future, such stockholder’s or its
affiliates’ full right to vote or direct the voting of any such shares and/or (2) hedging,offsetting or altering to any degree any gain or loss realized or realizable frommaintaining the full economic ownership of such shares by such stockholder oraffiliate. A stockholder shall “own” shares held in the name of a nominee or otherintermediary so long as the stockholder retains the right to instruct how the sharesare voted with respect to the election of directors and possesses the full economic
interest in the shares. A stockholder’s ownership of shares shall be deemed tocontinue during any period in which (i) the stockholder has loaned such shares,
provided that the stockholder has the power to recall such loaned shares on fivebusiness days’ notice and includes in the Notice of Proxy Access Nomination anagreement that it (A) will promptly recall such loaned shares upon being notified
that any of its Stockholder Nominees will be included in the Corporation’s proxymaterials and (B) will continue to hold such recalled shares through the date of theannual meeting or (ii) the stockholder has delegated any voting power by means ofa proxy, power of attorney or other instrument or arrangement which is revocableat any time by the stockholder. The terms “owned,” “owning” and other variationsof the word “own” shall have correlative meanings. Whether outstanding shares ofstock of the Corporation are “owned” for these purposes shall be determined by
the Board of Directors. For purposes of this Section 12, the term “affiliate” or“affiliates” shall have the meaning ascribed thereto under the General Rules andRegulations under the Exchange Act.
F)
To be in proper written form, the Notice of Proxy Access
Nomination must include or be accompanied by the following:i. a written statement by the Eligible Stockholder certifying as
to the number of shares it owns and has owned continuously for the
Minimum Holding Period, and the Eligible Stockholder’s agreement
to provide (A) within five business days following the later of therecord date for the annual meeting or the date notice of the record
date is first publicly disclosed, a written statement by the Eligible
Stockholder certifying as to the number of shares it owns and has
owned continuously through the record date and (B) immediate
notice if the Eligible Stockholder ceases to own any of the Required
Shares prior to the date of the annual meeting;ii. one or more written statements from the record holder ofthe Required Shares (and from each intermediary through which theRequired Shares are or have been held during the Minimum Holding17Period) verifying that, as of a date within seven calendar days prior to
the date the Notice of Proxy Access Nomination is delivered to or
mailed and received by the Secretary of the Corporation, the Eligible
Stockholder owns, and has owned continuously for the Minimum
Holding Period, the Required Shares, and the Eligible Stockholder’sagreement to provide, within five business days following the later ofthe record date for the annual meeting or the date notice of therecord date is first publicly disclosed, one or more written statementsfrom the record holder and such intermediaries verifying the Eligible
Stockholder’s continuous ownership of the Required Shares throughthe record date;iii. a copy of the Schedule 14N that has been or isconcurrently being filed with the United States Securities andExchange Commission as required by Rule 14a-18 under the
Exchange Act;iv. the information, statements, representations, agreements
and other documents that would be required to be set forth in or
included with a stockholder’s notice of a nomination pursuant to
Section 7 of these By-Laws, together with the written consent of each
Stockholder Nominee to being named as a nominee and to serve asa director if elected;
v. a representation that the Eligible Stockholder (A) willcontinue to hold the Required Shares through the date of the annual
meeting, (B) acquired the Required Shares in the ordinary course ofbusiness and not with the intent to change or influence control of the
Corporation, and does not presently have such intent, (C) has notnominated and will not nominate for election to the Board of Directors
at the annual meeting any person other than the Stockholder
Nominee(s) it is nominating pursuant to this Section 12, (D) has notengaged and will not engage in, and has not and will not be a“participant” in another person’s, “solicitation” within the meaning ofRule 14a-1(l) under the Exchange Act in support of the election of
any individual as a director at the annual meeting other than its
Stockholder Nominee(s) or a nominee of the Board of Directors, (E)
has not distributed and will not distribute to any stockholder of the
Corporation any form of proxy for the annual meeting other than theform distributed by the Corporation, (F) has complied and will comply
with all laws and regulations applicable to solicitations and the use, ifany, of soliciting material in connection with the annual meeting and(G) has provided and will provide facts, statements and otherinformation in all communications with the Corporation and its
18

