**Exhibit 3.3**

 

 

 

**ev3 Inc.**

 

Incorporated under thelaws

of the State ofDelaware

 

 

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AMENDED AND RESTATED

 

BY-LAWS

 

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As adopted on August 16,2005

 

 

 

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**ev3 Inc.**

 

**AMENDED ANDRESTATED BY-LAWS**

 

**TABLE OF CONTENTS**

 
| ARTICLE I  OFFICES                                                   |   |
|---------------------------------------------------------------------------|--------|
| SECTION 1.01 Registered  Office                                      |   |
| SECTION 1.02 Other  Offices                                          |   |
|                                                                      |   |
| ARTICLE II  MEETINGS OF STOCKHOLDERS                                 |   |
| SECTION 2.01 Place of  Meetings                                      |   |
| SECTION 2.02 Annual  Meeting                                         |   |
| SECTION 2.03 Special  Meetings                                       |   |
| SECTION 2.04 Notice of Meetings                                      |   |
| SECTION 2.05 Quorum                                                  |   |
| SECTION 2.06 Voting                                                  |   |
| SECTION 2.07 Consent of Stockholders in Lieu  of Meeting             |   |
| SECTION 2.08 List of  Stockholders Entitled to Vote                  |   |
| SECTION 2.09 Stock Ledger                                            |   |
|                                                                      |   |
| ARTICLE III  DIRECTORS                                               |   |
| SECTION 3.01 Number of  Directors                                    |   |
| SECTION 3.02 Vacancies                                               |   |
| SECTION 3.03 Duties and  Powers                                      |   |
| SECTION 3.04 Meetings                                                |   |
| SECTION 3.05 Quorum                                                  |   |
| SECTION 3.06 Actions of  the Board of Directors in Lieu of a Meeting |   |
| SECTION 3.07 Meetings by  Means of Conference Telephone              |   |
| SECTION 3.08 Committees                                              |   |
| SECTION 3.09  Compensation                                           |   |
| SECTION 3.10 Interested  Directors                                   |   |
| SECTION 3.11 Election and Removal of  Directors                      |   |
| SECTION 3.12 Corporate  Governance Compliance                        |   |
| SECTION 3.13 Audit Committee                                         |   |
| SECTION 3.14 Compensation Committee                                  |   |
|                                                                      |   |
| ARTICLE IV  OFFICERS                                                 |   |
| SECTION 4.01 General                                                 |   |
| SECTION 4.02 Election                                                |   |
| SECTION 4.03 Voting Securities  Owned by the Corporation             |   |
| SECTION 4.04 Chairman of  the Board of Directors                     |   |
| SECTION 4.05 President  and Chief Executive Officer                  |   |
| SECTION 4.06 Vice  Presidents                                        |   |
| SECTION 4.07 Secretary                                               |   |

 

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| SECTION 4.08 Assistant  Secretaries           |   |
|----------------------------------------------------|--------|
| SECTION 4.09 Chief  Financial Officer         |   |
| SECTION 4.10 Assistant Treasurer              |   |
| SECTION 4.11 Other  Officers                  |   |
| SECTION 4.12  Resignations                    |   |
| SECTION 4.13 Removal                          |   |
| SECTION 4.14 Compensation                     |   |
| SECTION 4.15 Authority and Duties of Officers |   |
|                                               |   |
| ARTICLE V  STOCK                              |   |
| SECTION 5.01  Form of Certificates       |   |
| SECTION 5.02 Signatures                       |   |
| SECTION 5.03 Lost  Certificates               |   |
| SECTION 5.04 Transfers                        |   |
| SECTION 5.05 Record Date                      |   |
| SECTION 5.06 Beneficial  Owners               |   |
|                                               |   |
| ARTICLE VI  NOTICES                           |   |
| SECTION 6.01 Notices                          |   |
| SECTION 6.02 Waivers of  Notice               |   |
|                                               |   |
| ARTICLE VII  GENERAL PROVISIONS               |   |
| SECTION 7.01 Dividends                        |   |
| SECTION 7.02  Disbursements                   |   |
| SECTION 7.03 Fiscal Year                      |   |
| SECTION 7.04 Corporate  Seal                  |   |
|                                               |   |
| ARTICLE VIII INDEMNIFICATION                  |   |
| SECTION 8.01 Insurance                        |   |
|                                               |   |
| ARTICLE IX  AMENDMENTS                        |   |
| SECTION 9.01 Amendments                       |   |

 

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**AMENDED AND RESTATED**

 

**BYLAWS**

 

**OF**

 

**ev3 Inc.**

 

# **ARTICLE IOFFICES**

# ** **

## ***SECTION 1.01  Registered Office.***

 

ev3Inc. (the “Corporation”) shall at all times maintain a registered office in theState of Delaware.  The registered officeand registered agent of the Corporation shall be fixed in the Corporation’sCertificate of Incorporation and may be changed from time to time by the Corporationin the manner specified by law.

 

## ***SECTION 1.02  Other Offices.***

 

The Corporation may also have offices at such otherplaces both within and without the State of Delaware as the board of directorsof the Corporation (the “Board of Directors”) may from time to time determineor the business of the Corporation may require.

 

# **ARTICLE IIMEETINGS OF STOCKHOLDERS**

 

## ***SECTION 2.01  Place of Meetings.***

 

Meetings of the stockholders for the election of directorsor for any other purpose will be held at such time and place, either within orwithout the State of Delaware as designated from time to time by the Board ofDirectors and stated in the notice of the meeting or in a duly executed waiverof notice thereof.  The Board ofDirectors may, in its sole discretion, determine that a meeting of stockholdersshall not be held at any place, but may instead be held solely by means ofremote communication as authorized by Section 211(a) of the DelawareGeneral Corporation Law (the “DGCL”).

