exv4w2



 






Exhibit 4.2




AMENDED AND RESTATED BY-LAWS




OF




SEABRIGHT INSURANCE HOLDINGS, INC.




A Delaware corporation

(Adopted as of January 20, 2005)




ARTICLE I




OFFICES




     Section 1. Registered Office. The registered office of Seabright Insurance
Holdings, Inc. (the “Corporation”) in the State of Delaware shall be located at 9 East
Loockerman Street, #1B, in the City of Dover, County of Kent, 19901. The name of the Corporation’s
registered agent at such address shall be National Registered Agents, Inc. The registered office
and/or registered agent of the Corporation may be changed from time to time by action of the Board
of Directors of the Corporation (the “Board of Directors”).



     Section 2. Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the Board of Directors may from time to
time determine or the business of the Corporation may require.



ARTICLE II




MEETINGS OF STOCKHOLDERS




     Section 1. Place of Meetings. The Board of Directors may designate any place,
either within or without the State of Delaware, as the place of meeting for any annual meeting or
for any special meeting.



     Section 2. Annual Meeting. An annual meeting of the stockholders shall be
held each year at such time as is specified by the Board of Directors. At the annual meeting,
stockholders shall elect directors and transact such other business as properly may be brought
before the annual meeting pursuant to Section 12 of ARTICLE II hereof.



     Section 3. Special Meetings. Special meetings of the stockholders may only be
called in the manner provided in the Corporation’s certificate of incorporation as then in effect
(the “Certificate of Incorporation”).



     Section 4. Notice of Meetings. Whenever stockholders are required or
permitted to take action at a meeting, written notice of each annual and special meeting of
stockholders stating the date, time and place of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given to each
stockholder of record entitled to vote thereat not less than 10 nor more than 60 days before the
date of the meeting. Business



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transacted at any special meeting of stockholders shall be limited to the purposes stated in
the notice. Notice shall be given personally or by mail and, if by mail, shall be sent in a
postage prepaid envelope, addressed to the stockholder at his, her or its address as the same
appears on the records of the Corporation. Notice by mail shall be deemed given at the time when
the same shall be deposited in the United States mail, postage prepaid. Notice of any meeting
shall not be required to be given to any person who attends such meeting, except when such person
attends the meeting in person or by proxy for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or
convened, or who, either before or after the meeting, shall submit a signed written waiver of
notice, in person or by proxy. Neither the business to be transacted at, nor the purpose of, an
annual or special meeting of stockholders need be specified in any written waiver of notice.



     Section 5. List of Stockholders. The officer having charge of the stock
ledger of the Corporation shall prepare and make, at least 10 days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, showing the address of and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least 10 days prior to the meeting: (a) on a reasonably
accessible electronic network, provided that the information required to gain access to such list
is provided with the notice of the meeting, or (b) during ordinary business hours, either at a
place within the city where the meeting 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
shall also be produced and kept at the time and place of the meeting during the whole time thereof,
and may be inspected by any stockholder who is present.



     Section 6. Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders, except as otherwise provided by the General Corporation
Law of the State of Delaware or by the Certificate of Incorporation. If a quorum is not present,
the holders of a majority of the shares present in person or represented by proxy at the meeting,
and entitled to vote at the meeting, may adjourn the meeting to another time and/or place. When a
specified item of business requires a vote by a class or series (if the Corporation shall then have
outstanding shares of more than one class or series) voting as a class or series, the holders of a
majority of the shares of such class or series shall constitute a quorum (as to such class or
series) for the transaction of such item of business.



     Section 7. Adjourned Meetings. When a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the original meeting. If
the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.



     Section 8. Vote Required. When a quorum is present, the affirmative vote of
the majority of shares present in person or represented by proxy at the meeting and entitled to
vote



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on the subject matter shall be the act of the stockholders, unless by express provisions of
an applicable law or of the Certificate of Incorporation a different vote is required, in which
case such express provision shall govern and control the decision of such question.