stockholders that are or will be true and correct in all material
respects and do not and will not omit to state a material factnecessary in order to make the statements made, in light of thecircumstances under which they were made, not misleading;vi. a statement indicating whether the Eligible Stockholder
intends to continue to own the Required Shares for at least one year
following the annual meeting;vii. an undertaking that the Eligible Stockholder agrees to (A)assume all liability stemming from any legal or regulatory violation
arising out of the Eligible Stockholder’s communications with thestockholders of the Corporation or out of the information that the
Eligible Stockholder provided to the Corporation, (B) indemnify andhold harmless the Corporation and each of its directors, officers andemployees individually against any liability, loss or damages inconnection with any threatened or pending action, suit orproceeding, whether legal, administrative or investigative, against
the Corporation or any of its directors, officers or employees arisingout of any nomination submitted by the Eligible Stockholder pursuant
to this Section 12 or any solicitation or other activity in connection
therewith and (C) file with the Securities and Exchange Commission
any solicitation or other communication with the stockholders of the
Corporation relating to the meeting at which its Stockholder
Nominee(s) will be nominated, regardless of whether any such filingis required under Regulation 14A of the Exchange Act or whether
any exemption from filing is available for such solicitation or othercommunication under Regulation 14A of the Exchange Act;viii. in the case of a nomination by a group of stockholders
together constituting an Eligible Stockholder, the designation by allgroup members of one member of the group that is authorized toreceive communications, notices and inquiries from the Corporationand to act on behalf of all members of the group with respect to allmatters relating to the nomination under this Section 12 (including
withdrawal of the nomination); andix. in the case of a nomination by a group of stockholders
together constituting an Eligible Stockholder in which two or more
funds that are part of the same Qualifying Fund Group are counted
as one stockholder for purposes of qualifying as an Eligible
Stockholder, documentation reasonably satisfactory to the
Corporation that demonstrates that the funds are part of the same
Qualifying Fund Group.
19

G)
At the request of the Corporation, each Stockholder Nominee
must: (i) provide an executed agreement, in a form deemed satisfactory by the
Board of Directors or its designee, that (A) the Stockholder Nominee has read andagrees, if elected, to serve as a member of the Board of Directors, to adhere to the
Corporation’s Guidelines on Corporate Governance Issues and Code of Conduct
and any other Corporation policies and guidelines applicable to directors, and (B)that the Stockholder Nominee is not and will not become a party to any
compensatory, payment or other financial agreement, arrangement or
understanding with any person or entity in connection with his or her nomination,
service or action as a director of the Corporation, or any agreement, arrangement
or understanding with any person or entity as to how the Stockholder Nominee
would vote or act on any issue or question as a director, in each case that has notbeen disclosed to the Corporation; (ii) submit all completed and signed
questionnaires required of the Corporation’s Board of Directors and therepresentation and agreement required by Article II, Section 8 of these By-Laws
within five (5) business days of receipt of each such questionnaire from the
Corporation; and (iii) provide within five (5) business days of the Corporation’srequest such additional information as the Corporation determines may benecessary to permit the Board of Directors to determine (A) if such Stockholder
Nominee is independent under the listing standards of each principal U.S.
exchange upon which the common stock of the Corporation is listed, any
applicable rules of the Securities and Exchange Commission, and any publicly
disclosed standards used by the Board of Directors in determining and disclosing
the independence of the Corporation’s directors, (B) if such Stockholder Nominee
has any direct or indirect relationship with the Corporation, and (C) if such
Stockholder Nominee is not and has not been subject to any event specified in
Item 401(f) of Regulation S-K (or successor rule) of the Securities and Exchange
Commission. In the event that any information or communications provided by the
Eligible Stockholder or the Stockholder Nominee to the Corporation or its
Stockholders ceases to be true and correct in any respect or omits a factnecessary to make the statements made, in light of the circumstances under which
they were made, not misleading, each Eligible Stockholder or Stockholder
Nominee, as the case may be, shall promptly notify the Secretary of any suchinaccuracy or omission in such previously provided information and of theinformation that is required to make such information or communication true andcorrect.
H)
The Eligible Stockholder may provide to the Secretary, at thetime the information required by this Section 12 is provided, a written statement forinclusion in the Corporation’s proxy materials for the applicable annual meeting ofStockholders, not to exceed 500 words, in support of the Eligible Stockholder’s
Stockholder Nominee (the “Statement”). Notwithstanding anything to the contrary
contained in this Section 12, the Corporation may omit from its proxy materials any

