Exhibit 4.2





Exhibit 4.2




SEVENTH AMENDED AND RESTATED BYLAWS

OF




GENON ENERGY, INC.




Adopted and Amended by Resolution of the Board of Directors

effective as of December 3, 2010




ARTICLE I




CAPITAL STOCK




Section 1.  Share Ownership. Shares for the capital stock of the Company
shall be certificated; provided, however, that the Board of Directors of the Company may provide by
resolution or resolutions that some or all of any or all classes or series of the Company’s stock
may be uncertificated shares. Owners of shares of the capital stock of the Company shall be
recorded in the share transfer records of the Company and ownership of such shares shall be
evidenced by a certificate or book entry notation in the share transfer records of the Company.
Any certificates representing such shares shall be signed by the Chairman of the Board, if there is
one, the President or a Vice President and by the Treasurer, an Assistant Treasurer, the Corporate
Secretary or an Assistant Corporate Secretary, which signatures may be facsimiles. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Company with the same effect as if such person were
such officer, transfer agent or registrar at the date of its issuance.



Section 2.  Stockholders of Record. The Board of Directors of the Company may
appoint one or more transfer agents or registrars of any class of stock or other security of the
Company. The Company may be its own transfer agent if so appointed by the Board of Directors. The
Company shall be entitled to treat the holder of record of any shares of the Company as the owner
thereof for all purposes, and shall not be bound to recognize any equitable or other claim to, or
interest in, such shares or any rights deriving from such shares, on the part of any other person,
including (but without limitation) a purchaser, assignee or transferee, unless and until such other
person becomes the holder of record of such shares, whether or not the Company shall have either
actual or constructive notice of the interest of such other person.



Section 3.  Transfer of Shares. The shares of the capital stock of the
Company shall be transferable in the share transfer records of the Company by the holder of record
thereof, or his duly authorized attorney or legal representative. All certificates representing
shares surrendered for transfer, properly endorsed and upon payment of all necessary transfer taxes
with respect thereto, shall be canceled and new certificates for a like number of shares shall be
issued therefor; provided, however, that such surrender and endorsement or payment of taxes shall
not be required in any case in which the officers of the Company shall determine to waive such
requirement. Every certificate exchanged, returned or surrendered to the Company shall be marked
“Cancelled,” with the date of cancellation, by the Corporate Secretary or Assistant Corporate
Secretary or the transfer agent thereof. No transfer of stock shall be valid as against the
Company for any purpose until it shall have been entered in the stock records of the Company by an
entry showing from and to whom transferred. In the case of lost, stolen, destroyed or mutilated
certificates representing shares for which the Company has been requested to issue new
certificates, new certificates or other evidence of such new shares may be issued upon such
conditions as may be required by the Board of Directors or the Corporate Secretary or an Assistant
Corporate Secretary for the protection of the Company and any transfer agent or registrar.
Uncertificated shares shall be transferred in the share transfer records of the Company upon the
written instruction originated by the appropriate person to transfer the shares.


 


 









 





Section 4.  Stockholders of Record and Fixing of Record Date. For the purpose
of determining stockholders entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive a distribution by the Company (other than a
distribution involving a purchase or
redemption by the Company of any of its own shares) or a share dividend, or in order to make a
determination of stockholders for any other proper purpose, the Board of Directors may fix in
advance a record date for any such determination of stockholders, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date shall not be more than sixty days, and in the case of a meeting of
stockholders, less than ten days, prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If no record date is fixed for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders, or stockholders
entitled to receive a distribution (other than a distribution involving a purchase or redemption by
the Company of any of its own shares) or a share dividend, the day next preceding the date on which
notice of the meeting is mailed or the date on which the resolution of the Board of Directors
declaring such distribution or share dividend is adopted, as the case may be, shall be the record
date for such determination of stockholders. When a determination of stockholders entitled to vote
at any meeting of stockholders has been made as herein provided, such determination shall apply to
any adjournment thereof, however that the Board of Directors may fix a new record date for the
adjourned meeting.



ARTICLE II




MEETINGS OF STOCKHOLDERS




Section 1.  Place of Meetings. All meetings of stockholders shall be held at
the principal office of the Company, in the City of Houston, Texas, or at such other place within
or without the State of Delaware as may be designated by the Board of Directors or officer calling
the meeting. The Board of Directors may, in its sole discretion, determine that a meeting of
stockholders shall not be held at any place, but may instead be held solely by means of remote
communication in the manner authorized by the DGCL (as defined below).



Section 2.  Annual Meeting. The annual meeting of the stockholders shall be
held on such date and at such time as shall be designated from time to time by the Board of
Directors or as may otherwise be stated in the notice of the meeting. Failure to designate a time
for the annual meeting or to hold the annual meeting at the designated time shall not work a
dissolution of the Company.



Section 3.  Special Meetings. Unless otherwise provided by the General
Corporation Law of the State of Delaware (the “DGCL”), by the Restated Certificate of Incorporation
of the Company or by any provisions established pursuant thereof with respect to the rights of
holders of one or more outstanding series of the Company’s preferred stock, special meetings of the
stockholders of the Company may be called at any time only by the Chairman of the Board, if there
is one, the President and Chief Executive Officer of the Company, or by the Board of Directors
pursuant to a resolution approved by the affirmative vote of at least a majority of the members of
the Board of Directors, and no such special meeting may be called by any other person or persons.



Section 4.  Notice of Meeting. Written or printed notice of all meetings
stating the place, day and hour of the meeting, the means of remote communications, if any, by
which stockholders and proxyholders may be deemed to be present in person and vote at such meeting,
and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall
be delivered not less than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the Chairman of the Board, if there is one, the
Chief Executive Officer, if there is one, the President, the Corporate Secretary or the officer or
person calling the meeting to each stockholder of record entitled to vote at such meetings. If
mailed, such notice shall be deemed to be delivered when deposited in the United States mail,
postage prepaid, addressed to the stockholder at such stockholder’s address as it appears on the
share transfer records of the Company.


 


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Section 5.  Voting List. The officer having charge of the stock ledger of the
Company shall make, at least ten days before each meeting of stockholders, a complete list of the
stockholders entitled to vote at such meeting or any adjournment thereof, arranged in alphabetical
order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to the meeting for a
period of at least ten days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is provided with the
notice of the meeting, or (ii) during ordinary business hours, at the principal place of business
of the Company. In the event that the Company determines to make the list available on an
electronic network, the Company may take reasonable steps to ensure that such information is
available only to stockholders of the Company. If the meeting is to be held at a place, then the
list shall be produced and kept at the time and place of the meeting during the whole time thereof,
and may be inspected by any stockholder who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible electronic network, and
the information required to access such list shall be provided with the notice of the meeting. The
original share transfer records shall be prima facie evidence as to who are the stockholders
entitled to examine such list or to vote at any meeting of stockholders. Failure to comply with
any requirements of this Section 5 shall not affect the validity of any action taken at such
meeting.



