**Exhibit3.2**

 

**CUBIC CORPORATION**

 

** * * * * * * * * *

 

**Amended and Restated**

 

**Bylaws**

 

** * * * * * * * * *

 

ARTICLE I

 

SPECIFICAND GENERAL PURPOSES

 

Thegeneral purpose of the Corporation is to engage in any lawful act or activityfor which Corporations may be organized under the General Corporation Law ofDelaware.

 

ARTICLE II

 

OFFICES

 

Section 1.  Registered Office.  The registered office shall be in the City ofWilmington, County of New Castle, State of Delaware.

 

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

 

ARTICLE III

 

MEETINGSOF STOCKHOLDERS

 

Section 1.  General. All meetings of the Stockholders shall be held at such place as may befixed from time to time by the Board of Directors.

 

Section 2.  Annual. Annual Meetings of Stockholders shall be held on such date and time asshall be designated from time to time by the Board of Directors and stated inthe Notice of the Meeting, at which the Stockholders shall elect by a pluralityvote a Board of Directors, and transact such other business as may properly bebrought before the meeting.

 

----

 

(a)                                  Notice.  Written Notice of the Annual Meeting, statingthe place, date and hour of the meeting, shall be given to each Stockholderentitled to vote at such meeting not less than 10 nor more than 60 days beforethe date of the meeting.

 

(b)                                 Notice byelectronic transmission.  Withoutlimiting the manner by which notice otherwise may be given effectively tostockholders pursuant to the DGCL, the certificate of incorporation or thesebylaws, any notice to stockholders given by the Corporation under any provisionof the DGCL, the certificate of incorporation or these bylaws shall beeffective if given by a form of electronic transmission consented to by thestockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written noticeto the Corporation.  Any such consentshall be deemed revoked if:

 

(i)                                     the Corporation is unable todeliver by electronic transmission two consecutive notices given by theCorporation in accordance with such consent; and

 

(ii)                                  such inabilitybecomes known to the secretary or an assistant secretary of the Corporation orto the transfer agent, or other person responsible for the giving of notice.

 

However,the inadvertent failure to treat such inability as a revocation shall notinvalidate any meeting or other action.

 

(c)                                  Any noticegiven pursuant to the preceding paragraph shall be deemed given:

 

(i)                                     if by facsimiletelecommunication, when directed to a number at which the stockholder hasconsented to receive notice;

 

(ii)                                  if by electronic mail, whendirected to an electronic mail address at which the stockholder has consentedto receive notice;

 

(iii)                               if by a posting on anelectronic network together with separate notice to the stockholder of suchspecific posting, upon the later of (A) such posting and (B) the givingof such separate notice; and

 

(iv)                              if by any other form ofelectronic transmission, when directed to the stockholder.

 

Anaffidavit of the secretary or an assistant secretary or of the transfer agentor other agent of the Corporation that the notice has been given by a form ofelectronic transmission shall, in the absence of fraud, be prima facie evidenceof the facts stated therein.

 

(d)                                 Definition ofelectronic transmission.  An “electronictransmission” means any form of communication, not directly involving thephysical transmission of paper, that creates a record that may be retained,retrieved and reviewed by a recipient thereof, and that may be directlyreproduced in paper form by such a recipient through an automated process.

 

2

----

 

(e)                                  List ofstockholders.  The Officer who has chargeof the stock ledger of the Corporation shall prepare and make, or cause to beprepared and made, at least 10 days before every meeting of Stockholders, acomplete list of the Stockholders entitled to vote at the meeting, arranged inalphabetical order, and showing the address of each Stockholder and the numberof shares registered in the name of each Stockholder.  Such list shall be open to the examination ofany Stockholder, for any purpose germane to the meeting, during ordinarybusiness hours, for a period of at least 10 days prior to the meeting, eitherat a place within the City where the meeting is to be held, which place shallbe specified in the Notice of the Meeting, or, if not so specified, at theplace where the meeting is to be held. The list shall also be produced and kept at the time and place of themeeting during the whole time thereof, and may be inspected by any Stockholderwho is present.

 

Section 3.  Special.

 

(a)                                  Purpose.  Special Meetings of the Stockholders of theCorporation, for any purpose or purposes, may be called at any time by theBoard of Directors, or by a committee of the Board of Directors which has beenduly designated by the Board of Directors and whose powers and authority, asprovided in a resolution of the Board of Directors or in the Bylaws of theCorporation, include the power to call such meetings, but such Special Meetingsmay not be called by any other person or persons.

 

(b)                                 Notice.  Written Notice of a Special Meeting, statingthe place, date and hour of the meeting and the purpose or purposes for whichthe meeting is called, shall be given not less than 10 nor more than 60 daysbefore the date of the meeting, to each Stockholder entitled to vote at suchmeeting.

 

(c)                                  Business.  Business transacted at any special meeting ofstockholders shall be limited to the purposes stated in the Notice.

 

Section 4.  Quorum; Adjournment.  The holders of a majority of the stock issuedand outstanding and entitled to vote thereat, present in person or representedby proxy, shall constitute a quorum at all meetings of the stockholders for thetransaction of business except as otherwise provided by statute or by theCertificate of Incorporation.  If,however, such quorum shall not be present or represented at any meeting of theStockholders, the Stockholders entitled to vote thereat, present in person orrepresented by proxy, shall have power to adjourn the meeting from time totime, without Notice, other than announcement at the meeting, until a quorumshall be present or represented. At such adjourned meeting at which a quorumshall be present or represented, any business may be transacted which mighthave been transacted at the meeting as originally notified.  If the adjournment is for more than 30 days,or if after the adjournment a new record date is fixed for the adjournedmeeting, a Notice of the adjourned meeting shall be given to each Stockholderof record entitled to vote at the meeting.

 

3

----

 

Section 5.  Majority vote.  When a quorum is present at any meeting, thevote of the holders of a majority of the stock having voting power, present inperson or represented by proxy, shall decide any question brought before suchmeeting, unless the question is one upon which, by express provision of thestatutes or of the Certificate of Incorporation, a different vote is required,in which case such express provision shall govern and control the decision ofsuch question.

