Table of Contents     Section Page ARTICLE I         STOCKHOLDERS         Section 1.01 Annual Meetings  1 Section 1.02 Special Meetings  1 Section 1.03 Notice of Meetings; Waiver; Record Date  1 Section 1.04 Quorum  2 Section 1.05 Voting  2 Section 1.06 Voting by Ballot  3 Section 1.07 Adjournment  3 Section 1.08 Proxies  3 Section 1.09 Organization; Procedure  4 Section 1.10 Consent of Stockholders in Lieu of Meeting  4 Section 1.11 Conduct of Meetings  4 Section 1.12 Notice of Stockholder Business and Nominations  5      ARTICLE II         BOARD OF DIRECTORS         Section 2.01 General Powers  9 Section 2.02 Number and Term of Office  9 Section 2.03 Election of Directors  10 Section 2.04 Annual and Regular Meetings  10 Section 2.05 Special Meetings; Notice  10 Section 2.06 Quorum; Voting  10 Section 2.07 Adjournment  10 Section 2.08 Action Without a Meeting  11 Section 2.09 Regulations; Manner of Acting  11 Section 2.10 Action by Telephonic Communications  11 Section 2.11 Resignations  11 Section 2.12 Removal of Directors  11 Section 2.13 Vacancies and Newly Created Directorships  11 Section 2.14 Compensation  11 Section 2.15 Reliance on Accounts and Reports, etc  11      ARTICLE III         EXECUTIVE COMMITTEE AND OTHER COMMITTEES         Section 3.01 How Constituted  12 Section 3.02 Powers  12 Section 3.03 Proceedings  13 
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     Section Page Section 3.04 Quorum and Manner of Acting  13 Section 3.05 Action by Telephonic Communications  13 Section 3.06 Absent or Disqualified Members  13 Section 3.07 Resignations  14 Section 3.08 Removal  14 Section 3.09 Vacancies  14      ARTICLE IV          OFFICERS         Section 4.01 Number  14 Section 4.02 Election  14 Section 4.03 Salaries  14 Section 4.04 Removal and Resignation; Vacancies  14 Section 4.05 Authority and Duties of Officers  14 Section 4.06 The President  15 Section 4.07 The Vice President  15 Section 4.08 The Secretary  15 Section 4.09 The Treasurer  16 Section 4.10 Additional Officers  17 Section 4.11 Security  17      ARTICLE V         CAPITAL STOCK         Section 5.01 Certificates of Stock, Uncertificated Shares  17 Section 5.02 Signatures; Facsimile  17 Section 5.03 Lost, Stolen or Destroyed Certificates  17 Section 5.04 Transfer of Stock  18 Section 5.05 Record Dates  18 Section 5.06 Registered Stockholders  19 Section 5.07 Transfer Agent and Registrar  19      ARTICLE VI         INDEMNIFICATION         Section 6.01 Nature of Indemnity  19 Section 6.02 Successful Defense  20 Section 6.03 Determination That Indemnification Is Proper  20 Section 6.04 Advance Payment of Expenses  21 Section 6.05 Procedure for Indemnification of Directors and Officers  21 Section 6.06 Survival; Preservation of Other Rights  21 Section 6.07 Insurance  22 Section 6.08 Severability  22 
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     Section Page ARTICLE VII         OFFICES         Section 7.01 Registered Office  22 Section 7.02 Other Offices  22      ARTICLE VIII         GENERAL PROVISIONS         Section 8.01 Dividends  22 Section 8.02 Reserves  23 Section 8.03 Execution of Instruments  23 Section 8.04 Corporate Indebtedness  23 Section 8.05 Deposits  23 Section 8.06 Checks  24 Section 8.07 Sale Transfer, etc. of Securities  24 Section 8.08 Voting as Stockholder  24 Section 8.09 Fiscal Year  24 Section 8.10 Seal  24 Section 8.11 Books and Records; Inspection  24 Section 8.12 Emergency By-Laws  24 Section 8.13 Electronic Transmission  25      ARTICLE IX         AMENDMENT OF BY-LAWS         Section 9.01 Amendment  25      ARTICLE X         CONSTRUCTION         Section 10.01 Construction  26 
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SPECIALTY UNDERWRITERS’ ALLIANCE, INC.AMENDED AND RESTATED BY-LAWSDated as of August 5, 2008ARTICLE ISTOCKHOLDERS     Section 1.01 Annual Meetings. The annual meeting of the stockholders of theCorporation for the election of directors and for the transaction of such other business asproperly may come before such meeting shall be held at such place, either within or without theState of Delaware, or, within the sole discretion of the Board of Directors, by remote electroniccommunication technologies, and at such date and hour, as may be fixed from time to time byresolution of the Board of Directors and set forth in the notice or waiver of notice of themeeting.     Section 1.02 Special Meetings. Special meetings of the stockholders, for any purposeor purposes, may be called at any time by the President (or, in the event of his or her absence ordisability, by any Vice President), by a majority of the Board of Directors or by a majority of acommittee of the Board of Directors which has been duly designated by the Board of Directors andwhose powers and authority, as provided in a resolution of the Board of Directors or in theseBy-Laws, include the power to call such meetings. Special meetings of the stockholders of theCorporation may not be called by any other person or persons. Business transacted at any specialmeeting of the stockholders shall be limited to the purposes stated in the notice for such meeting.Such special meetings of the stockholders shall be held at such places, within or without theState of Delaware, or, within the sole discretion of the Board of Directors, by remote electroniccommunication technologies, as shall be specified in the respective notices or waivers of noticethereof.     Section 1.03 Notice of Meetings; Waiver; Record Date.     (a) Notice of Meetings.     (i) The Secretary or any Assistant Secretary shall cause written notice of theplace, if any, date and hour of each meeting of the stockholders, and the means ofremote communications, if any, by which stockholders and proxy holders may be deemedto be present in person and vote at such meeting, and, in the case of a specialmeeting, the purpose or purposes for which such meeting is called, to be givenpersonally or by mail, not less than ten nor more than sixty days prior to themeeting, to each stockholder of record entitled to vote at such meeting. If astockholder meeting is to be held via electronic communications and stockholderswill take action at such meeting, the notice of such meeting must: (i) specify themeans of remote communications, if any, by which stockholders and proxy holders maybe deemed to be present and vote at such meeting; and (ii) provide the informationrequired to access the stockholder list.