Section 6.  Voting. Except as otherwise provided in the Restated Certificate
of Incorporation of the Company or as otherwise provided under the DGCL, each holder of shares of
capital stock of the Company entitled to vote shall be entitled to one vote for each share standing
in such holder’s name on the records of the Company, either in person or by proxy as provided in
Section 7 of this Article II. At each election of directors, every holder of shares of the Company
entitled to vote shall have the right to vote, in person or by proxy, the number of shares owned by
such holder for as many persons as there are directors to be elected, and for whose election such
holder has a right to vote. The Board of Directors, in its discretion, or the officer of the
Company presiding at a meeting of the stockholders, in such officer’s discretion, may require that
any votes cast at such meeting shall be cast by written ballot.



Section 7.  Proxies. Each stockholder entitled to vote at a meeting of the
stockholders may authorize another person or persons to act for such stockholder as proxy, but no
such proxy shall be voted upon after three years from its date, unless such proxy provides for a
longer period. Without limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, the following shall constitute a valid means by which
a stockholder may grant such authority:



(a) A stockholder may execute a writing authorizing another person or persons to act for such
stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s
authorized officer, director, employee or agent signing such writing or causing such person’s
signature to be affixed to such writing by any reasonable means, including, but not limited to, by
facsimile signature.



(b) A stockholder may authorize another person or persons to act for such stockholder as
proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of
electronic transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either set forth or be submitted with
information from which it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is determined that such telegrams,
cablegrams or other electronic transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the information on which
they relied.



Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission
authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the entire original
writing or transmission. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power.


 


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Section 8.  Quorum and Vote of Stockholders. Except as otherwise provided by
law, the Restated Certificate of Incorporation of the Company or these Bylaws, the holders of a
majority of shares issued and outstanding and entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders, but, if a quorum is not represented, a
majority in interest of those represented may adjourn the meeting from time to time. A quorum,
once established, shall not be broken by the withdrawal of enough votes to leave less than a
quorum. Except as provided in Section 3 of Article III, a nominee for director shall be elected if
the votes cast for such nominee’s election exceed the votes cast against such nominee’s election at
a meeting of stockholders at which a quorum is present; provided, however, that directors shall be
elected by a plurality of the votes cast at any meeting of stockholders for which (i) the Corporate
Secretary of the Company receives a notice that a stockholder has nominated a person for election
to the Board of Directors in compliance with the advance notice requirements for stockholder
nominees for director set forth in Section 4 of Article III of these Bylaws and (ii) such
nomination has not been withdrawn by such stockholder on or prior to the seventh day preceding the
date the Company first mails its notice of meeting for such meeting to the stockholders. Unless
otherwise required by law or regulation, the Restated Certificate of Incorporation or these Bylaws,
any question brought before any meeting of the stockholders, other than the election of directors,
shall be decided by the vote of the holders of a majority of the total number of votes of the
Company’s capital stock represented and entitled to vote thereat and on such matter, voting as a
single class.



Section 9.  Adjournments. Any meeting of the stockholders may be adjourned
from time to time to reconvene at the same or some other place, and notice need not be given of any
such adjourned meeting if the time and place, if any, thereof and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such adjourned meeting are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the Company may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting in accordance with the requirements of Article II, Section 4 (Notice of Meeting) shall be
given to each stockholder of record entitled to notice of and to vote at the meeting.



Section 10.  Presiding Officer and Conduct of Meetings. The Chairman of the
Board, if there is one, or in such person’s absence, the Chief Executive Officer, if there is one,
or in such person’s absence, the President shall preside at all meetings of the stockholders or, if
such officers are not present at a meeting, by such other person as the Board of Directors shall
designate or if no such person is designated by the Board of Directors, the most senior officer of
the Company present at the meeting. The Corporate Secretary of the Company, if present, shall act
as secretary of each meeting of stockholders; if the Corporate Secretary is not present at a
meeting, then such person as may be designated by the presiding officer shall act as secretary of
the meeting. Meetings of stockholders shall follow reasonable and fair procedure. Subject to the
foregoing, the conduct of any meeting of stockholders and the determination of procedure and rules
shall be within the absolute discretion of the officer presiding at such meeting (the “Chairman of
the Meeting”), and there shall be no appeal from any ruling of the Chairman of the Meeting with
respect to procedure or rules. Accordingly, in any meeting of stockholders or part thereof, the
Chairman of the Meeting shall have the sole power to determine appropriate rules or to dispense
with theretofore prevailing rules. Without limiting the foregoing, the following rules shall
apply:



(a) If disorder should arise which prevents continuation of the legitimate business of
meeting, the Chairman of the Meeting may announce the adjournment of the meeting; and upon so
doing, the meeting shall be immediately adjourned.



(b) The Chairman of the Meeting may ask or require that anyone not a bona fide stockholder or
proxy leave the meeting.



(c) A resolution or motion proposed by a stockholder shall only be considered for vote of the
stockholders if it meets the criteria of Article II, Section 11 (Proper Business—Annual Meeting of
Stockholders) or Article II, Section 12 (Proper Business—Special Meeting of Stockholders), as the
case
may be. The Chairman of the Meeting may propose any resolution or motion for vote of the
stockholders.


 


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(d) The order of business at all meetings of stockholders shall be determined by the Chairman
of the Meeting.



(e) The Chairman of the Meeting may impose any reasonable limits with respect to participation
in the meeting by stockholders, including, but not limited to, limits on the amount of time taken
up by the remarks or questions of any stockholder, limits on the number of questions per
stockholder and limits as to the subject matter and timing of questions and remarks by
stockholders.



(f) Before any meeting of stockholders, the Board of Directors, by resolution, the Chairman of
the Board, if there is one, or the President (i) shall appoint one or more, up to a maximum of
three, persons other than nominees for office to act as inspectors of election at the meeting or
its adjournment and (ii) may designate one or more alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the
Chairman of the Meeting shall appoint one or more, up to a maximum of three, inspectors of election
to act at the meeting of the stockholders. Unless otherwise required by applicable law or
regulation, inspectors may be officers, employees or agents of the Company. The inspectors shall
have the duties prescribed by law and shall take charge of the polls and, when the vote is
completed, shall make a certificate of the result of the vote taken and of such other facts as may
be required by applicable law.



(g) Each inspector of election, before entering upon the discharge of the duties of inspector,
shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of such inspector’s ability.



(h) In determining the validity and counting of proxies and ballots, the inspectors of
election shall be limited to an examination of the items specifically allowed by Section 231(d) of
the DGCL.



All determinations of the Chairman of the Meeting shall be conclusive unless a matter is
determined otherwise upon motion duly adopted by the affirmative vote of the holders of at least
80% of the voting power of the shares of capital stock of the Company entitled to vote in the
election of directors held by stockholders present in person or represented by proxy at such
meeting.