 

Section 6.  Proxy. Unless otherwise provided in the Certificate of Incorporation, eachStockholder shall, at every meeting of the Stockholders, be entitled to onevote in person or by proxy for each share of the capital stock having votingpower held by such Stockholder, but no proxy shall be voted on after threeyears from its date, unless the proxy provides for a longer period.

 

Section 7.  Written consent.  Unless otherwise provided in the Certificateof Incorporation, any action required to be taken at any Annual or SpecialMeeting of Stockholders of the Corporation, or any action which may be taken atany Annual or Special Meeting of such Stockholders, may be taken without ameeting, without prior Notice and without a vote, if a consent in writing,setting forth the action so taken, shall be signed by the holders ofoutstanding stock having not less than the minimum number of votes that wouldbe necessary to authorize or take such action at a meeting at which all sharesentitled to vote thereon were present and voted.  Prompt Notice of the taking of the corporateaction without a meeting by less than unanimous written consent shall be givento those Stockholders who have not consented in writing.

 

Section 8.  Advance notice procedures for businessbrought before a meeting.

 

(a)                                  At an annual meeting of thestockholders, only such business shall be conducted as shall have been properlybrought before the meeting.  To beproperly brought before an annual meeting, business must be (i) broughtbefore the meeting by the Corporation and specified in the notice of meetinggiven by or at the direction of the Board, (ii) brought before the meetingby or at the direction of the Board, or (c) otherwise properly broughtbefore the meeting by a stockholder who (A) was a stockholder of record ofthe Corporation (and, with respect to any beneficial owner, if different, onwhose behalf such business is proposed, only if such beneficial owner was thebeneficial owner of shares of the Corporation) both at the time of giving thenotice provided for in this Section 8 and at the time of the meeting, (B) isentitled to vote at the meeting, and (C) has complied with all of thenotice procedures set forth in this Section 8 as to such business.  Except for proposals properly made inaccordance with Rule 14a-8 under the Securities Exchange Act of 1934, asamended (including such rules and regulations promulgated thereunder, the “ExchangeAct”), and included in the notice of meeting given by or at the directionof the Board, the foregoing clause (c) shall be the exclusive meansfor a stockholder to propose business to be brought before an annual meeting ofthe stockholders.  Stockholders shall notbe permitted to propose business to be brought before a special meeting of thestockholders, and the only matters that may be brought before a special meetingare the matters specified in the notice of meeting given by or at the directionof the person calling the meeting pursuant to Article III, 

 

4

----

 

Section 6of these Bylaws.  Stockholders seeking tonominate persons for election to the Board must comply with the noticeprocedures set forth in Article III, Section 9 of these Bylaws, andthis Section 8 shall not be applicable to nominations except as expresslyprovided in Article III, Section 9 of these Bylaws.

 

(b)                                 Without qualification, forbusiness to be properly brought before an annual meeting by a stockholder, thestockholder must (a) provide Timely Notice (as defined below) thereof inwriting and in proper form to the Secretary of the Corporation and (b) provideany updates or supplements to such notice at the times and in the formsrequired by this Section 8. To be timely, a stockholder’s notice must bedelivered to or mailed and received at the principal executive offices of theCorporation not less than ninety (90) days nor more than one hundred twenty(120) days prior to the first anniversary of the preceding year’s annualmeeting; *provided, however*, that in the eventthat the date of the annual meeting is more than thirty (30) days before ormore than sixty (60) days after such anniversary date, notice by thestockholder to be timely must be so delivered, or mailed and received, notearlier than the one hundred twentieth (120th) day prior to such annual meeting and not laterthan the ninetieth (90th) day prior tosuch annual meeting or, if later, the tenth (10th) day following the day on which public disclosureof the date of such annual meeting was first made (such notice within such timeperiods, “Timely Notice”).  In noevent shall any adjournment or postponement of an annual meeting or theannouncement thereof commence a new time period for the giving of Timely Noticeas described above.

 

(c)                                  To be in proper form forpurposes of this Section 8, a stockholder’s notice to the Secretarypursuant to this Section 8 shall be required to set forth:

 

(i)             As to each Proposing Person(as defined below), (A) the name and address of such Proposing Person(including, if applicable, the name and address that appear on the Corporation’sbooks and records) and (B) the class or series and number of shares of theCorporation that are, directly or indirectly, owned of record or beneficiallyowned (within the meaning of Rule 13d-3 under the Exchange Act) by suchProposing Person, except that such Proposing Person shall in all events bedeemed to beneficially own any shares of any class or series of the Corporationas to which such Proposing Person has a right to acquire beneficial ownershipat any time in the future (the disclosures to be made pursuant to the foregoingclauses (A) and (B) are referred to as “Stockholder Information”);

 

(ii)          As to each Proposing Person,(A) any derivative, swap or other transaction or series of transactionsengaged in, directly or indirectly, by such Proposing Person, the purpose oreffect of which is to give such Proposing Person economic risk similar toownership of shares of any class or series of the Corporation, including due tothe fact that the value of such derivative, swap or other transactions aredetermined by reference to the price, value or volatility of any shares of anyclass or series of the Corporation, or which derivative, swap or othertransactions provide, directly or indirectly, the opportunity to profit fromany increase in the price or value of shares of any 

 

