RSC HOLDINGS INC.AMENDED AND RESTATED BY-LAWSAs Adopted on May 29, 2007 
 

 
Table of Contents     Section Page ARTICLE I STOCKHOLDERS  1      Section 1.01. Annual Meetings  1 Section 1.02. Special Meetings  1 Section 1.03. Participation in Meetings by Remote Communication  1 Section 1.04. Notice of Meetings; Waiver of Notice  1 Section 1.05. Quorum  2 Section 1.06. Voting  2 Section 1.07. Voting Lists  3 Section 1.08. Adjournment  3 Section 1.09. Proxies  3 Section 1.10. Organization; Procedure; Inspection of Elections  4 Section 1.11. Stockholder Action by Written Consent  4 Section 1.12. Notice of Stockholder Proposals and Nominations  5      ARTICLE II BOARD OF DIRECTORS  8      Section 2.01. General Powers  8 Section 2.02. Number and Term of Office  9 Section 2.03. Annual and Regular Meetings: Notice  9 Section 2.04. Special Meetings; Notice  10 Section 2.05. Quorum  10 Section 2.06. Voting  10 Section 2.07. Adjournment  10 Section 2.08. Action Without a Meeting  10 Section 2.09. Regulations; Manner of Acting  11 Section 2.10. Action by Telephonic Communications  11 Section 2.11. Resignations  11 Section 2.12. Removal of Directors  11 Section 2.13. Vacancies and Newly Created Directorships  11 Section 2.14. Director Fees and Expenses  12 Section 2.15. Reliance on Accounts and Reports, etc  12      ARTICLE III EXECUTIVE AND GOVERNANCE COMMITTEE AND OTHER COMMITTEES  12      Section 3.01. How Constituted  12 Section 3.02. Powers  12 Section 3.03. Proceedings  13 Section 3.04. Quorum and Manner of Acting  13 Section 3.05. Action by Telephonic Communications  14 Section 3.06. Resignations  14 Section 3.07. Removal  14 
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Table of Contents(continued)     Section Page Section 3.08. Vacancies  14      ARTICLE IV OFFICERS  14      Section 4.01. Number  14 Section 4.02. Election  14 Section 4.03. Compensation  15 Section 4.04. Removal and Resignation; Vacancies  15 Section 4.05. Authority and Duties of Officers  15 Section 4.06. President and Chief Executive Officer  15 Section 4.07. Vice President  15 Section 4.08. Corporate Secretary  16 Section 4.09. Chief Financial Officer  17 Section 4.10. Treasurer  17 Section 4.11. Additional Officers  17 Section 4.12. Security  17      ARTICLE V CAPITAL STOCK  18      Section 5.01. Certificates of Stock, Uncertificated Shares  18 Section 5.02. Signatures; Facsimile  18 Section 5.03. Lost, Stolen or Destroyed Certificates  18 Section 5.04. Transfer of Stock  18 Section 5.05. Registered Stockholders  18 Section 5.06. Transfer Agent and Registrar  19      ARTICLE VI INDEMNIFICATION  19      Section 6.01. Nature of Indemnity  19 Section 6.02. Successful Defense  20 Section 6.03. Determination That Indemnification Is Proper  20 Section 6.04. Advance of Expenses  20 Section 6.05. Procedure for Indemnification of Directors and Officers  20 Section 6.06. Contract Right; Non-Exclusivity; Survival  21 Section 6.07. Insurance  21 Section 6.08. Subrogation  22 Section 6.09. Employees and Agents  22 Section 6.10. Interpretation, Severability  22      ARTICLE VII OFFICES  22  Section 7.01. Registered Office  22 Section 7.02. Other Offices  22 
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Table of Contents(continued)     Section Page ARTICLE VIII GENERAL PROVISIONS  22      Section 8.01. Dividends  22 Section 8.02. Reserves  23 Section 8.03. Execution of Instruments  23 Section 8.04. Voting as Stockholder  23 Section 8.05. Fiscal Year  23 Section 8.06. Seal  23 Section 8.07. Books and Records; Inspection  24 Section 8.08. Electronic Transmission  24      ARTICLE IX AMENDMENT OF BY-LAWS  24      Section 9.01. Amendment  24      ARTICLE X CONSTRUCTION  24      Section 10.01. Construction  24 
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RSC HOLDINGS INC.BY-LAWSAs amended and restated on May 29, 2007ARTICLE ISTOCKHOLDERS     Section 1.01. Annual Meetings. The annual meeting of the stockholders of RSC HoldingsInc. (the “Corporation”) for the election of directors (each, a “Director”) tosucceed Directors whose terms expire and for the transaction of such other business as properly maycome before such meeting shall be held each year, either within or without the State of Delaware,at such place, if any, and on such date and at such time, as may be fixed from time to time byresolution of the Board of Directors and set forth in the notice or waiver of notice of themeeting, unless, subject to Section 1.11 of these By-Laws and the Amended and Restated Certificateof Incorporation of the Corporation, the stockholders have acted by written consent to electDirectors as permitted by the General Corporation Law of the State of Delaware, as amended fromtime to time (the “DGCL”).     Section 1.02. Special Meetings. Special meetings of the stockholders for any purposemay be called at any time only by or at the direction of the Board of Directors pursuant to aresolution adopted by a majority of the total number of Directors then in office. Any specialmeeting of the stockholders shall be held at such place, if any, within or without the State ofDelaware, and on such date and at such time, as shall be specified in such resolution. Thestockholders of the Corporation do not have the power to call a special meeting.     Section 1.03. Participation in Meetings by Remote Communication. The Board ofDirectors, acting in its sole discretion, may establish guidelines and procedures in accordancewith applicable provisions of the DGCL and any other applicable law for the participation bystockholders and proxyholders in a meeting of stockholders by means of remote communications, andmay determine that any meeting of stockholders will not be held at any place but will be heldsolely by means of remote communication. Stockholders and proxyholders complying with suchprocedures and guidelines and otherwise entitled to vote at a meeting of stockholders shall bedeemed present in person and entitled to vote at a meeting of stockholders, whether such meeting isto be held at a designated place or solely by means of remote communication.     Section 1.04. Notice of Meetings; Waiver of Notice.          (a) The Corporate Secretary or any Assistant Secretary shall cause notice of each meeting ofstockholders to be given in writing in a manner permitted by the DGCL not less than ten nor morethan 60 days prior to the meeting, to each stockholder of record entitled to vote at such meeting,subject to such exclusions as are then permitted by the DGCL. The notice shall specify (i)the place, if any, date and time of such meeting of the stockholders, (ii) the means ofremote communications, if any, by which stockholders and proxy holders may be deemed to be
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present in person and vote at such meeting, (iii) in the case of a special meeting,the purpose or purposes for which such meeting is called and (iv) such other information asmay be required by law or as may be deemed appropriate by the Board of Directors, the President andChief Executive Officer or the Corporate Secretary of the Corporation. If the stockholder listreferred to in Section 1.07 of these By-Laws is made accessible on an electronic network, thenotice of meeting must indicate how the stockholder list can be accessed. If a stockholder meetingis to be held solely by means of electronic communications, the notice of such meeting must providethe information required to access such stockholder list.          (b) A written waiver of any notice of any annual or special meeting signed by a stockholder ora waiver by electronic transmission by a stockholder, whether given before or after the meeting, isdeemed equivalent to notice. Neither the business to be transacted at, nor the purpose of, anyregular or special meeting of the stockholders need be specified in a waiver of notice. Theattendance of any stockholder at a meeting of stockholders is a waiver of notice of such meeting,except when the stockholder attends a meeting for the express purpose of objecting, at thebeginning of the meeting, to the transaction of any business at the meeting on the ground that themeeting is not lawfully called or convened.     Section 1.05. Quorum. Except as otherwise required by law or by the Amended andRestated Certificate of Incorporation, the presence in person or by proxy of the holders of recordof a majority of the shares entitled to vote at a meeting of stockholders shall constitute a quorumfor the transaction of business at such meeting, provided, however, that where aseparate vote by a class or series is required, the holders of a majority in voting power of allissued and outstanding stock of such class or series entitled to vote on such matter, present inperson or represented by proxy, shall constitute a quorum entitled to take action with respect tosuch matter. In the absence of a quorum, the stockholders so present may, by a majority in votingpower thereof, adjourn the meeting from time to time in the manner provided in Section 1.08 ofthese By-Laws until a quorum shall attend.     Section 1.06. Voting. Except as otherwise provided in the Amended and RestatedCertificate of Incorporation or by law, every holder of record of shares entitled to vote at ameeting of stockholders shall be entitled to one vote for each such share outstanding in his or hername on the books of the Corporation at the close of business on the record date for such vote. Ifno record date has been fixed for a meeting of stockholders, then every holder of record of sharesentitled to vote at a meeting of stockholders shall be entitled to one vote (unless otherwiseprovided by the Amended and Restated Certificate of Incorporation or by law) for each such share ofstock outstanding in his or her name on the books of the Corporation at the close of business onthe day next preceding the day on which notice of the meeting is given, or, if notice is waived, atthe close of business on the day next preceding the day on which the meeting is held. Except asotherwise required by law, the Amended and Restated Certificate of Incorporation, these By-Laws,the rules and regulations of any stock exchange applicable to the Corporation or pursuant to anyother rule or regulation applicable to the Corporation or its stockholders, the vote of a majorityof the shares entitled to vote at a meeting of stockholders on the subject matter in questionrepresented in person or by proxy at any meeting at which a quorum is present shall be sufficientfor the transaction of any business at such meeting. The stockholders do not have the right tocumulate their votes for the election of Directors.