Section 11.  Proper Business—Annual Meeting of Stockholders. At any annual
meeting of stockholders, only such business shall be conducted as shall be a proper subject for the
meeting and shall have been properly brought before the meeting. To be properly brought before an
annual meeting of stockholders, business (other than business relating to any nomination of
directors, which is governed by Article III, Section 4 of these Bylaws) must (a) be specified in
the notice of such meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise be properly brought before the
meeting by or at the direction of the Chairman of the Meeting or the Board of Directors (or any
duly authorized committee thereof) or (c) otherwise (i) be properly requested to be brought before
the meeting by a stockholder entitled to vote in the election of directors who is a stockholder of
record on the date of the giving of the notice provided for in this Section 11 and on the record
date for the determination of stockholder entitled to notice of and to vote at such annual meeting,
in compliance with the provisions of this Section 11 and (ii) constitute a proper subject to be
brought before such meeting. For business to be properly brought before an annual meeting of
stockholders, any stockholder who intends to bring any matter (other than a matter relating to any
nomination of directors, which is governed by Article III, Section 4 of these Bylaws) before an
annual meeting of stockholders and is entitled to vote on such matter must deliver written notice
of such stockholder’s intent to bring such matter before the annual meeting of stockholders, either
by personal delivery or by United States mail, postage prepaid, to the Corporate Secretary of the
Company. Such notice must be received by the Corporate Secretary not earlier than the
120th day nor later than 5:00 p.m., Central Time, on the 90th day prior to
the anniversary of the date on which the immediately preceding year’s annual meeting of
stockholders was held; provided, however, that in the event that the annual meeting of
stockholders is called for a date that is not within twenty-five days before or after such
anniversary date, notice by the stockholder in order to be timely must be so received not later
than 5:00 p.m., Central Time, on the tenth day following the day on which such notice of the date
of the annual meeting of stockholders was mailed or such public disclosure of the date of the
annual meeting was made, whichever first occurs. In no event shall the public disclosure of an
adjournment of an annual meeting of stockholders commence a new time period for the giving of a
stockholder’s notice as described above.


 


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To be in proper written form, a stockholder’s notice to the Corporate Secretary shall set
forth or include as to each matter the stockholder proposes to bring before the annual meeting of
stockholders (a) a brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (b) the name and address, as they appear
on the Company’s books and records, of the stockholder proposing such business, (c) as to such
stockholder, (i) evidence, reasonably satisfactory to the Corporate Secretary of the Company, of
such stockholder’s status as such and of the number of all shares of each class of stock of the
Company owned by such stockholder, (ii) the name of each nominee holder for, and the number of,
shares beneficially owned but not of record by such stockholder; and (iii) whether and the extent
to which any derivative instrument, swap option, warrant, short interest, hedge or profit interest
or other transaction or series of transactions has been entered into by or on behalf of such
stockholder, or any other agreement, arrangement or understanding (including any short position or
any borrowing or lending of shares of stock) has been made, the effect or intent of which is to
mitigate loss to or manage risk of stock price changes for, or to increase the voting power or
pecuniary or economic interest of, such stockholder with respect to stock of the Company; (d) a
description of all agreements, arrangements or understandings between such stockholder and any of
its affiliates or associates and any other person or persons (including their names and the number
of shares beneficially owned by them) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business, including any
anticipated benefit to the stockholder therefrom; (e) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such business before the
meeting; and (f) any other information concerning such stockholder that would be required to be
disclosed in a proxy statement or other filing required to be made in connection with the
solicitation of proxies with respect to business brought at an annual meeting of stockholders, or
that is otherwise required to be disclosed, under the rules and regulations of the United States
Securities and Exchange Commission (the “SEC”). No business shall be conducted at an annual
meeting of stockholders except business brought before the annual meeting in accordance with the
procedures set forth in this Section 11. If the Chairman of the Meeting determines that business
was not properly brought before the annual meeting of stockholders in accordance with the foregoing
procedures, the Chairman of the Meeting shall declare to the meeting that the business was not
properly brought before the meeting and such business shall not be transacted. Beneficial
ownership shall be determined in accordance with Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”). When used in these Bylaws, “person” has the meaning ascribed
to such term in Section 2(a)(2) of the Securities Act of 1933, as amended, as the context may
require.



Nothing in this Section 11 shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement distributed by, at the direction of, or
on behalf of the Board of Directors of the Company.



Section 12.  Proper Business—Special Meeting of Stockholders. At any special
meeting of stockholders, only such business shall be conducted as shall have been stated in the
notice of such meeting or shall otherwise have been properly brought before the meeting by or at
the direction of the Chairman of the Meeting or the Board of Directors (or any duly authorized
committee thereof).


 


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ARTICLE III




DIRECTORS




Section 1.  General. The business and affairs of the Company shall be managed
by or under the direction of the Board of Directors. In addition to the authority and powers
conferred on the Board of
Directors by the DGCL or by the Restated Certificate of Incorporation of the Company, the Board of
Directors is authorized and empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Company, subject to the provisions of the DGCL, the Restated
Certificate of Incorporation of the Company and these Bylaws; provided, however, that no Bylaws
hereafter adopted, or any amendments thereto, shall invalidate any prior act of the Board of
Directors that would have been valid if such Bylaws or amendment had not been adopted.



Section 2.  Term of Board of Directors. Each director elected by the holders
of Preferred Stock pursuant to Division A of Article FOURTH of the Restated Certificate of
Incorporation of the Company (or elected by such directors to fill a vacancy) shall serve for a
term ending upon the earlier of the election of his or her successor or the termination at any time
of a right of the holders of Preferred Stock to elect members of the Board of Directors.



The number of directors which shall constitute the whole Board of Directors shall be fixed in
the manner provided in the Restated Certificate of Incorporation of the Company. Directors need
not be stockholders. At each annual meeting of stockholders of the Company, the directors elected
at such meeting shall serve for a one-year term expiring upon the election and qualification of his
or her successor or until his or her earlier death, resignation, or removal.



In the event of any decrease in the authorized number of directors, each director then
continuing to serve as such shall nevertheless continue as a director until the expiration of his
or her current term, or his or her prior death, resignation, disqualification or removal.



Section 3.  Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the number of directors and any vacancies on the Board
of Directors resulting from death, resignation, removal, disqualification or other cause shall be
filled by the affirmative vote of a majority of the remaining directors then in office, even though
less than a quorum of the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term and until that director’s
successor shall have been elected and qualified or until his or her earlier death, resignation or
removal.



Notwithstanding the foregoing paragraph of this Section 3, whenever holders of outstanding
shares of Preferred Stock are entitled to elect members of the Board of Directors pursuant to the
provisions of Division A of Article FOURTH of the Restated Certificate of Incorporation of the
Company, any vacancy or vacancies resulting by reason of the death, resignation, disqualification
or removal of any director or directors or any increase in the number of directors shall be filled
in accordance with the provisions of such division.



Section 4.  Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as directors of the
Company, except as may be otherwise provided pursuant to Division A of Article FOURTH of the
Restated Certificate of Incorporation with respect to the right of holders of outstanding shares of
Preferred Stock to nominate and elect a specified number of directors in certain circumstances.
Nominations for the election of directors may be made at any annual meeting of stockholders of the
Company, or at any special meeting of stockholders of the Company called for the purpose of
electing directors, (a) by the Board of Directors (or any duly authorized committee thereof) or (b)
by any stockholder of the Company (each, a “Nominator”) entitled to vote in the election of
directors: who is a stockholder of record on the date of the giving of the notice provided for in
this Section 4 and on the record date for the determination of stockholders entitled to notice of
and to vote at such meeting and who complies with this Section 4. Such nominations, other than
those made by the Board of Directors, shall be made in writing pursuant to timely notice delivered
to or mailed and received by the Corporate Secretary of the Company as set forth in this Section 4.