20

information or Statement (or portion thereof) that it, in good faith, believes would
violate any applicable law or regulation.
I)
Notwithstanding anything to the contrary set forth in thisSection 12, the Corporation shall not be required to include, pursuant to thisSection 12, a Stockholder Nominee in its proxy materials for any meeting ofStockholders, or, if the proxy statement already has been filed, to allow thenomination of a Stockholder Nominee, notwithstanding that proxies in respect ofsuch vote may have been received by the Corporation: (i) if the Stockholder
Nominee or the Eligible Stockholder (or any member of any group of Stockholders
that together is such Eligible Stockholder) who has nominated such Stockholder
Nominee has engaged in or is currently engaged in, or has been or is a“participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l)under the Exchange Act in support of the election of any individual as a director at
the applicable annual meeting of Stockholders other than its Stockholder
Nominee(s) or a nominee of the Board of Directors; (ii) if another person is
engaging in a “solicitation” within the meaning of Rule 14a-1(l) under the Exchange
Act in support of the election of any individual as a director at the applicable annual
meeting of Stockholders other than a nominee of the Board of Directors; (iii) who is
not independent under the listing standards of each principal U.S. exchange uponwhich the common stock of the Corporation is listed, any applicable rules of the
Securities and Exchange Commission, and any publicly disclosed standards usedby the Board of Directors in determining and disclosing independence of the
Corporation’s directors, in each case as determined by the Board of Directors; (iv)
who does not meet the audit committee independence requirements under therules of any stock exchange on which the Corporation’s securities are traded, is
not a “non-employee director” for the purposes of Rule 16b-3 under the Exchange
Act (or any successor rule), or is not an “outside director” for the purposes ofSection 162(m) of the Internal Revenue Code (or any successor provision), (v)whose election as a member of the Board of Directors would cause the
Corporation to be in violation of these Bylaws, the Restated Certificate ofIncorporation (as amended), the rules and listing standards of the principal U.S.
securities exchanges upon which the common stock of the Corporation is listed, or
any applicable state or federal law, rule or regulation; (vi) who is or has been,
within the past three (3) years, an officer or director of a competitor, as defined in
Section 8 of the Clayton Antitrust Act of 1914; (vii) whose then-current or within thepreceding ten (10) years’ business or personal interests place such Stockholder
Nominee in a conflict of interest with the Corporation or any of its subsidiaries thatwould cause such Stockholder Nominee to violate any fiduciary duties of directors
established pursuant to DGCL, including but not limited to, the duty of loyalty andduty of care, as determined by the Board of Directors; (ix) who is a named subjectof a pending criminal proceeding (excluding traffic violations and other minor
offenses) or has been convicted in such a criminal proceeding within the past ten(10) years; (x) if such Stockholder Nominee or the applicable Eligible Stockholder21

(or any member of any group of Stockholders that together is such Eligible
Stockholder) shall have provided information to the Corporation in connection withsuch nomination that was untrue in any material respect or omitted to state amaterial fact necessary in order to make any statement made, in light of thecircumstances under which it was made, not misleading, as determined by the
Board of Directors or any committee thereof; (xi) the Eligible Stockholder (or any
member of any group of Stockholders that together is such Eligible Stockholder)does not appear at the applicable annual meeting of Stockholders to present the
Stockholder Nominee for election; (xii) the Eligible Stockholder (or any member ofany group of Stockholders that together is such Eligible Stockholder) or applicable
Stockholder Nominee otherwise breaches or fails to comply with its
representations or obligations pursuant to these Bylaws, including, without
limitation, this Section 12; or (xiii) the Eligible Stockholder ceases to be an Eligible
Stockholder for any reason, including but not limited to not owning the Required
Shares through the date of the applicable annual meeting. For the purpose of thisparagraph, clauses (iii) through (xiii) will result in the exclusion from the proxymaterials pursuant to this Section 12 of the specific Stockholder Nominee to whom
the ineligibility applies, or, if the proxy statement already has been filed, theineligibility of the Stockholder Nominee; however, clauses (i) and (ii) will result in
the exclusion from the proxy materials pursuant to this Section 12 of all
Stockholder Nominees from the applicable annual meeting of Stockholders, or, if
the proxy statement already has been filed, the ineligibility of all Stockholder
Nominees.
J)
This Section 12 provides the exclusive method for astockholder to include nominees for election to the Board of Directors in the
Corporation’s proxy materials.
ARTICLE III
DIRECTORSSECTION 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of its Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred uponthem, the Board of Directors may exercise all such powers of the Corporation anddo all such lawful acts and things as are not by law or by the Certificate ofIncorporation or by these By-Laws required to be exercised or done by thestockholders.
SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. Subject
to the rights of the holders of any series of Preferred Stock, or any other series orclass of stock as set forth in the Certificate of Incorporation to elect directors under
specified circumstances, the number of directors shall be fixed from time to time22