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     Section 1.07. Voting Lists. The officer of the Corporation who has charge of thestock ledger of the Corporation shall prepare, at least 10 days before every meeting of thestockholders (and before any adjournment thereof for which a new record date has been set), acomplete list of the stockholders of record entitled to vote at the meeting, arranged inalphabetical order and showing the address of each stockholder and the number of shares registeredin the name of each stockholder. This list, which may be in an format, including electronicformat, shall be open to the examination of any stockholder prior to and during the meeting for anypurpose germane to the meeting in the manner required by the DGCL and other applicable law. Thestock ledger shall be the only evidence as to who are the stockholders entitled by this section toexamine the list required by this section or to vote in person or by proxy at any meeting ofstockholders.     Section 1.08. Adjournment. Any meeting of stockholders may be adjourned from time totime, by the chairperson of the meeting or by the vote of a majority of the shares of stock presentin person or represented by proxy at the meeting, to reconvene at the same or some other place, andnotice need not be given of any such adjourned meeting if the place, if any, and date and timethereof are announced at the meeting at which the adjournment is taken unless the adjournment isfor more than 30 days or a new record date is fixed for the adjourned meeting after theadjournment, in which case notice of the adjourned meeting in accordance with Section 1.04 of theseBy-Laws shall be given to each stockholder of record entitled to vote at the meeting. At theadjourned meeting, the Corporation may transact any business that might have been transacted at theoriginal meeting.     Section 1.09. Proxies. Any stockholder entitled to vote at any meeting of thestockholders or to express consent to or dissent from corporate action in writing without a meetingmay authorize another person or persons to act for such stockholder by proxy. A stockholder mayauthorize a valid proxy by executing a written instrument signed by such stockholder, or by causinghis or her signature to be affixed to such writing by any reasonable means including, but notlimited to, by facsimile signature, or by transmitting or authorizing an electronic transmissionsetting forth an authorization to act as proxy to the person designated as the holder of the proxy,a proxy solicitation firm or a like authorized agent. No proxy may be voted or acted upon afterthe expiration of three years from the date of such proxy, unless such proxy provides for a longerperiod. Every proxy is revocable at the pleasure of the stockholder executing it unless the proxystates that it is irrevocable and applicable law makes it irrevocable. A stockholder may revokeany proxy which is not irrevocable by attending the meeting and voting in person or by filing aninstrument in writing revoking the proxy or by filing another duly executed proxy bearing a laterdate with the Corporate Secretary. Proxies by electronic transmission must either set forth or besubmitted with information from which it can be determined that the electronic transmission wasauthorized by the stockholder. Any copy, facsimile telecommunication or other reliablereproduction of a writing or transmission created pursuant to this section may be substituted orused in lieu of the original writing or transmission for any and all purposes for which theoriginal writing or transmission could be used, provided that such copy, facsimiletelecommunication or other reproduction shall be a complete reproduction of the entire originalwriting or transmission.
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     Section 1.10. Organization; Procedure; Inspection of Elections.          (a) At every meeting of stockholders the presiding officer shall be the Chairman of the Boardor, in the event of his or her absence, disability or decision not to preside, the President andChief Executive Officer or, in the event of his or her absence or disability, a presiding officerchosen by resolution of the Board of Directors. The Corporate Secretary, or in the event of his orher absence or disability, the Assistant Secretary, if any, or if there be no Assistant Secretary,in the absence of the Corporate Secretary, an appointee of the presiding officer, shall act assecretary of the meeting. The Board of Directors may make such rules or regulations for theconduct of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subjectto any such rules and regulations, the presiding officer of any meeting shall have the right andauthority to prescribe rules, regulations and procedures for such meeting and to take all suchactions as in the judgment of the presiding officer are appropriate for the proper conduct of suchmeetings. Such rules, regulations or procedures, whether adopted by the Board of Directors orprescribed by the presiding officer of the meeting, may include, without limitation, the following:(i) the establishment of an agenda or order of business for the meeting; (ii) rulesand procedures for maintaining order at the meeting and the safety of those present; (iii)limitations on attendance at or participation in the meeting to stockholders of record of theCorporation, their duly authorized and constituted proxies or such other persons as the presidingperson of the meeting shall determine; (iv) restrictions on entry to the meeting after thetime fixed for the commencement thereof; and (v) limitations on the time allotted toquestions or comments by participants. The presiding officer at any meeting of stockholders, inaddition to making any other determinations that may be appropriate to the conduct of the meeting,shall, if the facts warrant, determine and declare to the meeting that a matter or business was notproperly brought before the meeting and if such presiding person should so determine, suchpresiding person shall so declare to the meeting and any such matter of business not properlybrought before the meeting shall not be transacted or considered. Unless and to the extentdetermined by the Board of Directors or the person presiding over the meeting, meetings ofstockholders shall not be required to be held in accordance with the rules of parliamentaryprocedure.          (b) Preceding any meeting of the stockholders, the Board of Directors may, and when requiredby law shall, appoint one or more persons to act as inspectors of elections, and may designate oneor more alternate inspectors. If no inspector or alternate so appointed by the Board of Directorsis able to act, or if no inspector or alternate has been appointed and the appointment of aninspector is required by law, the person presiding at the meeting shall appoint one or moreinspectors to act at the meeting. No Director or nominee for the office of Director shall beappointed as an inspector of elections. Each inspector, before entering upon the discharge of theduties of an inspector, shall take and sign an oath faithfully to execute the duties of inspectorwith strict impartiality and according to the best of his or her ability. The inspectors shalldischarge their duties in accordance with the requirements of applicable law.     Section 1.11. Stockholder Action by Written Consent.          (a) For so long as RSC Acquisition LLC, RSC Acquisition II LLC, OHCP II RSC, LLC, OHCMP IIRSC, LLC, OHCP RSC COI, LLC and their respective affiliates (collectively, the “Sponsors”)collectively own more than 50.0% of the voting power of all
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outstanding shares of the capital stock of the Corporation, then, to the fullest extentpermitted by law and except as otherwise provided in the Amended and Restated Certificate ofIncorporation, any action required or permitted to be taken at an annual or special meeting of thestockholders may be taken without a meeting, without prior notice and without a vote ofstockholders, if a consent or consents in writing, setting forth the action so taken, are:(i) signed by the holders of outstanding stock having not less than the minimum number ofvotes that would be necessary to authorize or take such action at a meeting at which all sharesentitled to vote thereon were present and voted (but not less than the minimum number of votesotherwise prescribed by law) and (ii) delivered to the Corporation by delivery to itsregistered office in the State of Delaware, its principal place of business, or an officer or agentof the Corporation having custody of the book in which proceedings of meetings of stockholders arerecorded within 60 days of the earliest dated consent so delivered to the Corporation.          (b) Except as otherwise provided in the Amended and Restated Certificate of Incorporation, ifthe Sponsors collectively own 50.0% or less of the voting power of all outstanding shares ofcapital stock of the Corporation, then any action required or permitted to be taken at any annualor special meeting of stockholders of the Corporation may be taken only upon the vote of thestockholders at an annual or special meeting duly called and may not be taken by written consent ofthe stockholders.          (c) If a stockholder action by written consent is permitted under these By-Laws and theAmended and Restated Certificate of Incorporation, and the Board of Directors has not fixed arecord date for the purpose of determining the stockholders entitled to participate in such consentto be given, then: (i) if the DGCL does not require action by the Board of Directors priorto the proposed stockholder action, the record date shall be the first date on which a signedwritten consent setting forth the action taken or proposed to be taken is delivered to theCorporation at any of the locations referred to in Section 1.11(a)(ii) of these By-Laws; and(ii) if the DGCL requires action by the Board of Directors prior to the proposedstockholder action, the record date shall be at the close of business on the day on which the Boardof Directors adopts the resolution taking such prior action. Every written consent to actionwithout a meeting shall bear the date of signature of each stockholder who signs the consent, andshall be valid if timely delivered to the Corporation at any of the locations referred to inSection 1.11(a)(ii) of these By-Laws.          (d) The Corporate Secretary shall give prompt notice of the taking of an action without ameeting by less than unanimous written consent to those stockholders who have not consented inwriting and who, if the action had been taken at a meeting, would have been entitled to notice ofthe meeting if the record date for such meeting had been the date that written consents signed by asufficient number of stockholders to take the action were delivered to the Corporation inaccordance with the DGCL.     Section 1.12. Notice of Stockholder Proposals and Nominations. (a) *Annual Meetings ofStockholders.*(i) Nominations of persons for election to the Board of Directors and the proposalof business to be considered by the stockholders may be made at an annual meeting of stockholdersonly (A) pursuant to the Corporation’s notice of the meeting (or any supplement thereto),(B) by or at the direction of the Board of Directors or a Committee appointed by the