5

----

 

class or series of theCorporation (“Synthetic Equity Interests”), which Synthetic EquityInterests shall be disclosed without regard to whether (x) the derivative,swap or other transactions convey any voting rights in such shares to suchProposing Person, (y) the derivative, swap or other transactions arerequired to be, or are capable of being, settled through delivery of suchshares or (z) such Proposing Person may have entered into othertransactions that hedge or mitigate the economic effect of such derivative,swap or other transactions, (B) any proxy (other than a revocable proxy orconsent given in response to a solicitation made pursuant to, and in accordancewith, Section 14(a) of the Exchange Act by way of a solicitationstatement filed on Schedule 14A), agreement, arrangement, understanding orrelationship pursuant to which such Proposing Person has or shares a right tovote any shares of any class or series of the Corporation, (C) anyagreement, arrangement, understanding or relationship, including any repurchaseor similar so-called “stock borrowing” agreement or arrangement, engaged in,directly or indirectly, by such Proposing Person, the purpose or effect ofwhich is to mitigate loss to, reduce the economic risk (of ownership orotherwise) of shares of any class or series of the Corporation by, manage therisk of share price changes for, or increase or decrease the voting power of,such Proposing Person with respect to the shares of any class or series of theCorporation, or which provides, directly or indirectly, the opportunity toprofit from any decrease in the price or value of the shares of any class orseries of the Corporation (“Short Interests”),****(D) anyrights to dividends on the shares of any class or series of the Corporationowned beneficially by such Proposing Person that are separated or separablefrom the underlying shares of the Corporation, (E) any performance relatedfees (other than an asset based fee) that such Proposing Person is entitled tobased on any increase or decrease in the price or value of shares of any classor series of the Corporation, or any Synthetic Equity Interests or Short Interests,if any, (F)(x) if such Proposing Person is not a natural person, theidentity of the natural person or persons associated with such Proposing Personresponsible for the formulation of and decision to propose the business to bebrought before the meeting (such person or persons, the “Responsible Person”),the manner in which such Responsible Person was selected, any fiduciary dutiesowed by such Responsible Person to the equity holders or other beneficiaries ofsuch Proposing Person, the qualifications and background of such ResponsiblePerson and any material interests or relationships of such Responsible Personthat are not shared generally by any other record or beneficial holder of theshares of any class or series of the Corporation and that reasonably could haveinfluenced the decision of such Proposing Person to propose such business to bebrought before the meeting, and (y) if such Proposing Person is a naturalperson, the qualifications and background of such natural person and anymaterial interests or relationships of such natural person that are not sharedgenerally by any other record or beneficial holder of the shares of any classor series of the Corporation and that reasonably could have influenced thedecision of such Proposing Person to propose such business to be brought 

 

6

----

 

before the meeting, (G) anysignificant equity interests or any Synthetic Equity Interests or ShortInterests in any principal competitor of the Corporation held by such ProposingPersons, (H) any direct or indirect interest of such Proposing Person inany contract with the Corporation, any affiliate of the Corporation or anyprincipal competitor of the Corporation (including, in any such case, anyemployment agreement, collective bargaining agreement or consulting agreement),(I) any pending or threatened litigation in which such Proposing Person isa party or material participant involving the Corporation or any of itsofficers or directors, or any affiliate of the Corporation, (J) anymaterial transaction occurring during the prior twelve months between suchProposing Person, on the one hand, and the Corporation, any affiliate of theCorporation or any principal competitor of the Corporation, on the other hand, (K) asummary of any material discussions regarding the business proposed to be****brought before the meeting (x) between or among any ofthe Proposing Persons or (y) between or among any Proposing Person and anyother record or beneficial holder of the shares of any class or series of theCorporation (including their names)****and (L) anyother information relating to such Proposing Person that would be required tobe disclosed in a proxy statement or other filing required to be made inconnection with solicitations of proxies or consents by such Proposing Personin support of the business proposed to be brought before the meeting pursuantto Section 14(a) of the Exchange Act (the disclosures to be madepursuant to the foregoing clauses (A) through (L) are referred to as “DisclosableInterests”); provided, however, that Disclosable Interests shall notinclude any such disclosures with respect to the ordinary course businessactivities of any broker, dealer, commercial bank, trust company or othernominee who is a Proposing Person solely as a result of being the stockholderdirected to prepare and submit the notice required by these bylaws on behalf ofa beneficial owner; and

 

(iii)       As to each item of businessthat the stockholder proposes to bring before the annual meeting, (A) areasonably brief description of the business desired to be brought before theannual meeting, the reasons for conducting such business at the annual meetingand any material interest in such business of each Proposing Person,(B) the text of the proposal or business (including the text of anyresolutions proposed for consideration and in the event that such businessincludes a proposal to amend the bylaws of the Corporation, the language of theproposed amendment) and (C) a reasonably detailed description of allagreements, arrangements and understandings between or among any of theProposing Persons or between or among any Proposing Person and any other personor entity (including their names) in connection with the proposal of suchbusiness by such stockholder.

 

7

----

 

(d)                                 For purposes of this Section 8,the term “Proposing Person”**shall mean (i) thestockholder providing the notice of business proposed to be brought before anannual meeting, (ii) the beneficial owner or beneficial owners, ifdifferent, on whose behalf the notice of the business proposed to be broughtbefore the annual meeting is made, (iii) any affiliate or associate (eachwithin the meaning of Rule 12b-2 under the Exchange Act for the purposesof these bylaws) of such stockholder or beneficial owner and (iv) anyother person with whom such stockholder or beneficial owner (or any of theirrespective affiliates or associates) is Acting in Concert (as defined below).

 

(e)                                  A person shall be deemed tobe “Acting in Concert” with another person for purposes of these bylawsif such person knowingly acts (whether or not pursuant to an express agreement,arrangement or understanding) in concert with, or towards a common goalrelating to the management, governance or control of the Corporation inparallel with, such other person where (A) each person is conscious of theother person’s conduct or intent and this awareness is an element in theirdecision-making processes and (B) at least one additional factor suggeststhat such persons intend to act in concert or in parallel, which suchadditional factors may include, without limitation, exchanging information(whether publicly or privately), attending meetings, conducting discussions, ormaking or soliciting invitations to act in concert or in parallel; *provided*, that a person shall not be deemed to be Acting inConcert with any other person solely as a result of the solicitation or receiptof revocable proxies or consents from such other person in response to asolicitation made pursuant to, and in accordance with, the Section 14(a) ofthe Exchange Act by way of a proxy or consent solicitation statement filed onSchedule 14A.  A person Acting in Concertwith another person shall be deemed to be Acting in Concert with any thirdparty who is also Acting in Concert with such other person.

