**Exhibit 3.3**

 

**SECONDAMENDED AND RESTATED BYLAWSOFCOMMERCE ENERGY GROUP, INC.,A DELAWARE CORPORATION, AS AMENDED**

 

ARTICLE I.

 

OFFICES

 

Section 1.1                                      *Registered Office*. The registered office of Commerce Energy Group, Inc. (the “Corporation”)in the State of Delaware is 1209 Orange Street, Wilmington, New Castle County,Delaware 19801.  The name of itsregistered agent at that address is The Corporation Trust Company.

 

Section 1.2                                      *Other Offices*.  TheCorporation may also have offices at such other places both within and withoutthe State of Delaware as the Board of Directors may from time to time determineor the business of the Corporation may require.

 

ARTICLE II.

 

MEETINGS OF STOCKHOLDERS

 

Section 2.1                                      *Place of Meetings*. All meetings of the stockholders for the election of Directors or forany other purpose shall be held at such place, within or without the State ofDelaware, as shall be designated from time to time by the Board of Directorsand stated in the notice of the meeting, or if authorized by the Board ofDirectors may be held by means of remote communication in accordance withapplicable law.

 

Section 2.2                                      *Annual Meeting*.  Theannual meeting of stockholders for the election of Directors and for such otherbusiness as may properly be conducted at such meeting shall be held at suchtime and date as shall be designated from time to time by the Board ofDirectors and stated in the notice of the meeting.  The Board of Directors shall have theauthority to postpone to a later date and/or time the annual meeting ofstockholders.

 

Section 2.3                                      *Special Meetings*. Special meetings of stockholders of the Corporation may be called onlyby the Chairman of the Board of Directors or the board of directors actingpursuant to a resolution adopted by a majority of the Whole Board and may notbe called by any other person or persons. For purposes of these Bylaws, the term “Whole Board” shall mean thetotal number of authorized directors whether or not there exist any vacanciesin previously authorized directorships. Special meetings of holders of the outstanding Preferred Stock may becalled in the manner and for the purposes provided in the resolutions of theBoard of Directors providing for the issue of such stock.  Business transacted at special meetings shallbe confined to the purpose or purposes stated in the notice of meeting.

 

Section 2.4                                      *Notice of Meetings*. Unless otherwise required by law or the Amended and Restated Certificateof Incorporation of the Corporation as the same may be amended from time totime (the “Certificate of Incorporation”), written notice of the date, time andplace, if any, 

 

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of the annual and of any special meeting of thestockholders shall be given to each stockholder entitled to vote at suchmeeting not less than ten (10) nor more than sixty (60) daysbefore the date of the meeting.  Suchwritten notice of any meeting of stockholders shall state the place, if any,date and hour of the meeting, the means of remote communications, if any, by whichstockholders and proxy holders may be deemed to be present in person and voteat such meeting, and, in the case of a special meeting, the purposes of themeeting.

 

Section 2.5                                      *Manner of Giving Notice*. Except as otherwise required by the Certificate of Incorporation or asotherwise provided herein, notices to Directors and stockholders shall be inwriting and delivered personally or mailed to the Directors or stockholders attheir address appearing on the books of the Corporation.  Notice toDirectors may be given by telegram, telecopier, telephone, facsimile or anyother means of electronic transmission.

 

Section 2.6                                      *Waiver of Notice*.  Awritten waiver of any notice, signed by a stockholder, director, officer,employee or agent, whether before or after the time of the event for whichnotice is to be given, shall be deemed equivalent to the notice required to begiven to such stockholder, director, officer, employee or agent.  Neither the business nor the purpose of anymeeting need be specified in such a waiver. Attendance at any meeting shall constitute waiver of notice exceptattendance for the sole purpose of objecting to the timeliness of notice at thebeginning of the meeting.

 

Section 2.7                                      *Chairman and Secretary*. The Chairman of the Board, or in the Chairman’s absence the ChiefExecutive Officer, or in the Chief Executive Officer’s absence the President,or in the President’s absence a Vice President, or in the absence of a VicePresident a chairman designated by the Board of Directors, shall preside overand act as chairman of the meeting of the stockholders.  The Corporate Secretary, or an AssistantCorporate Secretary, of the Corporation shall act as secretary at all meetingsof the stockholders, but in their absence, a secretary designated by the Chairmanof the meeting shall act as secretary of the meeting of the stockholders.

 

Section 2.8                                      *Record Date*.  In orderthat the Corporation may determine the stockholders entitled to notice of or tovote at any meeting of stockholders or any adjournment thereof, the Board ofDirectors may fix a record date, which record date shall not precede the dateupon which the resolution fixing the record date is adopted by the Board ofDirectors, and which record date, unless otherwise required by law, shall notbe more than sixty (60) nor less than ten (10) days before thedate of such meeting.  If no record dateis fixed by the Board of Directors, the record date for determiningstockholders entitled to notice of or to vote at a meeting of stockholdersshall be at the close of business on the day next preceding the day on whichnotice is given, or, if notice is waived, at the close of business on the daynext preceding the day on which the meeting is held.  A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply toany adjournment of the meeting; provided, however, that the Board of Directorsmay fix a new record date for the adjourned meeting.

 

Section 2.9                                      *Persons Entitled to Vote*. A complete list of stockholders entitled to vote at any meeting ofstockholders, arranged in alphabetical order and showing the address of eachsuch stockholder and the number of shares of capital stock registered in his orher name, shall be 

 

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prepared and made by the officer who has charge of thestock ledger of the Corporation, at least ten (10) days before everymeeting of stockholders, and shall be open to the examination of any suchstockholder in the manner provided by law. The stockholder list shall also be kept at the place of the meetingduring the whole time thereof and shall be open to the examination of any suchstockholder who is present.  The stockledger shall be the only evidence as to who are the stockholders entitled toexamine the list required by this Section 2.9 or to vote in person or byproxy at any meeting of stockholders.