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Board for such purpose, or (C) by any stockholder of the Corporation who is entitledto vote at the meeting, who complies with the notice procedures set forth in clauses (ii) and (iii)of this Section 1.12(a) and who was a stockholder of record at the time such notice is deliveredand at the date of the meeting.          (ii) For nominations or other business to be properly brought before an annual meeting by astockholder pursuant to subclause (C) of Section 1.12(a)(i) of these By-Laws, the stockholder musthave given timely notice thereof in writing to the Corporate Secretary and any such proposedbusiness other than nominations must constitute a proper matter for stockholder action. To betimely, a stockholder’s notice shall be delivered to the Corporate Secretary at the principalexecutive offices of the Corporation not fewer than 90 days nor more than 120 days prior to thefirst anniversary of the preceding year’s annual meeting (which anniversary date, in the case ofthe first annual meeting of stockholders following the closing of the Corporation’s initialunderwritten public offering of common stock, shall be deemed to be May 21, 2008); providedthat if the date of the annual meeting is advanced by more than 30 days or delayed by more than 70days from such anniversary date of the preceding year’s annual meeting, notice by the stockholderto be timely must be so delivered not earlier than 120 days prior to such annual meeting and notlater than the close of business on the later of the ninetieth day prior to such annual meeting andthe tenth day following the day on which public announcement of the date of such meeting is firstmade. Such stockholder’s notice shall set forth (A) as to each person whom the stockholderproposes to nominate for election or re-election as a Director all information relating to suchperson that is required to be disclosed in solicitations of proxies for election of Directors, oris otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of1934, as amended (the “Exchange Act”), including such person’s written consent to beingnamed in the proxy statement as a nominee and to serving as a Director if elected; (B) asto any other business that the stockholder proposes to bring before the meeting, a briefdescription of the business desired to be brought before the meeting (including the text of anyresolution proposed for consideration and if such business includes proposed amendments to theAmended and Restated Certificate of Incorporation or By-Laws, the text of the proposed amendments),the reasons for conducting such business at the meeting and any material interest in such businessof such stockholder and of any beneficial owner on whose behalf the proposal is made; and(C) as to the stockholder giving the notice and any beneficial owner on whose behalf thenomination or proposal is made (1) the name and address of such stockholder, as they appearon the Corporation’s books, and of such beneficial owner, (2) the class or series andnumber of shares of the Corporation which are owned beneficially and of record by such stockholderand such beneficial owner, (3) a representation that the stockholder is a holder of recordof stock of the Corporation entitled to vote at such meeting and intends to appear in person or byproxy at the meeting to propose such business or nomination, and (4) a representationwhether the stockholder or the beneficial owner, if any, intends or is part of a group whichintends (x) to deliver a proxy statement and/or form of proxy to holders of at least thepercentage of the Corporation’s outstanding capital stock required to approve or adopt the proposalor elect the nominee and/or (y) otherwise to solicit proxies from stockholders in supportof such proposal or nomination. The foregoing notice requirements shall be deemed satisfied by astockholder if the stockholder has notified the Corporation of his or her intention to present aproposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) promulgatedunder the
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Exchange Act, and such stockholder’s proposal has been included in a proxy statement that has beenprepared by the Corporation to solicit proxies for such annual meeting. The Corporation may requireany proposed nominee to furnish such other information as it may reasonably require to determinethe eligibility of such proposed nominee to serve as a Director of the Corporation. In addition, astockholder seeking to bring an item of business before the annual meeting shall promptly provideany other information reasonably requested by the Corporation.          (iii) Notwithstanding anything in the second sentence of Section 1.12(a)(ii) of these By-Lawsto the contrary, in the event that the number of Directors to be elected to the Board of Directorsis increased and there is no public announcement naming all of the nominees for Director orspecifying the size of the increased Board of Directors made by the Corporation at least 70 daysprior to the first anniversary of the preceding year’s annual meeting (which anniversary date, inthe case of the first annual meeting of stockholders following the closing of the Corporation’sinitial underwritten public offering of common stock, shall be deemed to be May 21, 2008), astockholder’s notice under this Section 1.12(a) shall also be considered timely, but only withrespect to nominees for any new positions created by such increase, if it shall be delivered to theCorporate Secretary at the principal executive offices of the Corporation not later than the closeof business on the tenth day following the day on which such public announcement is first made bythe Corporation.          (b) *Special Meetings of Stockholders*. Only such business as shall have been broughtbefore the special meeting of the stockholders pursuant to the Corporation’s notice ofmeeting shall be conducted at such meeting. Nominations of persons for election to theBoard of Directors may be made at a special meeting of stockholders at which Directors areto be elected pursuant to the Corporation’s notice of meeting (i) by or at thedirection of the Board of Directors or (ii) provided that the Board of Directorshas determined that the Directors shall be elected at such meeting, by any stockholder ofthe Corporation who is entitled to vote at the meeting, who complies with the noticeprocedures set forth in this Section 1.12(b) and who is a stockholder of record at the timesuch notice is delivered to the Corporate Secretary. In the event the Corporation calls aspecial meeting of stockholders for the purpose of electing one or more Directors of theCorporation, any stockholder entitled to vote at such meeting may nominate a person orpersons, as the case may be, for election to such position(s) as specified by theCorporation, if the stockholder’s notice as required by Section 1.12(a)(ii) of theseBy-Laws shall be delivered to the Corporate Secretary at the principal executive offices ofthe Corporation not earlier than the 120 days prior to such special meeting and not laterthan the close of business on the later of the ninetieth day prior to such special meetingor the tenth day following the day on which public announcement is first made of the dateof the special meeting and of the nominees proposed by the Board of Directors to be electedat such meeting.          (c) *General*.          (i) Except as otherwise provided by law, the Amended and Restated Certificate of Incorporationor these By-Laws, the presiding officer of a meeting of stockholders shall have the power and duty(x) to determine whether a nomination or any business proposed to be brought
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before the meeting was made in accordance with the procedures set forth in this Section 1.12(including whether the stockholder or beneficial owner, if any, on whose behalf the nomination orproposal is made, solicited (or is part of a group which solicited) or did not so solicit, as thecase may be, proxies in support of such stockholder’s nominee or proposal in compliance with suchstockholder’s representation as required by clause (a)(ii)(C)(4) of this Section 1.12), and (y) ifany proposed nomination or business is not in compliance with this Section 1.12, to declare thatsuch defective nomination shall be disregarded or that such proposed business shall not betransacted.          (ii) If the stockholder (or a qualified representative of the stockholder) making a nominationor proposal under this Section 1.12 does not appear at a meeting of stockholders to present suchnomination or proposal, the nomination shall be disregarded and/or the proposed business shall notbe transacted, as the case may be, notwithstanding that proxies in favor thereof may have beenreceived by the Corporation. For purposes of this Section 1.12, to be considered a qualifiedrepresentative of the stockholder, a person must be authorized by a writing executed by suchstockholder or an electronic transmission delivered by such stockholder to act for such stockholderas proxy at the meeting of stockholders and such person must produce such writing or electronictransmission, or a reliable reproduction of the writing or electronic transmission, at the meetingof stockholders.          (iii) For purposes of this Section 1.12, “public announcement” shall mean disclosure in apress release reported by the Dow Jones News Service, Associated Press or comparable national newsservice or in a document publicly filed by the Corporation with the Securities and ExchangeCommission pursuant to Section 13, 14 or 15(d) of the Exchange Act.          (iv) Notwithstanding the foregoing provisions of this Section 1.12, a stockholder shall alsocomply with all applicable requirements of the Exchange Act and the rules and regulationsthereunder with respect to the matters set forth in this Section 1.12. Nothing in this Section1.12 shall be deemed to affect any rights of (x) stockholders to request inclusion of proposals inthe Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (y) the holdersof any series of preferred stock to elect Directors pursuant to any applicable provisions of theAmended and Restated Certificate of Incorporation or of the relevant preferred stock certificate ofdesignation.          (v) The announcement of an adjournment or postponement of an annual or special meeting doesnot commence a new time period (and does not extend any time period) for the giving of notice of astockholder nomination or a stockholder proposal as described above.ARTICLE IIBOARD OF DIRECTORS     Section 2.01. General Powers. Except as may otherwise be provided by law, by theAmended and Restated Certificate of Incorporation or by these By-Laws, the property, affairs andbusiness of the Corporation shall be managed by or under the direction of the Board of