     Section 9. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware, the Certificate of Incorporation, the certificate of
designation relating to any outstanding class or series of preferred stock or these By-laws, every
stockholder shall at every meeting of the stockholders be entitled to one vote in person or by
proxy for each share of capital stock held by such stockholder.



     Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by proxy, but no such
proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable
power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the Corporation generally. Any proxy is
suspended when the person executing the proxy is present at a meeting of stockholders and elects to
vote, except that when such proxy is coupled with an interest and the fact of the interest appears
on the face of the proxy, the agent named in the proxy shall have all voting and other rights
referred to in the proxy, notwithstanding the presence of the person executing the proxy. At each
meeting of the stockholders, and before any voting commences, all proxies filed at or before the
meeting shall be submitted to and examined by the secretary or a person designated by the
secretary, and no shares may be represented or voted under a proxy that has been found to be
invalid or irregular.



     Section 11. Advance Notice Provisions for Election of Directors.



          (a) Only persons who are nominated in accordance with the procedures set forth in these
By-laws shall be eligible to serve as directors. Nominations of persons for election to the Board
of Directors of the Corporation may be made at a meeting of stockholders (i) by or at the direction
of the Board of Directors (or any duly authorized committee thereof) or (ii) by any stockholder of
the Corporation who was a stockholder of record at the time of giving of notice provided for in
this By-law, who is entitled to vote generally in the election of directors at the meeting and who
shall have complied with the notice procedures set forth below in Section 11(b).



          (b) In order for a stockholder to nominate a person for election to the Board of Directors of
the Corporation at a meeting of stockholders, such stockholder shall have delivered timely notice
of such stockholder’s intent to make such nomination in writing to the secretary of the
Corporation. To be timely, a stockholder’s notice to the secretary must be delivered to or mailed
and received at the principal executive offices of the Corporation (i) in the case of an annual
meeting, not less than 90 nor more than 120 days prior to the date of the first anniversary of the
previous year’s annual meeting; provided, however, that in the event the annual
meeting is scheduled to be held on a date more than 30 days prior to or delayed by more than 60
days after such anniversary date, notice by the stockholder in order to be timely must be so
received not



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later than the close of business on the 10th day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the meeting was made and (ii)
in the case of a special meeting at which directors are to be elected, not later than the close of
business on the 10th day following the earlier of the day on which notice of the date of the
meeting was mailed or public disclosure of the meeting was made. To be in proper form, a
stockholder’s notice shall set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director at such meeting (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of the person, (C) the
class or series and number of shares of capital stock of the Corporation which are owned
beneficially or of record by the person and (D) any other information relating to the person that
would be required to be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to Regulatoin 14A under
the Securities Exchange Act of 1934, as amended (the “Exchange Act”); and (ii) as to the
stockholder giving the notice (A) the name and record address of such stockholder, (B) the class or
series and number of shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (C) a description of all arrangements or understandings between such
stockholder and each proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by such stockholder, (D) a representation that
such stockholder intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (E) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to Regulation 14A under the
Exchange Act. Such notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected. For purposes of this section,
“public disclosure” shall mean disclosure in a Current Report on Form 8-K (or any successor
form) or in a press release reported by Dow Jones News Service, Associated Press or a comparable
national news service.



          (c) No person shall be eligible to serve as a director of the Corporation unless nominated in
accordance with the procedures set forth in this section. The chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by this section, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded. A stockholder seeking
to nominate a person to serve as a director must also comply with all applicable requirements of
the Exchange Act, and the rules and regulations thereunder with respect to the matters set forth in
this section.