 

Section 2.10                                *Quorum*.  Unless otherwise required by law or theCertificate of Incorporation, the holders of a majority in voting power of thetotal number of shares of stock issued and outstanding and entitled to be votedat the meeting represented in person or by proxy, shall constitute a quorum forthe transaction of business at such meeting. In the absence of a quorum, the stockholders so present may, by amajority in voting power thereof, adjourn the meeting from time to time in themanner provided by Section 2.11 of these Bylaws until a quorum shallattend.  The stockholders present at aduly called or held meeting of the stockholders at which a quorum is presentmay continue to do business until adjournment, notwithstanding the withdrawalof enough stockholders to leave less than a quorum; provided that any actiontaken (other than adjournment) is approved by the vote required by Section 2.12of these Bylaws.  In the absence of aquorum, no business other than adjournment may be transacted, except asdescribed in this Section 2.10.

 

Section 2.11                                *Adjournment*.  Any meeting of the stockholders may beadjourned from time to time either by the Chairman of the meeting or by a majorityin voting power represented by the stockholders entitled to vote at themeeting, present in person or represented by proxy.  At any such adjourned meeting at which aquorum shall be present, any business may be transacted which might have beentransacted by a quorum of the stockholders at the meeting as originallyconvened.  Notice need not be given ofany adjourned meeting if the time and place thereof are announced at themeeting at which the adjournment action is taken, unless the adjournment is formore than thirty (30) days, or if after the adjournment a new record dateis fixed for the adjourned meeting, in which case a notice of the adjournedmeeting shall be given to each stockholder of record entitled to vote at themeeting.

 

Section 2.12                                *Voting andProxies*.  Unless otherwiserequired by law or the Certificate of Incorporation, each stockholder shall atevery meeting of the stockholders be entitled to one vote in person or by proxyfor each share of the capital stock having voting power held by suchstockholder.  Each stockholder of recordentitled to vote at a meeting of stockholders may vote or express such consentor dissent in person or may authorize another person or persons to vote or actfor him or her by proxy.  No such proxyshall be voted or acted upon after three (3) years from its date,unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it is irrevocable and if,and only so long as, it is coupled with an interest sufficient in law to supportan irrevocable power.  A stockholder mayrevoke any proxy which is not irrevocable by attending the meeting and votingin person or by filing an instrument in writing revoking the proxy or bydelivering a proxy in accordance with applicable law bearing a later date tothe Corporate Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot.  At all meetings of stockholders for theelection of Directors, a plurality of the votes cast by the shares of capitalstock present in person and represented by proxy at the meeting at which theelection of Directors is considered and entitled to vote in the election of 

 

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Directors shall be sufficient to elect.  All other elections and questions shall,unless otherwise required by law, the Certificate of Incorporation, or the rules orregulations of any stock exchange applicable to the Corporation, be decided bythe affirmative vote of the holders of a majority in voting power of the sharesof stock of the Corporation which are present in person or by proxy andentitled to vote thereon and which have actually voted.

 

Section 2.13                                *Action atMeetings*.  The Corporationmay, and to the extent required by law, shall, in advance of any meeting ofstockholders, appoint one or more inspectors to act at the meeting and make awritten report thereof.  The Corporationmay designate one or more alternate inspectors to replace any inspector whofails to act.  If no inspector oralternate is able to act at a meeting of stockholders, the person presiding atthe meeting may, and to the extent required by law, shall, appoint one or moreinspectors to act at the meeting.  Eachinspector, before entering upon the discharge of his or her duties, shall take andsign an oath faithfully to execute the duties of inspector with strictimpartiality and according to the best of his or her ability.  Every vote taken by ballots shall be countedby a duly appointed inspector or inspectors.

 

Section 2.14                                *Action inLieu of Meetings*.  Subject torights, if any, of any series of Preferred Stock then outstanding, any actionrequired or permitted to be taken by the stockholders must be effected at anannual or special meeting of stockholders and may not be effected by any consentin writing of such stockholders.

 

Section 2.15                                *RemoteCommunications*.  If authorizedby the Board of Directors, and subject to such guidelines and procedures as theBoard of Directors may adopt, stockholders and proxyholders not physicallypresent at a meeting of stockholders, by means of remote communications:

 

(a)                                  mayparticipate in a meeting of stockholders; and

 

(b)                                 shallbe deemed present in person and may vote at a meeting of stockholders;

 

provided that (i) reasonable procedures have been implemented toverify that each person deemed present and permitted to vote at the meeting bymeans of remote communications is a stockholder or proxyholder, (ii) reasonableprocedures are implemented to provide stockholders and proxyholdersparticipating in the meeting by means of remote communications with areasonable opportunity to participate in the meeting and to vote on matterssubmitted to stockholders, including an opportunity to read or hear theproceedings of the meeting substantially concurrently with the proceedings, and(iii) if any stockholder or proxyholder votes or takes other action at themeeting by means of remote communications, a record of such vote or otheraction shall be maintained by the Corporation.

 

Section 2.16                                *Nominationsand Proposals*.

 

(a)                                  *Nominations and Proposals at Annual Meetings*.  Nominations of persons for election to theBoard of Directors and the proposal of business to be considered by thestockholders may be made at any annual meeting of stockholders only (i) pursuantto the Corporation’s notice of meeting (or any supplements thereto), (ii) byor at the direction of the Board of Directors, or (iii) by any stockholderof the Corporation (A) who is a stockholder of record on the date of thegiving of the stockholder’s notice provided for in this *Section 2.16*is 

 

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delivered to the Corporate Secretary and on the recorddate for the determination of stockholders entitled to vote at such annualmeeting, and (B) who complies with the applicable notice procedures setforth in this *Section 2.16*.