 

## ***SECTION 2.02  Annual Meeting.***

 

### (A)Annual meetings of stockholders will beheld each year on such date and at such time as designated by the Board ofDirectors.  At the annual meeting, and inaccordance with the Certificate of Incorporation, stockholders shall elect aBoard of Directors and transact such other business as may properly be broughtbefore the

 

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### meeting.  Written notice of the annual meeting statingthe place, date and hour of the meeting, and the means of remote communication,if any, by which stockholders and proxyholders may be deemed to be present inperson and vote at such meeting, shall be given to each stockholder entitled tovote at such meeting not less than ten (10) days nor more than sixty (60)days before the date of the meeting.

###  

### (B)Nominations of persons for election to the Board of Directors and the proposalof business to be considered by the stockholders may be made at an annualmeeting of stockholders (1) pursuant to the Corporation’s notice of meetingdelivered pursuant to Section 6.01 of these Bylaws, (2) by or at thedirection of the Chairman of the Board of Directors or (3) by anystockholder of the Corporation who is entitled to vote at the meeting whocomplied with the notice procedures set forth in paragraphs (B), (C) and (D) ofthis Section 2.02 and who was a stockholder of record at the time suchnotice is delivered to the Secretary of the Corporation.

###  

### (C)For nominations or other business to be properly brought before an annualmeeting by a stockholder pursuant to clause (3) of paragraph (B) ofthis Section 2.02, the stockholder must have given timely notice thereofin writing to the Secretary of the Corporation at the principal executiveoffices of the Corporation not less than ninety (90) days nor more than onehundred and twenty (120) days prior to the first anniversary of the date onwhich the Corporation first mailed its proxy materials for the preceding year’sannual meeting; *provided*, *however*, that in the event that the dateof the annual meeting is changed by more than thirty (30) days from theanniversary date of the previous year’s meeting, notice by the stockholder tobe timely must be so delivered not earlier than one hundred and twenty (120)days prior to such annual meeting and not later than the close of business onthe later of the ninetieth (90th) day prior to such annual meeting or the tenth(10th) day following the day on which public announcement of the date of suchmeeting is first made.  Publicannouncement of an adjournment of an annual meeting shall not commence a newtime period for the giving of a stockholder’s notice.

###  

### (D)Such stockholder’s notice also shall set forth: (1) as to each person whomthe stockholder proposes to nominate for election or re-election as a directorall information relating to such person that is required to be disclosed insolicitations of proxies for election of directors, or is otherwise required,in each case pursuant to Regulation 14A under the Securities Exchange Act of1934, as amended (the “Exchange Act”), including such person’s written consentto being named in the proxy statement as a nominee and to serving as a directorif elected; (2) as to any other business that the stockholder proposes tobring before the meeting, a brief description of the business desired to bebrought before the meeting, the text of any resolution proposed to be adoptedat the meeting, the reasons for conducting such business at the meeting, anymaterial interest in such business of such stockholder and the beneficialowner, if any, on whose behalf the proposal is made, and a representation thatthe stockholder is a stockholder of record and intends to appear in person orby proxy at the annual meeting to bring the business proposed in the noticebefore the meeting; and (3) as to the stockholder giving the notice andthe beneficial owner, if any, on whose behalf the nomination or proposal ismade (a) the name and address of such stockholder, as they appear on theCorporation’s stock transfer books, and of such beneficial owner and (b) theclass, series and number of

 

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### shares of the Corporationwhich are owned beneficially and of record by such stockholder and suchbeneficial owner.

###  

### (E)Only such persons who are nominated in accordance with the procedures set forthin this Section 2.02 shall be eligible for election to serve as directorsand only such business shall be conducted at a meeting of stockholders as shallhave been brought before the meeting in accordance with the procedures setforth in this Section.  Except asotherwise provided by law, the Certificate of Incorporation or these Bylaws,the chairman of the meeting shall have the power and duty to determine whethera nomination or any business proposed to be brought before the meeting was madeor proposed, as the case may be, in accordance with the procedures set forth inthese Bylaws and, if any proposed nomination or business is not in compliancewith these Bylaws, to declare that such defective proposal or nomination shallbe disregarded.  The chairman of themeeting of stockholders shall, if the facts warrant, determine and declare tothe meeting that any nomination or business was not properly brought before themeeting and in accordance with the provisions of these Bylaws, and if he or sheshould so determine, the chairman shall so declare to the meeting, and any suchnomination or business not properly brought before the meeting shall not betransacted.

###  

### (F)Nothing in these Bylaws shall be deemed to affect any rights of the holders ofany class or series of stock having a preference over the common stock as todividends or upon liquidation to elect directors under specifiedcircumstances.  Notwithstanding theforegoing provisions of this Section 2.02, a stockholder shall also complywith all applicable requirements of the Exchange Act and the rules andregulations promulgated thereunder with respect to the matters set forth inthis Section 2.02.

###  

Wheneverused in these Bylaws, “public announcement” shall mean disclosure (a) in apress release released by the Corporation, provided such press release isreleased by the Corporation following its customary procedures, is reported bythe Dow Jones News Service, Associated Press or comparable national newsservice, or is generally available on internet news sites, or (b) in adocument publicly filed by the Corporation with the Securities and ExchangeCommission pursuant to Section 13, 14 or 15(d) of the Exchange Act.