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Directors and the Board of Directors may exercise all the powers and authority of theCorporation.     Section 2.02. Number and Term of Office. The number of Directors, subject to anyrights of the holders of shares of any class or series of Preferred Stock, shall initially be 11,classified (including Directors in office as of the date hereof) with respect to the time for whichthey severally hold office into three classes, as nearly equal in number as possible, which numbermay be modified (but not reduced to less than three) from time to time exclusively by resolution ofthe Board of Directors, subject to the terms of the Amended and Restated Stockholders Agreementamong the Corporation and certain of its stockholders, dated as of May 29, 2007 (as amended fromtime to time, the “Stockholders Agreement”) and any rights of the holders of shares of anyclass or series of Preferred Stock, if in effect. One class’s initial term will expire at thefirst annual meeting of the stockholders following the date hereof, another class’s initial termwill expire at the second annual meeting of the stockholders following the date hereof and anotherclass’s initial term will expire at the third annual meeting of stockholders following the datehereof, with Directors of each class to hold office until their successors are duly elected andqualified, provided that the term of each Director shall continue until the election andqualification of a successor and be subject to such Director’s earlier death, resignation orremoval. At each annual meeting of stockholders of the Corporation beginning with the first annualmeeting of stockholders following the date hereof, subject to any rights of the holders of sharesof any class or series of Preferred Stock, the successors of the Directors whose term expires atthat meeting shall be elected to hold office for a term expiring at the annual meeting ofstockholders held in the third year following the year of their election. In the case of anyincrease or decrease, from time to time, in the number of Directors of the Corporation, the numberof Directors in each class shall be apportioned as nearly equal as possible. No decrease in thenumber of Directors shall shorten the term of any incumbent Director. At each meeting of thestockholders for the election of Directors, provided a quorum is present, the Directors shall beelected by a plurality of the votes validly cast in such election.     Section 2.03. Annual and Regular Meetings: Notice. The annual meeting of the Board ofDirectors for the purpose of electing officers and for the transaction of such other business asmay come before the meeting shall be held as soon as possible following adjournment of the annualmeeting of the stockholders either (i) at the place of such annual meeting of thestockholders, in which event notice of such annual meeting of the Board of Directors need not begiven, or (ii) at such other time and place as shall have been specified in advance noticegiven to members of the Board of Directors of the date, place and time of such meeting. Any suchnotice, which may be given by electronic transmission, shall be given at least 48 hours in advanceto each Director. Any such notice need not be given to any Director who attends such meetingwithout protesting the lack of notice to him or her, prior to or at the commencement of suchmeeting, or to any Director who submits a signed waiver of notice, whether before or after suchmeeting.          The Board of Directors from time to time may by resolution provide for the holding of regularmeetings and fix the place (which may be within or without the State of Delaware) and the date andtime of such meetings. Advance notice of regular meetings need not be given; provided ifthe Board of Directors shall fix or change the time or place of any regular
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meeting, notice of such action shall be given to each member of the Board of Directors of theplace, date and time of such meetings which shall be at least 48 hours’ notice. Notice of such ameeting need not be given to any Director who attends such meeting without protesting the lack ofnotice to him or her, prior to or at the commencement of such meeting, or to any Director whosubmits a signed waiver of notice, whether before or after such meeting.     Section 2.04. Special Meetings; Notice. Special meetings of the Board of Directorsshall be held whenever called by the President and Chief Executive Officer or any Investor Nominee(as defined in the Stockholders Agreement), at such place (within or without the State ofDelaware), date and time as may be specified in the respective notices or waivers of notice of suchmeetings. Special meetings of the Board of Directors, which notice may be given by electronictransmission, may be called on 48 hours’ notice. Notice of any special meeting need not be givento any Director who attends such meeting without protesting the lack of notice to him or her, priorto or at the commencement of such meeting, or to any Director who submits a signed waiver of notice(including by electronic transmission), whether before or after such meeting. Any business may beconducted at a special meeting.     Section 2.05. Quorum. A quorum for meetings of the Board of Directors shall consistof a majority of the total authorized membership of the Board of Directors, subject to therequirements under the Stockholders Agreement (if in effect).     Section 2.06. Voting. Except as otherwise required by law, the Amended and RestatedCertificate of Incorporation or these By-Laws, the vote of a majority of the Directors present atany meeting at which a quorum is present and any other approval that may be required under theStockholders Agreement (if in effect) shall be the act of the Board of Directors.     Section 2.07. Adjournment. A majority of the Directors present, whether or not aquorum is present, may adjourn any meeting of the Board of Directors to another date, time orplace, provided that if a quorum is present at any meeting of the Board of Directors, suchmeeting may not be adjourned without the approval of a majority of the Investor Nominees (asdefined in the Stockholders Agreement) present at such meeting, and providedfurther that such adjourned meeting is no earlier than 48 hours after written notice (inaccordance with these By-Laws) of such postponement has been given to the Directors (or such noticeis waived in accordance with these By-Laws), and, at any such postponed meeting, a quorum shallconsist of a majority of the total authorized membership of the Board of Directors, subject to therequirements under the Stockholders Agreement (if in effect).     Section 2.08. Action Without a Meeting. Any action required or permitted to be takenat any meeting of the Board of Directors may be taken without a meeting if all members of the Boardof Directors consent thereto in writing or by facsimile or by any form of electronic transmissionpreviously approved by a Director, which approval has not been revoked (“Approved ElectronicTransmission”), and such writing or writings or Approved Electronic Transmissions are filedwith the minutes of proceedings of the Board of Directors. Such filing shall be in paper form ifthe minutes are maintained in paper form and shall be in electronic form if the minutes aremaintained in electronic form.
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     Section 2.09. Regulations; Manner of Acting. To the extent consistent with applicablelaw, the Amended and Restated Certificate of Incorporation and these By-Laws, the Board ofDirectors may adopt such rules and regulations for the conduct of meetings of the Board ofDirectors and for the management of the property, affairs and business of the Corporation as theBoard of Directors may deem appropriate. In addition to the election of the Chairman of the Board,the Board of Directors may elect one or more vice-chairpersons or lead Directors to perform suchother duties as may be designated by the Board of Directors. The Chairman of the Board shallpreside at all meetings of the Board of Directors at which he or she is present. In the event ofhis or her absence or disability at any meeting, any Director designated by a majority of theDirectors present shall preside at such meeting.     Section 2.10. Action by Telephonic Communications. Members of the Board of Directorsmay participate in a meeting of the Board of Directors by means of conference telephone or similarcommunications equipment by means of which all persons participating in the meeting can hear eachother, and participation in a meeting pursuant to this provision shall constitute presence inperson at such meeting.     Section 2.11. Resignations. Any Director may resign at any time by submitting anelectronic transmission or by delivering a written notice of resignation to the Chairman of theBoard, the President and Chief Executive Officer or the Corporate Secretary. Such resignationshall take effect upon delivery unless the resignation specifies a later effective date or aneffective date determined upon the happening of a specific event.     Section 2.12. Removal of Directors. Subject to the rights of the holders of shares ofany class or series of Preferred Stock, if any, to elect additional Directors pursuant to theAmended and Restated Certificate of Incorporation (including any certificate of designationthereunder), any Director may be removed only for cause, upon affirmative vote of holders of atleast a majority of the votes to which all the stockholders of the Corporation would be entitled tocast in any election of Directors or class of Directors, acting at a meeting of the stockholders orby written consent (if permitted) in accordance with the DGCL, the Amended and Restated Certificateof Incorporation and these By-Laws.     Section 2.13. Vacancies and Newly Created Directorships. Subject to the rights of theholders of shares of any class or series of Preferred Stock, if any, to elect additional Directorspursuant to the Amended and Restated Certificate of Incorporation (including any certificate ofdesignation thereunder) and to the Stockholders Agreement (if in effect), any vacancy in the Boardof Directors that results from the death, disability, resignation, disqualification, removal of anyDirector or from any other cause shall be filled solely by the affirmative vote of a majority ofthe total number of Directors then in office, even if less than a quorum, or by a sole remainingDirector. Any Director filling a vacancy shall be of the same class as that of the Director whosedeath, resignation, disqualification, removal or other event caused the vacancy, and any Directorfilling a newly created directorship shall be of the class specified by the Board of Directors atthe time the newly created directorship was created. A Director elected to fill a vacancy or newlycreated Directorship shall hold office until his or her successor has been elected and qualified oruntil his or her earlier death, resignation or removal.