exclusively pursuant to a resolution adopted by a majority of the total number of
directors that the Corporation would have if there were no vacancies (the “Whole
Board”), but shall consist of not more than 17 nor less than three directors. Eachdirector shall hold office until his or her successor shall have been duly elected andqualified. At each annual meeting of stockholders, (i) directors elected to succeed
those directors whose terms then expire shall be elected for a term of office toexpire at the next annual meeting of stockholders after their election, with eachdirector to hold office until his or her successor shall have been duly elected andqualified, and (ii) if authorized by a resolution of the Board of Directors, directors
may be elected to fill any vacancy on the Board of Directors, regardless of how
such vacancy shall have been created.
SECTION 3. REGULAR MEETINGS. A regular meeting of theBoard of Directors shall be held without other notice than this By-Law as soon aspracticable after each annual meeting of stockholders at such location as isconvenient and established by the Board of Directors. The Board of Directors
may, by resolution, provide the time and place for the holding of additional regularmeetings without other notice than such resolution.
Unless otherwise restricted by the Certificate of Incorporation of the
Corporation or these By-Laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in any meeting of
the Board of Directors or any committee thereof by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Boardof Directors shall be called at the request of the Chairman of the Board, thePresident or any three members of the Board of Directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place andtime of the meetings.
SECTION 5. NOTICE. Notice of any special meeting shall be given
to each director at his business or residence in writing or by telegram, facsimile orsimilar means of electronic communication or by telephone. If mailed, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least five days before suchmeeting. If by telegram, such notice shall be deemed adequately delivered when
the telegram is delivered to the telegraph company at least 24 hours before suchmeeting. If by facsimile transmission or similar means of electronic
communication, such notice shall be transmitted at least 24 hours before suchmeeting. If by telephone, the notice shall be given at least 12 hours prior to thetime set for the meeting. Neither the business to be transacted at, nor the purpose
23

of, any regular or special meeting of the Board of Directors need be specified in thenotice of such meeting, except for amendments to these By-Laws as provided
under Article VII hereof. A meeting may be held at any time without notice if all the
directors are present or if those not present waive notice of the meeting in writing,either before or after such meeting.
SECTION 6. QUORUM. A majority of the directors shall constitute a
quorum for the transaction of business. If at any meeting of the Board of Directors
there shall be less than a quorum present, a majority of the directors present may
adjourn the meeting from time to time until a quorum is obtained, and no further
notice thereof need be given other than by announcement at the meeting whichshall be so adjourned. The act of the majority of the directors present at a meetingat which a quorum is present shall be the act of the Board of Directors, unless theCertificate of Incorporation or these By-Laws require the vote of a greater number.
SECTION 7. VACANCIES. Subject to the rights of the holders ofany series of Preferred Stock, or any other series or class of stock as set forth in
the Certificate of Incorporation, to elect directors under specified circumstances,and unless the Board of Directors otherwise determines, vacancies resulting fromdeath, resignation, retirement, disqualification, removal from office or other cause,and newly created directorships resulting from any increase in the authorized
number of directors, shall be filled only by the affirmative vote of a majority of theremaining directors, though less than a quorum of the Board of Directors, and any
director so chosen shall hold office for a term expiring at the next annual meeting ofstockholders and until such director’s successor shall have been duly elected andqualified. No decrease in the number of authorized directors constituting theWhole Board shall shorten the term of any incumbent director.
SECTION 8. REMOVAL. Subject to the rights of the holders of any
series of Preferred Stock, or any other series or class of stock as set forth in theCertificate of Incorporation, to elect directors under specified circumstances, any
director, or the entire Board of Directors, may be removed from office at any time,with or without cause, but only by the affirmative vote of the holders of a majority ofthe voting power of the then outstanding Voting Stock, voting together as a single
class, at an annual meeting or a special meeting called expressly for this purpose.
For purposes of these By-Laws, “Voting Stock” shall mean the shares of capitalstock of the Corporation entitled to vote generally in the election of directors.
SECTION 9. RESIGNATIONS. Any director, member of acommittee or other officer may resign at any time. Such resignation shall be madein writing, and shall take effect at the time specified therein, and if no time be
specified, at the time of its receipt by the President or Secretary. The acceptanceof a resignation shall not be necessary to make it effective.

24

SECTION 10. COMMITTEES. The Board of Directors may, byresolution or resolutions passed by a majority of the Whole Board, designate one
or more committees, each committee to consist of two or more of the directors of
the Corporation. The board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member
at any meeting of the committee. In the absence or disqualification of any memberof such committee or committees, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he, she or they constitutea quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of theBoard of Directors, or in these By-Laws, shall have and may exercise all thepowers and authority of the Board of Directors in the management of the businessand affairs of the Corporation, and may authorize the seal of the Corporation to beaffixed to all papers that may require it; but no such committee shall have thepower or authority in reference to amending the Certificate of Incorporation (exceptthat a committee may, to the extent authorized in the resolution or resolutions
providing for the issuance of shares of stock adopted by the Board of Directors asprovided in subsection (a) of Section 151 of the General Corporation Law of theState of Delaware, fix the designation and any of the preferences and any of therights of such shares relating to dividends, redemption, dissolution, any distributionof assets of the Corporation or fix the number of shares of any series of stock or
authorize the increase or decrease of any shares of any series), adopting anagreement of merger or consolidation, recommending to the stockholders the sale,lease or exchange of all or substantially all of the Corporation’s property andassets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-Laws of the Corporation; and,
unless the resolution, these By-Laws or the Certificate of Incorporation expressly
so provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock.
Each committee may determine the procedural rules for meeting andconducting its business and shall act in accordance therewith, except as otherwise
provided herein or required by law. Adequate provision shall be made for notice tomembers of all meetings; one third of the members shall constitute a quorum
unless the committee shall consist of one or two members, in which event one
member shall constitute a quorum; and all matters shall be determined by amajority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent thereto in writing or by electronictransmission, and the writing or writings or electronic transmission ortransmissions are filed with the minutes of the proceedings of such committee.