 

## ***SECTION 2.03  Special Meetings.***

## *** ***

Subjectto the rights of the holders of any series of preferred stock and except asotherwise provided by applicable law or by the Certificate of Incorporation,special meetings of stockholders, for any purpose or purposes, may be called by(i) the Board of Directors of the Corporation, (ii) the Chairman ofthe Board of Directors or (iii) the President and Chief Executive Officer andshall be called by the President and Chief Executive Officer at the request of oneor more stockholders holding shares of common stock representing more than 50%of the combined voting power of the outstanding common stock then entitled tovote.  Such request will state thepurpose or purposes of the proposed meeting. Written notice of a special meeting stating the place, date and hour ofthe meeting, the means of remote communication, if any, by which stockholdersand proxy holders may be deemed to be present in person and vote at suchmeeting, and

 

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the purpose or purposes for which the meeting is called will be givennot less than ten (10) days nor more than sixty (60) days before the dateof the meeting to each stockholder entitled to vote at such meeting.  Businesstransacted at any special meeting of stockholders shall be limited to thepurposes stated in the notice.

 

## ***SECTION 2.04  Notice of Meetings.***

## *** ***

Noticeof any meeting of stockholders shall be given in accordance with Section 6.01of these Bylaws.  Notice of any meetingof stockholders may be waived in accordance with Section 6.02 of theseBylaws.

 

## ***SECTION 2.05  Quorum.***

## *** ***

Subjectto the rights of the holders of any series of preferred stock and except asotherwise provided by applicable law or by the Certificate of Incorporation,the holders representing a majority of the combined voting power of the capitalstock issued and outstanding and entitled to vote at a meeting, present inperson or represented by proxy, shall constitute a quorum at all meetings ofthe stockholders for the transaction of business.  If, however, such quorum is not present orrepresented at any meeting of the stockholders, the Chairman of the meeting orstockholders representing a majority of the capital stock entitled to vote atthe meeting, present in person or by proxy, shall have the power to adjourn themeeting from time to time, without notice other than announcement at themeeting, until a quorum is present or represented.  At such adjourned meeting at which a quorumis present or represented, any business may be transacted that might have beentransacted at the meeting as originally noticed.  If the adjournment is for more than thirty(30) days, or if after the adjournment a new record date is fixed for theadjourned meeting, a notice of the adjourned meeting will be given to eachstockholder entitled to vote at the meeting. The stockholders present at a duly called meeting at which a quorum wasoriginally present may continue to transact business until adjourned,notwithstanding the withdrawal of enough stockholders to leave less than aquorum present.

 

## ***SECTION 2.06  Voting.***

## *** ***

Subject to the rights of the holders of any series ofpreferred stock and except as otherwise required by applicable law, theCertificate of Incorporation or these Bylaws, any question brought before anymeeting of stockholders will be decided by the vote of the holders of at leasta majority of the voting power of the capital stock represented and entitled tovote thereat.  Except as otherwiseprovided in the Certificate of Incorporation, each stockholder represented at ameeting of stockholders is entitled to cast one vote for each share of thecapital stock entitled to vote thereat held by such stockholder.  Such votes may be cast in person or by proxy,but no proxy will be voted on or after three years from its date, unless suchproxy provides for a longer period.  TheBoard of Directors, in its discretion, or the officer of the Corporationpresiding at a meeting of stockholders, in his discretion, may require that anyvotes cast at such meeting be cast by written ballot.

 

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## ***SECTION 2.07  Consent of Stockholders in Lieu of Meeting.***

## *** ***

Unlessotherwise provided in the Certificate of Incorporation, any action required orpermitted to be taken at any annual or special meeting of stockholders of theCorporation may be taken without a meeting, without prior notice and without avote, if a consent in writing, setting forth the action so taken, shall besigned by the holders of outstanding stock having not less than the minimumnumber of votes that would be necessary to authorize or take such action at ameeting at which all shares entitled to vote thereon were present and voted.

 

## ***SECTION 2.08  List of Stockholders Entitled to Vote.***

## *** ***

The officer of the Corporation who has charge of thestock ledger of the Corporation shall prepare and make, at least ten (10) daysbefore every meeting of stockholders, a complete list of the stockholdersentitled to vote at the meeting, arranged in alphabetical order, and showingthe address of each stockholder (but not the electronic mailaddress or other electronic contact information, unless the Board of Directorsso directs) and the number of sharesregistered in the name of each stockholder. Such list shall be open to theexamination of any stockholder, for any purpose germane to the meeting, duringordinary business hours, for a period of at least ten (10) days prior tothe meeting, either at a place within the city where the meeting is to be held,which place will be specified in the notice of the meeting, or, if not sospecified, at the place where the meeting is to be held.  This list shall also be produced and kept atthe time and place of the meeting during the whole time thereof, and may beinspected by any stockholder of the Corporation who is present.

 

## ***SECTION 2.09  Stock Ledger.***

## *** ***

Thestock ledger of the Corporation is the only evidence as to the stockholders whoare entitled to examine the stock ledger, the list required by Section 2.08,or the books of the Corporation, or to vote in person or by proxy at anymeeting of stockholders.

 

# **ARTICLE IIIDIRECTORS**

# ** **

## ***SECTION 3.01  Number of Directors.***

## *** ***

Subjectto any rights of holders of preferred stock to elect directors under specifiedcircumstances, the number of directors which shall constitute the whole Boardof Directors shall be fixed from time to time solely pursuant to a resolutionadopted by a majority of the Corporation’s directors then in office; providedthat the Board of Directors shall consist of at least five members.  No reduction of the authorized number ofdirectors shall have the effect of removing any director before that director’sterm of office expires.  The Board ofDirectors shall be divided into three classes to be designated as Class I,Class II and Class III.  In theevent of any increase or decrease in the authorized number of directors, thenewly created or eliminated directorships resulting from such increase ordecrease shall be apportioned by the Board of Directors among the three classesof directors so as to maintain such classes as nearly equal in number as

 

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possible.  The directors, otherthan the first Board of Directors, chosen to succeed those whose terms areexpiring shall be elected at the annual meeting of stockholders, shall beidentified as being of the same class as the directors whom they succeed, andshall be elected for a term ending at the time of the third succeeding annualmeeting of stockholders, or thereafter in each case when their respectivesuccessors are duly elected and qualified.