 

 
     (ii) For notice given by electronic transmission to a stockholder to beeffective, such stockholder must consent to the Corporation’s giving notice by thatparticular form of electronic transmission. A stockholder may revoke consent toreceive notice by electronic transmission by written notice to the Corporation. Astockholder’s consent to notice by electronic transmission is automatically revokedif the Corporation is unable to deliver two consecutive electronic transmissionnotices and such inability becomes known to the Secretary, Assistant Secretary, thetransfer agent or other person responsible for giving notice.     (iii) Notices are deemed given (i) if by mail, when deposited in the UnitedStates mail, postage prepaid, directed to the stockholder at his or her address asit appears on the record of stockholders of the Corporation, or, if he or she shallhave filed with the Secretary of the Corporation a written request that notices tohim or her be mailed to some other address, then directed to him or her at suchother address; (ii) if by facsimile, when faxed to a number where the stockholderhas consented to receive notice; (iii) if by electronic mail, when mailedelectronically to an electronic mail address at which the stockholder consented toreceive such notice; (iv) if by posting on an electronic network (such as a websiteor chatroom) together with a separate notice to the stockholder of such specificposting, upon the later to occur of (A) such posting or (B) the giving of theseparate notice of such posting; or (v) if by any other form of electroniccommunication, when directed to the stockholder in the manner consented to by thestockholder. Such further notice shall be given as may be required by law.     (b) Waiver. A written waiver of any notice of any annual or special meeting signed bythe person entitled thereto, or a waiver by electronic transmission by the person entitledto notice, shall be deemed equivalent to notice, whether provided before or after themeeting. Neither the business to be transacted at, nor the purpose of, any regular orspecial meeting of the stockholders need be specified in a waiver of notice. The attendanceof any stockholder at a meeting of stockholders shall constitute a waiver of notice of suchmeeting, except when the stockholder attends a meeting for the express purpose of objecting,at the beginning of the meeting, to the transaction of any business on the ground that themeeting is not lawfully called or convened.     Section 1.04 Quorum. Except as otherwise required by law or by the Certificate ofIncorporation or these By-Laws, the presence, in person or represented by proxy, of the holders ofa majority of the aggregate voting power of the stock issued and outstanding, entitled to vote at ameeting, shall constitute a quorum for the transaction of business at such meeting of thestockholders.     Section 1.05 Voting. If, pursuant to Section 5.05 of these By-Laws, a record date hasbeen fixed, every holder of record of shares entitled to vote at a meeting of stockholders shall beentitled to one vote for each share outstanding in his or her name on the books of the Corporationat the close of business on such record date. If no record date has been fixed, then every holderof record of shares entitled to vote at a meeting of stockholders shall be entitled to one vote foreach share of stock standing in his or her name on the books of the Corporation at the close ofbusiness on the day next preceding the day on which notice of the meeting is given, or, if notice
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is waived, at the close of business on the day next preceding the day on which the meeting isheld. Except as otherwise required by law or by the Certificate of Incorporation or by theseBy-Laws, the vote of a majority of the shares represented in person or by proxy at any meeting atwhich a quorum is present shall be sufficient for the transaction of any business at such meeting.     Section 1.06 Voting by Ballot. No vote of the stockholders need be taken by writtenballot, or by a ballot submitted by electronic transmission, unless otherwise required by law. Anyvote which need not be taken by written ballot, or by a ballot submitted by electronictransmission, may be conducted in any manner approved by the meeting.     Section 1.07 Adjournment. If a quorum is not present at any meeting of thestockholders, the stockholders present in person or by proxy shall have the power to adjourn anysuch meeting from time to time until a quorum is present. The presiding officer of any meetingshall also have the power to adjourn the meeting, whether or not a quorum is present. Notice ofany adjourned meeting of the stockholders of the Corporation need not be given if the place, ifany, date and hour thereof, and the means of remote communications, if any, by which stockholdersand proxy holders may be deemed to be present in person and vote at such meeting, are announced atthe meeting at which the adjournment is taken, provided, however, that if the adjournment is formore than thirty days, or if after the adjournment a new record date for the adjourned meeting isfixed pursuant to Section 5.05 of these By-Laws, a notice of the adjourned meeting, conforming tothe requirements of Section 1.03 of these By-Laws, shall be given to each stockholder of recordentitled to vote at such meeting. At any adjourned meeting at which a quorum is present, anybusiness may be transacted that might have been transacted on the original date of the meeting.     Section 1.08 Proxies. Any stockholder entitled to vote at any meeting of thestockholders or to express consent to or dissent from corporate action in writing without a meetingmay authorize another person or persons to vote at any such meeting and express such consent ordissent for him or her by proxy. A stockholder may authorize a valid proxy by executing a writteninstrument signed by such stockholder, or by causing his or her signature to be affixed to suchwriting by any reasonable means including, but not limited to, by facsimile signature, or bytransmitting or authorizing the transmission of a telegram, cablegram or other means of electronictransmission to the person designated as the holder of the proxy, a proxy solicitation firm or alike authorized agent. No such proxy shall be voted or acted upon after the expiration of threeyears from the date of such proxy, unless such proxy provides for a longer period. Every proxyshall be revocable at the pleasure of the stockholder executing it, except in those cases whereapplicable law provides that a proxy shall be irrevocable. A stockholder may revoke any proxywhich is not irrevocable by attending the meeting and voting in person or by filing an instrumentin writing revoking the proxy or by filing another duly executed proxy bearing a later date withthe Secretary. Proxies by telegram, cablegram, or other electronic transmission must either setforth or be submitted with information from which it can be determined that the telegram, cablegramor other electronic transmission was authorized by the stockholder. Any copy, facsimiletelecommunication or other reliable reproduction of a writing or transmission created pursuant tothis section may be substituted or used in lieu of the original writing or transmission for any andall purposes for which the original writing or transmission could be used, provided that such copy,facsimile telecommunication or other reproduction shall be a complete reproduction of the entireoriginal writing or transmission.
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     Section 1.09 Organization; Procedure. At every meeting of stockholders the presidingofficer shall be the President or, in the event of his or her absence or disability, a presidingofficer chosen by a majority of the Board of Directors. The Secretary, or in the event of his orher absence or disability, the Assistant Secretary, if any, or if there be no Assistant Secretary,in the absence of the Secretary, an appointee of the presiding officer, shall act as Secretary ofthe meeting. The order of business and all other matters of procedure at every meeting ofstockholders may be determined by such presiding officer.     Section 1.10 Consent of Stockholders in Lieu of Meeting. To the fullest extentpermitted by law, but subject to the provisions of Section 5.05(b), whenever the vote ofstockholders at a meeting thereof is required or permitted to be taken for or in connection withany corporate action, such action may be taken without a meeting, without prior notice and withouta vote of stockholders, if a consent or consents in writing, setting forth the action so taken,shall be signed by the holders of outstanding stock having not less than the minimum number ofvotes that would be necessary to authorize or take such action at a meeting at which all sharesentitled to vote thereon were present and voted (but not less than the minimum number of votesotherwise prescribed by law) and shall be delivered to the Corporation by delivery to itsregistered office in the State of Delaware, its principal place of business, or an officer or agentof the Corporation having custody of the book in which proceedings of meetings of stockholders arerecorded. Delivery made to the Corporation’s registered office shall be by hand or by certified orregistered mail, return receipt requested.     Every written consent shall bear the date of signature of each stockholder who signs theconsent and no written consent shall be effective to take the corporate action referred to thereinunless, within sixty days of the earliest dated consent delivered in the manner required by law tothe Corporation, written consents signed by a sufficient number of holders to take action aredelivered to the Corporation by delivery to its registered office in the State of Delaware, itsprincipal place of business, or an officer or agent of the Corporation having custody of the bookin which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’sregistered office shall be by hand or by certified or registered mail, return receipt requested.     Section 1.11 Conduct of Meetings. At each meeting of stockholders, the presidingofficer of the meeting shall fix and announce the date and time of the opening and the closing ofthe polls for each matter upon which the stockholders will vote at the meeting and shall determinethe order of business and all other matters of procedure. The Board of Directors may adopt byresolution such rules, regulations, and procedures for the conduct of the meeting of stockholdersas it shall deem appropriate. Except to the extent inconsistent with any such rules andregulations adopted by the Board of Directors, the presiding officer of the meeting shall have theright and authority to convene, to adjourn and to conclude the meeting and to establish rules,regulations, and procedures, which need not be in writing, for the conduct of the meeting and tomaintain order and safety. Without limiting the foregoing, he or she may:     (a) restrict attendance at any time to bona fide stockholders of record and theirproxies and other persons in attendance at the invitation of the presiding officer or Boardof Directors;