 

(b)                                 *Stockholder Notice for Annual Meetings*.  For nominations or other business to beproperly made by a stockholder at an annual meeting in accordance with this *Section 2.16*, such stockholder must have given timelynotice thereof in proper written form to the Corporate Secretary and any suchproposed business other than the nomination of persons for election to theBoard of Directors must constitute a proper matter for stockholder action.  To be timely, a stockholder’s notice must bedelivered to the Corporate Secretary at the principal executive offices of theCorporation not later than ninety (90) days nor earlier than one hundredtwenty (120) days prior to the first anniversary date of preceding year’sannual meeting; *provided, however*, that in theevent that the date of the annual meeting is more than thirty (30) daysbefore or more than seventy (70) days after such anniversary date, astockholder’s notice shall also be considered timely if it is so delivered notearlier than one hundred twenty (120) days prior to such annual meeting,nor later than the later of ninety (90) days prior to such annual meetingor ten (10) days after the day on which public announcement of thedate of such meeting was first made; *provided, further,*thatin the event that the number of Directors to be elected to the Board ofDirectors of the Corporation at an annual meeting is increased and there is nopublic announcement by the Corporation naming the nominees for the additionaldirectorships at least one hundred (100) days prior to the first anniversary ofthe preceding year’s annual meeting, a stockholder’s notice shall also beconsidered timely, but only with respect to nominees for the additionaldirectorships, if it is so delivered not later than ten (10) daysafter the day on which such public announcement is first made by theCorporation.  All notices shall bereceived by the Corporate Secretary by the close of business on the specifieddate to be deemed to have been delivered on that date.  In no event shall the public announcement ofan adjournment or postponement of an annual meeting commence a new time periodor extend the foregoing time period.

 

(c)                                  *Nominations and Proposals at Special Meetings*.  Only such business shall be conducted at aspecial meeting of stockholders as shall have been brought before the meetingpursuant to the Corporation’s notice of meeting.  Nominations of persons for election to theBoard of Directors may be made at a special meeting of stockholders at whichDirectors are to be elected pursuant to the Corporation’s notice of meeting (i) byor at the direction of the Board of Directors, or (ii) provided that theBoard of Directors has determined that Directors shall be elected at such meeting,by any stockholder of the Corporation (A) who is a stockholder of recordon the date the stockholders notice provided for in this *Section 2.16*is delivered to the Corporate Secretary and on the record date for thedetermination of stockholders entitled to vote at such special meeting, and (B) whocomplies with the applicable notice procedures set forth in this Section 2.16.

 

(d)                                 *Stockholder Notice for Special Meetings*.  For nominations to be properly made by astockholder at a special meeting of stockholders called by the Corporation forthe purpose of electing one or more Directors to the Board of Directors, suchstockholder must have given timely notice thereof in proper written form to theCorporate Secretary.  To be timely, astockholder’s notice must be delivered to the Corporate Secretary at theprincipal executive offices of the Corporation not earlier than one hundredtwenty (120) days prior to such special 

 

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meeting, nor later than the later of ninety (90)days prior to such special meeting or ten (10) days after the day onwhich public announcement of the date of such meeting and the proposed nomineesto be elected at such meeting was first made. All notices shall be received by the Corporate Secretary by the close ofbusiness on the specified date to be deemed to have been delivered on thatdate.  In no event shall the publicannouncement of an adjournment or postponement of a special meeting commence anew time period or extend the foregoing time period.

 

(e)                                  *Form of Stockholders Notice*.  To be in proper written form, a stockholder’snotice for both annual and special meetings must set forth:

 

(i)                                     asto each person whom the stockholder proposes to nominate for election as aDirector, (A) the name, age, business address and residence address of theperson, (B) the principal occupation or employment of the person, (C) theclass or series and number of shares of capital stock of the Corporation thatare owned beneficially or of record by the person, (D) any otherinformation relating to the person that would be required to be disclosed in aproxy statement or other filings required to be made in connection withsolicitations of proxies for election of Directors pursuant to Section 14of the Securities and Exchange Act of 1934, as amended (the *“Exchange Act*”), and the rules and regulationspromulgated thereunder, and (E) such notice must be accompanied by awritten consent of each proposed nominee to being named as a nominee and toserve as a Director if elected;

 

(ii)                                  asto any other business that the stockholder proposes to bring before themeeting, (A) a brief description of the business desired to be broughtbefore the meeting, (B) the text of the proposal or business (includingthe text of any resolutions proposed for consideration, and, in the event thatsuch business includes a proposal to amend the Bylaws of the Corporation, thelanguage of the proposed amendment), (C) the reasons for conducting suchbusiness at the meeting, and (D) any material interest of such stockholderin the business being proposed and the beneficial owner, if any, on whosebehalf the proposal is being made; and

 

(iii)                               asto the stockholder giving this notice and the beneficial owner, if any, onwhose behalf the nomination or proposal is made, (A) the name and recordaddress of such stockholder and any such beneficial owner, (B) the classor series and number of shares of capital stock of the Corporation that areowned beneficially or of record by such stockholder and beneficial owner, (C) adescription of all arrangements or understandings between such stockholder andany such beneficial owner and each proposed nominee and any other persons(including their names) pursuant to which the nomination(s) are to be madeby such stockholder, (D) a representation that such stockholder is astockholder of record entitled to vote at such meeting and intends to appear inperson or by proxy at the meeting to nominate the persons and/or conduct thebusiness being proposed as described in the notice, and (E) arepresentation of whether such stockholder or any such beneficial owner intendsor is part of a group which intends (1) to deliver a proxy statementand/or form of proxy to holders of at least the percentage of the Corporation’soutstanding capital stock required to approve or adopt the proposal or electthe nominee, and/or (2) otherwise to solicit proxies from stockholders insupport of such proposal or 

 

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nomination.  The foregoing notice requirements shall bedeemed satisfied by a stockholder with respect to an annual meeting if thestockholder has notified the Corporation of his or her intention to present aproposal at such annual meeting in compliance with Regulation 14A (or anysuccessor thereof) promulgated under the Exchange Act and such stockholder’sproposal has been included in a proxy statement that has been prepared by theCorporation to solicit proxies for such annual meeting.  The Corporation may require any proposed nomineeto furnish such other information as it may reasonably require to determine theeligibility of such proposed nominee to serve as a Director of the Corporation.