 

(f)                                    A stockholder providingnotice of business proposed to be brought before an annual meeting shallfurther update and supplement such notice, if necessary, so that theinformation provided or required to be provided in such notice pursuant to thisSection 8 shall be true and correct as of the record date for the meetingand as of the date that is 10 business days prior to the meeting or anyadjournment or postponement thereof, and such update and supplement shall bedelivered to, or mailed and received by, the Secretary at the principalexecutive offices of the Corporation not later than five business days afterthe record date for the meeting (in the case of the update and supplementrequired to be made as of the record date), and not later than eight businessdays prior to the date for the meeting or, if practicable, any adjournment orpostponement thereof (and, if not practicable, on the first practicable dateprior to the date to which the meeting has been adjourned or postponed) (in thecase of the update and supplement required to be made as of ten business daysprior to the meeting or any adjournment or postponement thereof).

 

(g)                                 Notwithstanding anything inthese bylaws to the contrary, no business shall be conducted at an annualmeeting except in accordance with this Section 8.  The presiding officer of an annual meetingshall, if the facts warrant, determine that the business was not properlybrought before the meeting in accordance with this Section 2.4, and if heor she should so determine, he or she shall so declare to the meeting and anysuch business not properly brought before the meeting shall not be transacted.

 

8

----

 

(h)                                 This Section 8 isexpressly intended to apply to any business proposed to be brought before anannual meeting of stockholders, regardless of whether or not such proposal madepursuant to Rule 14a-8 under the Exchange Act.  In addition to the requirements of this Section 8with respect to any business proposed to be brought before an annual meeting,each Proposing Person shall comply with all applicable requirements of theExchange Act with respect to any such business. Nothing in this Section 8shall be deemed to affect the rights of stockholders to request inclusion ofproposals in the Corporation’s proxy statement pursuant to Rule 14a-8under the Exchange Act.

 

(i)                                     For purposes of thesebylaws, “public disclosure” shall mean disclosure in a press release reportedby a national news service or in a document publicly filed by the Corporationwith the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) ofthe Exchange Act.

 

Section 9.  Advance notice procedures for nominations ofdirectors.

 

(a)                                  Nominations of any personfor election to the Board at an annual meeting or at a special meeting (butonly if the election of directors is a matter specified in the notice ofmeeting given by or at the direction of the person calling such specialmeeting) may be made at such meeting only (i) by or at the direction ofthe Board, including by any committee or persons appointed by the Board, or (ii) bya stockholder who (A) was a stockholder of record of the Corporation (and,with respect to any beneficial owner, if different, on whose behalf suchnomination is proposed to be made, only if such beneficial owner was thebeneficial owner of shares of the Corporation) both at the time of giving thenotice provided for in this Section 9 and at the time of the meeting, (B) isentitled to vote at the meeting and (C) has complied with this Section 9as to such nomination.  The foregoingclause (b) shall be the exclusive means for a stockholder to make anynomination of a person or persons for election to the Board to be considered bythe stockholders at an annual meeting or special meeting.

 

(b)                                 Without qualification, for astockholder to make any nomination of a person or persons for election to theBoard at an annual meeting, the stockholder must (a) provide Timely Notice(as defined in Section 9 of these bylaws) thereof in writing and in properform to the Secretary of the Corporation and (b) provide any updates orsupplements to such notice at the times and in the forms required by thisSection 9.  Without qualification,if the election of directors is a matter specified in the notice of meetinggiven by or at the direction of the person calling such special meeting, thenfor a stockholder to make any nomination of a person or persons for election tothe Board at a special meeting, the stockholder must (a) provide timelynotice thereof in writing and in proper form to the Secretary of theCorporation at the principal executive offices of the Corporation and (b) provideany updates or supplements to such notice at the times and in the formsrequired by this Section 9.  To betimely, a stockholder’s notice for nominations to be made at a special meetingmust be delivered to, or mailed and received at, the principal executiveoffices of the Corporation not earlier than the one hundred twentieth (120th) day prior to such specialmeeting and not later than the ninetieth (90th) day prior to such special meeting or, if later,the tenth (10th) day followingthe day on which public disclosure (as defined in Section 8 of thesebylaws) of the date of such special meeting was first made.  In no event shall any adjournment orpostponement of an annual meeting or special meeting or the announcementthereof commence a new time period for the giving of a stockholder’s notice asdescribed above.

 

9

----

 

(c)                                  To be in proper form forpurposes of this Section 9, a stockholder’s notice to the Secretary shallset forth:

 

(i)                                     As to eachNominating Person (as defined below), the Stockholder Information (as definedin Section 8(c) of these bylaws) except that for purposes of this Section 9,the term “Nominating Person” shall be substituted for the term “ProposingPerson” in all places it appears in Section 8(c);

 

(ii)                                  As to each NominatingPerson, any Disclosable Interests (as defined in Section 8, except thatfor purposes of this Section 9 the term “Nominating Person” shall besubstituted for the term “Proposing Person” in all places it appears in Section 8and the disclosure in clause (L) of Section 8 shall be made withrespect to the election of directors at the meeting);

 

(iii)                               As to eachperson whom a Nominating Person proposes to nominate for election as adirector, (A) all information with respect to such proposed nominee thatwould be required to be set forth in a stockholder’s notice pursuant to this Section 9if such proposed nominee were a Nominating Person, (B) all informationrelating to such proposed nominee that is required to be disclosed in a proxystatement or other filings required to be made in connection with solicitationsof proxies for election of directors in a contested election pursuant to Section 14(a) underthe Exchange Act (including such proposed nominee’s written consent to beingnamed in the proxy statement as a nominee and to serving as a director ifelected), (C) a description of all direct and indirect compensation andother material monetary agreements, arrangements and understandings during thepast three years, and any other material relationships, between or among anyNominating Person, on the one hand, and each proposed nominee, his or herrespective affiliates and associates and any other persons with whom suchproposed nominee (or any of his or her respective affiliates and associates) isActing in Concert (as defined in Section 8 of these bylaws), on the otherhand, including, without limitation, all information that would be required tobe disclosed pursuant to Item 404 under Regulation S-K if such NominatingPerson were the “registrant” for purposes of such rule and the proposednominee were a director or executive officer of such registrant (thedisclosures to be made pursuant to the foregoing clauses (A) through (C) arereferred to as “Nominee Information”), and (D) a completed andsigned questionnaire, representation and agreement as provided in Section 9;and

 

10

----

 

(iv)  The Corporation may require any proposed nominee to furnish suchother information (A) as may reasonably be required by the Corporation todetermine the eligibility of such proposed nominee to serve as an independentdirector of the Corporation in accordance with the Corporation’s CorporateGovernance Guidelines or (B) that could be material to a reasonablestockholder’s understanding of the independence or lack of independence of suchproposed nominee.

