**AMENDED AND RESTATED**

**BY-LAWS**

**OF**

**NOVAMERICAN STEEL INC.**

**(f/k/a SYMMETRY HOLDINGS INC.)**

**June 20, 2006**

**As Amended December 7, 2007**

 

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**TABLE OF CONTENTS**

 

|                                                                           | **Page** |
|--------------------------------------------------------------------------------|----------|
| **ARTICLE I. MEETINGS OF STOCKHOLDERS**                                        | 1        |
| Section 1. Place of Meetings                                                   | 1        |
| Section 2. Annual Meeting                                                      | 1        |
| Section 3. Special Meetings                                                    | 1        |
| Section 4. Record Date                                                         | 2        |
| Section 5. Notice of Meetings; Waiver                                          | 2        |
| Section 6. List of Stockholders                                                | 4        |
| Section 7. Quorum; Manner of Acting                                            | 5        |
| Section 8. Business Transacted                                                 | 6        |
| Section 9. Order of Business; Voting                                           | 8        |
| Section 10. Inspectors                                                         | 9        |
| **ARTICLE II. BOARD OF DIRECTORS**                                             | 10       |
| Section 1. Powers; Qualifications; Number;                            Election | 10       |
| Section 2. Term of Office of a Director                                        | 10       |
| Section 3. Resignations; Filling of Vacancies                                  | 10       |
| Section 4. Meetings of the Board; Notice;                            Waiver    | 10       |
| Section 5. Quorum; Adjournment                                                 | 11       |
| Section 6. Manner of Acting                                                    | 11       |
| Section 7. Annual Meeting of Directors                                         | 12       |
| Section 8. Participation in Meeting by                            Telephone    | 12       |
| Section 9. Compensation and Expenses of                            Directors   | 12       |
| Section 10 Related Party Transactions                                          | 12       |
| **ARTICLE III. COMMITTEES OF THE BOARD**                                       | 13       |
| Section 1. Regular Committees                                                  | 13       |
| Section 2. Regular Committee Powers                                            | 13       |
| Section 3. Advisory Committees                                                 | 14       |
| Section 4. Procedures                                                          | 14       |
| **ARTICLE IV. OFFICERS**                                                       | 14       |
| Section 1. Officers                                                            | 14       |
| Section 2. Chief Executive Officer                                             | 15       |
| Section 3. Chairperson                                                         | 15       |
| Section 4. President                                                           | 16       |
| Section 5. Chief Officers                                                      | 16       |
| Section 6. General Counsel                                                     | 17       |
| Section 7. Vice Presidents                                                     | 17       |
| Section 8. Treasurer                                                           | 17       |
| Section 9. Secretary                                                           | 18       |
| Section 10 Additional Officers                                                 | 18       |
| Section 11. Removal                                                            | 18       |
| Section 12. Resignations                                                       | 18       |
| Section 13. Giving of Bond by Officers                                         | 19       |
| Section 14. Compensation of Officers                                           | 19       |

 

 

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**TABLE OF CONTENTS**

(continued)

 

|                                         | **Page** |
|----------------------------------------------|----------|
| Section 15. Term of Office                   | 19       |
| Section 16. Voting Stock Held by Corporation | 19       |
| **ARTICLE V. INDEMNIFICATION**               | 19       |
| Section 1. Indemnification                   | 19       |
| Section 2. Indemnification Not Exclusive     | 21       |
| Section 3. Successors                        | 21       |
| Section 4. Insurance                         | 22       |
| Section 5. Definition of Certain Terms       | 22       |
| **ARTICLE VI. CONTRACTS; BANK ACCOUNTS**     | 23       |
| Section 1 Execution of Contracts             | 23       |
| Section 2. Checks; Drafts; Notes             | 23       |
| Section 3. Deposits                          | 23       |
| **ARTICLE VII. SHARES; DIVIDENDS**           | 23       |
| Section 1. Certificates                      | 23       |
| Section 2. Transfers                         | 24       |
| Section 3. Lost or Destroyed Certificates    | 24       |
| Section 4. Fractions of a Share              | 24       |
| Section 5. Dividends                         | 25       |
| **ARTICLE VIII. CORPORATE SEAL**             | 25       |
| **ARTICLE IX. FISCAL YEAR**                  | 25       |
| **ARTICLE X. AMENDMENTS**                    | 25       |

 

 

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ARTICLE I. MEETINGS OF STOCKHOLDERS

| Section 1. | Place of                            Meetings. |
|------------|-----------------------------------------------|

Subject to the next sentence, all meetings of stockholders shall be held            at the registered office of the Corporation in the State of Delaware or at such other            places within or without the State of Delaware as may be determined by the Board. The            Board of Directors (the “Board”) may determine that any or all meetings            shall not be held at any place, but shall instead be held solely by means of remote            communications in accordance with such guidelines and procedures and such additional            guidelines and procedures, not inconsistent therewith, as may be adopted from time to            time by the Board or required by the General Corporation Law of the State of Delaware,            as then in effect (the “Law”).