 

(f)                                    *General*.  Only suchpersons who are nominated in accordance with the procedures set forth in this *Section 2.16* shall be eligible to be elected at anannual or special meeting of stockholders of the Corporation to serve asDirectors and only such business shall be conducted at a meeting ofstockholders as shall have been brought before the meeting in accordance withthe procedures set forth in this *Section 2.16*.  Except as otherwise provided by law, thechairman of the meeting shall have the power and duty (i) to determinewhether a nomination or any business proposed to be brought before the meetingwas made or proposed, as the case may be, in accordance with the procedures setforth in this *Section 2.16* (includingwhether the stockholder or beneficial owner, if any, on whose behalf thenomination or proposal is made solicited (or is part of a group whichsolicited) or did not so solicit, as the case may be, proxies in support ofsuch stockholder’s nominee or proposal in compliance with such stockholder’srepresentation as required by *Section 2.16(e)*),and (b) if a proposed nomination or business was not made or proposed incompliance with this *Section 2.16*,to declare that such nomination shall be disregarded or that such proposedbusiness shall not be transacted. Notwithstanding the foregoing provisions of this *Section 2.16*,if the stockholder (or a qualified representative of the stockholder) does notappear at the annual or special meeting of stockholders of the Corporation topresent a nomination or business, such nomination shall be disregarded and suchproposed business shall not be transacted, notwithstanding that proxies inrespect of such vote may have been received by the Corporation.  Notwithstanding the foregoing provisions ofthis *Section 2.16*, a stockholder shallalso comply with all applicable requirements of the Exchange Act and the rules andregulations thereunder with respect to the matters set forth in this *Section 2.16*. Nothing in this *Section 2.16*shall be deemed to affect any rights (i) of stockholders to requestinclusion of proposals in the Corporation’s proxy statement pursuant toRegulation 14A under the Exchange Act, or (ii) of the holders of anyseries of Preferred Stock to elect Directors pursuant to any applicableprovisions of the Certificate of Incorporation.

 

ARTICLE III.

 

BOARD OF DIRECTORS

 

Section 3.1                                      *General Powers*.  Thebusiness of the Corporation shall be managed by or under the direction of itsBoard of Directors which may exercise all such powers of the Corporation and doall such lawful acts and things as are not by law or by the Certificate ofIncorporation or by these Bylaws directed or required to be exercised or doneby the stockholders.

 

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Section 3.2                                      *Number*.  Subject tothe rights, if any, of any series of Preferred Stock then outstanding, theauthorized number of Directors of the Corporation shall be established, fromtime to time, by resolution of the Board.

 

Section 3.3                                      *Election, Classes and Terms of Directors*.  The Directors, other than those who may beelected by the holders of any series of Preferred Stock then outstanding, shallbe and is divided into three classes, Class I, Class II and Class III,which shall be as nearly equal in number as possible, with the initial term ofoffice of Class I Directors to expire at the Corporation’s first annualmeeting of stockholders following the end of the Corporation’s fiscal yearended July 31, 2004 (“Fiscal 2004”), the initial term of office of the Class IIDirectors to expire at the Corporation’s second annual meeting of stockholdersfollowing the end of Fiscal 2004 and the initial term of office of the Class IIIDirectors to expire at the Corporation’s third annual meeting of stockholdersfollowing the end of Fiscal 2004, with each director to hold office until hisor her successor shall have been duly elected and qualified.  At each annual meeting of stockholders,Directors elected to succeed those Directors whose terms expire shall beelected for a term of office to expire at the third succeeding annual meetingof stockholders after their election, with each Director to hold office untilhis or her successor shall have been duly elected and qualified or until suchDirector’s death, resignation or removal. In the event of any increase or decrease in the number of Directors, (i) eachDirector then serving as such shall nevertheless continue as a Director of theclass of which such Director is a member until the expiration of the currentterm, or such Director’s prior death, resignation, or removal, and (ii) thenewly created or eliminated directorships resulting from such increase ordecrease shall be apportioned by the Board of Directors among the three classesof Directors so as to maintain such classes as nearly equal in number aspossible.  In case of any increase ordecrease in the number of Directors from time to time (other than thoseDirectors, if any, elected by any series of Preferred Stock then outstanding),the number of Directors shall be apportioned as nearly as equally as possible.

 

Section 3.4                                      *Election*.  Within thelimits specified herein and in the Corporation’s Certificate of Incorporation,the election of Directors shall be determined by the stockholders of theCorporation by a plurality of the votes cast by the shares of capital stockpresent in person or represented by proxy at the meeting in which the electionof Directors is considered and entitled to vote in the election ofDirectors.  The Directors need not bestockholders of the Corporation.

 

Section 3.5                                      *Resignation*.  AnyDirector may resign by delivering a written resignation to the Corporation atits principal office or to the Chairman of the Board, the Chief ExecutiveOfficer, the President, the Secretary or the Board of Directors.  Such resignation shall be effective uponreceipt unless it is specified to be effective at some other time or upon thehappening of some other event.  If theresignation specifies effectiveness at a future time, a successor may beelected pursuant to *Section 3.7*of these Bylaws to take office on the date that the resignation becomeseffective.