 

(d)           Forpurposes of this Section 9, the term “Nominating Person”**shall mean (i) the stockholder providing the notice ofthe nomination proposed to be made at the meeting, (ii) the beneficialowner or beneficial owners, if different, on whose behalf the notice of thenomination proposed to be made at the meeting is made, (iii) any affiliateor associate of such stockholder or beneficial owner and (iv) any otherperson with whom such stockholder or such beneficial owner (or any of theirrespective affiliates or associates) is Acting in Concert.

 

(e)           Astockholder providing notice of any nomination proposed to be made at a meetingshall further update and supplement such notice, if necessary, so that theinformation provided or required to be provided in such notice pursuant to thisSection 9 shall be true and correct as of the record date for the meetingand as of the date that is 10 business days prior to the meeting or anyadjournment or postponement thereof, and such update and supplement shall bedelivered to, or mailed and received by, the Secretary at the principalexecutive offices of the Corporation not later than five business days afterthe record date for the meeting (in the case of the update and supplementrequired to be made as of the record date), and not later than eight businessdays prior to the date for the meeting or, if practicable, any adjournment orpostponement thereof (and, if not practicable, on the first practicable dateprior to the date to which the meeting has been adjourned or postponed) (in thecase of the update and supplement required to be made as of ten business daysprior to the meeting or any adjournment or postponement thereof).

 

(f)            Notwithstandinganything in these bylaws to the contrary, no person shall be eligible forelection as a director of the Corporation unless nominated in accordance withthis Section 9.  The presidingofficer at the meeting shall, if the facts warrant, determine that a nominationwas not properly made in accordance with this Section 9, and if he or sheshould so determine, he or she shall so declare such determination to themeeting and the defective nomination shall be disregarded.

 

(g)           Tobe eligible to be a nominee for election as a director of the Corporation, theproposed nominee must deliver (in accordance with the time periods prescribedfor delivery of notice under this Section 9) to the Secretary at theprincipal executive offices of the Corporation a written questionnaire withrespect to the background and qualification of such proposed nominee (whichquestionnaire shall be provided by the Secretary upon written request) and awritten representation and agreement (in form provided by the Secretary uponwritten request) that such proposed nominee (A) is not and will not becomea party to (x) any agreement, arrangement or understanding with, and hasnot given any commitment or assurance to, any person or entity as to how suchproposed nominee, if elected as a director of the Corporation, will act or voteon any issue or question (a “Voting Commitment”) that has not beendisclosed to the Corporation or (y) any Voting Commitment that could limitor interfere with such proposed nominee’s ability to comply, if elected as a 

 

11

----

 

directorof the Corporation, with such proposed nominee’s fiduciary duties underapplicable law, (B) is not, and will not become a party to, any agreement,arrangement or understanding with any person or entity other than theCorporation with respect to any direct or indirect compensation, reimbursementor indemnification in connection with service or action as a director that hasnot been disclosed to the Corporation and (C) in such proposed nominee’sindividual capacity and on behalf of the stockholder (or the beneficial owner,if different) on whose behalf the nomination is made, would be in compliance,if elected as a director of the Corporation, and will comply with applicablepublicly disclosed corporate governance, conflict of interest, confidentialityand stock ownership and trading policies and guidelines of the Corporation.

 

(h)           No person may be elected or appointed as a director ifsuch person is not a citizen of the United States and if such person has everpleaded guilty or no contest or been convicted of any state or federal crimeinvolving insider trading in securities or of any felony involving a financialcrime.

 

(i)            In addition to the requirements of this Section 9with respect to any nomination proposed to be made at a meeting, each ProposingPerson shall comply with all applicable requirements of the Exchange Act withrespect to any such nominations.

 

Section 10.  Record date. In order that the Corporation may determine the Stockholders entitled toNotice of or to vote at any meeting of Stockholders or any adjournment thereof,or to express consent to corporate action in writing without a meeting, orentitled to receive payment of any dividend or other distribution or allotmentof any rights, or entitled to exercise any rights in respect of any change,conversion or exchange of stock or for the purpose of any other lawful action,the Board of Directors may fix, in advance, a record date, which shall not bemore than 60 nor less than 10 days before the date of such meeting, nor morethan 60 days prior to any other action. A determination of Stockholders ofrecord entitled to Notice of or to vote at a meeting of Stockholders shallapply to any adjournment of the meeting; provided, however, that the Board ofDirectors may fix a new record date for the adjourned meeting.

 

ARTICLE IV

 

 DIRECTORS

 

Section 1.  Number. The number of Directors which shall constitute the whole Board shall befixed from time to time by resolution passed by the Board.  At least a majority of directors shall be “Independent”as defined by rules of the New York Stock Exchange.  The Directors shall be elected at the AnnualMeeting of the Stockholders, except as provided in Section 2 of thisArticle, and each Director elected shall hold office until his successor iselected and qualified.  Directors neednot be stockholders.

 

12

----

 

Section 2.  Vacancy. Vacancies and newly created Directorships resulting from any increase inthe authorized number of Directors may be filled by a majority of the Directorsthen in office, though less than a quorum, or by a sole remaining Director, andthe Directors so chosen shall hold office until the next annual election anduntil their successors are duly elected and shall qualify, unless soonerdisplaced. If there are no Directors in office, then an election of Directorsmay be held in the manner provided by statute. If, at the time of filling anyvacancy or any newly created Directorship, the Directors then in office shallconstitute less than a majority of the whole Board (as constituted immediatelyprior to any such increase), the Court of Chancery may, upon application of anyStockholder or Stockholders holding at least ten percent of the total number ofthe shares at the time outstanding having the right to vote for such Directors,summarily order an election to be held to fill any such vacancies or newlycreated Directorships, or to replace the Directors chosen by the Directors thenin office.