 


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To be timely in connection with an annual meeting of stockholders, a Nominator’s notice,
setting forth the name and address of the person to be nominated, shall be delivered to or mailed
and received at the
principal executive offices of the Company not earlier than the 120th day nor later
than 5:00 p.m., Central Time, on the 90th day prior to the anniversary of the date on
which the immediately preceding year’s annual meeting of stockholders was held; provided, however,
that in the event that the annual meeting of stockholders is called for a date that is not within
twenty-five days before or after such anniversary date, notice by the stockholder in order to be
timely must be so received not later 5:00 p.m., Central Time, on the tenth day following the day on
which such notice of the date of the annual meeting of stockholders was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs. To be timely in
connection with any election of a director at a special meeting of the stockholders called for the
purpose of electing directors, a Nominator’s notice, setting forth the name of the person to be
nominated, shall be delivered to or mailed and received at the principal executive offices of the
Company not less than forty days nor more than sixty days prior to the date of such meeting;
provided, however, that in the event that less than forty-seven days’ notice or prior public
disclosure of the date of the special meeting of the stockholders is given or made to the
stockholders, the Nominator’s notice to be timely must be so received not later than 5:00 p.m.,
Central Time, on the seventh day following the day on which such notice of date of the meeting was
mailed or such public disclosure was made, whichever first occurs. In no event shall the public
disclosure of an adjournment of an annual meeting of stockholders or a special meeting of
stockholders, called for the purpose of electing directors commence a new time period for giving of
a Nominator’s notice as described above.



At such time as a Nominator delivers timely notice in accordance with this Section 4 in
connection with an annual meeting or a special meeting of stockholders, as the case may be, the
Nominator shall also identify in writing: (a) as to each person whom the Nominator proposes to
nominate for election as a director (i) the name, age, business address and residence address of
such person, (ii) the principal occupation or employment of such person, (iii) (A) the class,
series and number of all shares of stock of the Company which are owned by such person, (B) the
name of each nominee holder of shares beneficially owned but not of record by such person and the
number of shares of stock held by each such nominee holder, and (C) whether and the extent to which
any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other
transaction or series of transactions has been entered into by or on behalf of such person with
respect to stock of the Company and whether any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares of stock) has been made by or
on behalf of such person, the effect or intent of any of the foregoing being to mitigate loss to,
or to manage risk of stock price changes for, such person or to increase the voting power or
pecuniary or economic interest of such person with respect to stock of the Company and (iv) any
other information concerning each such proposed nominee that would be required to be disclosed in a
proxy statement or other filing required to be made in connection with the solicitation of proxies
for the election of directors, or that is otherwise required to be disclosed, under the rules and
regulations of the SEC.



(b) as to the Nominator, (i) the name and record address of the Nominator, (ii) (A) the class,
series and number of all shares of stock of the Company which are owned by the Nominator, (B) the
name of each nominee holder of shares beneficially owned but not of record by the Nominator and the
number of shares of stock held by each such nominee holder, and (C) whether and the extent to which
any derivative instrument, swap, option, warrant, short interest, hedge or profit interest or other
transaction or series of transactions has been entered into by or on behalf of the Nominator with
respect to stock of the Company and whether any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares of stock) has been made by or
on behalf of the Nominator, the effect or intent of any of the foregoing being to mitigate loss to,
or to manage risk of stock price changes for, the Nominator or to increase the voting power or
pecuniary or economic interest of the Nominator with respect to stock of the Company, (iii) a
description of all agreements, arrangements, or understandings between the Nominator and each
proposed nominee and any other person or persons (including their names) pursuant to which the
nomination(s) are to be made by the Nominator, and any material interest of the Nominator in such
nomination, including any anticipated benefit to the Nominator therefrom, (iv) a representation
that the Nominator intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice; and (v) any other information concerning the Nominator that would be required
to be disclosed in a proxy statement or other filing required to be made in connection with the
solicitation of proxies for the
election directors, or that is otherwise required to be disclosed, under the rules and
regulations of the SEC. At such time, the Nominator shall also submit in writing (1) a notarized
affidavit executed by each such proposed nominee to the effect that, if elected as a member of the
Board of Directors, he or she will serve and that he or she is eligible for election as a member of
the Board of Directors and (2) a statement as to whether such proposed nominee, if elected, intends
to tender, promptly following such person’s election or re-election, an irrevocable resignation
effective upon (A) such person’s failure to receive the required vote for re-election at the next
meeting at which such person would face re-election and (B) acceptance of such resignation by the
Board of Directors, in accordance with the Company’s Corporate Governance Guidelines.


 


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No person shall be eligible for election as a director of the Company unless nominated in
accordance with the procedures set forth in this Section 4. The Chairman of the Meeting shall, if
the facts warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedures, and if the Chairman of the Meeting should so determine,
he or she shall so declare to the meeting and the defective nomination shall be disregarded.
Beneficial ownership shall be determined in accordance with Rule 13d-3 under the Exchange Act.



Nothing in this Section 4 shall be interpreted or construed to require the inclusion of
information about any such proposal in any proxy statement distributed by, at the direction of, or
on behalf of the Board of Directors of the Company.



Section 5.  Place of Meetings and Meetings by Telephone. Meetings of the
Board of Directors may be held either within or without the State of Delaware, at whatever place is
specified by the officer calling the meeting. Meetings of the Board of Directors may also be held
by means of conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in such a meeting by means of
conference telephone or other communications equipment shall constitute presence in person at such
meeting, except where a director participates in a meeting for the express purpose of objecting to
the transaction of any business on the ground that the meeting is not lawfully called or convened.
In the absence of specific designation by the officer calling the meeting, the meetings shall be
held at the principal office of the Company.



Section 6.  Regular Meetings. The Board of Directors shall meet each year
immediately following the annual meeting of the stockholders for the transaction of such business
as may properly be brought before the meeting. The Board of Directors shall also meet regularly at
such other times as shall be designated by the Board of Directors. No notice of any kind to either
existing or newly elected members of the Board of Directors for such annual or regular meetings
shall be necessary.



Section 7.  Special Meetings. Special meetings of the Board of Directors may
be held at any time upon the call of the Chairman of the Board, if there is one, the Chief
Executive Officer, if there is one, the President or the Corporate Secretary of the Company, and a
majority of the directors then in office. Notice thereof stating the place, date and hour of the
meeting shall be given to each director either by mail not less than forty-eight hours before the
date of the meeting, or by telephone, telegram or electronic means on twenty-four hours’ notice.
Except as otherwise provided by these Bylaws, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.



Section 8.  Organization. At each meeting of the Board of Directors, the
Chairman of the Board, if there is one, or, in his or her absence, a director chosen by a majority
of the directors present, shall act as chairman. The Corporate Secretary of the Company shall act
as secretary at each meeting of the Board of Directors. In case the Corporate Secretary shall be
absent from any meeting of the Board of Directors, an Assistant Corporate Secretary shall perform
the duties of secretary at such meeting; and in the absence from any such meeting of the Corporate
Secretary and all the Assistant Corporate Secretaries, the chairman of the meeting may appoint any
person to act as secretary of the meeting.