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     (b) place restrictions on entry to the meeting after the time fixed for thecommencement thereof;     (c) restrict dissemination of solicitation materials and use of audio or visualrecording devices at the meeting;     (d) adjourn the meeting without a vote of the stockholders, whether or not there is aquorum present; and     (e) make rules governing speeches and debate, including time limits and access tomicrophones.     The presiding officer of the meeting shall act in his or her absolute discretion and his orher rulings shall not be subject to appeal.     Section 1.12 Notice of Stockholder Business and Nominations.     (a) Annual Meetings of Stockholders.     (i) Nominations of persons for election to the Board of Directors and theproposal of other business to be considered by the stockholders may be made at anannual meeting of stockholders (a) pursuant to the Corporation’s notice of meeting(or any supplement thereto), (b) by or at the direction of the Board of Directors or(c) by any stockholder of the Corporation who (i) was a stockholder of record at thetime of giving of notice provided for in this By-Law and at the time of the annualmeeting, (ii) is entitled to vote at the meeting and (iii) complies with the noticeprocedures set forth in this By-Law as to such business or nomination; clause (c)shall be the exclusive means for a stockholder to make nominations or submit otherbusiness (other than matters properly brought under Rule 14a-8 under the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”) and included in theCorporation’s notice of meeting) before an annual meeting of stockholders.     (ii) Without qualification, for any nominations or any other business to beproperly brought before an annual meeting by a stockholder pursuant to Section1.12(a)(i)(c) of this By-Law, the stockholder must have given timely notice thereofin writing to the Secretary and such other business must otherwise be a propermatter for stockholder action. To be timely, a stockholder’s notice shall bedelivered to the Secretary at the principal executive offices of the Corporation notearlier than the close of business on the one-hundred twentieth day and not laterthan the close of business on the ninetieth day prior to the first anniversary ofthe preceding year’s annual meeting; provided, however, that (x) in the event thatthe date of the annual meeting is more than thirty days before or more than sixtydays after such anniversary date, notice by the stockholder to be timely must be sodelivered not earlier than the close of business on the one-hundred twentieth dayprior to the date of such annual meeting and not later than the close of business onthe later of the ninetieth day prior to the date of such annual meeting or, (y) ifthe first public announcement of the date of such annual
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meeting is less than one-hundred days prior to the date of such annual meeting,the 10th day following the day on which public announcement of the date of suchmeeting is first made by the Corporation. In no event shall any adjournment orpostponement of an annual meeting or the announcement thereof commence a new timeperiod for the giving of a stockholder’s notice as described above.     (iii) To be in proper form, a stockholder’s notice given pursuant to Section1.12(a)(ii) or 1.12(b) to the Secretary must:     (A) set forth, as to the stockholder giving the notice and thebeneficial owner, if any, on whose behalf the nomination or proposal is made(i) the name and address of such stockholder, as they appear on theCorporation’s books, and of such beneficial owner, if any, (ii) (A) theclass or series and number of shares of the Corporation which are, directlyor indirectly, owned beneficially and of record by such stockholder and suchbeneficial owner, (B) any option, warrant, convertible security, stockappreciation right, or similar right with an exercise or conversionprivilege or a settlement payment or mechanism at a price related to anyclass or series of shares of the Corporation or with a value derived inwhole or in part from the value of any class or series of shares of theCorporation, whether or not such instrument or right shall be subject tosettlement in the underlying class or series of capital stock of theCorporation or otherwise (a “Derivative Instrument”) directly or indirectlyowned beneficially by such stockholder and any other direct or indirectopportunity to profit or share in any profit derived from any increase ordecrease in the value of shares of the Corporation, (C) any proxy, contract,arrangement, understanding, or relationship pursuant to which suchstockholder has a right to vote any shares of any security of the Company,(D) any short interest in any security of the Company (for purposes of thisBy-Law a person shall be deemed to have a short interest in a security ifsuch person directly or indirectly, through any contract, arrangement,understanding, relationship or otherwise, has the opportunity to profit orshare in any profit derived from any decrease in the value of the subjectsecurity), (E) any rights to dividends on the shares of the Corporationowned beneficially by such stockholder that are separated or separable fromthe underlying shares of the Corporation, (F) any proportionate interest inshares of the Corporation or Derivative Instruments held, directly orindirectly, by a general or limited partnership in which such stockholder isa general partner or, directly or indirectly, beneficially owns an interestin a general partner and (G) any performance-related fees (other than anasset-based fee) that such stockholder is entitled to based on any increaseor decrease in the value of shares of the Corporation or DerivativeInstruments, if any, as of the date of such notice, including withoutlimitation any such interests held by members of such stockholder’simmediate family sharing the same household (which information shall besupplemented by such stockholder and beneficial owner, if any, not laterthan ten days after the record date for the meeting to disclose such
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ownership as of the record date), and (iii) any other informationrelating to such stockholder and beneficial owner, if any, that would berequired to be disclosed (x) in a proxy statement or other filings requiredto be made in connection with solicitations of proxies for, as applicable,the proposal and/or for the election of directors in a contested electionpursuant to Section 14 of the Exchange Act and the rules and regulationspromulgated thereunder and (y) if applicable, to any governmental authoritythat has direct or indirect supervision over the Corporation;     (B) if the notice relates to any business other than a nomination of adirector or directors that the stockholder proposes to bring before themeeting, set forth (i) a brief description of the business desired to bebrought before the meeting, the reasons for conducting such business at themeeting and any material interest of such stockholder and beneficial owner,if any, in such business and (ii) a description of all agreements,arrangements and understandings between such stockholder and beneficialowner, if any, and any other person or persons (including their names) inconnection with the proposal of such business by such stockholder;     (C) set forth, as to each person, if any, whom the stockholder proposesto nominate for election or reelection to the Board of Directors: (i) allinformation relating to such person that would be required to be disclosed(x) in a proxy statement or other filings required to be made in connectionwith solicitations of proxies for election of directors in a contestedelection pursuant to Section 14 of the Exchange Act and the rules andregulations promulgated thereunder (including such person’s written consentto being named in the proxy statement as a nominee and to serving as adirector if elected) and (y) if applicable, to any governmental authoritythat has direct or indirect supervision over the Corporation; and (ii) adescription of all direct and indirect compensation and other materialmonetary agreements, arrangements and understandings during the past threeyears, and any other material relationships, between or among suchstockholder and beneficial owner, if any, and their respective affiliatesand associates, or others acting in concert therewith, on the one hand, andeach proposed nominee, and his or her respective affiliates and associates,or others acting in concert therewith, on the other hand, including, withoutlimitation all information that would be required to be disclosed pursuantto Rule 404 promulgated under Regulation S-K if the stockholder making thenomination and any beneficial owner on whose behalf the nomination is made,if any, or any affiliate or associate thereof or person acting in concerttherewith, were the “registrant” for purposes of such rule and the nomineewere a director or executive officer of such registrant; and     (D) with respect to each nominee for election or reelection to theBoard of Directors, include a completed and signed questionnaire withrespect to the background and qualification of such person (whichquestionnaire shall be provided by the Secretary upon written request).
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The Corporation may require any proposed nominee to furnish such otherinformation as may reasonably be required by the Corporation to determinethe eligibility of such proposed nominee to serve as an independent directorof the Corporation or that could be material to a reasonable stockholder’sunderstanding of the independence, or lack thereof, of such nominee.     (iv) Notwithstanding anything in the second sentence of Section 1.12(a)(ii) tothe contrary, in the event that the number of directors to be elected to the Boardof Directors is increased and there is no public announcement by the Corporationnaming all of the nominees for director or specifying the size of the increasedBoard of Directors at least one-hundred days prior to the first anniversary of thepreceding year’s annual meeting, a stockholder’s notice required by this By-Lawshall also be considered timely, but only with respect to nominees for any newpositions created by such increase, if it shall be delivered to the Secretary at theprincipal executive offices of the Corporation not later than the close of businesson the tenth day following the day on which such public announcement is first madeby the Corporation.     (b) Special Meetings of Stockholders. Only such business shall be conducted at aspecial meeting of stockholders as shall have been brought before the meeting pursuant tothe Corporation’s notice of meeting. Nominations of persons for election to the Board ofDirectors may be made at a special meeting of stockholders at which directors are to beelected pursuant to the Corporation’s notice of meeting (a) by or at the direction of theBoard of Directors or (b) provided that the Board of Directors has determined that directorsshall be elected at such meeting, by any stockholder of the Corporation who (i) is astockholder of record at the time of giving of notice provided for in this By-Law and at thetime of the special meeting, (ii) is entitled to vote at the meeting, and (iii) complieswith the notice procedures set forth in this By-Law as to such nomination. In the event theCorporation calls a special meeting of stockholders for the purpose of electing one or moredirectors to the Board of Directors, any such stockholder may nominate a person or persons(as the case may be) for election to such position(s) as specified in the Corporation’snotice of meeting, if the stockholder’s notice required by Section 1.12(a)(ii) and (iii)with respect to any nomination shall be delivered to the Secretary at the principalexecutive offices of the Corporation not earlier than the close of business on theone-hundred twentieth day prior to the date of such special meeting and not later than theclose of business on the later of the ninetieth day prior to the date of such specialmeeting or, if the first public announcement of the date of such special meeting is lessthan one-hundred days prior to the date of such special meeting, the tenth day following theday on which public announcement is first made of the date of the special meeting and of thenominees proposed by the Board of Directors to be elected at such meeting. In no event shallany adjournment or postponement of a special meeting or the announcement thereof commence anew time period for the giving of a stockholder’s notice as described above.