 

Section 3.  Powers. The business of the Corporation shall be managed under the direction ofits Board of Directors which may exercise all such powers of the Corporationand do all such lawful acts and things as are not by statute or by theCertificate of Incorporation or by these Bylaws directed or required to beexercised or done by the Officers or the Stockholders.

 

Section 4.  General. The Board of Directors of the Corporation may hold meetings, bothregular and special, either within or without the State of Delaware.

 

Section 5.  Time, date and place.  Regular meetings of the Board of Directorsmay be held at such time and date and place as shall from time to time bedetermined by the Board.

 

Section 6.  Special meetings.  Special meetings of the Board may be calledby the President on four hours notice to each Director, either personally or byelectronic mail; special meetings shall be called by the President or Secretaryin like manner and on like notice on the written request of two Directors.

 

Section 7.  Quorum. At all meetings of the Board, a majority of Directors then in officeshall constitute a quorum for the transaction of business and the act of amajority of the Directors present at any meeting at which there is a quorumshall be the act of the Board of Directors, except as may be otherwisespecifically provided by statute or by the Certificates of Incorporation. If aquorum shall not be present at any meeting of the Board of Directors, theDirectors present thereat may adjourn the meeting from time to time, withoutnotice other than announcement at the meeting, until a quorum shall be present.

 

Section 8.  Written consent.  Unless otherwise restricted by theCertificate of Incorporation or these Bylaws, any action required or permittedto be taken at any meeting of the Board of Directors or of any Committeethereof may be taken without a meeting, if all members of the Board orCommittee, as the case may be, consent thereto in writing, and the writing orwritings are filed with the Minutes of proceedings of the Board or Committee.

 

13

----

 

Section 9.  Telephonic participation.  Unless otherwise restricted by theCertificate of Incorporation or these Bylaws, members of the Board ofDirectors, or any Committee designated by the Board of Directors, mayparticipate in meetings by means of conference telephone or similarcommunications equipment by means of which all persons participating in themeeting can hear each other, and such participation in a meeting shallconstitute presence in person at the meeting.

 

Section 10.  Committees. The Board of Directors may, by resolution passed by a majority of thewhole Board, designate one or more Committees, each Committee to consist of oneor more of the Directors of the Corporation. The Board may designate three ormore Directors as alternate members of any Committee, who may replace anyabsent or disqualified member at any meeting of the Committee.

 

In the absence ordisqualification of a member of a Committee, the member or members thereofpresent at any meeting and not disqualified from voting, whether or not he orthey constitute a quorum, may unanimously appoint another member of the Boardof Directors to act at the meeting in the place of any such absent ordisqualified member.

 

Any such Committee, to theextent provided in the resolution of the Board of Directors, shall have and mayexercise all the powers and authority of the Board of Directors in themanagement of the business and affairs of the Corporation, and may authorizethe seal of the Corporation to be affixed to all papers which may require it;but no such Committee shall have the power or authority in reference toamending the Certificate of Incorporation, (except that a Committee may, to theextent authorized in the resolution or resolutions providing for the issuanceof shares of stock adopted by the Board of Directors as provided in Section 151(a) fixany of the preferences or rights of such shares relating to dividends,redemption, dissolution, any distribution of assets of the Corporation or theconversion into, or the exchange of such shares for, shares of any other classor classes or any other series of the same or any other class or classes ofstock of the Corporation) adopting an agreement of merger or consolidation,recommending to the Stockholders the sale, lease or exchange of all orsubstantially all of the Corporation’s property and assets, recommending to theStockholders a dissolution of the Corporation or a revocation of a dissolution,or amending the Bylaws of the Corporation; and, unless the resolution or theCertificate of Incorporation expressly so provide, no such Committee shall havethe power or authority to declare a dividend or to authorize the issuance ofstock or to adopt a certificate of ownership and merger. Such Committee orCommittees shall have such name or names as may be determined from time to timeby resolution adopted by the Board of Directors.

 

Section 11.  Compensation. Unless otherwise restricted by the Certificate of Incorporation or theseBylaws, the Board of Directors shall have the authority to fix the compensationof Directors. The Directors may be paid their expenses, if any, of attendanceat each meeting of the Board of Directors and may be paid a fixed sum forattendance at each meeting of the Board of Directors or a stated salary asDirector. No such payment shall preclude any Director from serving theCorporation in any other capacity and receiving compensation therefor. Membersof special or standing Committees may be allowed like compensation forattending Committee meetings.

 

14

----

 

Section 12.  Removal. Unless otherwise restricted by the Certificate of Incorporation or bylaw, any Director or the entire Board of Directors may be removed, with orwithout cause, by the holders of a majority of shares entitled to vote at anelection of Directors.

 

Section 13.  Waiver of Notice.  Whenever any Notice is required to be givenunder the provisions of the statutes or of the Certificate of Incorporation orof these Bylaws, a written waiver of notice signed by the person or persons entitledto said Notice, whether before or after the time stated therein, shall bedeemed equivalent to Notice.

 

ARTICLE V

 

OFFICERS

 

Section 1.  Titles. The Officers of the Corporation shall be chosen by the Board ofDirectors and shall include a President, a Vice President, a Secretary and aTreasurer. The Board may also appoint additional Vice Presidents, and one ormore Assistant Secretaries and Assistant Treasurers.  Any number of offices may be held by the sameperson, unless the Certificate of Incorporation or these Bylaws otherwiseprovide.

 

Section 2.  Removal and resignation of officers.  Subject to the rights, if any, of an officerunder any contract of employment, any officer may be removed, either with orwithout cause, by an affirmative vote of the majority of the Board at anyregular or special meeting of the Board or, except in the case of an officerchosen by the Board, by any officer upon whom such power of removal may beconferred by the Board.