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     Section 2.14. Director Fees and Expenses. The amount, if any, which each Directorshall be entitled to receive as compensation for his or her services shall be fixed from time totime by the Board of Directors, subject to the Stockholders Agreement (if in effect). TheCorporation will cause each non-employee Director serving on the Board of Directors to bereimbursed for all reasonable out-of-pocket costs and expenses incurred by him or her in connectionwith such service.     Section 2.15. Reliance on Accounts and Reports, etc. A Director, or a member of anyCommittee designated by the Board of Directors shall, in the performance of his or her duties, befully protected in relying in good faith upon the records of the Corporation and upon information,opinions, reports or statements presented to the Corporation by any of the Corporation’s officersor employees, or Committees designated by the Board of Directors, or by any other person as to thematters the member reasonably believes are within such other person’s professional or expertcompetence and who has been selected with reasonable care by or on behalf of the Corporation.ARTICLE IIIEXECUTIVE AND GOVERNANCE COMMITTEE AND OTHER COMMITTEES     Section 3.01. How Constituted. The Board of Directors shall have an Executive andGovernance Committee, a Compensation Committee, an Audit Committee and such other committees as theBoard of Directors may determine (collectively, the “Committees”). Each of the AuditCommittee and the Compensation Committee shall consist of at least three Directors and each otherCommittee shall consist of at least two Directors, selected in accordance with the StockholdersAgreement (if in effect). Subject to this Section 3.01, each Committee shall consist of suchnumber of Directors as from time to time may be fixed by a majority of the total authorizedmembership of the Board of Directors, and any Committee may be abolished or re-designated from timeto time by the Board of Directors. Each member of any such Committee (whether designated at anannual meeting of the Board of Directors or to fill a vacancy or otherwise) shall hold office untilhis or her successor shall have been designated or until he or she shall cease to be a Director, oruntil his or her earlier death, resignation or removal.     Section 3.02. Powers. Each Committee shall have such powers and responsibilities asthe Board of Directors may from time to time authorize. During the intervals between the meetingsof the Board of Directors, the Executive and Governance Committee, except as otherwise provided inthis Section 3.02 or required by the DGCL, shall have and may exercise all the powers and authorityof the Board of Directors in the management of the property, affairs and business of theCorporation. Each such other Committee, except as otherwise provided in this Section 3.02, shallhave and may exercise such powers of the Board of Directors as may be provided by resolution orresolutions of the Board of Directors. Neither the Executive and Governance Committee nor anyother Committee shall have the power or authority:     (a) to amend the Amended and Restated Certificate of Incorporation (except that aCommittee may, to the extent authorized in the resolution or resolutions providing for
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the issuance of shares of stock adopted by the Board of Directors as provided inSection 151(a) of the DGCL, fix the designations and any of the preferences or rights ofsuch shares relating to dividends, redemption, dissolution, any distribution of assets ofthe Corporation or the conversion into, or the exchange of such shares for, shares of anyother class or classes or any other series of the same or any other class or classes ofstock of the Corporation or fix the number of shares of any series of stock or authorize theincrease or decrease of the shares of any series);     (b) to adopt an agreement of merger or consolidation or a Amended and RestatedCertificate of ownership and merger;     (c) to recommend to the stockholders the sale, lease or exchange of all orsubstantially all of the Corporation’s property and assets;     (d) to recommend to the stockholders a dissolution of the Corporation or a revocationof a dissolution; or     (e) to amend these By-Laws of the Corporation.          The Executive and Governance Committee shall have, and any such other Committee may be grantedby the Board of Directors, power to authorize the seal of the Corporation to be affixed to any orall papers which may require it.     Section 3.03. Proceedings. Each Committee may fix its own rules of procedure and maymeet at such place (within or without the State of Delaware), at such time and upon such notice, ifany, as it shall determine from time to time, provided that the Board of Directors may notadopt other rules and regulations for the governance of any Committee that are inconsistent withthe provisions of these By-Laws and the Stockholders Agreement (if in effect). Each such Committeeshall keep minutes of its proceedings and shall report such proceedings to the Board of Directorsat the meeting of the Board of Directors following any such proceedings.     Section 3.04. Quorum and Manner of Acting. Except as may be otherwise provided in theresolution creating such Committee, at all meetings of any Committee the presence of membersconstituting a majority of the total authorized membership of such Committee shall constitute aquorum for the transaction of business. The act of the majority of the members present at anymeeting at which a quorum is present shall be the act of such Committee. Any action required orpermitted to be taken at any meeting of any such Committee may be taken without a meeting, if allmembers of such Committee shall consent to such action in writing or by electronic transmission,and such writing or writings or electronic transmission or transmissions are filed with the minutesof the proceedings of the Committee. Such filing shall be in paper form if the minutes aremaintained in paper form and shall be in electronic form if the minutes are maintained inelectronic form. The members of any such Committee shall act only as a Committee, and theindividual members of such Committee shall have no power as such.