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If as a result of a catastrophe or other emergency condition a quorumof any committee of the Board of Directors having power to act in the premises
cannot readily be convened and a quorum of the Board of Directors cannot readily
be convened, then all the powers and duties of the Board of Directors shall
automatically vest and continue, until a quorum of the Board of Directors can beconvened, in an Emergency Management Committee, which shall consist of all
readily available members of the Board of Directors and two of whose members
shall constitute a quorum. The Emergency Management Committee shall call ameeting of the Board of Directors as soon as circumstances permit for the purposeof filling any vacancies on the Board of Directors and its committees and taking
such other action as may be appropriate.
SECTION 11. COMPENSATION. Directors shall not receive any
stated salary for their services as directors or as members of committees, but by
resolution of the board an annual retainer and a fixed fee and expenses ofattendance may be allowed for attendance at each meeting. Nothing hereincontained shall be construed to preclude any director from serving the Corporationin any other capacity as an officer, agent or otherwise, and receiving
compensation therefor.
SECTION 12. ACTION WITHOUT MEETING. Any action requiredor permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting, if prior to such action a writtenconsent thereto is signed by all members of the board or of such committee, as thecase may be, and such written consent is filed with the minutes of proceedings ofthe board or committee.
ARTICLE IV
OFFICERSSECTION 1. OFFICERS. The officers of the Corporation shall be a
Chief Executive Officer, a Chairman of the Board of Directors, a President, aTreasurer, and a Secretary, all of whom shall be elected by the Board of Directors
and who shall hold office until their successors are elected and qualified. In
addition, the Board of Directors may elect one or more Vice-Presidents and such
Assistant Secretaries and Assistant Treasurers as they may deem proper. Noneof the officers of the Corporation need be directors. More than two offices may beheld by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of
Directors may appoint such other officers and agents as it may deem advisable,
who shall hold their offices for such terms and shall exercise such powers and26perform such duties as shall be determined from time to time by the Board of
Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors
shall preside at all meetings of the Board of Directors and shall have and perform
such other duties as from time to time may be assigned to him or her by the Boardof Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be the head of the Corporation and shall have the general powers andduties of supervision and management usually vested in the office of Chief
Executive Officer of a corporation. He or she shall preside at all meetings of thestockholders if present thereat, and in the absence or non-election of the
Chairman of the Board of Directors, at all meetings of the Board of Directors, andshall have general supervision, direction and control of the business of the
Corporation. Except as the Board of Directors shall authorize the execution
thereof in some other manner, he or she shall execute bonds, mortgages andother contracts in behalf of the Corporation, and shall cause the seal to be affixed
to any instrument requiring it and when so affixed the seal shall be attested by thesignature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer.
SECTION 5. PRESIDENT. The President shall have such powers
and shall perform such duties as shall be assigned to him or her by the Board of
Directors and the Chief Executive Officer.
SECTION 6. VICE-PRESIDENT. Each Vice-President shall havesuch powers and shall perform such duties as shall be assigned to him or her by
the Board of Directors.
SECTION 7. TREASURER. The Treasurer shall have the custody ofthe corporate funds and securities and shall keep full and accurate account ofreceipts and disbursements in books belonging to the Corporation. He or she shalldeposit all moneys and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may beordered by the Board of Directors, the Chief Executive Officer or the President,
taking proper vouchers for such disbursements. He or she shall render to theChief Executive Officer, the President and Board of Directors at the regularmeetings of the Board of Directors, or whenever they may request it, an account of
all his transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, he or she shall give the Corporation a bond forthe faithful discharge of his duties in such amount and with such surety as theBoard shall prescribe.
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SECTION 8. SECRETARY. The Secretary shall give, or cause to begiven, notice of all meetings of stockholders and directors, and all other notices
required by law or by these By-Laws, and in case of his absence or refusal orneglect so to do, any such notice may be given by any person thereunto directedby the Chief Executive Officer, the President, or by the directors, or stockholders,
upon whose requisition the meeting is called as provided in these By-Laws. He or
she shall record all the proceedings of the meetings of the Corporation and of theBoard of Directors in a book to be kept for that purpose, and shall perform suchother duties as may be assigned to him or her by the Board of Directors or the
President. He or she shall have custody of the seal of the Corporation and shallaffix the same to all instruments requiring it, when authorized by the Board of
Directors, the Chief Executive Officer or the President, and attest the same.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT
SECRETARIES. Assistant Treasurers and Assistant Secretaries, if any, shall beelected and shall have such powers and shall perform such duties as shall beassigned to them, respectively, by the Board of Directors.
SECTION 10. REMOVAL. Any officer of the Corporation may beremoved at any time, with or without cause, by the Board of Directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. A certificate of stock,signed by the Chief Executive Officer, or the President or a Vice-President, and theSecretary or an Assistant Secretary, shall be issued to each stockholder certifying
the number and class or series of shares owned by him or her in the Corporation.
Any or all of the signatures may be facsimiles. Certificates of stock of the
Corporation shall be of such form and device as the Board of Directors may fromtime to time determine.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may
be issued in the place of any certificate theretofore issued by the Corporation,
alleged to have been lost or destroyed, and the Board of Directors may, in its
discretion, require the owner of the lost or destroyed certificate, or such owner’s
legal representatives, to give the Corporation a bond, in such sum as they may
direct, not exceeding double the value of the stock, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss of any
such certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. The shares of Stock of the
Corporation shall be transferable only upon its books by the holders thereof inperson or by their duly authorized attorneys or legal representatives, and upon28