 

Anyofficer may resign at any time by giving written notice to theCorporation.  Any resignation shall takeeffect at the date of the receipt of that notice or at any later time specifiedin that notice.  Unless otherwise specifiedin the notice of resignation, the acceptance of the resignation shall not benecessary to make it effective. Any resignation is without prejudice to therights, if any, of the Corporation under any contract to which the officer is aparty.

 

Section 3.  The President.  The President shall preside at all meetingsof the stockholders and the Board of Directors, shall have general and activemanagement of the business of the Corporation and shall see that all orders andresolutions of the Board of Directors are carried into effect.

 

Section 4.  Vice President.  In the absence of the President or in theevent of his inability or refusal to act, the Vice President (or in the eventthere be more than one Vice President, the Vice Presidents in the orderdesignated by the Directors, or in the absence of any designation, then in theorder of their election) shall perform the duties of the President, and when soacting, shall have all the powers of and be subject to all the restrictionsupon the President.  The Vice Presidentsshall perform such other duties and have such other powers as the Board ofDirectors may from time to time prescribe.

 

15

----

 

Section 5.  Secretary and Assistant Secretary.  The Secretary shall attend all meetings ofthe Board of Directors and all meetings of the Stockholders and record all theproceedings of the meetings of the Corporation and of the Board of Directors ina book to be kept for that purpose and shall perform like duties for thestanding Committees.  He shall give, orcause to be given, Notice of all meetings and shall perform such other dutiesas may be prescribed by the Board of Directors or President.  He shall have custody of the corporate sealof the Corporation and he, or an Assistant Secretary, shall have authority toaffix the seal to any instrument requiring it and when so affixed, it may beattested by his signature or by the signature of an Assistant Secretary.

 

The Assistant Secretary, orif there be more than one, the Assistant Secretaries in the order determined bythe Board of Directors (or if there be no such determination, then in the orderof their election) shall, in the absence of the Secretary or in the event ofhis inability or refusal to act, perform the duties and exercise the powers ofthe Secretary and shall perform such other duties and have such other powers asthe Board of Directors may from time to time prescribe.

 

Section 6.  Treasurer and Assistant Treasurer.  The Treasurer shall have the custody of thecorporate funds and securities and shall keep full and accurate accounts of receiptsand disbursements in books belonging to the Corporation and shall deposit allmoneys and other valuable effects in the name and to the credit of theCorporation in such depositories as may be designated by the Chief FinancialOfficer.  He shall disburse the funds ofthe Corporation as may be necessary or appropriate.

 

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 Treasurer or in the event of his inability or refusal to act, performthe duties and exercise the powers of the Treasurer and shall perform suchother duties and have such other powers as the Board of Directors may from timeto time prescribe.

 

ARTICLE VI

 

CERTIFICATESFOR SHARES

 

Section 1.  General. The shares of the Corporation shall be represented by certificates orshall be uncertificated. Certificates shall be signed by, or in the name of theCorporation by, the Chairman or Vice Chairman of the Board of Directors, or thePresident or a Vice President and the Treasurer or an Assistant Treasurer, orthe Secretary or an Assistant Secretary of the Corporation.  Upon the face or back of each stock certificateissued to represent any partly paid shares, or upon the books and records ofthe Corporation in the case of uncertificated partly paid shares, shall be setforth the total amount of the consideration to be paid therefor and the amountpaid thereon shall be stated.

 

16

----

 

Within a reasonable timeafter the issuance or transfer of uncertificated stock, the Corporation or itstransfer agent shall send to the registered owner thereof a written Notice containingthe information required to be set forth or stated on certificates pursuant toSections 151, 156, 202(a) or 218(a) or a statement that theCorporation will furnish without charge to each Stockholder who so requests thepowers, designations, preferences and relative participating, optional or otherspecial rights of each class of stock or series thereof and the qualifications,limitations or restrictions of such preferences and/or rights.

 

Section 2.  Signatures. Any of the signatures on a certificate may be facsimile.  In case any Officer, Transfer Agent orRegistrar who has signed or whose facsimile signature has been placed upon acertificate shall have ceased to be such Officer, Transfer Agent or Registrar beforesuch certificate is issued, it may be issued by the Corporation with the sameeffect as if he were such Officer, Transfer Agent or Registrar at the date ofissue.

 

Section 3.  Lost certificates.  The transfer agent may issue replacementcertificates upon the written direction of the Secretary.

 

Section 4.  Registered stockholders.  The Corporation shall be entitled torecognize the exclusive right of a person or entity registered on its books asthe owner of shares to receive dividends, and to vote as such owner.

 

ARTICLE VII

 

GENERALPROVISIONS

 

Section 1.  Dividends. Dividends upon the capital stock of the Corporation, subject to theprovisions of the Certificate of Incorporation, if any, may be declared by theBoard of Directors.  Dividends may bepaid in cash, in property, or in shares of its capital stock, subject to theprovisions of the Certificate of Incorporation.

 

Section 2.  Reserves. Before payment of any dividend, there may be set aside out of any fundsof the Corporation available for dividends such sum or sums as the Directors orthe financial officers from time to time, in their absolute discretion, thinkproper as a reserve or as a reserve to meet contingencies, or for repairing ormaintaining any property of the Corporation or with regard to contingentliabilities, or for such other purpose as the Directors shall think conduciveto the interest of the Corporation, and the Directors or financial officers maymodify or abolish any such reserve in the manner in which it was created.

 

17

----

 

Section 3.  Annual Statement.  The Board of Directors shall present at eachAnnual Meeting, and at any special meeting of the Stockholders when called forby vote of the Stockholders, a full and clear statement of the business andcondition of the Corporation.

 

Section 4.  Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of theBoard of Directors.

 

Section 5.  Seal. The corporate seal shall have inscribed thereon the name of theCorporation, 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, affixed, reproduced or otherwise.