     Section 12. Advance Notice Provisions for Other Business to be Conducted at an
Annual Meeting. At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly brought before an
annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors (or any duly authorized committee thereof),
(ii) brought before the meeting by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (iii) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the secretary of



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the Corporation. To be timely, a stockholder’s notice to the secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not less than 90 nor
more than 120 days prior to the date of the first anniversary of the previous year’s annual
meeting; provided, however, that in the event the annual meeting is scheduled to be
held on a date more than 30 days prior to or delayed by more than 60 days after such anniversary
date, notice by the stockholder in order to be timely must be so received not later than the 10th
day following the day on which notice of the date of the annual meeting was mailed or public
disclosure of the date of the annual meeting was made, whichever occurs first. To be in proper
form, a stockholder’s notice to the secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (i) a brief description of the business desired to be
brought before the annual meeting, (ii) the name and address, as they appear on the Corporation’s
books, of the stockholder proposing such business, (iii) the class and number of shares of the
Corporation which are beneficially owned by the stockholder and (iv) any material interest of the
stockholder in such business. Notwithstanding anything in these By-laws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the procedures set forth
in this section. The presiding officer of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the meeting and in
accordance with the provisions of this section; if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall not be transacted.
For purposes of this section, “public disclosure” shall mean disclosure in a Current Report
on Form 8-K (or any successor form) or in a press release reported by Dow Jones News Service,
Associated Press or a comparable national news service. Nothing in this section shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act.



     Section 13. Fixing a Record Date for Stockholder Meetings. 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, the Board of Directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which record date shall not be more than 60 nor less than 10 days before
the date of such meeting. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be
the close of business on the next day preceding the day on which notice is first given, or, if
notice is waived, at the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to vote at a meeting
of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.



     Section 14. Fixing a Record Date for Other Purposes. In order that the
Corporation may determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment or any rights or the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purposes of any other lawful
action, the Board of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted, and which record date shall be not
more than 60 days prior to such action. If no record date is fixed, the record date for
determining



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stockholders for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.



ARTICLE III




DIRECTORS




     Section 1. General Powers. The business and affairs of the Corporation shall
be managed by or under the direction of the Board of Directors. In addition to such powers as are
herein and in the Certificate of Incorporation expressly conferred upon it, the Board of Directors
shall have and may exercise all the powers of the Corporation, subject to the provisions of the
laws of Delaware, the Certificate of Incorporation and these By-laws.



     Section 2. Annual Meetings. The annual meeting of the Board of Directors
shall be held without other notice than this By-law immediately after, and at the same place as,
the annual meeting of stockholders.



     Section 3. Regular Meetings and Special Meetings. Regular meetings, other
than the annual meeting, of the Board of Directors may be held without notice at such time and at
such place as shall from time to time be determined by resolution of the Board of Directors.
Special meetings of the Board of Directors may be called by the chairman of the board, the
president (if the president is a director) or, upon the written request of at least a majority of
the directors then in office.



     Section 4. Notice of Meetings. Notice of regular meetings of the Board of
Directors need not be given except as otherwise required by law or these By-laws. Notice of each
special meeting of the Board of Directors, and of each regular and annual meeting of the Board of
Directors for which notice shall be required, shall be given by the secretary as hereinafter
provided in this Section 4, in which notice shall be stated the time and place of the meeting.
Except as otherwise required by these By-laws, such notice need not state the purposes of such
meeting. Notice of any special meeting, and of any regular or annual meeting for which notice is
required, shall be given to each director at least (a) 24 hours before the meeting if by telephone
or by being personally delivered or sent by telex, telecopy, email or similar means or (b) 5 days
before the meeting if delivered by mail to the director’s residence or usual place of business.
Such notice shall be deemed to be delivered when deposited in the United States mail so addressed,
with postage prepaid, or when transmitted if sent by telex, telecopy, email or similar means.
Neither the business to be transacted at, nor the purpose of, any special meeting of the Board of
Directors need be specified in the notice or waiver of notice of such meeting. Any director may
waive notice of any meeting by a writing signed by the director entitled to the notice and filed
with the minutes or corporate records.