 


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Section 9.  Quorum and Voting. Except as otherwise provided by law, a
majority of the number of directors fixed in the manner provided in the Restated Certificate of
Incorporation of the Company shall constitute a quorum for the transaction of business. Except as
otherwise provided by law or regulation, the Restated Certificate of Incorporation of the Company
or these Bylaws, the act of a majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors. Any regular or special directors’ meeting may
be adjourned from time to time by a majority of those present, whether a quorum is present or not.



Section 10.  Compensation. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and in connection with other authorized
Board of Directors services and may be paid a fixed sum for attendance at each meeting of the Board
of Directors or a stated salary for service as director, payable in cash or securities, as shall be
determined by the Board of Directors. No such payment shall preclude any director from serving
the Company in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for service as committee members.



Section 11.  Executive and Other Committees. The Board of Directors, by
resolution or resolutions adopted by a majority of the full Board of Directors, may designate one
or more members of the Board of Directors to constitute an Executive Committee, and one or more
other committees, which shall in each case be comprised of such number of directors as the Board of
Directors may determine from time to time. Subject to such restrictions as may be contained in the
Company’s Restated Certificate of Incorporation or that may be imposed by the DGCL, any such
committee shall have and may exercise such powers and authority of the Board of Directors in the
management of the business and affairs of the Company as the Board of Directors may determine by
resolution and specify in the respective resolutions appointing them, and may authorize the seal of
the Company to be affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to the following matters: (a) approving or adopting, or
recommending to the stockholders of the Company, any action or matter expressly required by the
DGCL to be submitted to the stockholders for approval or (b) adopting, amending or repealing any
Bylaw of the Company. Each duly authorized action taken with respect to a given matter by any such
duly appointed committee of the Board of Directors shall have the same force and effect as the
action of the full Board of Directors and shall constitute for all purposes the action of the full
Board of Directors with respect to such matter.



The Board of Directors shall have the power at any time to change the membership of any such
committee and to fill vacancies in it. A majority of the members of any such committee shall
constitute a quorum. The Board of Directors shall name a chairman at the time it designates
members to a committee. Each such committee shall appoint such subcommittees and assistants as it
may deem necessary. Except as otherwise provided by the Board of Directors, meetings of any
committee shall be conducted in accordance with the provisions of Sections 5 and 7 and 8 of this
Article III as the same shall from time to time be amended. Each committee shall keep regular
minutes and report to the Board of Directors when required. Any member of any such committee
elected or appointed by the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the Company will be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Election or
appointment of a member of a committee shall not of itself create contract rights.



ARTICLE IV




OFFICERS




Section 1.  Officers. The officers of the Company shall consist of a Chief
Executive Officer, a President and a Corporate Secretary, and such other officers and
agents as the Board of Directors may from time to time elect or appoint. The Board of Directors
may delegate to the Chairman of the Board, if there is one, and/or the Chief Executive Officer, if
there is one, the authority to appoint or remove additional officers and agents of the Company.
Each officer shall hold office until his or her successor shall have been
duly elected or appointed and shall qualify or until his or her death or until he or she shall
resign or shall have been removed in the manner hereinafter provided. Any two or more offices may
be held by the same person, unless otherwise prohibited by law, the Restated Certificate of
Incorporation or these Bylaws. The officers of the Company need not be stockholders of the Company
nor, except for the Chairman of the Board, if any, need such officers be directors of the Company.


 


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Section 2. Vacancies; Removal. (a) Whenever any vacancies shall occur in any office by
death, resignation, increase in the number of offices of the Company, or otherwise, the officer so
elected shall hold office until his successor is chosen and qualified. The Board of Directors may
at any time remove any officer of the Company, but such removal shall be without prejudice to the
contract rights, if any, of the person so removed; provided, however, that notwithstanding the
foregoing, prior to December 3, 2013, any removal of the Chief Executive Officer or the President
and Chief Operating Officer shall each require the affirmative vote of at least 66-2/3% of the
independent directors then in office. Election or appointment of an officer or agent shall not of
itself create contract rights.



(b) The provisions of this Article IV, Section 2 may be modified, amended or repealed, and
any Bylaw provision inconsistent with the provisions of this Article IV, Section 2 may be adopted,
only by an affirmative vote of at least 66-2/3% of the independent directors then in office. In
the event of any inconsistency between any provision of this Article IV, Section 2 and any other
provision of these Bylaws or the Company’s other constituent documents, the provisions of this
Article IV, Section 2 shall control. As used in this Article IV, Section 2, “independent director”
means a director meeting the independence standards of the New York Stock Exchange with respect to
the Company.



Section 3. Powers and Duties of Officers. The officers of the Company shall have such powers
and duties as generally pertain to their offices as well as such powers and duties as from time to
time shall be conferred by the Board of Directors. The Corporate Secretary shall have the duty to
record the proceedings of the meetings of the stockholders and directors in a book to be kept for
that purpose.



ARTICLE V




NOTICES




Section 1.  Notices. Whenever written notice is required by law or
regulation, the Restated Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail, addressed to such director,
member of a committee or stockholder, at such person’s address as it appears on the records of the
Company, with postage thereon prepaid, and such notice shall be deemed to be given at the time when
the same shall be deposited in the United States mail. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders given by the Company
under applicable law, the Restated Certificate of Incorporation or these Bylaws shall be effective
if given by a form of electronic transmission if consented to by the stockholder to whom the notice
is given. Any such consent shall be revocable by the stockholder by written notice to the Company.
Any such consent shall be deemed to be revoked if (i) the Company is unable to deliver by
electronic transmission two (2) consecutive notices by the Company in accordance with such consent
and (ii) such inability becomes known to the Secretary or Assistant Secretary or to the transfer
agent, or other person responsible for the giving of notice; provided, however, that the
inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or
other action. Notice given by electronic transmission, as described above, shall be deemed given:
(i) if by facsimile telecommunication, when directed to a number at which the stockholder has
consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail
address at which the stockholder has consented to receive notice; (iii) if by a posting on an
electronic network, together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other
form of electronic transmission, when directed to the stockholder. Notice to directors or
committee members may be given personally or by telegram, telex, cable or by means of electronic
transmission.


 


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Section 2.  Waivers of Notice. Whenever any notice is required by applicable
law, the Restated Certificate of Incorporation or these Bylaws, to be given to any director, member
of a committee or stockholder, a waiver thereof in writing, signed by the person or persons
entitled to notice, or a waiver by electronic transmission by the person or persons entitled to
notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a
waiver of notice of such meeting, except where the person attends the meeting for the express
purpose of objecting at the beginning of the meeting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of stockholders of the Company or any regular or special
meeting of the directors or members of a committee of directors need be specified in any written
waiver of notice unless so required by law or regulation, the Restated Certificate of Incorporation
or these Bylaws.



ARTICLE VI




INDEMNIFICATION




Section 1.  General. The Company shall, to the fullest extent permitted by
applicable law in effect on the date of effectiveness of these Bylaws, and to such greater extent
as applicable law may thereafter permit, indemnify and hold Indemnitee harmless from and against
any and all losses, liabilities, claims, damages and, subject to Article VI, Section 2 (Expenses),
Expenses (as this and all other capitalized words used in this Article VI not previously defined in
these Bylaws are defined in Article VI, Section 16 (Definitions)), whatsoever arising out of any
event or occurrence related to the fact that Indemnitee is or was a director or officer of the
Company or is or was serving in another Corporate Status.