 

ARTICLE VIII

 

INDEMNIFICATION

 

Section 1.  Indemnification of directors andofficers.  The Corporation shallindemnify and hold harmless, to the fullest extent permitted by the DGCL as itpresently exists or may hereafter be more liberally amended, any director orofficer of the Corporation who was or is made or is threatened to be made aparty or is otherwise involved in any action, suit or proceeding, whethercivil, criminal, administrative or investigative (a “Proceeding”) byreason of the fact that he or she, or a person for whom he or she is the legalrepresentative, is or was a director or officer of the Corporation or is or wasserving at the request of the Corporation as a director, officer, employee oragent of another corporation or of a partnership, joint venture, trust,enterprise or non-profit entity, including service with respect to employee benefitplans, against all liability and loss suffered and expenses (includingattorneys’ fees) reasonably incurred by such person in connection with any suchProceeding.  Notwithstanding thepreceding sentence, except as otherwise provided in Section 9.4, theCorporation shall be required to indemnify a person in connection with aProceeding initiated by such person only if the Proceeding was authorized inthe specific case by the Board.

 

Section 2.  Indemnification of others.  The Corporation shall have the power toindemnify and hold harmless, to the extent permitted by applicable law as itpresently exists or may hereafter be amended, any employee or agent of theCorporation who was or is made or is threatened to be made a party or isotherwise involved in any Proceeding by reason of the fact that he or she, or aperson for whom he or she is the legal representative, is or was an employee oragent of the Corporation or is or was serving at the request of the Corporationas a director, officer, employee or agent of another corporation or of apartnership, joint venture, trust, enterprise or non-profit entity, includingservice with respect to employee benefit plans, against all liability and losssuffered and expenses reasonably incurred by such person in connection with anysuch Proceeding.

 

18

----

 

Section 3. Prepayment of expenses.  TheCorporation shall to the fullest extent not prohibited by applicable law paythe expenses (including attorneys’ fees) incurred by any officer or director ofthe Corporation, and may pay the expenses incurred by any employee or agent ofthe Corporation, in defending any Proceeding in advance of its finaldisposition; *provided, however*, that, to theextent required by law, such payment of expenses in advance of the finaldisposition of the Proceeding shall be made only upon receipt of an undertakingby the person to repay all amounts advanced if it should be ultimatelydetermined that the person is not entitled to be indemnified under this Article VIIIor otherwise.

 

Section 4. Determination; Claim.  If a claimfor indemnification (following the final disposition of such Proceeding) oradvancement of expenses is not paid in full within 60 days after a writtenclaim therefor has been received by the Corporation the claimant may file suitto recover the unpaid amount of such claim and, if successful in whole or inpart, shall be entitled to be paid the expense of prosecuting such claim to thefullest extent permitted by law.  In anysuch action the Corporation shall have the burden of proving that the claimantwas not entitled to the requested indemnification or payment of expenses underapplicable law.

 

Section 5. Non-exclusivity of rights.  Therights conferred on any person by this Article shall not be exclusive ofany other rights which such person may have or hereafter acquire under anystatute, provision of the certificate of incorporation, these bylaws,agreement, vote of stockholders or disinterested directors or otherwise.

 

Section 6.  Insurance. The Corporation may purchase and maintain insurance on behalf of anyperson who is or was a director, officer, employee or agent of the Corporation,or is or was serving at the request of the Corporation as a director, officer,employee or agent of another corporation, partnership, joint venture, trustenterprise or non-profit entity against any liability asserted against him orher and incurred by him or her in any such capacity, or arising out of his orher status as such, whether or not the Corporation would have the power toindemnify him or her against such liability under the provisions of the DGCL.

 

Section 7. Other indemnification.  TheCorporation’s obligation, if any, to indemnify or advance expenses to anyperson who was or is serving at its request as a director, officer, employee oragent of another corporation, partnership, joint venture, trust, enterprise ornon-profit entity shall be reduced by any amount such person may collect asindemnification or advancement of expenses from such other corporation,partnership, joint venture, trust, enterprise or non-profit enterprise.

 

Section 8. Continuation of indemnification. The rights to indemnification and to prepayment of expenses provided by,or granted pursuant to, this Article IX shall continue notwithstandingthat the person has ceased to be a director or officer of the Corporation andshall inure to the benefit of the estate, heirs, executors, administrators,legatees and distributees of such person.

 

19

----

 

Section 9. Amendment or repeal.  Theprovisions of this Article shall constitute a contract between theCorporation, on the one hand, and, on the other hand, each individual whoserves or has served as a director or officer of the Corporation (whetherbefore or after the adoption of these bylaws), in consideration of such person’sperformance of such services, and pursuant to this Article the Corporationintends to be legally bound to each such current or former director or officerof the Corporation.  With respect tocurrent and former directors and officers of the Corporation, the rightsconferred under this Article are present contractual rights and suchrights are fully vested, and shall be deemed to have vested fully, immediatelyupon adoption of these bylaws.  Withrespect to any directors or officers of the Corporation who commence servicefollowing adoption of these bylaws, the rights conferred under this provisionshall be present contractual rights and such rights shall fully vest, and bedeemed to have vested fully, immediately upon such director or officercommencing service as a director or officer of the Corporation.  Any repeal or modification of the foregoingprovisions of this Article shall not adversely affect any right orprotection (i) hereunder of any person in respect of any act or omissionoccurring prior to the time of such repeal or modification or (ii) underany agreement providing for indemnification or advancement of expenses to anofficer or director of the Corporation in effect prior to the time of suchrepeal or modification.

 

ARTICLE IX

 

AMENDMENTS

 

TheseBylaws may be altered, amended or repealed or new Bylaws may be adopted by theStockholders or by the Board of Directors, when such power is conferred uponthe Board of Directors by the Certificate of Incorporation at any regularmeeting of the Stockholders or of the Board of Directors or at any specialmeeting of the Stockholders or of the Board of Directors if Notice of suchalteration, amendment, repeal or adoption of new Bylaws be contained in theNotice of such special meeting. If the power to adopt, amend or repeal Bylawsis conferred upon the Board of Directors by the Certificate of Incorporation,it shall not divest or limit the power of the Stockholders to adopt, amend orrepeal Bylaws, except to the extent provided in the Certificate ofIncorporation.

 

 
| Adopted December 7,  2010 |
|--------------------------------|
|                           |
| /s/ William L. Hoese           |   |
| William L. Hoese               |
| Corporate Secretary            |

 

20

----