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     (c) General.     (i) Only such persons who are nominated in accordance with the procedures setforth in this By-Law shall be eligible to serve as directors and only such businessshall be conducted at a meeting of stockholders as shall have been brought beforethe meeting in accordance with the procedures set forth in this By-Law. Except asotherwise provided by law, the Certificate of Incorporation or these By-Laws, thepresiding officer of the meeting shall have the power and duty to determine whethera nomination or any business proposed to be brought before the meeting was made orproposed, as the case may be, in accordance with the procedures set forth in thisBy-Law and, if any proposed nomination or business is not in compliance with thisBy-Law, to declare that such defective proposal or nomination shall be disregarded.     (ii) For purposes of this By-Law, “public announcement” shall mean disclosurein a press release reported by a national news service or in a document publiclyfiled by the Corporation with the Securities and Exchange Commission pursuant toSection 13, 14 or 15(d) of the Exchange Act and the rules and regulationspromulgated thereunder.     (iii) Notwithstanding the foregoing provisions of this By-Law, a stockholdershall also comply with all applicable requirements of the Exchange Act and the rulesand regulations thereunder with respect to the matters set forth in this By-Law;provided, however, that any references in these By-Laws to the Exchange Act or therules promulgated thereunder are not intended to and shall not limit therequirements applicable to nominations or proposals as to any other business to beconsidered pursuant to this Section 1.12(a)(i)(c) or 1.12(b) of this By-Law. Nothingin this By-Law shall be deemed to affect any rights (i) of stockholders to requestinclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8under the Exchange Act or (ii) of the holders of any series of Preferred Stock ifand to the extent provided for under law, the Certificate of Incorporation or theseBy-Laws.ARTICLE IIBOARD OF DIRECTORS     Section 2.01 General Powers. Except as may otherwise be provided by law, by theCertificate of Incorporation or by these By-Laws, the property, affairs and business of theCorporation shall be managed by or under the direction of the Board of Directors and the Board ofDirectors may exercise all the powers of the Corporation.     Section 2.02 Number and Term of Office. The number of Directors constituting theentire Board of Directors shall be seven, which number may be modified from time to time only byresolution of the Board of Directors, but in no event shall the number of Directors be less thanone. Each Director (whenever elected) shall hold office until his or her successor has been dulyelected and qualified, or until his or her earlier death, resignation or removal.
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     Section 2.03 Election of Directors. The Directors shall be elected at each annualmeeting of the stockholders. If the annual meeting for the election of Directors is not held onthe date designated therefor, the Directors shall cause the meeting to be held as soon thereafteras convenient. At each meeting of the stockholders for the election of Directors, provided aquorum is present, the Directors shall be elected by a plurality of the votes validly cast in suchelection.     Section 2.04 Annual and Regular Meetings. The annual meeting of the Board ofDirectors for the purpose of electing officers and for the transaction of such other business asmay come before the meeting shall be held as soon as possible following adjournment of the annualmeeting of the stockholders at the place of such annual meeting of the stockholders. Notice ofsuch annual meeting of the Board of Directors need not be given. The Board of Directors from timeto time may by resolution provide for the holding of regular meetings and fix the place (which maybe within or without the State of Delaware) and the date and hour of such meetings. Notice ofregular meetings need not be given, provided, however, that if the Board of Directors shall fix orchange the time or place of any regular meeting, notice of such action shall be mailed promptly, orsent by telegram, radio or cable, to each Director who shall not have been present at the meetingat which such action was taken, addressed to him or her at his or her usual place of business, orshall be delivered to him or her personally. Notice of such action need not be given to anyDirector who attends the first regular meeting after such action is taken without protesting thelack of notice to him or her, prior to or at the commencement of such meeting, or to any Directorwho submits a signed waiver of notice, whether before or after such meeting.     Section 2.05 Special Meetings; Notice. Special meetings of the Board of Directorsshall be held whenever called by the President or, in the event of his or her absence ordisability, by any Vice President, at such place (within or without the State of Delaware), dateand hour as may be specified in the respective notices or waivers of notice of such meetings.Special meetings of the Board of Directors may be called on twenty-four hours’ notice, if notice isgiven to each Director personally or by telephone or telegram, or on five days’ notice, if noticeis mailed to each Director, addressed to him or her at his or her usual place of business. Noticeof any special meeting need not be given to any Director who attends such meeting withoutprotesting the lack of notice to him or her, prior to or at the commencement of such meeting, or toany Director who submits a signed waiver of notice, whether before or after such meeting, and anybusiness may be transacted thereat.     Section 2.06 Quorum; Voting. At all meetings of the Board of Directors, the presenceof a majority of the total authorized number of Directors shall constitute a quorum for thetransaction of business. Except as otherwise required by law, the vote of a majority of theDirectors present at any meeting at which a quorum is present shall be the act of the Board ofDirectors.     Section 2.07 Adjournment. A majority of the Directors present, whether or not aquorum is present, may adjourn any meeting of the Board of Directors to another time or place. Nonotice need be given of any adjourned meeting unless the time and place of the adjourned meetingare not announced at the time of adjournment, in which case notice conforming to the requirementsof Section 2.05 of these By-Laws shall be given to each Director.
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     Section 2.08 Action Without a Meeting. Any action required or permitted to be takenat any meeting of the Board of Directors may be taken without a meeting if all members of the Boardof Directors consent thereto in writing or by electronic transmission, and such writing or writingsor electronic transmissions are filed with the minutes of proceedings of the Board of Directors.Such filing shall be in paper form if the minutes are maintained in paper form and shall be inelectronic form if the minutes are maintained in electronic form.     Section 2.09 Regulations; Manner of Acting. To the extent consistent with applicablelaw, the Certificate of Incorporation and these By-Laws, the Board of Directors may adopt suchrules and regulations for the conduct of meetings of the Board of Directors and for the managementof the property, affairs and business of the Corporation as the Board of Directors may deemappropriate. The Directors shall act only as a Board, and the individual Directors shall have nopower as such.     Section 2.10 Action by Telephonic Communications. Members of the Board of Directorsmay participate in a meeting of the Board of Directors by means of conference telephone or similarcommunications equipment by means of which all persons participating in the meeting can hear eachother, and participation in a meeting pursuant to this provision shall constitute presence inperson at such meeting.     Section 2.11 Resignations. Any Director may resign at any time by submitting anelectronic transmission or by delivering a written notice of resignation, signed by such Director,to the President or the Secretary. Unless otherwise specified therein, such resignation shall takeeffect upon delivery.     Section 2.12 Removal of Directors. Any Director may be removed at any time, eitherfor or without cause, by the affirmative vote of the holders of not less than a majority of thevoting power of all the shares of capital stock of the Corporation issued and outstanding andentitled to vote for the election of such Director. Any vacancy in the Board of Directors causedby any such removal may be filled in the manner provided in Section 2.13 of these By-Laws.     Section 2.13 Vacancies and Newly Created Directorships. If any vacancies shall occurin the Board of Directors, by reason of death, resignation, removal or otherwise, or if theauthorized number of Directors shall be increased, the Directors then in office shall continue toact, and such vacancies and newly created directorships may be filled only by a majority of theDirectors then in office, although less than a quorum. A Director elected to fill a vacancy or anewly created directorship shall hold office until his or her successor has been elected andqualified or until his or her earlier death, resignation or removal. If there are no Directors inoffice, or less than a majority of the whole Board of Directors, the vacancies may be filled in themanner provided by statute.     Section 2.14 Compensation. The amount, if any, which each Director shall be entitledto receive as compensation for his or her services as such shall be fixed from time to time byresolution of the Board of Directors.     Section 2.15 Reliance on Accounts and Reports, etc. A Director, or a member of anyCommittee designated by the Board of Directors shall, in the performance of his or her duties, be