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     Section 3.05. Action by Telephonic Communications. Members of any Committeedesignated by the Board of Directors may participate in a meeting of such Committee by means ofconference telephone or similar communications equipment by means of which all personsparticipating in the meeting can hear each other, and participation in a meeting pursuant to thisprovision shall constitute presence in person at such meeting.     Section 3.06. Resignations. Any member of any Committee may resign at any time bysubmitting an electronic transmission or by delivering a written notice of resignation to theChairman of the Board, the President and Chief Executive Officer or the Corporate Secretary.Unless otherwise specified therein, such resignation shall take effect upon delivery.     Section 3.07. Removal. Any member of any Committee may be removed from his or herposition as a member of such Committee at any time, either for or without cause, by resolutionadopted by a majority of the whole Board of Directors, provided that for so long as theStockholders Agreement is in effect, the removal of any member of a Committee designated by anyPrincipal Investor (as defined in the Stockholders Agreement) shall require the approval of suchPrincipal Investor (as defined in the Stockholders Agreement).     Section 3.08. Vacancies. If any vacancy shall occur in any Committee, by reason ofdisqualification, death, resignation, removal or otherwise, the remaining members shall continue toact, and any such vacancy may be filled by the Board of Directors subject to Section 3.01 of theseBy-Laws and the Stockholders Agreement (if in effect).ARTICLE IVOFFICERS     Section 4.01. Number. The officers of the Corporation shall be elected by the Boardof Directors and shall be a President and Chief Executive Officer, one or more Vice Presidents, aCorporate Secretary, a Chief Financial Officer and a Treasurer, and any other officers appointedpursuant to Section 4.11. The Board of Directors also may elect and the President and ChiefExecutive Officer may appoint one or more Assistant Secretaries and Assistant Treasurers in suchnumbers as the Board of Directors or the President and Chief Executive Officer may determine whoshall have such authority, exercise such powers and perform such duties as may be specified inthese By-Laws or determined by the Board of Directors. Any number of offices may be held by thesame person, except that one person may not hold both the office of President and Chief ExecutiveOfficer and Corporate Secretary. No officer need be a Director of the Corporation.     Section 4.02. Election. Unless otherwise determined by the Board of Directors, theofficers of the Corporation shall be elected by the Board of Directors at the annual meeting of theBoard of Directors, and shall be elected to hold office until the next succeeding annual meeting ofthe Board of Directors at which his or her successor has been elected and qualified. In the eventof the failure to elect officers at such annual meeting, officers may be elected at any regular orspecial meeting of the Board of Directors. Each officer shall hold office until his or
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her successor has been elected and qualified, or until his or her earlier death, resignationor removal.     Section 4.03. Compensation. The salaries and all other compensation of all officers,agents and employees of the corporation shall be fixed by the Board of Directors or in the mannerestablished by the Board of Directors.     Section 4.04. Removal and Resignation; Vacancies. Any officer may be removed for orwithout cause at any time solely by the Board of Directors. Any officer may resign at any time bydelivering notice of resignation, either in writing signed by such officer or by electronictransmission, to the Chairman of the Board, the President and Chief Executive Officer or theCorporate Secretary. Unless otherwise specified therein, such resignation shall take effect upondelivery. Any vacancy occurring in any office of the Corporation by death, resignation, removal orotherwise, shall be filled by the Board of Directors.     Section 4.05. Authority and Duties of Officers. The officers of the Corporation shallhave such authority and shall exercise such powers and perform such duties as may be specified inthese By-Laws or in a resolution of the Board of Directors, except that in any event each officershall exercise such powers and perform such duties as may be required by law.     Section 4.06. President and Chief Executive Officer. The President and ChiefExecutive Officer shall, subject to the direction of the Board of Directors, be the chief executiveofficer of the Corporation, shall have general control and supervision of the policies andoperations of the Corporation and shall see that all orders and resolutions of the Board ofDirectors are carried into effect. He or she shall manage and administer the Corporation’sbusiness and affairs and shall also perform all duties and exercise all powers usually pertainingto the office of a chief executive officer, president or chief operating officer, of a corporation,including, without limitation under the DGCL. He or she shall have the authority to sign, in thename and on behalf of the Corporation, checks, orders, contracts, leases, notes, drafts and anyother documents and instruments in connection with the business of the Corporation, and togetherwith the Corporate Secretary or an Assistant Secretary, conveyances of real estate and otherdocuments and instruments to which the seal of the Corporation may need to be affixed. Except asotherwise determined by the Board of Directors, he or she shall have the authority to cause theemployment or appointment of such employees (other than the President and Chief Executive Officer)and agents of the Corporation as the conduct of the business of the Corporation may require, to fixtheir compensation and to remove or suspend any such employees or agents elected or appointed bythe President and Chief Executive Officer or the Board of Directors. The President and ChiefExecutive Officer shall perform such other duties and have such other powers as the Board ofDirectors may from time to time prescribe.     Section 4.07. Vice President. Except as otherwise determined by the Board ofDirectors, each Vice President shall perform such duties and exercise such powers as may beassigned to him or her from time to time by the President and Chief Executive Officer. Except asotherwise determined by the Board of Directors, in the absence of the President and Chief ExecutiveOfficer, the duties of the President and Chief Executive Officer shall be performed and his or herpowers may be exercised by such Vice President as shall be designated by the President and
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Chief Executive Officer, or failing such designation, such duties shall be performed and suchpowers may be exercised by each Vice President in the order of their earliest election to thatoffice; subject in any case to review and superseding action by the President and Chief ExecutiveOfficer.     Section 4.08. Corporate Secretary. Except as otherwise determined by the Board ofDirectors, the Corporate Secretary shall have the following powers and duties:     (a) He or she shall keep or cause to be kept a record of all the proceedings of themeetings of the stockholders and of the Board of Directors and all Committees of which asecretary has not been appointed in books provided for that purpose.     (b) He or she shall cause all notices to be duly given in accordance with theprovisions of these By-Laws and as required by law.     (c) Whenever any Committee shall be appointed pursuant to a resolution of the Board ofDirectors, he or she shall furnish a copy of such resolution to the members of suchCommittee.     (d) He or she shall be the custodian of the records and of the seal of the Corporationand cause such seal (or a facsimile thereof) to be affixed to all certificates representingshares of the Corporation prior to the issuance thereof and to all instruments the executionof which on behalf of the Corporation under its seal shall have been duly authorized inaccordance with these By-Laws, and when so affixed he or she may attest the same.     (e) He or she shall properly maintain and file all books, reports, statements,certificates and all other documents and records required by law, the Amended and RestatedCertificate of Incorporation or these By-Laws.     (f) He or she shall have charge of the stock books and ledgers of the Corporation andshall cause the stock and transfer books to be kept in such manner as to show at any timethe number of shares of stock of the Corporation of each class issued and outstanding, thenames (alphabetically arranged) and the addresses of the holders of record of such shares,the number of shares held by each holder and the date as of which each became such holder ofrecord.     (g) He or she shall sign (unless the Treasurer, an Assistant Treasurer or an AssistantSecretary shall have signed) certificates representing shares of the Corporation theissuance of which shall have been authorized by the Board of Directors.     (h) He or she shall perform, in general, all duties incident to the office of secretaryand such other duties as may be specified in these By-Laws or as may be assigned to him orher from time to time by the Board of Directors, or the President and Chief ExecutiveOfficer.
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     Section 4.09. Chief Financial Officer. Except as otherwise determined by the Board ofDirectors, the Chief Financial Officer shall be the chief financial officer of the Corporation andshall have the following powers and duties:     (a) He or she shall have charge and supervision over and be responsible for the moneys,securities, receipts and disbursements of the Corporation, and shall keep or cause to bekept full and accurate records of all receipts of the Corporation.     (b) He or she shall render to the Board of Directors, whenever requested, a statementof the financial condition of the Corporation and of all his or her transactions as ChiefFinancial Officer, and render a full financial report at the annual meeting of thestockholders, if called upon to do so.     (c) He or she shall be empowered from time to time to require from all officers oragents of the Corporation reports or statements giving such information as he or she maydesire with respect to any and all financial transactions of the Corporation.     (d) He or she shall perform, in general, all duties incident to the office of chieffinancial officer and such other duties as may be specified in these By-Laws or as may beassigned to him or her from time to time by the Board of Directors.     Section 4.10. Treasurer. Except as otherwise determined by the Board of Directors,the Treasurer shall have the following powers and duties:     (a) He or she may sign (unless an Assistant Treasurer or the Corporate Secretary or anAssistant Secretary shall have signed) certificates representing stock of the Corporationthe issuance of which shall have been authorized by the Board of Directors.     (b) He or she shall perform, in general, all duties incident to the office of treasurerand such other duties as may be specified in these By-Laws or as may be assigned to him orher from time to time by the Board of Directors or the Chief Financial Officer.     Section 4.11. Additional Officers. The Board of Directors may appoint such otherofficers and agents as it may deem appropriate, and such other officers and agents shall hold theiroffices for such terms and shall exercise such powers and perform such duties as may be determinedfrom time to time by the Board of Directors. The Board of Directors from time to time may delegateto any officer or agent the power to appoint subordinate officers or agents and to prescribe theirrespective rights, terms of office, authorities and duties. Any such officer or agent may removeany such subordinate officer or agent appointed by him or her, for or without cause.     Section 4.12. Security. The Board of Directors may require any officer, agent oremployee of the Corporation to provide security for the faithful performance of his or her duties,in such amount and of such character as may be determined from time to time by the Board ofDirectors.