 

## ***SECTION 3.02  Vacancies.***

## *** ***

Anydirector may resign at any time upon written notice to the Corporation.Vacancies and newly created directorships resulting from any increase in theauthorized number of directors may be filled by an affirmative vote of themajority of the directors then in office, though less than a quorum, or by asole remaining director and the director so chosen shall hold office for theremainder of the full term of the class of directors in which the vacancy occurredor to which the new directorship is apportioned, and until such director’ssuccessor shall have been duly elected and qualified.  If there are no directors in office, then anelection of directors may be held in the manner provided by law.

 

Whenone or more directors resigns and the resignation is effective at a futuredate, a majority of the directors then in office, including those who have soresigned, shall have the power to fill such vacancy or vacancies, the votethereon to take effect when such resignation or resignations shall becomeeffective, and each director so chosen shall hold office as provided in this Section 3.02in the filling of other vacancies.

 

## ***SECTION 3.03  Duties and Powers.***

## *** ***

The business of the Corporation shall be managed by or underthe direction of its Board of Directors, which may exercise all such powers ofthe Corporation and do all such lawful acts and things as are not by statute orby the Certificate of Incorporation or by these Bylaws directed or required tobe exercised or done by the stockholders.

 

## ***SECTION 3.04  Meetings.***

## *** ***

The Board of Directors of the Corporation may holdmeetings, both regular and special, either within or without the State ofDelaware.  Regular meetings of the Boardof Directors may be held without notice at such time and at such place as shallfrom time to time be determined by the Board of Directors. Special meetings ofthe Board of Directors may be called by the Chairman, if there is one, thePresident and Chief Executive Officer, or a majority of directors.   Notice thereof stating the place, date andhour of the meeting will be given to each director either by mail not less thanforty-eight (48) hours before the date of the meeting, by telephone, telegraph,cable, wireless or other form of electronic communication with twenty-four (24)hours notice, or on such shorter notice as the person or persons calling suchmeeting may deem necessary or appropriate in the circumstances.

 

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## ***SECTION 3.05  Quorum.***

## *** ***

Exceptas may be otherwise specifically provided by applicable law, the Certificate ofIncorporation or these Bylaws, at all meetings of the Board of Directors, amajority of the entire Board of Directors shall constitute a quorum for thetransaction of business and the act of a majority of the directors present atany meeting at which there is a quorum is an act of the Board ofDirectors.  If a quorum is not present atany meeting of the Board of Directors, the directors present thereat mayadjourn the meeting from time to time, without notice other than announcementat the meeting, until a quorum is present.

 

## ***SECTION 3.06  Actions of the Board of Directors in Lieuof a Meeting.***

## *** ***

Unless otherwise restricted by the Certificate ofIncorporation or these Bylaws, any action required or permitted to be taken atany meeting of the Board of Directors of the Corporation or of any committeethereof may be taken without a meeting, if all members of the Board ofDirectors or committee, as the case may be, consent thereto in writing or by electronictransmission, and the writing or writings or electronic transmission ortransmissions are filed with the minutes of proceedings of the Board ofDirectors or committee. Such filing shall be in paper form if the minutes aremaintained in paper form and shall be in electronic form if the minutes aremaintained in electronic form.

 

## ***SECTION 3.07  Meetings by Means of Conference Telephone.***

## *** ***

Unlessotherwise provided by the Certificate of Incorporation or these Bylaws, membersof the Board of Directors of the Corporation, or any committee designated bythe Board of Directors, may participate in a meeting of the Board of Directorsor such committee by means of a conference telephone or similar communicationsequipment by means of which all persons participating in the meeting can heareach other.  Participation in a meetingpursuant to this Section 3.07 shall constitute presence in person at suchmeeting.

 

## ***SECTION 3.08  Committees.***

## *** ***

The Board of Directors may, by resolution passed by a majorityof the entire Board of Directors, designate one or more committees, eachcommittee to consist of one or more of the directors of the Corporation.  The Board of Directors may designate one ormore directors as alternate members of any committee, who may replace anyabsent or disqualified member at any meeting of any such committee.  In the absence or disqualification of amember of a committee, and in the absence of a designation by the Board ofDirectors of an alternate member to replace the absent or disqualified member,the member or members thereof present at any meeting and not disqualified fromvoting, whether or not such member or members constitute a quorum, mayunanimously appoint another member of the Board of Directors to act at themeeting in the place of any absent or disqualified member.  Any committee, to the extent permitted by applicablelaw and

 

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provided in the resolution of the Board ofDirectors or these Bylaws establishing such committee, shall have and mayexercise all the lawfully delegable powers, duties and authority of the Boardof Directors in the management of the business and affairs of theCorporation.  Each committee will keepregular minutes and report to the Board of Directors when required.  Each committee will comply with allapplicable provisions of the Sarbanes-Oxley Act of 2002, the rules andregulations of the Securities and Exchange Commission and the rules andrequirements of the NASDAQ National Market (“NASDAQ”) or the New York StockExchange (“NYSE”), as applicable, and will have the right to retain independentlegal counsel and advisors at the Corporation’s expense.