such transfer the old certificates shall be surrendered to the Corporation by thedelivery thereof to the person in charge of the stock and transfer books andledgers, or to such other person as the directors may designate, by whom theyshall be cancelled, and new certificates shall thereupon be issued. A record shallbe made of each transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the transfer.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the
Corporation may determine the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or to express consent tocorporate action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the purposeof any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than 60 nor less than 10 days before the date of suchmeeting, nor more than 60 days prior to any other action. If no record date is fixed,
the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the close ofbusiness on the day next preceding the day on which the meeting is held, and therecord date for determining stockholders for any other purpose shall be at theclose of business on the day on which the Board of Directors adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice of or tovote at a meeting of stockholders shall apply to any adjournment or postponementof the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned or postponed meeting.
SECTION 5. DIVIDENDS. Subject to the provisions of theCertificate of Incorporation, the Board of Directors may, out of funds legallyavailable therefor at any regular or special meeting, declare dividends upon thecapital stock of the Corporation as and when they deem expedient. Before
declaring any dividend there may be set apart, out of any funds of the Corporation
available for dividends, such sum or sums as the directors from time to time in theirdiscretion deem proper for working capital or as a reserve fund to meet
contingencies or for such other purposes as the directors shall deem conducive tothe interests of the Corporation.
SECTION 6. SEAL. The corporate seal shall be circular in form andshall contain the name of the Corporation, the year of its creation and the words“CORPORATE SEAL DELAWARE.” Said seal may be used by causing it or afacsimile thereof to be impressed or affixed or reproduced or otherwise.
SECTION 7. FISCAL YEAR. The fiscal year of the Corporation shallbe determined by resolution of the Board of Directors.
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SECTION 8. CHECKS. All checks, drafts or other orders for thepayment of money, notes or other evidences of indebtedness issued in the nameof the Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall be determined from time to time byresolution of the Board of Directors.
SECTION 9. NOTICE AND WAIVER OF NOTICE. Whenever any
notice is required by these By-Laws to be given to the stockholders of the
Corporation, personal notice is not meant unless expressly so stated, and any
notice so required shall be deemed to be sufficient if given by depositing the samein the United States mail, postage prepaid, addressed to the person entitledthereto at his address as it appears on the records of the Corporation, and such
notice shall be deemed to have been given on the day of such mailing.
Stockholders not entitled to vote shall not be entitled to receive notice of any
meetings except as otherwise provided by law.
Whenever any notice whatever is required to be given under theprovisions of any law, or under the provisions of the Certificate of Incorporation of
the Corporation or these By-Laws, a waiver thereof in writing, signed by the person
or persons entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
SECTION 10. VOTING OF SHARES IN OTHER CORPORATION.
Shares in other corporations that are held by the Corporation may be represented
and voted by the Chairman, the Chief Executive Officer, the President, a Vice
President or the Treasurer, or by proxy or proxies appointed by one of them. The
Board of Directors may, however, appoint some other person to vote the shares.
ARTICLE VI
INDEMNIFICATION AND INSURANCESECTION 1. Each person who was or is made a party or isthreatened to be made a party to or is involved in any action, suit, claim orproceeding, whether civil, criminal, administrative or investigative (hereinafter a“proceeding”), by reason of the fact that he or she or a person of whom he or she is
the legal representative is or was, at any time during which these By-Laws are ineffect (whether or not such person continues to serve in such capacity at the time
any indemnification or payment of expenses pursuant hereto is sought or at thetime any proceeding relating thereto exists or is brought), a director or officer of the
Corporation or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit plans
maintained or sponsored by the Corporation, whether the basis of suchproceeding is alleged action in an official capacity as a director, officer, employee
30