Section 2.  Expenses. If Indemnitee is, by reason of his Corporate Status, a
party to and is successful, on the merits or otherwise, in any Proceeding, the Indemnitee shall be
indemnified against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s
behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to any Matter in such Proceeding, the Company shall
indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on
Indemnitee’s behalf relating to such Matter. The termination of any Matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result as to such Matter.
To the extent that the Indemnitee is, by reason of his Corporate Status, a witness in any
Proceeding, Indemnitee shall be indemnified against all Expenses actually and reasonably incurred
by Indemnitee or on Indemnitee’s behalf in connection therewith.



Section 3.  Advances. In the event of any threatened or pending action, suit
or proceeding in which Indemnitee is a party or is involved and that may give rise to a right of
indemnification under this Article VI, following written request to the Company by Indemnitee, the
Company shall promptly pay to Indemnitee amounts to cover expenses reasonably incurred by
Indemnitee in such proceeding in advance of its final disposition upon the receipt by the Company
of (i) a written undertaking executed by or on behalf of Indemnitee providing that Indemnitee will
repay the advance if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified by the Company as provided in these Bylaws and (ii) satisfactory evidence as to the
amount of such expenses.



Section 4.  Repayment of Advances or Other Expenses. Indemnitee agrees that
Indemnitee shall reimburse the Company all expenses paid by the Company in defending any civil,
criminal, administrative or investigative action, suit or proceeding against Indemnitee in the
event and only to the extent that it shall be determined pursuant to the provisions of this Article
VI or by final judgment or other final adjudication under the provisions of any applicable law that
Indemnitee is not entitled to be indemnified by the Company for such expenses.


 


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Section 5.  Request for Indemnification. To obtain indemnification,
Indemnitee shall submit to the Corporate Secretary of the Company a written claim or request. Such
written claim or request shall contain
sufficient information to reasonably inform the Company about the nature and extent of the
indemnification or advance sought by Indemnitee. The Corporate Secretary of the Company shall
promptly advise the Board of Directors of such request.



Section 6.  Determination of Entitlement; No Change of Control. If there has
been no Change of Control at the time the request for indemnification is submitted, Indemnitee’s
entitlement to indemnification shall be determined in accordance with Section 145(d) of the DGCL.
If entitlement to indemnification is to be determined by Independent Counsel, the Company shall
furnish notice to Indemnitee within ten days after receipt of the request for indemnification,
specifying the identity and address of Independent Counsel. The Indemnitee may, within fourteen
days after receipt of such written notice of selection, deliver to the Company a written objection
to such selection. Such objection may be asserted only on the ground that the Independent Counsel
so selected does not meet the requirements of Independent Counsel and the objection shall set forth
with particularity the factual basis for such assertion. If there is an objection to the selection
of Independent Counsel, either the Company or Indemnitee may petition the Court for a determination
that the objection is without a reasonable basis and/or for the appointment of Independent Counsel
selected by the Court.



Section 7.  Determination of Entitlement; Change of Control. If there has
been a Change of Control at the time the request for indemnification is submitted, Indemnitee’s
entitlement to indemnification shall be determined in a written opinion by Independent Counsel
selected by Indemnitee. Indemnitee shall give the Company written notice advising of the identity
and address of the Independent Counsel so selected. The Company may, within seven days after
receipt of such written notice of selection, deliver to the Indemnitee a written objection to such
selection. Indemnitee may, within five days after the receipt of such objection from the Company,
submit the name of another Independent Counsel and the Company may, within seven days after receipt
of such written notice of selection, deliver to the Indemnitee a written objection to such
selection. Any objections referred to in this Section 7 may be asserted only on the ground that
the Independent Counsel so selected does not meet the requirements of Independent Counsel and such
objection shall set forth with particularity the factual basis for such assertion. Indemnitee may
petition the Court for a determination that the Company’s objection to the first and/or second
selection of Independent Counsel is without a reasonable basis and/or for the appointment as
Independent Counsel of a person selected by the Court.



Section 8.  Procedures of Independent Counsel. If a Change of Control shall
have occurred before the request for indemnification is sent by Indemnitee, Indemnitee shall be
presumed (except as otherwise expressly provided in this Article VI) to be entitled to
indemnification upon submission of a request for indemnification in accordance with Article VI,
Section 5 (Request for Indemnification), and thereafter the Company shall have the burden of proof
to overcome the presumption in reaching a determination contrary to the presumption. The
presumption shall be used by Independent Counsel as a basis for a determination of entitlement to
indemnification unless the Company provides information sufficient to overcome such presumption by
clear and convincing evidence or the investigation, review and analysis of Independent Counsel
convinces Independent Counsel by clear and convincing evidence that the presumption should not
apply.



Except in the event that the determination of entitlement to indemnification is to be made by
Independent Counsel, if the person or persons empowered under Article VI, Section 6 (Determination
of Entitlement; No Change of Control) or Section 7 (Determination of Entitlement; Change of
Control) to determine entitlement to indemnification shall not have made and furnished to
Indemnitee in writing a determination within sixty days after receipt by the Company of the request
therefor, the requisite determination of entitlement to indemnification shall be deemed to have
been made and Indemnitee shall be entitled to such indemnification unless Indemnitee knowingly
misrepresented a material fact in connection with the request for indemnification or such
indemnification is prohibited by applicable law. The termination of any Proceeding or of any
Matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not (except as otherwise expressly provided in this Article VI) of itself
adversely affect the right of Indemnitee to indemnification or create a presumption that
Indemnitee did not act in good faith and in a manner that Indemnitee reasonably believed to be
in or not opposed to the best interests of the Company, or with respect to any criminal Proceeding,
that Indemnitee had reasonable cause to believe that his conduct was unlawful. A person who acted
in good faith and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan of the Company shall be deemed to have
acted in a manner not opposed to the best interests of the Company.


 


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For purposes of any determination hereunder, a person shall be deemed to have acted in good
faith and in a manner such person reasonably believed to be in or not opposed to the best interests
of the Company, or, with respect to any criminal action or Proceeding, to have had no reasonable
cause to believe such person’s conduct was unlawful, if such person’s action is based on the
records or books of account of the Company or another enterprise or on information supplied to such
person by the officers of the Company or another enterprise in the course of their duties or on the
advice of legal counsel for the Company or another enterprise or on information or records given or
reports made to the Company or another enterprise by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care by the Company or another enterprise.
The term “another enterprise” as used in this Section shall mean any other corporation or any
partnership, limited liability company, association, joint venture, trust, employee benefit plan or
other enterprise of which such person is or was serving at the request of the Company as a
director, officer, employee or agent. The provisions of this paragraph shall not be deemed to be
exclusive or to limit in any way the circumstances in which an Indemnitee may be deemed to have met
the applicable standards of conduct for determining entitlement to rights under this Article VI.



Section 9.  Independent Counsel Expenses. The Company shall pay any and all
reasonable fees and expenses of Independent Counsel incurred acting pursuant to this Article VI and
in any proceeding to which it is a party or witness in respect of its investigation and written
report and shall pay all reasonable fees and expenses incident to the procedures in which such
Independent Counsel was selected or appointed. No Independent Counsel may serve if a timely
objection has been made to such Independent Counsel’s selection until a court has determined that
such objection is without a reasonable basis.