 

Each member of a committee of the Board of Directorsshall serve a term on the committee coexistent with such member’s term on theBoard of Directors.  The Board ofDirectors, subject to the provisions of Section 3.12, may at any timeincrease or decrease the number of members of a committee or terminate theexistence of a committee.  The membershipof a committee member shall terminate on the date of such member’s death,resignation or removal.  The Board ofDirectors may at any time for any reason remove any individual committee memberand the Board of Directors may fill any committee vacancy created by death,resignation, removal or increase in the number of members of the committee.

 

Meetings and actions ofcommittees shall be governed by, and held and taken in accordance with theprovisions of:

 

(i)                                     Section 3.04 (Meetings);

 

(ii)                                  Section 3.05 (Quorum);

 

(iii)                               Section 3.06 (Actions in Lieu of aMeeting); and

 

(iv)                              Section 3.07 (Meetings by means ofConference Telephone)

 

with such changes in thecontext of those bylaws as are necessary to substitute the committee and itsmembers for the Board and its members. Notwithstanding the foregoing:

 

(i)                                     the time of regular meetings of committeesmay be determined   either by resolutionof the Board or by resolution of the committee;

 

(ii)                                  special meetings of committees may also becalled by resolution of the Board; and

 

(iii)                               notice of special meetings of committeesshall also be given to all alternate members, who shall have the right toattend all meetings of the committee. The Board may adopt rules for the government if any committee isnot consistent with the provisions of these bylaws.

 

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## ***SECTION 3.09  Compensation.***

## *** ***

The directors may be paid their expenses, if any, ofattendance at each meeting of the Board of Directors and may be paid a fixedsum for attendance at each meeting of the Board of Directors or a stated salaryas director.  No such payment willpreclude any director from serving the Corporation in any other capacity andreceiving compensation therefor.  Membersof special or standing committees may be allowed like compensation forattending committee meetings.

 

## ***SECTION 3.10  Interested Directors.***

## *** ***

No contract or transaction between the Corporation andone or more of its directors or officers, or between the Corporation and anyother corporation, partnership, association, or other organization in which oneor more of its directors or officers are directors or officers, or have afinancial interest, will be void or voidable solely for this reason, or solelybecause the director or officer is present at or participates in the meeting ofthe Board of Directors or committee thereof which authorizes the contract ortransaction, or solely because his or their votes are counted for such purposeif (i) the material facts as to his or their relationship or interest andas to the contract or transaction are disclosed or are known to the Board ofDirectors or the committee, and the Board of Directors or committee in goodfaith authorizes the contract or transaction by the affirmative votes of amajority of the disinterested directors, even though the disinteresteddirectors be less than a quorum; or (ii) the material facts as to his ortheir relationship or interest and as to the contract or transaction aredisclosed or are known to the stockholders entitled to vote thereon, and thecontract or transaction is specifically approved in good faith by vote of thestockholders; or (iii) the contract or transaction is fair as to theCorporation as of the time it is authorized, approved or ratified, by the Boardof Directors, a committee thereof or the stockholders.  Common or interested directors may be countedin determining the presence of a quorum at a meeting of the Board of Directorsor of a committee which authorizes the contract or transaction.

 

## ***SECTION 3.11  Election and Removal of Directors.***

## *** ***

Anyor all of the directors (other than the directors elected by the holders of anyclass or classes of preferred stock of the Corporation, voting separately as aclass or classes, as the case may be) may be removed at any time only for causeby the affirmative vote of a majority in voting power of all shares of theCorporation entitled to vote generally in the election of directors, voting asa single class.

 

## ***SECTION 3.12  Corporate Governance Compliance.***

## *** ***

Withoutotherwise limiting the powers of the Board of Directors and provided thatshares of capital stock of the Corporation are listed for trading on either theNYSE or the NASDAQ, the Corporation shall comply with the corporate governance rules andrequirements of the NYSE and the NASDAQ, as applicable.

 

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## ***SECTION 3.13  Audit Committee.***

## *** ***

TheBoard of Directors shall establish an Audit Committee whose principal purposewill be to oversee the Corporation’s and its subsidiaries’ accounting andfinancial reporting processes, internal systems of control, independent auditorrelationships and audits of consolidated financial statements of the Corporationand its subsidiaries.  The AuditCommittee will also determine the appointment of the independent auditors ofthe Corporation and any change in such appointment and ensure the independenceof the Corporation’s auditors.  Inaddition, the Audit Committee will assume such other duties andresponsibilities as the Board of Directors may confer upon the committee fromtime to time.  In the event of anyinconsistency between this Section 3.13 and the Certificate ofIncorporation, the terms of the Certificate of Incorporation will govern.

 

## ***SECTION 3.14  Compensation Committee.***

## *** ***

TheBoard of Directors shall establish a Compensation Committee whose principalduties will be to review employee compensation policies and programs as well asthe compensation of the President and Chief Executive Officer and otherexecutive officers of the Corporation, to recommend to the Board of Directors acompensation program for outside members of the Board of Directors, as well assuch other duties and responsibilities as the Board of Directors may conferupon the committee from time to time.  Inthe event of any inconsistency between this Section 3.14 and theCertificate of Incorporation, the terms of the Certificate of Incorporationshall govern.

 

# **ARTICLE IVOFFICERS**

# ** **

## ***SECTION 4.01  General.***

## *** ***

The officers of the Corporation will be elected by theBoard of Directors.  The Board ofDirectors, in its discretion, may elect a Chairman of the Board of Directors, aPresident and Chief Executive Officer, a Secretary, a Chief Financial Officer, VicePresidents or Assistant Vice Presidents, Assistant Secretaries, AssistantTreasurers and such other officers as determined by the Board of Directors fromtime to time in accordance with Section 4.11 of these Bylaws.  Any number of offices may be held by the sameperson, unless otherwise prohibited by applicable law, the Certificate ofIncorporation or these Bylaws.  Theofficers of the Corporation need not be stockholders or directors of theCorporation.