 

Section 3.6                                      *Removal*.  Except forsuch additional directors, if any, elected by a series of Preferred Stock thenoutstanding, any Director or the entire Board of Directors may be removed, butonly for cause, and only by the affirmative vote of the holders of at least amajority of the voting power of all of the then outstanding shares of thecapital stock of the Corporation then entitled to vote at an election ofDirectors, voting together as a single class. Nothing in this 

 

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Section 3.6 shall be deemed to affect any rightsof the holders of any series of Preferred Stock to remove Directors pursuant toany applicable provisions of the Certificate of Incorporation.

 

Section 3.7                                      *Vacancies*.  Subject tothe rights, if any, of any series of Preferred Stock then outstanding, andexcept as otherwise provided in the Certificate of Incorporation, any vacancy,whether arising through death, resignation, removal or disqualification of aDirector, and any newly-created directorship resulting from an increase in thenumber of Directors, shall be filled only by a majority vote of the remainingDirectors of all classes even though less than a quorum of the Board ofDirectors.  A Director so elected to filla vacancy shall serve for the remainder of the then present term of office ofthe class to which such Director was elected.

 

Section 3.8                                      *Place of Meetings*. Any meetings of the Board of Directors may be held either within orwithout the State of Delaware.

 

Section 3.9                                      *Regular Meetings*. Regular meetings of the Board of Directors may be held without notice atsuch time and at such place as shall from time to time be determined by theBoard of Directors, provided that any Director who is absent when suchdetermination is made shall be given notice of the determination.

 

Section 3.10                                *SpecialMeetings and Notice*.  Specialmeetings of the Board of Directors may be called by the Chairman of the Board,the Chief Executive Officer, or any two Directors, and shall be held at suchtime and place as may be specified by the officer or Directors calling themeeting.  Unless otherwise required bylaw or the Certificate of Incorporation, notice stating the date, time andplace of the meeting shall be given to each Director either by prepaid mail tosuch Director’s address appearing on the books of the Corporation not less thanforty-eight (48) hours before the date of the meeting, or personally or bytelegram, facsimile, electronic transmission or similar means of communicationnot less than twenty-four (24) hours before the date of the meeting.

 

Section 3.11                                *Meetings byTelephone Conference Call*. Unless otherwise required by law or the Certificate of Incorporation,members of the Board of Directors may participate in a meeting of the Board ofDirectors by means of conference telephone or similar communications equipmentby means of which all persons participating in the meeting can hear each other,and such participation in a meeting shall constitute presence in person at themeeting.

 

Section 3.12                                *Quorum andAdjournment*.  Unless otherwiserequired by law or the Certificate of Incorporation, at all meetings of theBoard of Directors a majority of the Whole Board, shall constitute a quorum forthe transaction of business (except for the filling of vacancies, which shallbe governed by the provisions of *Section 3.7*).  Any meeting of the Board of Directors, or acommittee thereof, whether or not a quorum is present, may be adjourned toanother time and place by the affirmative vote of a majority of the Directorspresent.  If the meeting is adjourned formore than 24 hours, notice of such adjournment to another time or place shallbe given prior to the time of the adjourned meeting to the Directors who werenot present at the time of the adjournment.

 

Section 3.13                                *Action atMeetings*.  Unless otherwiserequired by law or the Certificate of Incorporation, if a quorum is present atany meeting of the Board of Directors, the vote of a 

 

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majority of the Directors present shall be sufficientto take any action.  A meeting at which aquorum is initially present may continue to transact business, notwithstandingwithdrawal of directors, if any action taken is approved by at least a majorityof the number of Directors constituting a quorum for such meeting.

 

Section 3.14                                *Action inLieu of Meetings*.  Unlessotherwise required by law or the Certificate of Incorporation, any actionrequired or permitted to be taken at any meeting of the Board of Directors maybe taken without a meeting, if all Directors consent thereto in writing or byelectronic transmission, and the writing or writings or electronic transmissionor transmissions are filed with the minutes of proceedings of the Board ofDirectors.  Such filing shall be in paperform if the minutes are maintained in paper form and shall be in electronicform if the minutes are maintained in electronic form.

 

Section 3.15                                *Committees*.  The Board of Directors may, by resolutionpassed by a majority of the Whole Board of Directors, designate one or morecommittees, each committee to consist of one or more of the Directors of theCorporation.  The Board of Directors maydesignate one or more Directors as alternate members of any committee, who mayreplace any absent or disqualified member at any meeting of any suchcommittee.  In the absence ordisqualification of a member of a committee, and in the absence of adesignation by the Board of Directors of an alternate member to replace theabsent or disqualified member, the member or members thereof present at anymeeting and not disqualified from voting, whether or not such member or membersconstitute a quorum, may (subject to the committee charter, if any) unanimouslyappoint another member of the Board of Directors to act at the meeting in theplace of any absent or disqualified member. Any committee, to the extent permitted by law and to the extent providedin the resolution of the Board of Directors, shall have and may exercise allthe powers and authority of the Board of Directors in the management of thebusiness and affairs of the Corporation, and may authorize the seal of theCorporation to be affixed to all papers which may require it.  Each committee shall keep regular minutes andreport to the Board of Directors when required.

 

Section 3.16                                *Meetings andAction of Committees*. Meetings and action of committees shall be governed by and held andtaken in accordance with the provisions of *Sections 3.8 to 3.14*,with such changes in the context thereof as are necessary to substitute thecommittee and its members for the Board of Directors and its members.