     Section 5. Waiver of Notice and Presumption of Assent. Any member of the
Board of Directors or any committee thereof who is present at a meeting shall be conclusively
presumed to have waived notice of such meeting except when such member attends for the express
purpose of objecting at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Such member shall be conclusively presumed to



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have assented to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed with the person
acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by
registered mail to the secretary of the Corporation immediately after the adjournment of the
meeting. Such right to dissent shall not apply to any member who voted in favor of such action.



     Section 6. Chairman of the Board, Quorum, Required Vote and Adjournment. The
Board of Directors shall elect, by the affirmative vote of a majority of the total number of
directors then in office, a chairman of the board, who shall preside at all meetings of the
stockholders and Board of Directors at which he or she is present and shall have such powers and
perform such duties as the Board of Directors may from time to time prescribe. If the chairman of
the board is not present at a meeting of the stockholders or the Board of Directors, the president
(if the president is a director and is not also the chairman of the board) shall preside at such
meeting, and, if the president is not present at such meeting, a majority of the directors present
at such meeting shall elect one of their members to so preside. A majority of the total number of
directors then in office shall constitute a quorum for the transaction of business. Unless by
express provision of an applicable law, the Certificate of Incorporation or these By-laws a
different vote is required, the vote of a majority of directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a quorum shall be
present.



     Section 7. Committees. The Board of Directors (i) may, by resolution passed
by a majority of the entire Board of Directors, designate one or more committees, including an
executive committee, consisting of one or more of the directors of the Corporation, and (ii) shall
during such period of time as any securities of the Corporation are listed on NASDAQ, by resolution
passed by a majority of the entire Board of Directors, designate all committees required by the
rules and regulations of NASDAQ. The Board of Directors 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. Except to the extent restricted by applicable law or the Certificate of
Incorporation, each such committee, to the extent provided in the resolution creating it, shall
have and may exercise all the powers and authority of the Board of Directors. Each such committee
shall serve at the pleasure of the Board of Directors as may be determined from time to time by
resolution adopted by the Board of Directors or as required by the rules and regulations of NASDAQ,
if applicable. Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors upon request.



     Section 8. Committee Rules. Each committee of the Board of Directors may fix
its own rules of procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the Board of Directors designating such committee. Unless
otherwise provided in such a resolution, the presence of at least a majority of the members of the
committee shall be necessary to constitute a quorum. Unless otherwise provided in such a
resolution, in the event that a member and that member’s alternate, if alternates are designated by
the Board of Directors, of such committee is or are absent or disqualified, the member or members
thereof present at any meeting and not disqualified from voting, whether or



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not such member or members constitute a quorum, may unanimously appoint another member of the
Board of Directors to act at the meeting in place of any such absent or disqualified member.



     Section 9. Communications Equipment. Members of the Board of Directors or any
committee thereof may participate in and act at any meeting of such board or committee through the
use of a conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear and speak with each other, and participation in the meeting
pursuant to this section shall constitute presence in person at the meeting.



     Section 10. Action by Written Consent. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at any meeting of the
Board of Directors, or of any committee thereof, may be taken without a meeting if all members of
such board or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board or committee.



     Section 11. Compensation. The Board of Directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, of directors for services to
the Corporation in any capacity.



     Section 12. Reliance on Books and Records. A member of the Board of
Directors, or a member of any committee designated by the Board of Directors shall, in the
performance of such person’s duties, be fully protected in relying in good faith upon records of
the Corporation and upon such information, opinions, reports or statements presented to the
Corporation by any of the Corporation’s officers or employees, or committees of the Board of
Directors, or by any other person as to matters the member reasonably believes are within such
other person’s professional or expert competence and who has been selected with reasonable care by
or on behalf of the Corporation.