| Section 2. | Annual Meeting. |
|------------|-----------------|

An annual meeting of stockholders for the election of directors and the            transaction of such other business as may be properly brought before such meeting shall            be held (i) at 10:00 a.m., local time, on the second Tuesday of May in each and every            year, if that day is a business day, or, if that day is not a business day, on the next            following day which is a business day or (ii) at such other hour and date as the Board            may from time to time determine. Any annual meeting of stockholders may from time to            time be adjourned, postponed or canceled in accordance with Section 5(c) of this            Article I.

| Section 3. | Special                            Meetings. |
|------------|----------------------------------------------|

Special meetings of stockholders can be called only as provided in the            Certificate of Incorporation, as then in effect (the “Certificate of            Incorporation”). In addition (and without limiting the requirements, restrictions            or provisions of the Certificate of Incorporation), no such meeting shall be called or            convened, or be deemed to have been duly called or convened, unless it shall have been            called in accordance with these By-Laws. Any special meeting of stockholders may from            time to time be adjourned, postponed or canceled in accordance with Section 5(c) of            this Article I.

For a special meeting of stockholders to be duly called or convened, a            person or persons permitted by the Certificate of Incorporation to call a special            meeting of stockholders must give notice to that effect in writing to the Secretary not            more than sixty-five (65) days and not less than thirty-five (35) days before the date            of such meeting proposed by such person or persons. Such notice shall state the purpose            or purposes of such meeting and propose a place, date and hour of such            meeting.

For purposes of these By-Laws, except as otherwise provided in the            relevant provision of these By-Laws, all notices required or permitted to be given to            the Secretary must be given either by personal delivery or United States mail, postage            prepaid, and in each case addressed to the Secretary at the principal executive office            of the Corporation or the registered office of the Corporation in the State of            Delaware. No such notice shall be deemed to have been duly given until actual receipt            at such address.

 

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| Section 4. | Record Date. |
|------------|--------------|

(a)       In order to determine the            stockholders entitled to notice of or to vote at any meeting of stockholders or any            adjournment thereof, the Board may fix a record date, which record date shall not            precede the date upon which the resolution fixing such record date is adopted by the            Board and which record date shall not be more than sixty (60) and not less than ten            (10) days before the date of such meeting. If no record date is fixed by the Board, the            record date for determining stockholders entitled to notice of or to vote at a meeting            of stockholders shall be the close of business on the day next preceding the day on            which notice of such meeting is given or, if such notice is waived by all of the            stockholders, the close of business on the day next preceding the day on which such            meeting is held. A determination of stockholders of record entitled to notice of or to            vote at a meeting of stockholders shall apply to any adjournment of the meeting;            provided, however, that the Board may fix a new record date for such adjourned            meeting.

(b)       In order to determine the            stockholders entitled to consent to action in writing without a meeting, the Board may            fix a record date, which record date shall not precede or be more than ten (10) days            after the date upon which the resolution fixing such record date is adopted by the            Board. If no record date is fixed by the Board, the record date for determining            stockholders entitled to consent to action in writing without a meeting, when no prior            action by the Board is required by the Law, shall be the first date on which a signed            written consent setting forth the action taken or proposed to be taken is delivered to            the Secretary at the registered office of the Corporation in the State of Delaware or            the principal executive office of the Corporation. Delivery made to the Secretary must            be made either by personal delivery or by United States certified or registered mail,            return receipt requested. If no record date has been fixed by the Board and prior            action by the Board is required by the Law, the record date for determining            stockholders entitled to consent to action in writing without a meeting shall be the            close of business on the day on which the Board adopts the resolution taking such prior            action.

(c)       In order to determine the            stockholders (i) entitled to receive payment of any dividend or other distribution or            allotment of any rights or to exercise any rights in respect of any change, conversion            or exchange of shares of capital stock of the Corporation or (ii) for the purpose of            any other lawful action, the Board may fix a record date, which record date shall not            precede the date upon which the resolution fixing such record date is adopted by the            Board and which record date shall be not more than sixty (60) days prior to such            action. If no record date is fixed, the record date for determining stockholders            therefor shall be at the close of business on the day on which the Board adopts the            resolution relating to such action.

| Section 5. | Notice of Meetings;                            Waiver. |
|------------|--------------------------------------------------------|

(a)       Each notice of each meeting            of stockholders shall state the place, date and hour of such meeting and, unless it is            an annual meeting of stockholders, shall indicate that it is being sent by or at the            direction of the person or persons calling such meeting and state the purpose or            purposes for which such meeting is being called. If at any meeting of stockholders            action is proposed to be taken which would, if taken, give stockholders fulfilling the            requirements of Section 262 of the Law the right to receive payment for their shares of            capital stock of the Corporation, the notice of such meeting shall include a statement            of such proposed action and

 

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such            right. Not less than ten (10) and not more than sixty (60) days before the date of such            meeting, the Secretary shall give or cause to be given notice of such meeting to each            person entitled thereto. Except as otherwise provided in the next three (3) paragraphs            of this Section 5(a), such notice shall be given either by personal delivery or mail.            If mailed, such notice shall be deemed to have been duly given to a stockholder when it            is deposited in the United States mail, postage prepaid, directed to the stockholder at            his address as it appears on the stock records of the Corporation or, if he shall have            filed with the Secretary a written request that notices to him be mailed to some other            address, then directed to him at such other address.