 

Section 3.17                                *Compensation*.  Unless otherwise required by law or theCertificate of Incorporation, Directors shall be entitled to receive such feesand expenses, if any, for attendance at meetings of the Board of Directors,and/or such fixed salaries for services as Directors, as may be fixed from timeto time by resolution of the Board of Directors.  Nothing herein contained shall be construedto preclude any Director from serving the Corporation in any other capacity asan officer, committee member, agent or otherwise, and receiving compensationtherefor.  Members of special or standingcommittees may be allowed like compensation for attending committee meetings.

 

Section 3.18                                *Chairman ofthe Board and Vice Chairman of the Board; Secretary*.  The Board of Directors shall appoint aChairman of the Board and may appoint a Vice Chairman of the Board, in itsdiscretion, from among its members.  TheChairman of the Board shall preside 

 

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at all meetings of stockholders and of the Board ofDirectors.  If the Board of Directorsappoints a Vice Chairman of the Board, in the absence or disability of theChairman of the Board, the Vice Chairman of the Board shall preside at allmeetings of stockholders and of the Board of Directors.  The Corporate Secretary or an AssistantCorporate Secretary of the Corporation shall act as secretary at all meetingsof the Board of Directors, but in their absence, a secretary designated by theChairman of the meeting shall act as secretary of the meeting of the Board.

 

ARTICLE IV.

 

OFFICERS

 

Section 4.1                                      *Designation, Term and Vacancies*.  The officers of the Corporation shall be aChief Executive Officer, a President, a Chief Operating Officer, one or moreVice Presidents, a Corporate Secretary and a Chief Financial Officer and/orTreasurer, all of whom shall be elected by the Board of Directors.  The Board of Directors may elect one or moreExecutive Vice Presidents, Senior Vice Presidents, or Assistant VicePresidents, who shall have such authority and shall perform such duties as mayfrom time to time be prescribed by the Board. The Board of Directors may appoint one or more Assistant CorporateSecretaries and one or more Assistant Treasurers, and such other officers asmay be deemed necessary, who shall have such authority and shall perform suchduties as may from time to time be prescribed by the Board.  Vacancies occurring among the officers of theCorporation shall be filled by the Board of Directors.  Officers elected by the Board shall holdoffice until the next annual election of such officers by the Directors anduntil their successors are elected and qualified or until such officer’s death,resignation or removal, pursuant to *Section 4.2*.  All other officers, agents and employeesshall hold office during the pleasure of the Board or the officer appointingthem.  Any two or more offices may beheld by the same person, with the exception that the Chief Executive Officerand President shall not also hold the office of Secretary or Treasurer.

 

Section 4.2                                      *Resignation and Removal of Officers*.  Any officer may resign at any time uponwritten notice to the Corporation, without prejudice to the rights, if any, ofthe Corporation under any contract to which such officer is a party.  Such resignation shall be effective upon itsreceipt by the Chairman of the Board, the President, the Secretary or the Boardof Directors, unless a different time is specified in the notice foreffectiveness of such resignation.  Theacceptance of any such resignation shall not be necessary to make it effectiveunless otherwise specified in such notice. Any officer may be removed from office at any time, with or withoutcause, but subject to the rights, if any, of such officer under any contract ofemployment, by the Board of Directors or by any committee to whom such power ofremoval has been duly delegated, or, with regard to any officer who has beenappointed by the chief executive officer pursuant to *Section 4.3*below, by the chief executive officer or any other officer upon whom such powerof removal may be conferred by the Board of Directors.  A vacancy occurring in any office for anycause may be filled by the Board of Directors, in the manner prescribed by thisArticle of the Bylaws for initial appointment to such office.

 

Section 4.3                                      *Chief Executive Officer*. The Chief Executive Officer shall be chosen from among the members ofthe Board and shall have general charge of the affairs and business of theCorporation and general charge and supervision of all the officers, agents, andemployees of the Corporation.  He maysign, with the Corporate Secretary or an Assistant Corporate 

 

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Secretary, any or all certificates for shares of stockof the Corporation.  He may sign andexecute in the name of the Corporation all deeds, mortgages, bonds, contracts,powers of attorney, or other instruments authorized by the Board, except incases where the signing and execution thereof shall be expressly delegated bythe Board or by these By-laws to some other officer or agent of theCorporation, and he may, without previous authority of the Board, make, in thename of the Corporation, such contracts, leases, and other agreements as theordinary conduct of the Corporation’s business requires.  He may sign and endorse notes, drafts, andchecks.  He shall have power to selectand appoint all necessary officers and servants, except those elected or appointedor required to be elected or appointed by the Board, and he shall also havepower to remove all such officers and servants and to make appointments to fillthe vacancies.  In general, he shallexercise all powers and perform all duties incident to the principal executiveoffice of the Corporation and such other powers and duties as may from time totime be assigned to him by the Board or be prescribed by these By-laws.  Also in the absence or inability of theChairman to act, he shall preside at all meetings of stockholders and of theBoard of Directors.  He may delegate anyof his powers to the President or the Chief Operating Officer of theCorporation.

 

Section 4.4                                      *President*.  ThePresident shall perform such duties and have such powers as may from time totime be assigned by the Board of Directors. In the absence or inability of the Chief Executive Officer to act, heshall be the chief executive officer of the Corporation.

 

Section 4.5                                      *Chief Operating Officer*. The Chief Operating Officer of the Corporation shall have general andactive management of and exercise general supervision over the business andproperty of the Corporation and shall have such other powers and duties as maybe assigned to him by the Board of Directors. He may delegate any of his powers to any Vice President of theCorporation.

 

Section 4.6                                      *Vice Presidents*.  EachVice President shall exercise such powers and perform such duties as may fromtime to time be assigned to him by the Board of Directors or thePresident.  In the absence or disabilityof the President a Vice President shall exercise the powers and perform theduties of the President.