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fully protected in relying in good faith upon the records of the Corporation and uponinformation, opinions, reports or statements presented to the Corporation by any of theCorporation’s officers or employees, or Committees designated by the Board of Directors, or by anyother person as to the matters the member reasonably believes are within such other person’sprofessional or expert competence and who has been selected with reasonable care by or on behalf ofthe Corporation.ARTICLE IIIEXECUTIVE COMMITTEE AND OTHER COMMITTEES     Section 3.01 How Constituted. The Board of Directors may designate one or moreCommittees, including an Executive Committee, each such Committee to consist of such number ofDirectors as from time to time may be fixed by the Board of Directors. The Board of Directors maydesignate one or more Directors as alternate members of any such Committee, who may replace anyabsent or disqualified member or members at any meeting of such Committee. Thereafter, members(and alternate members, if any) of each such Committee may be designated at the annual meeting ofthe Board of Directors. Any such Committee may be abolished or re-designated from time to time bythe Board of Directors. Each member (and each alternate member) of any such Committee (whetherdesignated at an annual meeting of the Board of Directors or to fill a vacancy or otherwise) shallhold office until his or her successor shall have been designated or until he or she shall cease tobe a Director, or until his or her earlier death, resignation or removal.     Section 3.02 Powers. During the intervals between the meetings of the Board ofDirectors, the Executive Committee, except as otherwise provided in this section, shall have andmay exercise all the powers and authority of the Board of Directors in the management of theproperty, affairs and business of the Corporation; provided, however, that theExecutive Committee shall not have the power and authority to declare dividends or to authorize theissuance of stock of the Corporation. Each such other Committee, except as otherwise provided inthis section, shall have and may exercise such powers of the Board of Directors as may be providedby resolution or resolutions of the Board of Directors. Neither the Executive Committee nor anysuch other Committee shall have the power or authority:     (a) to amend the Certificate of Incorporation;     (b) to adopt an agreement of merger or consolidation;     (c) to recommend to the stockholders the sale, lease or exchange of all orsubstantially all of the Corporation’s property and assets;     (d) to recommend to the stockholders a dissolution of the Corporation or a revocationof a dissolution;     (e) to amend the By-Laws of the Corporation;     (f) to remove any President, Vice President, Assistant Secretary or Assistant Treasurerof the Corporation;
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     (g) to authorize the borrowing of funds, other than under existing facilities, that ismaterial to the capital structure of the Corporation;     (h) to authorize any new compensation or benefit program;     (i) to appoint or discharge the Corporation’s independent public accountants;     (j) to authorize the annual operating plan, annual capital expenditure plan andstrategic plan; or     (k) to abolish or usurp the authority of the Board of Directors.          The Executive Committee shall have, and any such other Committee may be granted by the Boardof Directors, power to authorize the seal of the Corporation to be affixed to any or all paperswhich may require it.     Section 3.03 Proceedings. Each such Committee may fix its own rules of procedure andmay meet at such place (within or without the State of Delaware), at such time and upon suchnotice, if any, as it shall determine from time to time. Each such Committee shall keep minutes ofits proceedings and shall report such proceedings to the Board of Directors at the meeting of theBoard of Directors next following any such proceedings.     Section 3.04 Quorum and Manner of Acting. Except as may be otherwise provided in theresolution creating such Committee, at all meetings of any Committee the presence of members (oralternate members) constituting a majority of the total authorized membership of such Committeeshall constitute a quorum for the transaction of business. The act of the majority of the memberspresent at any meeting at which a quorum is present shall be the act of such Committee. Any actionrequired or permitted to be taken at any meeting of any such Committee may be taken without ameeting, if all members of such Committee shall consent to such action in writing or by electronictransmission, and such writing or writings or electronic transmission or transmissions are filedwith the minutes of the proceedings of the Committee. Such filing shall be in paper form if theminutes are maintained in paper form and shall be in electronic form if the minutes are maintainedin electronic form. The members of any such Committee shall act only as a Committee, and theindividual members of such Committee shall have no power as such.     Section 3.05 Action by Telephonic Communications. Members of any Committee designatedby the Board of Directors may participate in a meeting of such Committee by means of conferencetelephone or similar communications equipment by means of which all persons participating in themeeting can hear each other, and participation in a meeting pursuant to this provision shallconstitute presence in person at such meeting.     Section 3.06 Absent or Disqualified Members. In the absence or disqualification of amember of any Committee, the member or members thereof present at any meeting and not disqualifiedfrom voting, whether or not he, she or they constitute a quorum, may unanimously appoint anothermember of the Board of Directors to act at the meeting in the place of any such absent ordisqualified member.
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     Section 3.07 Resignations. Any member (and any alternate member) of any Committee mayresign at any time by delivering a written notice of resignation, signed by such member, to theChairman or the President. Unless otherwise specified therein, such resignation shall take effectupon delivery.     Section 3.08 Removal. Any member (and any alternate member) of any Committee may beremoved from his or her position as a member (or alternate member, as the case may be) of suchCommittee at any time, either for or without cause, by resolution adopted by a majority of thewhole Board of Directors.     Section 3.09 Vacancies. If any vacancy shall occur in any Committee, by reason ofdisqualification, death, resignation, removal or otherwise, the remaining members (and anyalternate members) shall continue to act, and any such vacancy may be filled by the Board ofDirectors.ARTICLE IVOFFICERS     Section 4.01 Number. The officers of the Corporation shall be chosen by the Board ofDirectors and shall be a President, one or more Vice Presidents, a Secretary and a Treasurer. TheBoard of Directors also may elect one or more Assistant Secretaries and Assistant Treasurers insuch numbers as the Board of Directors may determine. Any number of offices may be held by thesame person. No officer need be a Director of the Corporation.     Section 4.02 Election. Unless otherwise determined by the Board of Directors, theofficers of the Corporation shall be elected by the Board of Directors at the annual meeting of theBoard of Directors, and shall be elected to hold office until the next succeeding annual meeting ofthe Board of Directors. In the event of the failure to elect officers at such annual meeting,officers may be elected at any regular or special meeting of the Board of Directors. Each officershall hold office until his or her successor has been elected and qualified, or until his or herearlier death, resignation or removal.     Section 4.03 Salaries. The salaries of all officers and agents of the Corporationshall be fixed by the Board of Directors.     Section 4.04 Removal and Resignation; Vacancies. Any officer may be removed for orwithout cause at any time by the Board of Directors. Any officer may resign at any time bydelivering notice of resignation, either in writing signed by such officer or by electronictransmission, to the Board of Directors or the President. Unless otherwise specified therein, suchresignation shall take effect upon delivery. Any vacancy occurring in any office of theCorporation by death, resignation, removal or otherwise, shall be filled by the Board of Directors.     Section 4.05 Authority and Duties of Officers. The officers of the Corporation shallhave such authority and shall exercise such powers and perform such duties as may be specified inthese By-Laws, except that in any event each officer shall exercise such powers and perform suchduties as may be required by law.
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     Section 4.06 The President. The President shall preside at all meetings of thestockholders and directors at which he or she is present, shall be the chief executive officer andthe chief operating officer of the Corporation, shall have general control and supervision of thepolicies and operations of the Corporation and shall see that all orders and resolutions of theBoard of Directors are carried into effect. He or she shall manage and administer theCorporation’s business and affairs and shall also perform all duties and exercise all powersusually pertaining to the office of a chief executive officer and a chief operating officer of acorporation. He or she shall have the authority to sign, in the name and on behalf of theCorporation, checks, orders, contracts, leases, notes, drafts and other documents and instrumentsin connection with the business of the Corporation, and together with the Secretary or an AssistantSecretary, conveyances of real estate and other documents and instruments to which the seal of theCorporation is affixed. He or she shall have the authority to cause the employment or appointmentof such employees and agents of the Corporation as the conduct of the business of the Corporationmay require, to fix their compensation, and to remove or suspend any employee or agent elected orappointed by the President or the Board of Directors. The President shall perform such otherduties and have such other powers as the Board of Directors or the Chairman may from time to timeprescribe.     Section 4.07 The Vice President. Each Vice President shall perform such duties andexercise such powers as may be assigned to him or her from time to time by the President. In theabsence of the President, the duties of the President shall be performed and his or her powers maybe exercised by such Vice President as shall be designated by the President, or failing suchdesignation, such duties shall be performed and such powers may be exercised by each Vice Presidentin the order of their earliest election to that office; subject in any case to review andsuperseding action by the President.     Section 4.08 The Secretary. The Secretary shall have the following powers and duties:     (a) He or she shall keep or cause to be kept a record of all the proceedings of themeetings of the stockholders and of the Board of Directors in books provided for thatpurpose.     (b) He or she shall cause all notices to be duly given in accordance with theprovisions of these By-Laws and as required by law.     (c) Whenever any Committee shall be appointed pursuant to a resolution of the Board ofDirectors, he or she shall furnish a copy of such resolution to the members of suchCommittee.     (d) He or she shall be the custodian of the records and of the seal of the Corporationand cause such seal (or a facsimile thereof) to be affixed to all certificates representingshares of the Corporation prior to the issuance thereof and to all instruments the executionof which on behalf of the Corporation under its seal shall have been duly authorized inaccordance with these By-Laws, and when so affixed he or she may attest the same.