 

## ***SECTION 4.02  Election.***

## *** ***

The Board of Directors at its first meeting held aftereach annual meeting of stockholders will elect the officers of the Corporationwho will hold their offices for such terms and will exercise such powers andperform such duties as determined from time to time by the Board ofDirectors.  All officers of the Corporationwill hold office until their successors are chosen and qualified, or untiltheir earlier resignation or removal. Any officer elected by the Board of Directors may be removed at any timeby the affirmative 

 

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vote of a majority of the Board ofDirectors.  Any vacancy occurring in anyoffice of the Corporation will be filled by the Board of Directors.  The salaries of all officers of theCorporation will be fixed by the Board of Directors.

 

## ***SECTION 4.03  Voting Securities Owned by the Corporation.***

## *** ***

Powers of attorney, proxies, waivers of notice ofmeeting, consents and other instruments relating to securities owned by theCorporation may be executed in the name of and on behalf of the Corporation bythe President and Chief Executive Officer, any Vice President or any otherperson authorized by the Board of Directors, the President and Chief ExecutiveOfficer and any such officer may, in the name of and on behalf of theCorporation, take all such action as any such officer deems advisable to votein person or by proxy at any meeting of security holders of any corporation inwhich the Corporation owns securities and at any such meeting will possess andmay exercise any and all rights and power incident to the ownership of suchsecurities and which, as the owner thereof, the Corporation might haveexercised and possessed if present.  TheBoard of Directors may, by resolution, from time to time confer like powersupon any other person or persons.

 

## ***SECTION 4.04  Chairman of the Board of Directors.***

## *** ***

The Chairman of the Board of Directors, if there is one,will preside at all meetings of the stockholders and of the Board ofDirectors.  The Chairman of the Board ofDirectors also will perform such other duties and may exercise such otherpowers as from time to time may be assigned to him by these Bylaws or by theBoard of Directors.

 

## ***SECTION 4.05  President and Chief Executive Officer.***

## *** ***

Subjectto the control of the Board of Directors and any supervisory powers the Boardof Directors may give to the Chairman of the Board of Directors, the Presidentand Chief Executive Officer shall, together with the Vice Presidents of theCorporation, have general supervision, direction, and control of the businessand affairs of the Corporation and shall see that all orders and resolutions ofthe Board of Directors are carried into effect. The President and Chief Executive Officer shall execute all bonds, mortgages, contracts and other instruments ofthe Corporation except where required or permitted by law to be otherwisesigned and executed and except that the other officers of the Corporation maysign and execute documents when so authorized by these Bylaws or the Board ofDirectors.  The President and ChiefExecutive Officer shall, together with the Vice Presidents of the Corporation,also perform all duties incidental to this office that may be required by lawand all such other duties as are properly required of this office by the Boardof Directors or assigned to him by the Bylaws. In the absence of the Chairman of the Board of Directors, the Presidentand Chief Executive Officer shall preside at all meetings of the Board ofDirectors and of stockholders.

 

## ***SECTION 4.06  Vice Presidents.***

## *** ***

At the request of the President and Chief ExecutiveOfficer or in the event of a vacancy or in the event of his inability to act (andif there be no Chairman of the Board of

 

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Directors), the Vice President or the VicePresidents if there is more than one (in the order designated by the Board ofDirectors) will perform the duties of the President and Chief Executive Officer,and when so acting, will have all the powers of and be subject to all therestrictions upon the President and Chief Executive Officer.  Each Vice President will perform such otherduties and have such other powers as the Board of Directors from time to timemay prescribe.  If there is no Chairmanof the Board of Directors and no Vice President, the Board of Directors will designatethe officer of the Corporation who, in the event of a vacancy or in the eventof the inability of the President and Chief Executive Officer to act, willperform the duties of the President and Chief Executive Officer, and when soacting, will have all the powers of and be subject to all the restrictions uponthe President and Chief Executive Officer .

 

## ***SECTION 4.07  Secretary.***

## *** ***

The Secretary will attend all meetings of the Board ofDirectors and all meetings of stockholders and record all the proceedingsthereat in a book or books to be kept for that purpose; the Secretary also willperform like duties for the standing committees when required.  The Secretary will give, or cause to begiven, notice of all meetings of the stockholders and special meetings of theBoard of Directors, and will perform such other duties as may be prescribed bythe Board of Directors or President and Chief Executive Officer, under whosesupervision he will be.  If there is noSecretary, or the Secretary is unable or refuses to cause to be given notice ofall meetings of the stockholders and special meetings of the Board ofDirectors, and if there be no Assistant Secretary, then either the Board ofDirectors or the President and Chief Executive Officer may choose anotherofficer to cause such notice to be given.

 

The Secretary will have custody of the seal of theCorporation and the Secretary or any Assistant Secretary, if there is one, willhave authority to affix the same to any instrument requiring it and when soaffixed, it may be attested by the signature of the Secretary or by thesignature of any such Assistant Secretary. The Board of Directors may give general authority to any other officerto affix the seal of the Corporation and to attest the affixing by his signature.  The Secretary will see that all books,reports, statements, certificates and other documents and records required bylaw to be kept or filed are properly kept or filed, as the case may be.

 

## ***SECTION 4.08  Assistant Secretaries.***

## *** ***

Except as may be otherwise provided in these Bylaws,Assistant Secretaries, if there are any, will perform such duties and have suchpowers as from time to time may be assigned to them by the Board of Directors,the President and Chief Executive Officer, any Vice President, if there is one,or the Secretary, and in the absence of the Secretary or in the event of hisdisability or refusal to act, will perform the duties of the Secretary, andwhen so acting, will have all the powers of and be subject to all therestrictions upon the Secretary.