ARTICLE IV




OFFICERS




     Section 1. Number. The officers of the Corporation shall be elected by the
Board of Directors and shall consist of a chairman of the board, a chief executive officer, a
president, one or more vice-presidents, a secretary, a chief financial officer and such other
officers and assistant officers as may be deemed necessary or desirable by the Board of Directors.
Any number of offices may be held by the same person, except that neither the chief executive
officer nor the president shall also hold the office of secretary. In its discretion, the Board of
Directors may choose not to fill any office for any period as it may deem advisable, except that
the offices of president and secretary shall be filled as expeditiously as possible.



     Section 2. Election and Term of Office. The officers of the Corporation shall
be elected annually by the Board of Directors at its first meeting held after each annual meeting
of stockholders or as soon thereafter as convenient. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer shall hold office until
a



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successor is duly elected and qualified or until his or her earlier death, resignation or
removal as hereinafter provided.



     Section 3. Removal. Any officer or agent elected by the Board of Directors
may be removed by the Board of Directors at its discretion, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed.



     Section 4. Vacancies. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise may be filled by the Board of Directors.



     Section 5. Compensation. Compensation of all executive officers shall be
approved by the Board of Directors, and no officer shall be prevented from receiving such
compensation by virtue of his or her also being a director of the Corporation; provided
however, that compensation of some or all executive officers may be determined by a
committee established for that purpose if so authorized by the unanimous vote of the Board of
Directors or as required by applicable law or regulation, including any exchange or market upon
which the Corporation’s securities are then listed for trading or quotation.



     Section 6. Chairman of the Board. The chairman of the board shall preside at
all meetings of the stockholders and of the Board of Directors and shall have such other powers and
perform such other duties as may be prescribed to him or her by the Board of Directors or provided
in these By-laws.



     Section 7. Chief Executive Officer. The chief executive officer shall have
the powers and perform the duties incident to that position. Subject to the powers of the Board of
Directors and the chairman of the board, the chief executive officer shall be in the general and
active charge of the entire business and affairs of the Corporation, and shall be its chief policy
making officer. The chief executive officer shall have such other powers and perform such other
duties as may be prescribed by the Board of Directors or provided in these By-laws. The chief
executive officer is authorized to execute bonds, mortgages and other contracts requiring a seal,
under the seal of the Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation. Whenever the president is
unable to serve, by reason of sickness, absence or otherwise, the chief executive officer shall
perform all the duties and responsibilities and exercise all the powers of the president.



     Section 8. The President. The president of the Corporation shall, subject to
the powers of the Board of Directors, the chairman of the board and the chief executive officer,
have general charge of the business, affairs and property of the Corporation, and control over its
officers, agents and employees. The president shall see that all orders and resolutions of the
Board of Directors are carried into effect. The president is authorized to execute bonds,
mortgages and other contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation. The president shall have such other powers and perform such



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other duties as may be prescribed by the chairman of the board, the chief executive officer,
the Board of Directors or as may be provided in these By-laws.



     Section 9. Vice-Presidents. The vice-president, or if there shall be more
than one, the vice-presidents in the order determined by the Board of Directors or the chairman of
the board, shall, in the absence or disability of the president, act with all of the powers and be
subject to all the restrictions of the president. The vice-presidents shall also perform such
other duties and have such other powers as the Board of Directors, the chairman of the board, the
chief executive officer, the president or these By-laws may, from time to time, prescribe. The
vice-presidents may also be designated as executive vice-presidents or senior vice-presidents, as
the Board of Directors may from time to time prescribe.



     Section 10. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the Board of Directors (other than executive sessions thereof) and all
meetings of the stockholders and record all the proceedings of the meetings in a book or books to
be kept for that purpose or shall ensure that his or her designee attends each such meeting to act
in such capacity. Under the chairman of the board’s supervision, the secretary shall give, or
cause to be given, all notices required to be given by these By-laws or by law; shall have such
powers and perform such duties as the Board of Directors, the chairman of the board, the chief
executive officer, the president or these By-laws may, from time to time, prescribe; and shall have
custody of the corporate seal of the Corporation. The secretary, or an assistant secretary, shall
have authority to affix the corporate seal to any instrument requiring it and when so affixed, it
may be attested by his or her signature or by the signature of such assistant secretary. The Board
of Directors may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his or her signature. The assistant secretary, or if there be more
than one, any of the assistant secretaries, shall in the absence or disability of the secretary,
perform the duties and exercise the powers of the secretary and shall perform such other duties and
have such other powers as the Board of Directors, the chairman of the board, the chief executive
officer, the president, or secretary may, from time to time, prescribe.