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     (e) He or she shall properly maintain and file all books, reports, statements,certificates and all other documents and records required by law, the Certificate ofIncorporation or these By-Laws.     (f) He or she shall have charge of the stock books and ledgers of the Corporation andshall cause the stock and transfer books to be kept in such manner as to show at any timethe number of shares of stock of the Corporation of each class issued and outstanding, thenames (alphabetically arranged) and the addresses of the holders of record of such shares,the number of shares held by each holder and the date as of which each became such holder ofrecord.     (g) He or she shall sign (unless the Treasurer, an Assistant Treasurer or an AssistantSecretary shall have signed) certificates representing shares of the Corporation theissuance of which shall have been authorized by the Board of Directors.     (h) He or she shall perform, in general, all duties incident to the office of secretaryand such other duties as may be specified in these By-Laws or as may be assigned to him orher from time to time by the Board of Directors, or the President.     Section 4.09 The Treasurer. The Treasurer shall be the chief financial officer of theCorporation and shall have the following powers and duties:     (a) He or she shall have charge and supervision over and be responsible for the moneys,securities, receipts and disbursements of the Corporation, and shall keep or cause to bekept full and accurate records of all receipts of the Corporation.     (b) He or she shall cause the moneys and other valuable effects of the Corporation tobe deposited in the name and to the credit of the Corporation in such banks or trustcompanies or with such bankers or other depositaries as shall be selected in accordance withSection 8.05 of these By-Laws.     (c) He or she shall cause the moneys of the Corporation to be disbursed by checks ordrafts (signed as provided in Section 8.06 of these By-Laws) upon the authorizeddepositaries of the Corporation and cause to be taken and preserved proper vouchers for allmoneys disbursed.     (d) He or she shall render to the Board of Directors or the President, wheneverrequested, a statement of the financial condition of the Corporation and of all his or hertransactions as Treasurer, and render a full financial report at the annual meeting of thestockholders, if called upon to do so.     (e) He or she shall be empowered from time to time to require from all officers oragents of the Corporation reports or statements giving such information as he or she maydesire with respect to any and all financial transactions of the Corporation.     (f) He or she may sign (unless an Assistant Treasurer or the Secretary or an AssistantSecretary shall have signed) certificates representing stock of the Corporation the issuanceof which shall have been authorized by the Board of Directors.
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     (g) He or she shall perform, in general, all duties incident to the office of treasurerand such other duties as may be specified in these By-Laws or as may be assigned to him orher from time to time by the Board of Directors, or the President.     Section 4.10 Additional Officers. The Board of Directors may appoint such otherofficers and agents as it may deem appropriate, and such other officers and agents shall hold theiroffices for such terms and shall exercise such powers and perform such duties as may be determinedfrom time to time by the Board of Directors. The Board of Directors from time to time may delegateto any officer or agent the power to appoint subordinate officers or agents and to prescribe theirrespective rights, terms of office, authorities and duties. Any such officer or agent may removeany such subordinate officer or agent appointed by him or her, for or without cause.     Section 4.11 Security. The Board of Directors may require any officer, agent oremployee of the Corporation to provide security for the faithful performance of his or her duties,in such amount and of such character as may be determined from time to time by the Board ofDirectors.ARTICLE VCAPITAL STOCK     Section 5.01 Certificates of Stock, Uncertificated Shares. The shares of theCorporation shall be represented by certificates, provided that the Board of Directors may provideby resolution or resolutions that some or all of any or all classes or series of the stock of theCorporation shall be uncertificated shares. Any such resolution shall not apply to sharesrepresented by a certificate until each certificate is surrendered to the Corporation.Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stockin the Corporation represented by certificates and upon request every holder of uncertificatedshares shall be entitled to have a certificate signed by, or in the name of the Corporation, by thePresident or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary oran Assistant Secretary, representing the number of shares registered in certificate form. Suchcertificate shall be in such form as the Board of Directors may determine, to the extent consistentwith applicable law, the Certificate of Incorporation and these By-Laws.     Section 5.02 Signatures; Facsimile. All signatures on the certificate referred to inSection 5.01 of these By-Laws may be in facsimile, engraved or printed form, to the extentpermitted by law. In case any officer, transfer agent or registrar who has signed, or whosefacsimile, engraved or printed signature has been placed upon a certificate shall have ceased to besuch officer, transfer agent or registrar before such certificate is issued, it may be issued bythe Corporation with the same effect as if he or she were such officer, transfer agent or registrarat the date of issue.     Section 5.03 Lost, Stolen or Destroyed Certificates. The Board of Directors maydirect that a new certificate be issued in place of any certificate theretofore issued by theCorporation alleged to have been lost, stolen or destroyed, upon delivery to the Board of Directorsof an affidavit of the owner or owners of such certificate, setting forth such allegation. TheBoard of
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Directors may require the owner of such lost, stolen or destroyed certificate, or his or herlegal representative, to give the Corporation a bond sufficient to indemnify it against any claimthat may be made against it on account of the alleged loss, theft or destruction of any suchcertificate or the issuance of any such new certificate.     Section 5.04 Transfer of Stock. Upon surrender to the Corporation or the transferagent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriateevidence of succession, assignment or authority to transfer, the Corporation shall issue a newcertificate to the person entitled thereto, cancel the old certificate and record the transactionupon its books. Within a reasonable time after the transfer of uncertificated stock, theCorporation shall send to the registered owner thereof a written notice containing the informationrequired to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)of the General Corporation Law of the State of Delaware. Subject to the provisions of theCertificate of Incorporation and these By-Laws, the Board of Directors may prescribe suchadditional rules and regulations as it may deem appropriate relating to the issue, transfer andregistration of shares of the Corporation.     Section 5.05 Record Dates.     (a) Meetings. In order that the Corporation may determine the stockholders entitled tonotice of or to vote at any meeting of stockholders or any adjournment thereof, the Board ofDirectors may fix a record date, which record date shall not precede the date upon which theresolution fixing the record date is adopted by the Board of Directors, and which recorddate shall not be more than sixty or fewer than ten days before the date of such meeting.If no record date is fixed by the Board of Directors, the record date for determiningstockholders entitled to notice of or to vote at any meeting of stockholders or anyadjournment thereof shall be at the close of business on the day next preceding the day onwhich notice is given, or, if notice is waived, at the close of business on the day nextpreceding the day on which the meeting is held.     (b) Written Consents. In order that the Corporation may determine the stockholdersentitled to consent to corporate action in writing without a meeting, the Board of Directorsmay fix a record date, which record date shall not precede the date upon which theresolution fixing the record date is adopted by the Board of Directors, and which date shallnot be more than ten days after the date upon which the resolution fixing the record date isadopted by the Board of Directors. Any stockholder of record seeking to have thestockholders authorize or take corporate action by written consent shall, by written noticeto the Secretary, request the Board of Directors to fix a record date. The Board ofDirectors shall promptly, but in all events within ten days after the date on which such arequest is received, adopt a resolution fixing the record date. If no record date has beenfixed by the Board of Directors within ten days of the determining stockholders entitled toconsent to corporate action in writing without a meeting, when no prior action by the Boardof Directors is required by applicable law, shall be the first date on which a signedwritten consent setting forth the action taken or proposed to be taken is delivered to theCorporation by delivery to its registered office in the State of Delaware, its principalplace of business, or an officer or agent of the Corporation having custody of the book inwhich proceedings of stockholders meetings are recorded, to the attention of