 

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## ***SECTION 4.09  Chief Financial Officer.***

## *** ***

TheChief Financial Officer, subject to the order of the Board of Directors, shallhave the care and custody of the moneys, funds, valuable papers and documentsof the Corporation (other than his own bond, if any, which shall be in thecustody of the President and ChiefExecutive Officer), and shall have, under the supervision of the Boardof Directors, all the powers and duties commonly incident to his office.  He shall deposit all funds of the Corporationin such bank or banks, trust company or trust companies, or with such firm orfirms doing a banking business as may be designated by the Board of Directorsor be the President and Chief ExecutiveOfficer if the Board does not do so. He may endorse for deposit or collection all checks, notes, and similarinstruments payable to the Corporation or to its order.  He shall keep accurate books of account ofthe Corporation’s transactions, which shall be the property of the Corporation,and together with all of he property of the Corporation in his possession,shall be subject at all times to the inspection and control of the Board ofDirectors.  The Chief Financial Officershall be subject in every way to the order of the Board of Directors, and shallrender to the Board of Directors and/or the President and Chief Executive Officer of the Corporation, whenever they mayrequire it, an account of all his transactions and of the financial conditionof the Corporation.  In addition to theforegoing, the Chief Financial Officer shall have such duties as may beprescribed or determined from time to time by the Board of Directors or by thePresident and Chief Executive Officerif the Board of Directors does not do so.

 

## ***SECTION 4.10  Assistant Treasurer.***

## *** ***

TheAssistant Treasurer, or if there shall be more than one, the AssistantTreasurers in the order determined by the Board of Directors (or if there be nosuch determination, then in the order of their election) shall, in the absenceof the Chief Financial Officer or in the event of his inability or refusal toact, perform the duties and exercise the powers of the President and ChiefExecutive Officer and shall perform such other duties and have such otherpowers as the Board of Directors may from time to time prescribe.

 

## ***SECTION 4.11  Other Officers.***

## *** ***

Such other officers as the Board of Directors may choosewill perform such duties and have such powers as from time to time may beassigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of theCorporation the power to choose such other officers and to prescribe theirrespective duties and powers.

 

## ***SECTION 4.12  Resignations.***

## *** ***

Anyofficer many resign at any time by giving written notice to the Board ofDirectors or to the President and Chief Executive Officer or to theSecretary.  Any such resignation shall beeffective when received by the person or persons to whom such notice is given,unless a later time is specified therein, in which event the resignation

 

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shall become effective at such later time.  Unless otherwise specified in such notice,the acceptance of any such resignation shall not be necessary to make iteffective.

 

## ***SECTION 4.13  Removal. ***

## *** ***

Anyofficer may be removed from office at any time, with or without cause, by thevote or written consent of a majority of the directors in office at the time,or by any committee or superior officers upon whom such power of removal mayhave been conferred by the Board of Directors. In addition, any officer appointed by the President and Chief ExecutiveOfficer may be removed from office at any time, with or without cause, by the Presidentand Chief Executive Officer.

 

## ***SECTION 4.14  Compensation. ***

## *** ***

Thecompensation of the officers shall be fixed from time to time by the Board ofDirectors, and no officer shall be prevented from receiving such compensationby reason of the fact that such officer is also a director of the Corporation.

 

## ***SECTION 4.15  Authority and Duties of Officers.***

## *** ***

Inaddition to the foregoing authority and duties, all officers of the Corporationshall respectively have such authority and perform such duties in themanagement of the business of the Corporation as may be designated from time totime by the Board of Directors.

 

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# **ARTICLE V**STOCK

# ** **

## ***SECTION 5.01  Form of Certificates.***

## *** ***

The Corporation may issue certificates to evidence theshares of its stock, if and to the extent such certificates are issued, theywill be signed, in the name of the Corporation by (i) the Chairman of theBoard of Directors, the President and Chief Executive Officer, or a VicePresident and (ii) the Chief Financial Officer or an Assistant Treasurer,the Secretary, or an Assistant Secretary, of the Corporation or other officerdesignated by the Board of Directors, certifying the number of shares owned byhim in the Corporation.

 

## ***SECTION 5.02  Signatures.***

## *** ***

Where a stock certificate is countersigned by (i) atransfer agent other than the Corporation or its employee, or (ii) aregistrar other than the Corporation or its employee, any other signature onthe certificate may be a facsimile.  Incase any officer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate has ceased to be such officer,transfer agent or registrar before such certificate is issued, it may be issuedby the Corporation with the same effect as if he were such officer, transferagent or registrar at the date of issue.

 

## ***SECTION 5.03  Lost Certificates.***

## *** ***

The Board of Directors may direct a new certificate tobe issued in place of any stock certificate theretofore issued by theCorporation alleged to have been lost, stolen or destroyed, upon the making ofan affidavit of that fact by the person claiming the stock certificate to belost, stolen or destroyed.  Whenauthorizing such issue of a new certificate, the Board of Directors may, in itsdiscretion and as a condition precedent to the issuance thereof, require the ownerof such lost, stolen or destroyed certificate, or his legal representative, toadvertise the same in such manner as the Board of Directors shall require or togive the Corporation a bond in such sum as it may direct as indemnity againstany claim that may be made against the Corporation with respect to thecertificate alleged to have been lost, stolen or destroyed.

 

## ***SECTION 5.04  Transfers.***

## *** ***

Stock of the Corporation is transferable in the mannerprescribed by law, the Certificate of Incorporation of the Corporation and inthese Bylaws.  If shares intended to betransferred are represented by stock certificates, transfers of stock will bemade on books of the Corporation only by the person named in the certificate orby his attorney lawfully constituted in writing and upon the surrender of thecertificate therefor, which will be canceled before a new certificate isissued.