     Section 11. The Chief Financial Officer. The chief financial officer shall
have the custody of the corporate funds and securities; shall keep full and accurate all books and
accounts of the Corporation as shall be necessary or desirable in accordance with applicable law or
generally accepted accounting principles; shall deposit all monies and other valuable effects in
the name and to the credit of the Corporation as may be ordered by the chairman of the board or the
Board of Directors; shall cause the funds of the Corporation to be disbursed when such
disbursements have been duly authorized, taking proper vouchers for such disbursements; and shall
render to the Board of Directors, at its regular meeting or when the Board of Directors so
requires, an account of the Corporation; shall have such powers and perform such duties as the
Board of Directors, the chairman of the board, the chief executive officer, the president or these
By-laws may, from time to time, prescribe.



     Section 12. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are provided for in these
By-laws, shall have such authority and perform such duties as may from time to time be prescribed
by resolution of the Board of Directors.



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     Section 13. Absence or Disability of Officers. In the case of the absence or
disability of any officer of the Corporation and of any person hereby authorized to act in such
officer’s place during such officer’s absence or disability, the Board of Directors may by
resolution delegate the powers and duties of such officer to any other officer or to any director,
or to any other person selected by it.



ARTICLE V




CERTIFICATES OF STOCK




     Section 1. Form. The shares of stock of the Corporation shall be represented
by certificates, provided that the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of stock of the Corporation shall be
uncertificated shares of stock. Notwithstanding the adoption of such a resolution by the Board of
Directors, every holder of stock represented by a certificate and, upon request, every holder of
uncertificated shares shall be entitled to have a certificate, signed by, or in the name of the
Corporation by the chairman of the board, the chief executive officer or the president and the
secretary or an assistant secretary of the Corporation, certifying the number of shares owned by
such holder in the Corporation. If such a certificate is countersigned (i) by a transfer agent or
an assistant transfer agent other than the Corporation or its employee or (ii) by a registrar,
other than the Corporation or its employee, the signature of any such chairman of the board, chief
executive officer, president, secretary or assistant secretary may be facsimiles. In case any
officer or officers who have signed, or whose facsimile signature or signatures have been used on,
any such certificate or certificates shall cease to be such officer or officers of the Corporation
whether because of death, resignation or otherwise before such certificate or certificates have
been delivered by the Corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be such officer or
officers of the Corporation. All certificates for shares shall be consecutively numbered or
otherwise identified. The name of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered on the books of the Corporation.
Shares of stock of the Corporation shall only be transferred on the books of the Corporation by the
holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to
the Corporation of the certificate or certificates for such shares endorsed by the appropriate
person or persons, with such evidence of the authenticity of such endorsement, transfer,
authorization and other matters as the Corporation may reasonably require, and accompanied by all
necessary stock transfer stamps. In that event, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate or certificates and
record the transaction on its books. The Board of Directors may appoint a bank or trust company
organized under the laws of the United States or any state thereof to act as its transfer agent or
registrar, or both in connection with the transfer of any class or series of securities of the
Corporation.



     Section 2. Lost Certificates. The Corporation may issue or direct a new
certificate or certificates to be issued in place of any certificate or certificates previously
issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an
affidavit of that



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fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Corporation may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate or certificates, or his or her legal representative, to give the Corporation
a bond sufficient to indemnify the Corporation against any claim that may be made against the
Corporation on account of the loss, theft or destruction of any such certificate or the issuance of
such new certificate.