or agent or in any other capacity while serving as a director, officer, employee oragent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware as thesame exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation toprovide broader indemnification rights than said law permitted the Corporation toprovide prior to such amendment), against all expense, liability and loss (including
attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person inconnection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to thebenefit of his or her heirs, executors and administrators; provided, however, thatexcept as provided in Section 3 of this Article VI, the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors. The right to indemnification conferred in this
Article VI shall be a contract right that vests at the time of such person’s service toor at the request of the Corporation and such rights shall continue as to anindemnitee who has ceased to be a director, officer, trustee, employee or agent
and shall inure to the benefit of the indemnitee's heirs, executors andadministrators. The right to indemnification shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advanceof its final disposition, such advances to be paid by the Corporation within 20 days
after the receipt by the Corporation of a statement or statements from the claimant
requesting such advance or advances from time to time; provided, however, that if
the General Corporation Law of the State of Delaware requires, the payment ofsuch expenses incurred by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by such
person while a director or officer, including, without limitation, service to an
employee benefit plan) in advance of the final disposition of a proceeding, shall bemade only upon delivery to the Corporation of an undertaking by or on behalf ofsuch director or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified under this
Article VI or otherwise.
SECTION 2. To obtain indemnification under this Article VI, aclaimant shall submit to the Corporation a written request, including therein or
therewith such documentation and information as is reasonably available to theclaimant and is reasonably necessary to determine whether and to what extent theclaimant is entitled to indemnification. Upon written request by a claimant forindemnification pursuant to the first sentence of this Section 2, a determination, if
required by applicable law, with respect to the claimant’s entitlement thereto shallbe made as follows: (1) if requested by the claimant, by Independent Counsel (ashereinafter defined), or (2) if no request is made by the claimant for a determination31

by Independent Counsel, (i) by the Board of Directors by a majority vote of aquorum consisting of Disinterested Directors (as hereinafter defined), or (ii) if aquorum of the Board of Directors consisting of Disinterested Directors is not
obtainable or, even if obtainable, such quorum of Disinterested Directors so
directs, by Independent Counsel in a written opinion to the Board of Directors, acopy of which shall be delivered to the claimant, or (iii) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. In the event thedetermination of entitlement to indemnification is to be made by IndependentCounsel at the request of the claimant, the Independent Counsel shall be selectedby the Board of Directors unless there shall have occurred within two years prior to
the date of the commencement of the action, suit or proceeding for whichindemnification is claimed a “Change of Control” as defined in the BorgWarner Inc.
Amended and Restated 2004 Stock Incentive Plan, as amended (as such plan
shall exist as of the date of adoption of these Amended and Restated By-Laws), in
which case the Independent Counsel shall be selected by the claimant unless theclaimant shall request that such selection be made by the Board of Directors. If it is
so determined that the claimant is entitled to indemnification, payment to theclaimant shall be made within 10 days after such determination.
SECTION 3. If a claim under Section 1 of this Article VI is not paid infull by the Corporation within 30 days after a written claim pursuant to Section 2 ofthis Article VI has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of theclaim and, if successful in whole or in part, the claimant shall be entitled to be paid
also the expense of prosecuting such claim. It shall be a defense to any suchaction (other than an action brought to enforce a claim for expenses incurred indefending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that theclaimant has not met the standard of conduct that makes it permissible under the
General Corporation Law of the State of Delaware for the Corporation to indemnify
the claimant for the amount claimed, but the burden of proving such defense shallbe on the Corporation. Neither the failure of the Corporation (including its Board of
Directors, Independent Counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant isproper in the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware, nor an
actual determination by the Corporation (including its Board of Directors,
Independent Counsel or stockholders) that the claimant has not met suchapplicable standard of conduct, shall be a defense to the action or create apresumption that the claimant has not met the applicable standard of conduct.
SECTION 4. If a determination shall have been made pursuant to
Section 2 of this Article VI that the claimant is entitled to indemnification, the32Corporation shall be bound by such determination in any judicial proceeding
commenced pursuant to Section 3 of this Article VI.
SECTION 5. The Corporation shall be precluded from asserting inany judicial proceeding commenced pursuant to Section 3 of this Article VI that theprocedures and presumptions of this Article VI are not valid, binding andenforceable and shall stipulate in such proceeding that the Corporation is boundby all the provisions of this Article VI.
SECTION 6. The right to indemnification and the payment ofexpenses incurred in defending a proceeding in advance of its final disposition
conferred in this Article VI shall not be exclusive of any other right that any person
may have or hereafter acquire under any statute, provision of the Certificate ofIncorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise. No repeal or modification of this Article VI shall in any way
diminish or adversely affect the rights of any director, officer, employee or agent of
the Corporation hereunder in respect of any occurrence or matter arising prior to
any such repeal or modification and cannot be terminated by the Corporation, theBoard of Directors or the stockholders of the Corporation with respect to a person’s
service prior to the date of such termination. Any amendment, modification,
alteration or repeal of this By-Law that in any way diminishes, limits, restricts,
adversely affects or eliminates any right of an indemnitee or his or her successors
to indemnification, advancement of expenses or otherwise shall be prospective
only and shall not in any way diminish, limit, restrict, adversely affect or eliminate
any such right with respect to any actual or alleged state of facts, occurrence,
action or omission then or previously existing, or any action, suit or proceeding
previously or thereafter brought or threatened based in whole or in part upon any
such actual or alleged state of facts, occurrence, action or omission.
SECTION 7. The Corporation may maintain insurance, at its
expense, to protect itself and any current or former director, officer, employee oragent of the Corporation or another corporation, partnership, joint venture, trust orother enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability or loss under the General Corporation Law of the State of
Delaware. To the extent that the Corporation maintains any policy or policies
providing such insurance, each such current or former director or officer, and eachsuch agent or employee to which rights to indemnification have been granted asprovided in Section 8 of this Article VI, shall be covered by such policy or policies inaccordance with its or their terms to the maximum extent of the coverage there
under for any such director, officer, employee or agent.
SECTION 8. The Corporation may, to the extent authorized fromtime to time by the Board of Directors, grant rights to indemnification, and rights to33