 

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## ***SECTION 5.05  Record Date.***

## *** ***

In order that the Corporation may determine the stockholdersentitled to notice of or to vote at any meeting of stockholders or anyadjournment thereof, or entitled to receive payment of any dividend or otherdistribution or allotment of any rights, or entitled to exercise any rights inrespect of any change, conversion or exchange of stock, or for the purpose ofany other lawful action, the Board of Directors may fix, in advance, a recorddate, which shall not be more than sixty (60) days nor less than ten (10) daysbefore the date of such meeting, nor more than sixty (60) days prior to anyother action.  A determination ofstockholders of record entitled to notice of or to vote at a meeting ofstockholders will apply to any adjournment of the meeting; *provided, however,* that the Board ofDirectors may fix a new record date for the adjourned meeting.

 

## ***SECTION 5.06  Beneficial Owners.***

## *** ***

The Corporation is entitled to recognize the exclusiveright of a person registered on its books as the owner of shares orowner-in-trust of shares to receive dividends, and to vote as such owner, andto hold liable for calls and assessments a person registered on its books asthe owner of shares, and is not bound to recognize any equitable or other claimto or interest in such share or shares on the part of any other person, whetheror not it has express or other notice thereof, except as otherwise provided bylaw.

 

# **ARTICLE VINOTICES**

# ** **

## ***SECTION 6.01  Notices.***

## *** ***

Whenever written notice is required to be given underapplicable provisions of the DGCL, the Certificate of Incorporation or theseBylaws, to any director, member of a committee or stockholder, except asotherwise provided in these Bylaws, such notice may be given personally, or bymailing a copy of such notice, postage prepaid, directly to such director,member of a committee or stockholder to his or her address as it appears in therecords of the Corporation or by transmitting such notice thereof to him or herby facsimile, cable or, to the extent permissable under Section 232 of theDGCL, other electronic transmission to the number or address specified in therecords of the Corporation.

 

## ***SECTION 6.02  Waivers of Notice.***

## *** ***

Whenever any notice is required to be given under anyprovision of the DGCL, the Certificate of Incorporation or these Bylaws, to anydirector, member of a committee or stockholder, a waiver thereof in writing,signed by the person or persons entitled to said notice, or a waiver byelectronic transmission by the person entitled to notice, whether before orafter the time of the event for which notice is given, will be deemedequivalent thereto.  Attendance of aperson at a meeting shall constitute a waiver of notice of such meeting, exceptwhen the person attends a meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business because themeeting is not lawfully called or convened.

 

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# **ARTICLE VIIGENERAL PROVISIONS**

# ** **

## ***SECTION 7.01  Dividends.***

## *** ***

Dividends upon the capital stock of the Corporation,subject to the provisions of the Certificate of Incorporation, if any, may bedeclared by the Board of Directors at any regular or special meeting, and maybe paid in cash, in property or in shares of the capital stock.  Before payment of any dividend, there may beset aside out of any funds of the Corporation available for dividends such sumor sums as the Board of Directors from time to time, in its absolutediscretion, deems proper as a reserve or reserves to meet contingencies, or forequalizing dividends, or for repairing or maintaining any property of theCorporation, or for any proper purpose, and the Board of Directors may modifyor abolish any such reserve.

 

## ***SECTION 7.02  Disbursements.***

## *** ***

All checks or demands for money and notes of theCorporation will be signed by such officer or officers or such other person orpersons as the Board of Directors may from time to time designate.

 

## ***SECTION 7.03  Fiscal Year.***

## *** ***

Unless otherwise fixed by resolution of the Board ofDirectors, the fiscal year of the Corporation will begin on January 1stand end on December 31st in each calendar year.

 

## ***SECTION 7.04  Corporate Seal.***

## *** ***

The corporate seal will have inscribed thereon the nameof the Corporation, the year of its organization and the words “Corporate Seal,Delaware.” The seal may be used by causing it or a facsimile thereof to beimpressed or affixed or reproduced or otherwise.

 

# **ARTICLE VIIIINDEMNIFICATION**

# ** **

## ***SECTION 8.01  Insurance.***

## *** ***

To the fullest extent permitted by applicable law,the Corporation may purchase and maintain insurance on behalf of any person whois or was a director, officer, employee or agent of the Corporation, or is orwas serving at the request of the Corporation as a director, officer, employeeor agent of another corporation, partnership, joint venture, trust or otherenterprise against any liability asserted against such person and incurred bysuch person in any such capacity, or arising out of his status as such, whetheror not the Corporation would have the power or the obligation to indemnify suchperson against such liability under the provisions its Certificate ofIncorporation or otherwise.

 

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# **ARTICLE IXAMENDMENTS**

# ** **

## ***SECTION 9.01  Amendments.***

## *** ***

These Bylaws may be altered, amended or repealed, inwhole or in part, or new Bylaws may be adopted, in each case, by theaffirmative vote of the holders of at least a majority of the outstandingshares entitled to vote for the Board of Directors, provided that anamendment to Sections 2.02, 2.03, 2.04 and 3.11 herein and this Section 9.01shall require the consent of the holders of at least two-thirds of the outstandingshares entitled to vote for the Board of Directors, or by a majority of theBoard of Directors.  The fact that such power has been soconferred upon the directors shall not divest the stockholders of the power,nor limit their power to adopt, amend or repeal the Bylaws.  Notice of such alteration, amendment, repealor adoption of new Bylaws will be contained in the notice of such meeting ofstockholders or Board of Directors.

 

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