     Section 3. Registered Stockholders. Prior to the surrender to the Corporation
of the certificate or certificates for a share or shares of stock with a request to record the
transfer of such share or shares, the Corporation may treat the registered owner as the person
entitled to receive dividends, to vote, to receive notifications and otherwise to exercise all the
rights and powers of an owner. The Corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof.



ARTICLE VI




GENERAL PROVISIONS




     Section 1. Dividends. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board
of Directors at any regular or special meeting, in accordance with applicable law. Dividends may
be paid in cash, in property or in shares of the capital stock, subject to the provisions of
applicable law and the Certificate of Incorporation. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of
the Corporation, or any other purpose and the directors may modify or abolish any such reserve in
the manner in which it was created.



     Section 2. Checks, Notes, Drafts, Etc. All checks, notes, drafts or other
orders for the payment of money of the Corporation shall be signed, endorsed or accepted in the
name of the Corporation by such officer, officers, person or persons as from time to time may be
designated by the Board of Directors or by an officer or officers authorized by the Board of
Directors to make such designation.



     Section 3. Contracts. In addition to the powers otherwise granted to officers
pursuant to ARTICLE IV hereof, the Board of Directors may authorize any officer or
officers, or any agent or agents, of the Corporation to enter into any contract or to execute and
deliver any instrument in the name of and on behalf of the Corporation, and such authority may be
general or confined to specific instances.



     Section 4. Loans. Subject to compliance with applicable law (including the
Sarbanes-Oxley Act of 2002, as amended), the Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the Corporation or of its



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subsidiaries, including any officer or employee who is a director of the Corporation or its
subsidiaries, whenever, in the judgment of the directors, such loan, guaranty or assistance may
reasonably be expected to benefit the Corporation. The loan, guaranty or other assistance may be
with or without interest, and may be unsecured, or secured in such manner as the Board of Directors
shall approve, including, without limitation, a pledge of shares of stock of the Corporation.
Nothing in this section shall be deemed to deny, limit or restrict the powers of guaranty or
warranty of the Corporation at common law or under any statute.



     Section 5. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.



     Section 6. Corporate Seal. The Board of Directors may provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the name of the
Corporation and the words “Corporate Seal, Delaware.” The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise. Notwithstanding the
foregoing, no seal shall be required by virtue of this Section.



     Section 7. Voting Securities Owned By Corporation. Voting securities in any
other Corporation held by the Corporation shall be voted by the chief executive officer, the
president or a vice-president, unless the Board of Directors specifically confers authority to vote
with respect thereto, which authority may be general or confined to specific instances, upon some
other person or officer. Any person authorized to vote securities shall have the power to appoint
proxies, with general power of substitution.



     Section 8. Inspection of Books and Records. The Board of Directors shall have
power from time to time to determine to what extent and at what times and places and under what
conditions and regulations the accounts and books of the Corporation, or any of them, shall be open
to the inspection of the stockholders; and no stockholder shall have any right to inspect any
account or book or document of the Corporation, except as conferred by the laws of the State of
Delaware, unless and until authorized so to do by resolution of the Board of Directors or of the
stockholders of the Corporation.



     Section 9. Section Headings. Section headings in these By-laws are for
convenience of reference only and shall not be given any substantive effect in limiting or
otherwise construing any provision herein.



     Section 10. Inconsistent Provisions. In the event that any provision of these
By-laws is or becomes inconsistent with any provision of the Certificate of Incorporation, the
General Corporation Law of the State of Delaware or any other applicable law, the provision of
these By-laws shall not be given any effect to the extent of such inconsistency but shall otherwise
be given full force and effect.



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ARTICLE VII




AMENDMENTS




     These By-laws may be amended, altered, changed or repealed or new By-laws adopted only in
accordance with Article Six of the Certificate of Incorporation.




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