Section 10.  Adjudication. In the event that (i) a determination is made
pursuant to Article VI, Section 6 (Determination of Entitlement; No Change of Control) or Section 7
(Determination of Entitlement; Change of Control) that Indemnitee is not entitled to
indemnification under this Article VI; (ii) advancement of Expenses is not timely made pursuant to
Article VI, Section 3 (Advances); (iii) Independent Counsel has not made and delivered a written
opinion determining the request for indemnification (a) within ninety days after being appointed by
the Court, (b) within ninety days after objections to his selection have been overruled by the
Court or (c) within ninety days after the time for the Company or Indemnitee to object to his
selection; or (iv) payment of indemnification is not made within five days after a determination of
entitlement to indemnification has been made or deemed to have been made pursuant to Article VI,
Section 6 (Determination of Entitlement; No Change of Control), Section 7 (Determination of
Entitlement; Change of Control) or Section 8 (Procedures of Independent Counsel), Indemnitee shall
be entitled to an adjudication in an appropriate court of the State of Delaware, or in any other
court of competent jurisdiction, of his entitlement to such indemnification or advancement of
Expenses. In the event that a determination shall have been made that Indemnitee is not entitled
to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 10
shall be conducted in all respects as a de novo trial on the merits and Indemnitee shall not be
prejudiced by reason of that adverse determination. If a Change of Control shall have occurred, in
any judicial proceeding commenced pursuant to this Section 10, the Company shall have the burden of
proving that Indemnitee is not entitled to indemnification or advancement of Expenses, as the case
may be. If a determination shall have been made or deemed to have been made that Indemnitee is
entitled to indemnification, the Company shall be bound by such determination in any judicial
proceeding commenced pursuant to this Section 10, or otherwise, unless Indemnitee knowingly
misrepresented a material fact in connection with the request for indemnification, or such
indemnification is prohibited by law.


 


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The Company shall be precluded from asserting in any judicial proceeding commenced pursuant
to this Section 10 that the procedures and presumptions of this Article VI are not valid,
binding and enforceable and shall stipulate in any such proceeding that the Company is bound by all
provisions of this Article VI. In the event that Indemnitee, pursuant to this Section 10, seeks a
judicial adjudication to enforce Indemnitee’s rights under, or to recover damages for breach of,
this Article VI, Indemnitee shall be entitled to recover from the Company, and shall be indemnified
by the Company against, any and all Expenses actually and reasonably incurred by Indemnitee in such
judicial adjudication, but only if Indemnitee prevails therein. If it shall be determined in such
judicial adjudication that Indemnitee is entitled to receive part but not all of the
indemnification or advancement of Expenses sought, the Expenses incurred by Indemnitee in
connection with such judicial adjudication or arbitration shall be appropriately prorated.



Section 11.  Participation by the Company. With respect to any such claim,
action, suit, proceeding or investigation as to which Indemnitee notifies the Company of the
commencement thereof: (a) the Company will be entitled to participate therein at its own expense;
(b) except as otherwise provided below, to the extent that it may wish, the Company (jointly with
any other indemnifying party similarly notified) will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to Indemnitee. After receipt of notice from the Company to
Indemnitee of the Company’s election so to assume the defense thereof, the Company will not be
liable to Indemnitee under this Article VI for any legal or other expenses subsequently incurred by
Indemnitee in connection with the defense thereof other than reasonable costs of investigation or
as otherwise provided below. Indemnitee shall have the right to employ his own counsel in such
action, suit, proceeding or investigation but the fees and expenses of such counsel incurred after
notice from the Company of its assumption of the defense thereof shall be at the expense of
Indemnitee unless (i) the employment of counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee shall have reasonably concluded that there is a conflict of interest between the
Company and Indemnitee in the conduct of the defense of such action or (iii) the Company shall not
in fact have employed counsel to assume the defense of such action, in each of which cases the fees
and expenses of counsel employed by Indemnitee shall be subject to indemnification pursuant to the
terms of this Article VI. The Company shall not be entitled to assume the defense of any action,
suit, proceeding or investigation brought in the name of or on behalf of the Company or as to which
Indemnitee shall have made the conclusion provided for in (ii) above; and (c) the Company shall not
be liable to indemnify Indemnitee under this Article VI for any amounts paid in settlement of any
action or claim effected without its written consent, which consent shall not be unreasonably
withheld. The Company shall not settle any action or claim in any manner that would impose any
limitation or unindemnified penalty on Indemnitee without Indemnitee’s written consent, which
consent shall not be unreasonably withheld.



Section 12.  Nonexclusivity of Rights. The rights of indemnification and
advancement of Expenses as provided by this Article VI shall not be deemed exclusive of any other
rights to which Indemnitee may at any time be entitled to under applicable law, the Restated
Certificate of Incorporation of the Company, these Bylaws, any agreement, a vote of stockholders or
a resolution of directors, or otherwise. No amendment, alteration or repeal of this Article VI or
any provision hereof shall be effective as to any Indemnitee for acts, events and circumstances
that occurred, in whole or in part, before such amendment, alteration or repeal. The provisions of
this Article VI shall continue as to an Indemnitee whose Corporate Status has ceased for any reason
and shall inure to the benefit of Indemnitee’s heirs, executors and administrators. Neither the
provisions of this Article VI nor those of any agreement to which the Company is a party shall be
deemed to preclude the indemnification of any person who is not specified in this Article VI as
having the right to receive indemnification or is not a party to any such agreement, but whom the
Company has the power or obligation to indemnify under the provisions of the DGCL.



Section 13.  Insurance and Subrogation. The Company may maintain insurance,
at its expense, to protect itself and any director, officer, employee or agent of the Company or
another corporation, partnership, joint venture, trust or other enterprise against any such
expense, liability or loss, whether or not the Company would have the power to indemnify such
person against such expense, liability or loss under applicable law.


 


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The Company shall not be liable under this Article VI to make any payment of amounts otherwise
indemnifiable hereunder if, but only to the extent that, Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.



In the event of any payment hereunder, the Company shall be subrogated to the extent of such
payment to all the rights of recovery of Indemnitee, who shall execute all papers required and take
all action reasonably requested by the Company to secure such rights, including execution of such
documents as are necessary to enable the Company to bring suit to enforce such rights.



Section 14.  Severability. If any provision or provisions of this Article VI
shall be held to be invalid, illegal or unenforceable for any reason whatsoever, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby; and, to the fullest extent possible, the provisions of this Article VI shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or
unenforceable.



Section 15.  Certain Actions for Which Indemnification Is Not Provided.
Notwithstanding any other provision of this Article VI, no person shall be entitled to
indemnification or advancement of Expenses under this Article VI with respect to any Proceeding, or
any Matter therein, brought or made by such person against the Company.