be paid by the Corporation the expenses incurred in defending any proceeding in
advance of its final disposition, to any current or former employee or agent or classof employees or agents of the Corporation (including the heirs, executors,
administrators or estate of each such person) to the fullest extent of the provisionsof this Article VI with respect to the indemnification and advancement of expensesof current or former directors and officers of the Corporation.
SECTION 9. If any provision or provisions of this Article VI shall beheld to be invalid, illegal or unenforceable for any reason whatsoever: (1) thevalidity, legality and enforceability of the remaining provisions of this Article VI(including, without limitation, each portion of any paragraph of this Article VI
containing any such provision held to be invalid, illegal or unenforceable, that is notitself held to be invalid, illegal or unenforceable) shall not in any way be affected or
impaired thereby; and (2) to the fullest extent possible, the provisions of this Article
VI (including, without limitation, each such portion of any paragraph of this Article
VI containing any such provision held to be invalid, illegal or unenforceable) shallbe construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
SECTION 10. For purposes of this Article VI:(a)“Disinterested Director” means a director of the
Corporation who is not and was not a party to the matter in respect of whichindemnification is sought by the claimant.
(b)“Independent Counsel” means a law firm, a member ofa law firm, or an independent practitioner, that is experienced in matters ofcorporation law and shall include any person who, under the applicable standardsof professional conduct then prevailing, would not have a conflict of interest in
representing either the Corporation or the claimant in an action to determine theclaimant’s rights under this Article VI.
SECTION 11. Any notice, request or other communication requiredor permitted to be given to the Corporation under this Article VI shall be in writingand either delivered in person or sent by telecopy, telex, telegram, overnight mailor courier service, or certified or registered mail, postage prepaid, return receipt
requested, to the Secretary of the Corporation and shall be effective only uponreceipt by the Secretary.

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ARTICLE VII
AMENDMENTS
These By-Laws may be altered, amended or repealed, and any
By-Laws may be made, at any annual meeting of the stockholders or at any special
meeting thereof if notice of the proposed alteration or repeal of the By-Laws, or of
the By-Laws to be made, is contained in the notice of such meeting, by theaffirmative vote of the holders of a majority of the voting power of the thenoutstanding Voting Stock, or by the affirmative vote of a majority of the total
number of directors, at any regular meeting of the Board of Directors, or at any
special meeting of the Board of Directors, if notice of the proposed alteration or
repeal, or of the By-Laws to be made, is contained in the notice of such special
meeting.
ARTICLE VIIIELECTRONIC TRANSMISSIONS
When used in these By-Laws, the terms “written” and “in writing”
shall include any “electronic transmission” (as defined in Section 232(c) of theDelaware General Corporation Law, as amended), including, without limitation,
any telegram, cablegram, datagram, facsimile transmission and communication byelectronic mail.

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