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ARTICLE VCAPITAL STOCK     Section 5.01. Certificates of Stock, Uncertificated Shares. The shares of theCorporation shall be represented by certificates, except to the extent that the Board of Directorshas provided by resolution or resolutions that some or all of any or all classes or series of thestock of the Corporation shall be uncertificated shares. Any such resolution shall not apply toshares represented by a certificate until such certificate is surrendered to the Corporation.Every holder of stock in the Corporation represented by certificates shall be entitled to have, andthe Board may in its sole discretion permit a holder of uncertificated shares to receive uponrequest a certificate signed by the appropriate officers of the Corporation, representing thenumber of shares registered in certificate form. Such certificate shall be in such form as theBoard of Directors may determine, to the extent consistent with applicable law, the Amended andRestated Certificate of Incorporation and these By-Laws.     Section 5.02. Signatures; Facsimile. All signatures on the certificates referred toin Section 5.01 of these By-Laws may be in facsimile, engraved or printed form, to the extentpermitted by law. In case any officer, transfer agent or registrar who has signed, or whosefacsimile, engraved or printed signature has been placed upon a certificate shall have ceased to besuch officer, transfer agent or registrar before such certificate is issued, it may be issued bythe Corporation with the same effect as if he or she were such officer, transfer agent or registrarat the date of issue.     Section 5.03. Lost, Stolen or Destroyed Certificates. A new certificate may be issuedin place of any certificate theretofore issued by the Corporation alleged to have been lost, stolenor destroyed, only upon delivery to the Corporation of an affidavit of the owner or owners (ortheir legal representatives) of such certificate, setting forth such allegation, and a bond orundertaking as may be satisfactory to a financial officer of the Corporation to indemnify theCorporation against any claim that may be made against it on account of the alleged loss, theft ordestruction of any such certificate or the issuance of any such new certificate.     Section 5.04. Transfer of Stock. Upon surrender to the Corporation or the transferagent of the Corporation of a certificate for shares, duly endorsed or accompanied by appropriateevidence of succession, assignment or authority to transfer, the Corporation shall issue a newcertificate to the person entitled thereto, cancel the old certificate and record the transactionupon its books. Within a reasonable time after the transfer of uncertificated stock, theCorporation shall send to the registered owner thereof a written notice containing the informationrequired to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a)of the DGCL. Subject to the provisions of the Amended and Restated Certificate of Incorporationand these By-Laws, the Board of Directors may prescribe such additional rules and regulations as itmay deem appropriate relating to the issue, transfer and registration of shares of the Corporation.     Section 5.05. Registered Stockholders. Prior to due surrender of a certificate forregistration of transfer, the Corporation may treat the registered owner as the person exclusivelyentitled to receive dividends and other distributions, to vote, to receive notice and otherwise to
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exercise all the rights and powers of the owner of the shares represented by such certificate,and the Corporation shall not be bound to recognize any equitable or legal claim to or interest insuch shares on the part of any other person, whether or not the Corporation shall have notice ofsuch claim or interests, provided that if a transfer of shares shall be made for collateralsecurity, and not absolutely, this fact shall be so expressed in the entry of the transfer if, whenthe certificates are presented to the Corporation for transfer or uncertificated shares arerequested to be transferred, both the transferor and transferee request the Corporation to do so.     Section 5.06. Transfer Agent and Registrar. The Board of Directors may appoint one ormore transfer agents and one or more registrars, and may require all certificates representingshares to bear the signature of any such transfer agents or registrars.ARTICLE VIINDEMNIFICATION     Section 6.01. Nature of Indemnity. The Corporation shall indemnify, to the fullestextent permitted by the DGCL and other applicable law, any person who was or is a party or isthreatened to be made a party to any threatened, pending or completed action, suit or proceeding,whether civil, criminal, administrative or investigative (each, a “proceeding”), by reason of thefact that he or she is or was or has agreed to become a Director or officer of the Corporation, orwhile serving as a Director or officer of the Corporation, is or was serving or has agreed to serveat the request of the Corporation as a Director, officer, employee, manager or agent of anothercorporation, partnership, joint venture, trust or other enterprise, or by reason of any actionalleged to have been taken or omitted in such capacity, against expenses (including attorneys’fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him orher or on his or her behalf in connection with such proceeding and any appeal therefrom, if he orshe acted in good faith and in a manner he or she reasonably believed to be in or not opposed tothe best interests of the Corporation, and, with respect to any criminal proceeding had noreasonable cause to believe his or her conduct was unlawful; provided that in the case of an actionor suit by or in the right of the Corporation to procure a judgment in its favor (i) suchindemnification shall be limited to expenses (including attorneys’ fees) actually and reasonablyincurred by such person in the defense or settlement of such action or suit, and (ii) noindemnification shall be made in respect of any claim, issue or matter as to which such personshall have been adjudged to be liable to the Corporation unless and only to the extent that theDelaware Court of Chancery or the court in which such action or suit was brought shall determineupon application that, despite the adjudication of liability but in view of all the circumstancesof the case, such person is fairly and reasonably entitled to indemnity for such expenses which theDelaware Court of Chancery or such other court shall deem proper. Notwithstanding the foregoing,but subject to Section 6.05 of these By-Laws, the Corporation shall not be obligated to indemnify aDirector or officer of the Corporation in respect of a proceeding (or part thereof) instituted bysuch Director or officer, unless such proceeding (or part thereof) has been authorized by the Boardof Directors or the Corporation has separately agreed to indemnify such Director or officerpursuant to an agreement authorized by the Board of Directors.
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          The termination of any proceeding by judgment, order, settlement, conviction, or upon a pleaof nolocontendere or its equivalent, shall not, of itself, create a presumptionthat the person did not act in good faith and in a manner which he or she reasonably believed to bein or not opposed to the best interests of the Corporation, and, with respect to any criminalproceeding, had reasonable cause to believe that his or her conduct was unlawful.     Section 6.02. Successful Defense. To the extent that a present or former Director orofficer of the Corporation has been successful on the merits or otherwise in defense of anyproceeding referred to in Section 6.01 of these By-Laws or in defense of any claim, issue or mattertherein, he or she shall be indemnified by the Corporation against expenses (including attorneys’fees) actually and reasonably incurred by him or her in connection therewith.     Section 6.03. Determination That Indemnification Is Proper. Any indemnification of apresent or former Director or officer of the Corporation under Section 6.01 of these By-Laws(unless ordered by a court) shall be made by the Corporation only upon a determination thatindemnification of such person is proper in the circumstances because such person has met theapplicable standard of conduct set forth in Section 6.01 of these By-Laws. Any such determinationshall be made, with respect to a person who is a Director or officer at the time of suchdetermination (i) by a majority vote of the Directors who are not parties to suchproceeding, even though less than a quorum, or (ii) by a Committee of such Directorsdesignated by majority vote of such Directors, even though less than a quorum, or (iii) ifthere are no such Directors, or if such Directors so direct, by independent legal counsel in awritten opinion, or (iv) by the stockholders.     Section 6.04. Advance of Expenses. Expenses (including attorneys’ fees) incurred by apresent or former Director or officer in defending any civil, criminal, administrative orinvestigative proceeding shall be paid by the Corporation prior to the final disposition of suchproceeding upon written request by such person and delivery of an undertaking by such person torepay such amount if it shall ultimately be determined that he or she is not entitled to beindemnified by the Corporation under this Article or applicable law; provided that theBoard of Directors may not require such Director or officer to post any bond or otherwise provideany security for such undertaking. The Corporation or, in respect of a present Director orofficer, the Board of Directors may authorize the Corporation’s counsel to represent (subject toapplicable conflict of interest considerations) such present or former Director or officer in anyproceeding, whether or not the Corporation is a party to such proceeding.     Section 6.05. Procedure for Indemnification of Directors and Officers. Anyindemnification of a Director or officer of the Corporation under Sections 6.01 and 6.02 of theseBy-Laws, or advance of expenses to such persons under Section 6.04 of these By-Laws, shall be madepromptly, and in any event within 30 days, upon the written request by or on behalf of such person(together with supporting documentation). If a determination by the Corporation that such personis entitled to indemnification pursuant to this Article is required, and the Corporation fails torespond within 60 days to a written request for indemnity, the Corporation shall be deemed to haveapproved such request. If the Corporation denies a written request for indemnity or advancement ofexpenses, in whole or in part, or if payment in full pursuant to such request is not made within 30days, the right to indemnification or advances as granted by this Article shall