Section 16.  Definitions. For purposes of this Article VI:



“Change of Control” means a change in control of the Company after the date Indemnitee
acquired Indemnitee’s Corporate Status, which shall be deemed to have occurred in any one of the
following circumstances occurring after such date: (i) there shall have occurred an event required
to be reported with respect to the Company in response to Item 6(e) of Schedule 14A of Regulation
14A (or in response to any similar item on any similar schedule or form) promulgated under the
Exchange Act, whether or not the Company is then subject to such reporting requirement; (ii) any
“person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) shall have become
the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 15% or more of the combined voting power of the Company’s
then outstanding voting securities without prior approval of at least two-thirds of the members of
the Board of Directors in office immediately prior to such person attaining such percentage
interest; (iii) the Company is a party to a merger, consolidation, sale of assets or other
reorganization, or a proxy contest, as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute less than a majority of the Board
of Directors thereafter; or (iv) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors (including, for this purpose, any new
director whose election or nomination for election by the Company’s stockholders was approved by a
vote of at least two-thirds of the directors then still in office who were directors at the
beginning of such period) cease for any reason to constitute at least a majority of the Board of
Directors.



“Corporate Status” describes the status of Indemnitee as a director, officer, employee, agent
or fiduciary of the Company or of any other corporation, partnership, limited liability company,
association, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or
was serving at the request of the Company.



“Court” means the Court of Chancery of the State of Delaware or any other court of competent
jurisdiction.



“Designated Professional Capacity” shall include, but not be limited to, a physician, nurse,
psychologist or therapist, registered surveyor, registered engineer, registered architect,
attorney, certified public accountant or other person who renders such professional services within
the course and scope of his employment, who is licensed by appropriate regulatory authorities to
practice such profession and who, while acting in the course of such employment, committed or is
alleged to have committed any negligent acts, errors or omissions in rendering such professional
services at the request of the Company or pursuant to his employment (including, without
limitation, rendering written or oral opinion to third parties).


 


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“Expenses” shall include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, and all other disbursements or expenses
of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute
or defend, investigating, or being or preparing to be a witness in a Proceeding.



“Indemnitee” includes any officer (including an officer acting in his Designated Professional
Capacity) or director of the Company who is, or is threatened to be made, a witness in or a party
to any Proceeding as described in Article VI, Section 1 (General) or Section 2 (Expenses) by reason
of his Corporate Status.



“Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the five years previous to such law
firm’s or such member’s, as the case may be, selection or appointment has been, retained to
represent: (i) the Company or Indemnitee in any matter material to either such party or (ii) any
other party to the Proceeding giving rise to a claim for indemnification hereunder.




“Matter” is a claim, a material issue or a substantial request for relief.



“Proceeding” includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative, except one initiated by an Indemnitee pursuant to Article VI,
Section 10 (Adjudication) to enforce such Indemnitee’s rights under this Article VI.



Section 17.  Notices. Promptly after receipt by Indemnitee of notice of the
commencement of any action, suit or proceeding, Indemnitee shall, if such Indemnitee anticipates or
contemplates making a claim for expenses or an advance pursuant to the terms of this Article VI,
notify the Company of the commencement of such action, suit or proceeding; provided, however, that
any delay in so notifying the Company shall not constitute a waiver or release by Indemnitee of
rights hereunder and that any omission by Indemnitee to so notify the Company shall not relieve the
Company from any liability that it may have to Indemnitee otherwise than under this Article VI.
Any communication required or permitted to the Company shall be addressed to the Corporate
Secretary of the Company and any such communication to Indemnitee shall be addressed to such
Indemnitee’s address as shown on the Company’s records unless Indemnitee specifies otherwise and
shall be personally delivered or delivered by overnight mail delivery. Any such notice shall be
effective upon receipt.



Section 18.  Contractual Rights. The right to be indemnified or to the
advancement or reimbursement of Expenses (i) is a contract right based upon good and valuable
consideration, pursuant to which Indemnitee may sue as if these provisions were set forth in a
separate written contract between Indemnitee and the Company, (ii) is and is intended to be
retroactive and shall be available as to events occurring prior to the adoption of these provisions
and (iii) shall continue after any rescission or restrictive modification of such provisions as to
events occurring prior thereto.



Section 19.  Indemnification of Employees, Agents and Fiduciaries. The
Company, by adoption of a resolution of the Board of Directors, may indemnify and advance expenses
to a person who is an employee (including an employee acting in his Designated Professional
Capacity), agent or fiduciary of the Company including any such person who is or was serving at the
request of the Company as a director, officer, employee, agent or fiduciary of any other
corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or
other enterprise to the same extent and subject to the same conditions (or to such lesser extent
and/or with such other conditions as the Board of Directors may determine) under which it may
indemnify and advance expenses to an Indemnitee under this Article VI.


 


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ARTICLE VII




MISCELLANEOUS PROVISIONS




 Section 1.  Offices. The address of the registered office of the Company in
the State of Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400, City of
Wilmington, State of Delaware, County of New Castle, Zip Code 19808, and the name of the registered
agent of the Company at such address is Corporation Service Company. The principal office of the
Company shall be located in Houston, Texas, unless and until changed by resolution of the Board of
Directors. The Company may also have offices at such other places as the Board of Directors may
designate from time to time, or as the business of the Company may require. The principal office
and registered office may be, but need not be, the same.



Section 2.  Resignations. Any director or officer may resign at any time.
Such resignations shall be made in writing or by electronic transmission and shall take effect at
the time specified therein, or, if no time is specified, at the time of its receipt by the Chairman
of the Board, if there is one, the Chief Executive Officer, if there is one, the President or the
Corporate Secretary. The acceptance of a resignation shall not be necessary to make it effective,
unless expressly so provided in the resignation.



Section 3.  Seal. The Corporate Seal shall be circular in form, shall have
inscribed thereon the name of the Company and may be used by causing it or a facsimile thereof to
be impressed or affixed or otherwise reproduced.



Section 4.  Separability. If one or more of the provisions of these Bylaws
shall be held to be invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and these Bylaws shall be construed as
if such invalid, illegal or unenforceable provision or provisions had never been contained herein.



Section 5.  Voting Securities Owned by the Company. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating to securities owned
by the Company may be executed in the name of and on behalf of the Company by the President or any
Vice President or any other officer authorized to do so by the Board of Directors and any such
officer may, in the name of and on behalf of the Company, take all such action as any such officer
may deem advisable to vote in person or by proxy at any meeting of security holders of any
corporation in which the Company may own securities and at any such meeting shall possess and may
exercise any and all rights and power incident to the ownership of such securities and which, as
the owner thereof, the Company might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any other person or
persons.



ARTICLE VIII




AMENDMENT OF BYLAWS




Section 1.   Vote Requirements. The Board of Directors is expressly
empowered to adopt, amend or repeal these Bylaws. Any adoption, amendment or repeal of these
Bylaws by the Board of Directors shall require the affirmative vote of at least eighty percent
(80%) of all directors then in office at any regular or special meeting of the Board of Directors
called for that purpose; provided, however, that (a) any amendment or repeal of, or the adoption of
any Bylaw inconsistent with, the penultimate sentence of Section 8 of Article II of these Bylaws
shall also require the approval of the stockholders of the Company and (b) this Article VIII,
Section 1 shall not apply to any amendment or repeal of, or the adoption of any Bylaw inconsistent
with, Article IV, Section 2 of these Bylaws, which shall require the vote contemplated thereby.




 


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