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the Secretary of the Corporation. Delivery shall be by hand or by certified orregistered mail, return receipt requested. If no record date has been fixed by the Board ofDirectors and prior action by the Board of Directors is required by applicable law, therecord date for determining stockholders entitled to consent to corporate action in writingwithout a meeting shall be at the close of business on the date on which the Board ofDirectors adopts the resolution taking such prior action.     (c) Distributions and Other Actions. In order that the Corporation maydetermine the stockholders entitled to receive payment of any dividend or other distributionor allotment of any rights of the stockholders entitled to exercise any rights in respect ofany change, conversion or exchange of stock, or for the purpose of any other lawful action,the Board of Directors may fix a record date, which record date shall not precede the dateupon which the resolution fixing the record date is adopted, and which record date shall benot more than sixty days prior to such action. If no record date is fixed, the record datefor determining stockholders for any such purpose shall be at the close of business on theday on which the Board of Directors adopts the resolution relating thereto.     Section 5.06 Registered Stockholders. Prior to due surrender of a certificate forregistration of transfer, the Corporation may treat the registered owner as the person exclusivelyentitled to receive dividends and other distributions, to vote, to receive notice and otherwise toexercise all the rights and powers of the owner of the shares represented by such certificate, andthe Corporation shall not be bound to recognize any equitable or legal claim to or interest in suchshares on the part of any other person, whether or not the Corporation shall have notice of suchclaim or interests. Whenever any transfer of shares shall be made for collateral security, and notabsolutely, it shall be so expressed in the entry of the transfer if, when the certificates arepresented to the Corporation for transfer or uncertificated shares are requested to be transferred,both the transferor and transferee request the Corporation to do so.     Section 5.07 Transfer Agent and Registrar. The Board of Directors may appoint one ormore transfer agents and one or more registrars, and may require all certificates representingshares to bear the signature of any such transfer agents or registrars.ARTICLE VIINDEMNIFICATION     Section 6.01 Nature of Indemnity. The Corporation shall indemnify any person who wasor is a party or is threatened to be made a party to any threatened, pending or completed action,suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the factthat he or she is or was or has agreed to become a director or officer of the Corporation, or is orwas serving or has agreed to serve at the request of the Corporation as a director or officer, ofanother corporation, partnership, joint venture, trust or other enterprise, or by reason of anyaction alleged to have been taken or omitted in such capacity, and may indemnify any person who wasor is a party or is threatened to be made a party to such an action, suit or proceeding by reasonof the fact that he or she is or was or has agreed to become an employee or agent of theCorporation, or is or was serving or has agreed to serve at the request of the
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Corporation as an employee or agent of another corporation, partnership, joint venture, trustor other enterprise, against expenses (including attorneys’ fees), judgments, fines and amountspaid in settlement actually and reasonably incurred by him or her or on his or her behalf inconnection with such action, suit or proceeding and any appeal therefrom, if he or she acted ingood faith and in a manner he or she reasonably believed to be in or not opposed to the bestinterests of the Corporation, and, with respect to any criminal action or proceeding had noreasonable cause to believe his or her conduct was unlawful; except that in the case of an actionor suit by or in the right of the Corporation to procure a judgment in its favor (1) suchindemnification shall be limited to expenses (including attorneys’ fees) actually and reasonablyincurred by such person in the defense or settlement of such action or suit, and (2) noindemnification shall be made in respect of any claim, issue or matter as to which such personshall have been adjudged to be liable to the Corporation unless and only to the extent that theDelaware Court of Chancery or the court in which such action or suit was brought shall determineupon application that, despite the adjudication of liability but in view of all the circumstancesof the case, such person is fairly and reasonably entitled to indemnity for such expenses which theDelaware Court of Chancery or such other court shall deem proper.     The termination of any action, suit or proceeding by judgment, order, settlement, conviction,or upon a plea of nolocontendere or its equivalent, shall not, of itself, create apresumption that the person did not act in good faith and in a manner which he or she reasonablybelieved to be in or not opposed to the best interests of the Corporation, and, with respect to anycriminal action or proceeding, had reasonable cause to believe that his or her conduct wasunlawful.     Section 6.02 Successful Defense. To the extent that a present or former director,officer, employee or agent of the Corporation has been successful on the merits or otherwise indefense of any action, suit or proceeding referred to in Section 6.01 of these By-Laws or indefense of any claim, issue or matter therein, he or she shall be indemnified against expenses(including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith.     Section 6.03 Determination That Indemnification Is Proper. Any indemnification of apresent or former director or officer of the Corporation under Section 6.01 of these By-Laws(unless ordered by a court) shall be made by the Corporation only upon a determination thatindemnification of such person is proper in the circumstances because such person has met theapplicable standard of conduct set forth in Section 6.01 of these By-Laws. Any indemnification ofa present or former employee or agent of the Corporation under Section 6.01 of these By-Laws(unless ordered by a court) may be made by the Corporation upon a determination thatindemnification of the employee or agent is proper in the circumstances because he or she has metthe applicable standard of conduct set forth in Section 6.01 of these By-Laws. Any suchdetermination shall be made, with respect to a person who is a director or officer at the time ofsuch determination (1) by a majority vote of the Directors who are not parties to such action, suitor proceeding, even though less than a quorum, or (2) by a committee of such directors designatedby majority vote of such directors, even though less than a quorum, or (3) if there are no suchdirectors, or if such directors so direct, by independent legal counsel in a written opinion, or(4) by the stockholders.
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     Section 6.04 Advance Payment of Expenses. Expenses (including attorneys’ fees)incurred by a present director or officer in defending any civil, criminal, administrative orinvestigative action, suit or proceeding shall be paid by the Corporation in advance of the finaldisposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf ofthe director or officer to repay such amount if it shall ultimately be determined that he or she isnot entitled to be indemnified by the Corporation as authorized in this Article. Such expenses(including attorneys’ fees) incurred by former directors and officers or other employees and agentsmay be so paid upon such terms and conditions, if any, as the Corporation deems appropriate. TheCorporation, or in respect of a present director or officer the Board of Directors, may authorizethe Corporation’s counsel to represent such present or former director, officer, employee or agentin any action, suit or proceeding, whether or not the Corporation is a party to such action, suitor proceeding.     Section 6.05 Procedure for Indemnification of Directors and Officers. Anyindemnification of a director, officer, employee or agent of the Corporation under Sections 6.01and 6.02 of these By-Laws, or advance of costs, charges and expenses to such person under Section6.04 of these By-Laws, shall be made promptly, and in any event within thirty days, upon thewritten request of such person. If a determination by the Corporation that such person is entitledto indemnification pursuant to this Article is required, and the Corporation fails to respondwithin sixty days to a written request for indemnity, the Corporation shall be deemed to haveapproved such request. If the Corporation denies a written request for indemnity or advancement ofexpenses, in whole or in part, or if payment in full pursuant to such request is not made withinthirty days, the right to indemnification or advances as granted by this Article shall beenforceable by such person in any court of competent jurisdiction. Such person’s costs andexpenses incurred in connection with successfully establishing his or her right to indemnification,in whole or in part, in any such action shall also be indemnified by the Corporation. It shall bea defense to any such action (other than an action brought to enforce a claim for the advance ofcosts, charges and expenses under Section 6.04 of these By-Laws where the required undertaking, ifany, has been received by or tendered to the Corporation) that the claimant has not met thestandard of conduct set forth in Section 6.01 of these By-Laws, but the burden of proving suchdefense shall be on the Corporation. Neither the failure of the Corporation (including its Boardof Directors or any committee thereof, its independent legal counsel, and its stockholders) to havemade a determination prior to the commencement of such action that indemnification of the claimantis proper in the circumstances because he or she has met the applicable standard of conduct setforth in Section 6.01 of these By-Laws, nor the fact that there has been an actual determination bythe Corporation (including its Board of Directors or any committee thereof, its independent legalcounsel, and its stockholders) that the claimant has not met such applicable standard of conduct,shall be a defense to the action or create a presumption that the claimant has not met theapplicable standard of conduct.     Section 6.06 Survival; Preservation of Other Rights. The foregoing indemnificationprovisions shall be deemed to be a contract between the Corporation and each director, officer,employee and agent who serves in any such capacity at any time while these provisions as well asthe relevant provisions of the Delaware Corporation Law are in effect and any repeal ormodification thereof shall not affect any right or obligation then existing with respect to anystate of facts then or previously existing or any action, suit or proceeding previously orthereafter brought or threatened based in whole or in part upon any such state of facts. Such a“contract
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right” may not be modified retroactively without the consent of such director, officer,employee or agent.     The indemnification provided by this Article VI shall not be deemed exclusive of any otherrights to which those indemnified may be entitled under any by-law, agreement, vote of stockholdersor disinterested directors or otherwise, both as to action in his or her official capacity and asto action in another capacity while holding such office, and shall continue as to a person who hasceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs,executors and administrators of such a person.     Section 6.07 Insurance. The Corporation may purchase and maintain insurance on behalfof any person who is or was or has agreed to become a director or officer of the Corporation, or isor was serving at the request of the Corporation as a director or officer of another corporation,partnership, joint venture, trust or other enterprise against any liability asserted against him orher and incurred by him or her or on his or her behalf in any such capacity, or arising out of hisor her status as such, whether or not the Corporation would have the power to indemnify him or heragainst such liability under the provisions of this Article, provided that such insuranceis available on acceptable terms, which determination shall be made by a vote of a majority of theentire Board of Directors.     Section 6.08 Severability. If this Article or any portion hereof shall be invalidatedon any ground by any court of competent jurisdiction, then the Corporation shall neverthelessindemnify each director or officer and may indemnify each employee or agent of the Corporation asto costs, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid insettlement with respect to any action, suit or proceeding, whether civil, criminal, administrativeor investigative, including an action by or in the right of the Corporation, to the fullest extentpermitted by any applicable portion of this Article that shall not have been invalidated and to thefullest extent permitted by applicable law.ARTICLE VIIOFFICES     Section 7.01 Registered Office. The registered office of the Corporation in the Stateof Delaware shall be located at 9 East Loockerman Street in the City of Dover, County of Kent. Thename of the registered agent is National Registered Agents, Inc.     Section 7.02 Other Offices. The Corporation may maintain offices or places ofbusiness at such other locations within or without the State of Delaware as the Board of Directorsmay from time to time determine or as the business of the Corporation may require.ARTICLE VIIIGENERAL PROVISIONS     Section 8.01 Dividends. Subject to any applicable provisions of law and theCertificate of Incorporation, dividends upon the shares of the Corporation may be declared by theBoard of