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be enforceable by such person in any court of competent jurisdiction. Such person’s costs andexpenses incurred in connection with successfully establishing his or her right to indemnification,in whole or in part, in any such action shall also be indemnified by the Corporation. It shall bea defense to any such action (other than an action brought to enforce a claim for the advance ofcosts, charges and expenses under Section 6.04 of these By-Laws where the required undertaking, ifany, has been received by or tendered to the Corporation) that the claimant has not met thestandard of conduct set forth in Section 6.01 of these By-Laws, but the burden of proving suchdefense shall be on the Corporation. Neither the failure of the Corporation (including its Boardof Directors or any Committee thereof, its independent legal counsel, and its stockholders) to havemade a determination prior to the commencement of such action that indemnification of the claimantis proper in the circumstances because he or she has met the applicable standard of conduct setforth in Section 6.01 of these By-Laws, nor the fact that there has been an actual determination bythe Corporation (including its Board of Directors or any Committee thereof, its independent legalcounsel, and its stockholders) that the claimant has not met such applicable standard of conduct,shall be a defense to the action or create a presumption that the claimant has not met theapplicable standard of conduct.     Section 6.06. Contract Right; Non-Exclusivity; Survival.          (a) The rights to indemnification and advancement of expenses provided by this Article shallbe deemed to be separate contract rights between the Corporation and each Director and officer whoserves in any such capacity at any time while these provisions as well as the relevant provisionsof the DGCL are in effect and any repeal or modification thereof shall not adversely affect anyright or obligation then existing with respect to any state of facts then or previously existing orany proceeding previously or thereafter brought or threatened based in whole or in part upon anysuch state of facts. Such “contract rights” may not be modified retroactively as to any present orformer Director or officer without the consent of such Director or officer.          (b) The rights to indemnification and advancement of expenses provided by this Article shallcontinue as to a person who has ceased to be a Director or officer and shall not be deemedexclusive of any other rights to which a present or former Director or officer of the Corporationseeking indemnification or advancement of expenses may be entitled under any by-law, agreement,vote of stockholders or disinterested Directors, or otherwise.          (c) The rights to indemnification and advancement of expenses provided by this Article to anypresent or former Director or officer shall inure to the benefit of the heirs, executors andadministrators of such a person.     Section 6.07. Insurance. The Corporation shall purchase and maintain insurance onbehalf of any person who is or was or has agreed to become a Director or officer of theCorporation, or is or was serving at the request of the Corporation as a Director or officer ofanother corporation, partnership, joint venture, trust or other enterprise against any liabilityasserted against him or her and incurred by him or her or on his or her behalf in any suchcapacity, or arising out of his or her status as such, whether or not the Corporation would havethe power to indemnify him or her against such liability under the provisions of this Article,
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provided that such insurance is available on commercially reasonable terms consistentwith then prevailing rates in the insurance market.     Section 6.08. Subrogation. In the event of payment under this Article VI, theCorporation shall be subrogated to the extent of such payment to all of the rights of recovery ofthe indemnitee, who shall execute all documents, and do all acts, as the Corporation may reasonablyrequest to secure such rights, including the execution of such documents as the Corporation mayreasonably request to enable the Corporation effectively to bring suit to enforce such rights.     Section 6.09. Employees and Agents. The Board, or any officer authorized by the Boardof Directors generally or in the specific case to make indemnification decisions, may cause theCorporation to indemnify any present or former employee or agent of the Corporation in such mannerand for such liabilities as the Board of Directors may determine, up to the fullest extentpermitted by the DGCL and other applicable law.     Section 6.10. Interpretation, Severability. Terms defined in Sections 145(h) or (i)of the DGCL have the meanings set forth in such sections when used in this Article. If thisArticle or any portion hereof shall be invalidated on any ground by any court of competentjurisdiction, then the Corporation shall nevertheless indemnify each Director or officer as tocosts, charges and expenses (including attorneys’ fees), judgments, fines and amounts paid insettlement with respect to any proceeding, whether civil, criminal, administrative, investigativeor otherwise, including an action by or in the right of the Corporation, to the fullest extentpermitted by any applicable portion of this Article that shall not have been invalidated and to thefullest extent permitted by applicable law.ARTICLE VIIOFFICES     Section 7.01. Registered Office. The registered office of the Corporation in theState of Delaware shall be located at the location provided in the Amended and Restated Certificateof Incorporation of the Corporation.     Section 7.02. Other Offices. The Corporation may maintain offices or places ofbusiness at such other locations within or without the State of Delaware as the Board of Directorsmay from time to time determine or as the business of the Corporation may require.ARTICLE VIIIGENERAL PROVISIONS     Section 8.01. Dividends. Subject to any applicable provisions of law and the Amendedand Restated Certificate of Incorporation, dividends upon the shares of the Corporation may bedeclared by the Board of Directors at any regular or special meeting of the Board of Directors
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and any such dividend may be paid in cash, property, or shares of the Corporation’s capitalstock.          A member of the Board of Directors, or a member of any Committee designated by the Board ofDirectors shall be fully protected in relying in good faith upon the records of the Corporation andupon such information, opinions, reports or statements presented to the Corporation by any of itsofficers or employees, or Committees of the Board of Directors, or by any other person as tomatters the Director reasonably believes are within such other person’s professional or expertcompetence and who has been selected with reasonable care by or on behalf of the Corporation, as tothe value and amount of the assets, liabilities and/or net profits of the Corporation, or any otherfacts pertinent to the existence and amount of surplus or other funds from which dividends mightproperly be declared and paid.     Section 8.02. Reserves. There may be set aside out of any funds of the Corporationavailable for dividends such sum or sums as the Board of Directors from time to time, in itsabsolute discretion, thinks proper as a reserve or reserves to meet contingencies, or forequalizing dividends, or for repairing or maintaining any property of the Corporation or for suchother purpose as the Board of Directors shall think conducive to the interest of the Corporation,and the Corporation’s stockholders and the Board of Directors may similarly modify or abolish anysuch reserve.     Section 8.03. Execution of Instruments. Except as otherwise provided by law or theAmended and Restated Certificate of Incorporation, the Board of Directors or the President andChief Executive Officer may authorize the President and Chief Executive Officer or any otherofficer or agent to enter into any contract or execute and deliver any instrument in the name andon behalf of the Corporation. Any such authorization may be general or limited to specificcontracts or instruments.     Section 8.04. Voting as Stockholder. Unless otherwise determined by resolution of theBoard of Directors, the President and Chief Executive Officer or any Vice President shall have fullpower and authority on behalf of the Corporation to attend any meeting of stockholders of anycorporation in which the Corporation may hold stock, and to act, vote (or execute proxies to vote)and exercise in person or by proxy all other rights, powers and privileges incident to theownership of such stock at any such meeting, or through action without a meeting. The Board ofDirectors may by resolution from time to time confer such power and authority (in general orconfined to specific instances) upon any other person or persons.     Section 8.05. Fiscal Year. The fiscal year of the Corporation shall commence on thefirst day of January of each year and shall terminate in each case on December 31.     Section 8.06. Seal. The seal of the Corporation shall be circular in form and shallcontain the name of the Corporation, the year of its incorporation and the words “Corporate Seal”and “Delaware”. The form of such seal shall be subject to alteration by the Board of Directors.The seal may be used by causing it or a facsimile thereof to be impressed, affixed or reproduced,or may be used in any other lawful manner.
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     Section 8.07. Books and Records; Inspection. Except to the extent otherwise requiredby law, the books and records of the Corporation shall be kept at such place or places within orwithout the State of Delaware as may be determined from time to time by the Board of Directors.     Section 8.08. Electronic Transmission. “Electronic transmission”, as used in theseBy-Laws, means any form of communication, not directly involving the physical transmission ofpaper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof,and that may be directly reproduced in paper form by such a recipient through an automated process.ARTICLE IXAMENDMENT OF BY-LAWS     Section 9.01. Amendment. Subject to the provisions of the Amended and RestatedCertificate of Incorporation, these By-Laws may be amended, altered or repealed:          (a) by resolution adopted by a majority of the Board of Directors if at any special or regularmeeting of the Board of Directors if, in the case of such special meeting only, notice of suchamendment, alteration or repeal is contained in the notice or waiver of notice of such meeting, or          (b) at any regular or special meeting of the stockholders upon the affirmative vote of theholders of a majority of the combined voting power of the outstanding shares of the Corporationentitled to vote in any election of Directors or class of Directors if, in the case of such specialmeeting only, notice of such amendment, alteration or repeal is contained in the notice or waiverof notice of such meeting, provided, that Sections 1.02, 1.11, 1.12, 2.02, 2.12, 2.13,Article VI and this Section 9.01 shall not be amended, altered or repealed pursuant to this Section9.01(b) without the affirmative vote of holders of at least two-thirds of the votes to which allthe stockholders of the Corporation would be entitled to cast in any election of Directors or classof Directors.     Notwithstanding the foregoing, (x) no amendment to the Stockholders Agreement (whetheror not such amendment modifies any provision of the Stockholders Agreement to which these By-Lawsare subject) shall be deemed an amendment of these By-Laws for purposes of this Section 9.01 and(y) no amendment, alteration or repeal of Article VI shall adversely affect any right orprotection existing under these By-Laws immediately prior to such amendment, alteration or repeal,including any right or protection of a Director thereunder in respect of any act or omissionoccurring prior to the time of such amendment.ARTICLE XCONSTRUCTION     Section 10.01. Construction. In the event of any conflict between the provisions ofthese By-Laws as in effect from time to time and the provisions of the Amended and Restated
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Certificate of Incorporation of the Corporation as in effect from time to time, the provisionsof such Amended and Restated Certificate of Incorporation shall be controlling.
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