 

Section 4.7                                      *Chief Financial Officer or Treasurer*.  The Chief Financial Officer or Treasurershall have custody of such funds and securities of the Corporation as may cometo his hands or be committed to his care by the Board of Directors.  When necessary or proper, he shall endorse onbehalf of the Corporation, for collection, checks, notes, or other obligations,and shall deposit the same to the credit of the Corporation, in such bank orbanks or depositories as the Board of Directors, the Chief Executive Officer,the President, or the Chief Operating Officer may designate.  He may sign receipts or vouchers for paymentsmade to the Corporation, and the Board of Directors may require that suchreceipts or vouchers shall also be signed by some other officer to bedesignated by them.  Whenever required bythe Board of Directors, he shall render a statement of his cash accounts andsuch other statements respecting the affairs of the Corporation as may berequested.  He shall keep proper andaccurate accounts of receipts and disbursements and other matters pertaining tohis office.  He shall perform all actsincident to the office of Chief Financial Officer or Treasurer, subject to thecontrol of the Board.  In the discretionof the Board of Directors, he may be required to give a bond in such amount andcontaining such conditions as the Board of Directors may approve, and such bondmay be the undertaking of a surety company, and the premium therefor may bepaid by the Corporation.  Exercise suchpowers and 

 

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perform such duties as are usually vested in theoffice of Chief Financial Officer or Treasurer of a Corporation and exercisesuch other powers and perform such other duties as may be prescribed by theBoard of Directors or these Bylaws.

 

Section 4.8                                      *Corporate Secretary*. The Corporate Secretary shall be sworn to the faithful discharge of hisduties.  He shall record the votes andproceedings of the stockholders and of the Board of Directors in a book orbooks kept for that purpose, and shall attend all meetings of the Directors andstockholders.  He shall keep in safecustody the seal of the Corporation, and, when required by the Board ofDirectors, or when any instrument shall have been signed by the Chief ExecutiveOfficer, the President, the Chief Operating Officer, or any other officer dulyauthorized to sign the same, or when necessary to attest any proceedings of thestockholders or Directors, shall affix it to any instrument requiring the same,and shall attest the same with his signature. Except as otherwise required by the Certificate of Incorporation, orthese Bylaws, he shall attend to the giving and serving of notices ofmeetings.  He shall have charge of suchbooks and papers as properly belong to his office or as may be committed to hiscare by the Board of Directors.  He shallperform such other duties as appertain to his office or as may be required bythe Board of Directors.  Except asotherwise required by the Certificate of Incorporation, or these Bylaws, in theabsence of the Corporate Secretary, or an Assistant Corporate Secretary, fromany meeting of the Board, the proceedings of such meeting shall be recorded bysuch other person as may be appointed at the meeting for that purpose.

 

Section 4.9                                      *Assistant Vice President*. Each Assistant Vice President shall exercise such powers and performsuch duties as may be assigned to him by the Board of Directors.

 

Section 4.10                                *AssistantCorporate Secretary*.  EachAssistant Corporate Secretary shall be vested with the same powers and dutiesas the Corporate Secretary, and any act may be done or duty performed by anAssistant Corporate Secretary with like effect as though done or performed bythe Corporate Secretary.  He shall havesuch other powers and perform such other duties as may be assigned to him bythe Board of Directors.

 

Section 4.11                                *OtherOfficers*.  Such other officersas the Board of Directors may appoint shall perform such duties and have suchpowers as may from time to time be assigned by the Board of Directors.  The Board of Directors may delegate to theChief Executive Officer the power to choose such other officers and to prescribetheir respective duties and powers.

 

ARTICLE V.

 

INDEMNIFICATION

 

Section 5.1                                      *Right to Indemnification*. To the fullest extent permitted by law, the Corporation shall indemnifyand hold harmless any person who was or is made or is threatened to be made aparty or is otherwise involved in any threatened, pending or completed action,suit or proceeding, whether civil, criminal, administrative or investigative (a“*proceeding*”) by reason of the fact thatsuch person or the person for whom he is the legally representative is or was adirector or officer of the Corporation or is or was serving at the request ofthe Corporation as a director or officer of another corporation or of apartnership, joint venture, trust, enterprise or non-profit entity, including servicewith respect to employee benefit plans (any such person, a 

 

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“*Section 5.1Indemnitee*”), against all liabilities, losses, expenses (includingattorney’s fees), judgments, fines and amounts paid in settlement (“*expenses*”) actually and reasonably incurred by such personin connection with such proceeding; *provided, however*,that except as otherwise provided in Section 5.4 the Corporation shallonly be required to indemnify a person in connection with a proceeding (or partthereof) initiated by such person if the commencement of such proceeding (orpart thereof) was authorized by the Board of Directors.

 

Section 5.2                                      *Prepayment of Expenses*. The Corporation shall pay the expenses incurred by a Section 5.1Indemnitee in defending any proceeding in advance of its final disposition,provided that, to the extent provided by law, the payment of expenses inadvance of the final disposition of the proceeding shall be made only uponreceipt of an undertaking by such person to repay all amounts advanced if itshould be ultimately determined that such person is not entitled to beindemnified under this *Article V*orotherwise.  The Corporation may pay theexpenses incurred by any other person in defending any proceeding in advance ofits final disposition upon such terms and conditions as the Board of Directorsdeems appropriate.

 

Section 5.3                                      *Claims*.  If a claimfor indemnification or advancement of expenses under Section 5.1 or Section 5.2is not paid in full within sixty (60) days after a written claim thereforby a Section 5.1 Indemnitee has been received by the Corporation, such Section 5.1Indemnitee may file suit to recover the unpaid amount of such claim and, ifsuccessful in whole or in part, shall be entitled to be paid the expense ofprosecuting such claim.  In any suchaction, the Corporation shall have the burden of proving that such Section 5.1Indemnitee is not entitled to the requested indemnification or advancement ofexpenses under applicable law.