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Directors at any regular or special meeting of the Board of Directors and any such dividendmay be paid in cash, property, or shares of the Corporation’s Capital Stock.     A member of the Board of Directors, or a member of any Committee designated by the Board ofDirectors shall be fully protected in relying in good faith upon the records of the Corporation andupon such information, opinions, reports or statements presented to the Corporation by any of itsofficers or employees, or Committees of the Board of Directors, or by any other person as tomatters the Director reasonably believes are within such other person’s professional or expertcompetence and who has been selected with reasonable care by or on behalf of the Corporation, as tothe value and amount of the assets, liabilities and/or net profits of the Corporation, or any otherfacts pertinent to the existence and amount of surplus or other funds from which dividends mightproperly be declared and paid     Section 8.02 Reserves. There may be set aside out of any funds of the Corporationavailable for dividends such sum or sums as the Board of Directors from time to time, in itsabsolute discretion, thinks proper as a reserve or reserves to meet contingencies, or forequalizing dividends, or for repairing or maintaining any property of the Corporation or for suchother purpose as the Board of Directors shall think conducive to the interest of the Corporation,and the Board of Directors may similarly modify or abolish any such reserve.     Section 8.03 Execution of Instruments. The President, any Vice President, theSecretary or the Treasurer may enter into any contract or execute and deliver any instrument in thename and on behalf of the Corporation. The Board of Directors or the President may authorize anyother officer or agent to enter into any contract or execute and deliver any instrument in the nameand on behalf of the Corporation. Any such authorization must be in writing or by electronictransmission and may be general or limited to specific contracts or instruments.     Section 8.04 Corporate Indebtedness. No loan shall be contracted on behalf of theCorporation, and no evidence of indebtedness shall be issued in its name, unless authorized by theBoard of Directors or the President. Such authorization may be general or confined to specificinstances. Loans so authorized may be effected at any time for the Corporation from any bank,trust company or other institution, or from any firm, corporation or individual. All bonds,debentures, notes and other obligations or evidences of indebtedness of the Corporation issued forsuch loans shall be made, executed and delivered as the Board of Directors or the President shallauthorize. When so authorized by the Board of Directors or the President, any part of or all theproperties, including contract rights, assets, business or good will of the Corporation, whetherthen owned or thereafter acquired, may be mortgaged, pledged, hypothecated or conveyed or assignedin trust as security for the payment of such bonds, debentures, notes and other obligations orevidences of indebtedness of the Corporation, and of the interest thereon, by instruments executedand delivered in the name of the Corporation.     Section 8.05 Deposits. Any funds of the Corporation may be deposited from time totime in such banks, trust companies or other depositaries as may be determined by the Board ofDirectors or the President, or by such officers or agents as may be authorized by the Board ofDirectors or the President to make such determination.
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     Section 8.06 Checks. All checks or demands for money and notes of the Corporationshall be signed by such officer or officers or such agent or agents of the Corporation, and in suchmanner, as the Board of Directors or the President from time to time may determine.     Section 8.07 Sale Transfer, etc. of Securities. To the extent authorized by the Boardof Directors or by the President, any Vice President, the Secretary or the Treasurer or any otherofficers designated by the Board of Directors or the President may sell, transfer, endorse, andassign any shares of stock, bonds or other securities owned by or held in the name of theCorporation, and may make, execute and deliver in the name of the Corporation, under its corporateseal, any instruments that may be appropriate to effect any such sale, transfer, endorsement orassignment.     Section 8.08 Voting as Stockholder. Unless otherwise determined by resolution of theBoard of Directors, the President or any Vice President shall have full power and authority onbehalf of the Corporation to attend any meeting of stockholders of any corporation in which theCorporation may hold stock, and to act, vote (or execute proxies to vote) and exercise in person orby proxy all other rights, powers and privileges incident to the ownership of such stock. Suchofficers acting on behalf of the Corporation shall have full power and authority to execute anyinstrument expressing consent to or dissent from any action of any such corporation without ameeting. The Board of Directors may by resolution from time to time confer such power andauthority upon any other person or persons.     Section 8.09 Fiscal Year. The fiscal year of the Corporation shall commence on thefirst day of January of each year (except for the Corporation’s first fiscal year which shallcommence on the date of incorporation) and shall terminate in each case on December 31.     Section 8.10 Seal. The seal of the Corporation shall be circular in form and shallcontain the name of the Corporation, the year of its incorporation and the words “Corporate Seal”and “Delaware”. The form of such seal shall be subject to alteration by the Board of Directors.The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced,or may be used in any other lawful manner.     Section 8.11 Books and Records; Inspection. Except to the extent otherwise requiredby law, the books and records of the Corporation shall be kept at such place or places within orwithout the State of Delaware as may be determined from time to time by the Board of Directors.     Section 8.12 Emergency By-Laws. The provisions in this Section 8.12 shall beoperative during any emergency in the conduct of the business of the Corporation resulting from acatastrophe, disaster, calamity or other similar event, notwithstanding any different provision inthe preceding Articles of these By-Laws or in the Corporation’s Certificate of Incorporation. Tothe extent not inconsistent with the provisions of this Section 8.12, the provisions in thepreceding Articles of these By-Laws shall remain in effect during such emergency, and upon itstermination the provisions in this Section 8.12 shall cease to be operative. During any suchemergency:     (a) An emergency meeting or meetings of the Board of Directors or of the survivingmembers thereof shall be called by the Chairman of the Board, if available, or,
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if he is not available, by any other director or directors of the Corporation; any suchmeeting shall be held at such time and place and upon such notice, if any, as the person orpersons calling the meeting shall deem proper under the circumstances. The Board may takeany action at any such meeting that it deems necessary and appropriate to meet theemergency.     (b) Vacancies on the Board of Directors shall be filled as soon as practicable in themanner specified in Section 2.13 of Article II of these By-Laws. In filling vacancies,consideration shall be given to senior officers of the Corporation.     (c) The presence of three directors shall be sufficient for the transaction of businessat emergency meetings of the Board of Directors, except that if there are less than threesurviving directors, the surviving director or directors, although less than a quorum, mayfill vacancies on the Board.     (d) These By-Laws may be amended by the Board of Directors without notice of theproposed amendment being given in the notice of the meeting.     (e) Without limiting the generality of the foregoing, the Board of Directors isauthorized to make all necessary determinations of fact regarding the extent and severity ofthe emergency and the availability of members of the Board; to designate and replaceofficers, agents and employees of the Corporation and otherwise provide for continuity ofmanagement; and to elect a chairman, adopt rules of procedures and fill vacancies.     (f) The emergency powers provided in this Section 8.12 shall be in addition to anypowers provided by law.No officer, director or employee acting in accordance with the provisions of this Section 8.12shall be liable except for willful misconduct.     Section 8.13 Electronic Transmission. For purposes of these By-Laws, “electronictransmission” means any form of communication, not directly involving the physical transmission ofpaper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof,and that may be directly reproduced in paper form by such a recipient through an automated process.ARTICLE IXAMENDMENT OF BY-LAWS     Section 9.01 Amendment. Subject to the provisions of the Certificate ofIncorporation, these By-Laws may be amended, altered or repealed:     (a) by resolution adopted by a majority of the Board of Directors at any special orregular meeting of the Board if, in the case of such special meeting only, notice of suchamendment, alteration or repeal is contained in the notice or waiver of notice of suchmeeting; or
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     (b) by the affirmative vote of the holders of not less than sixty-six and two-thirdspercent of the voting power of all the shares of capital stock of the Corporation issued andoutstanding and entitled to vote thereon at any regular or special meeting of thestockholders if, in the case of such special meeting only, notice of such amendment,alteration or repeal is contained in the notice or waiver of notice of such meeting.ARTICLE XCONSTRUCTION     Section 10.01 Construction. In the event of any conflict between the provisions ofthese By-Laws as in effect from time to time and the provisions of the Certificate of Incorporationof the Corporation as in effect from time to time, the provisions of such Certificate ofIncorporation shall be controlling.
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