 

Section 5.4                                      *Repeal or Modification*. Any repeal or modification of the provisions of this *Article 5*or applicable law shall not adversely affectany right or protection hereunder of any person in respect of any act oromission occurring before the time of such repeal or modification regardless ofwhether the proceeding is brought or threatened before or after the time ofsuch repeal or modification.

 

Section 5.5                                      *Non-Exclusivity of Rights*. The right to indemnification and advancement of expenses conferred on anyperson by this *Article 5*shall not beexclusive of any other rights such person may have or acquire under any otherprovision hereof, the Bylaws or by law, agreement, vote of stockholders ordisinterested Directors or otherwise.

 

Section 5.6                                      *Survival of Rights*. The right to indemnification and prepayment of expenses conferred on anyperson by this *Article 5*shall continue asto a person who has ceased to be a director, officer, employee or agent andshall inure to the benefit of the heirs, executors and administrators of suchperson.

 

Section 5.7                                      *Insurance*.  TheCorporation may purchase and maintain insurance on behalf of any person who isor was a director, officer, employee or agent 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 employeebenefit plans, against any liability or expenses incurred by such person inconnection with a proceeding, whether or not the Corporation would 

 

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have the power to indemnify such person against suchliability under the provisions of this *Article V*orby law.

 

Section 5.8                                      *Other Sources*.  TheCorporation’s obligation, if any, to indemnify or advance expenses to any Section 5.1Indemnitee who was or is serving at the Corporation’s request as a director orofficer of another corporation or a partnership, joint venture, trust, enterpriseor non-profit entity, including service with respect to employee benefit plans,shall be reduced by any amount such Section 5.1 Indemnitee may collect asindemnification or advancement of expenses from such other corporation,partnership, joint venture, trust, enterprise or non-profit entity.

 

Section 5.9                                      *Other Indemnification and Advancement of Expenses*.  This Article 5 shall not limit the rightof the Corporation, to the extent and in the manner permitted by law, toindemnify and to advance expenses to persons other than Section 5.1Indemnitees when and as authorized by appropriate corporate action.

 

ARTICLE VI.

 

STOCK

 

Section 6.1                                      *Stock Certificates*. Every holder of capital stock represented by certificates shall beentitled to a certificate representing such stock in such form as shall beapproved by the Board of Directors, signed by or in the name of the Corporationby (a) the Chairman of the Board or Vice Chairman of the Board, or thePresident or a Vice President, and (b) the Corporate Secretary or anAssistant Corporate Secretary or Treasurer or Assistant Treasurer.  Any or all the signatures on the certificatemay be a facsimile.  In case any officer,transfer agent, transfer clerk or registrar who has signed or whose facsimilesignature has been placed upon a certificate shall have ceased to be suchofficer, transfer agent, transfer clerk or registrar before such certificate isissued, it may be issued by the Corporation with the same effect as if suchperson were such officer, transfer agent, transfer clerk or registrar at thedate of issue.

 

Section 6.2                                      *Lost, Stolen or Destroyed Certificates*.  The Board of Directors may direct a newcertificate or certificates to be issued in place of any certificate orcertificates theretofore issued by the Corporation alleged to have been lost,stolen or destroyed, upon the making of an affidavit of that fact by the personclaiming the certificate of stock to be lost, stolen or destroyed.  When authorizing such issue of a newcertificate or certificates, the Board of Directors may, in its discretion andas a condition precedent to the issuance thereof, require the owner of suchlost, stolen or destroyed certificate or certificates or such person’s legalrepresentative to give the Corporation a bond in such sum as it may direct asindemnity against any claim that may be made against the Corporation an accountof the alleged loss, theft or destruction of any such Certificate of theissuance of a new Certificate been lost, stolen or destroyed.

 

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ARTICLE VII.

 

MISCELLANEOUS

 

Section 7.1                                      *Fiscal Year*.  Thefiscal year of the Corporation shall be fixed by resolution of the Board ofDirectors.

 

Section 7.2                                      *Seal*.  The corporateseal shall have the name of the Corporation inscribed thereon and shall be insuch form as may be approved from time to time by the Board of Directors.

 

Section 7.3                                      *Execution of Checks, etc*. The funds of the Corporation shall be deposited in such banks or trustcompanies as the Board of Directors from time to time shall designate and shallbe withdrawn only on checks or drafts of the Corporation for the purposes ofthe Corporation.  All checks, drafts,notes, acceptances and endorsements of the Corporation shall be signed in suchmanner and by such officer or officers or such individual or individuals as theBoard of Directors from time to time by resolution shall determine.  If and to the extent so authorized by theBoard of Directors, such signature or signatures may be facsimile.  Only checks, drafts, notes, acceptances andendorsements signed in accordance with such resolution or resolutions shall bethe valid checks, drafts, notes, acceptances or endorsements of theCorporation.

 

Section 7.4                                      *Evidence of Authority*. A certificate by the Secretary or an Assistant Secretary as to anyaction taken by the stockholders, the Board of Directors, a committee or anyofficer or representative of the Corporation shall as to all persons who relyon the certificate in good faith be conclusive evidence of such action.

 

Section 7.5                                      *Severability*.  Anydetermination that any provision of these Bylaws is for any reasoninapplicable, illegal or ineffective shall not affect or invalidate any otherprovision of these Bylaws.

 

ARTICLE VIII.

 

AMENDMENTS

 

Section 8.1                                      *Creation, Amendment and Repeal of Bylaws*.  In furtherance and not in limitation of thepowers conferred upon it by the laws of the State of Delaware, the Board ofDirectors shall have the power to adopt, alter, amend or repeal the Bylaws ofthe Corporation, subject to the power of the stockholders of the Corporation toalter or repeal any Bylaws whether adopted by them or otherwise.

 

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