Any notice required or permitted to be given by the Secretary or the            Corporation under the Law, the Certificate of Incorporation or these By-Laws to any            stockholder shall be deemed to have been duly given to such stockholder if (i) such            notice is duly given to a stockholder who shares the same address as such stockholder            and (ii) such stockholder shall have consented to the giving of such notice or notices            generally to the stockholder who shares such address. If a stockholder fails to give            written notice to the Secretary, within sixty (60) days after the Corporation shall            have given written notice of its intention to give a notice or notices generally to            such stockholder by giving it or them to a stockholder who shares the same address as            such stockholder as permitted by the Law, objecting thereto, such stockholder shall be            deemed to have so consented. Such stockholder may revoke such consent at any time by            giving written notice to that effect to the Secretary.

Any notice required or permitted to be given by the Corporation under            the Law, the Certificate of Incorporation or these By-Laws to any stockholder shall be            deemed to have been duly given to such stockholder if (i) such notice is given by            electronic transmission and (ii) such stockholder shall have consented to the            giving of such notice or notices generally to such stockholder by electronic            transmission. Such stockholder may revoke such consent at any time by giving written            notice to that effect to the Secretary. Such stockholder shall be deemed to have            revoked such consent if (i) the Corporation is unable to deliver by electronic            transmission two consecutive notices given by the Corporation to such stockholder in            accordance with such consent and (ii) such inability becomes known to the Secretary,            the transfer agent for the class of capital stock of the Corporation held by such            stockholder or some other person responsible for the giving of notice; provided,            however, the inadvertent failure to treat such inability as a revocation shall not            affect the validity of any meeting of stockholders or any action taken thereat. Notice            given to such stockholder by electronic transmission in accordance with these By-Laws            shall be deemed to have been duly given to such stockholder: (i) if by facsimile            telecommunication, when directed to a number at which such stockholder has consented to            receive notice; (ii) if by electronic mail, when directed to an electronic mail address            at which such stockholder has consented to receive notice; (iii) if by posting on an            electronic network together with separate notice to such stockholder of such specific            posting, upon the later of such posting or the giving of such separate notice; and (iv)            if by another form of electronic transmission, when directed to such            stockholder.

For purposes of these By-Laws, “electronic transmission”            means any form of communication, not directly involving the physical transmission of            paper, 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.

 

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(b)       A written waiver of notice            of a meeting of stockholders signed by a stockholder entitled to notice of such            meeting, before or after such meeting, shall be deemed to be equivalent to the giving            of proper notice to such stockholder of such meeting. Attendance of a stockholder at a            meeting of stockholders shall constitute a waiver of notice of such meeting, except            when such stockholder attends such meeting for the express purpose of objecting (and,            in fact, clearly objects), at the commencement of such meeting, to the transaction of            any business at such meeting because such meeting was not lawfully called or convened.            Neither the business to be transacted at nor the purpose of any meeting of stockholders            is required to be specified in any written waiver of notice of such meeting.

(c)       Any meeting of stockholders            may be adjourned, postponed or canceled at any time and from time to time, regardless            of whether a quorum is present, by the Board or the chairman of the meeting for any            reason (including, without limitation, when a quorum is not present at the commencement            of such meeting or where necessary, appropriate or expedient for the proper and orderly            conduct of such meeting or to tabulate any vote, the tabulation of which is necessary            for the continued conduct of such meeting). When a meeting of stockholders is adjourned            to another date, hour or place (or, if adjourned by the Board, remote communications),            it shall not be necessary to give any notice of the adjourned meeting if the date, hour            and place (or, if adjourned by the Board, remote communications) to which such meeting            is adjourned are announced at such meeting. Any business may be transacted at such            adjourned meeting which might have been transacted at such meeting. If the adjournment            is more than thirty (30) days or if, after such adjournment, the Board fixes a new            record date for such adjourned meeting, a notice of such adjourned meeting shall be            given to each person entitled to notice of such adjourned meeting.

| Section 6. | List of                            Stockholders. |
|------------|--------------------------------------------------|

The Secretary shall prepare, at least ten (10) days prior to each            meeting of stockholders, a complete list of the stockholders entitled to vote at such            meeting, arranged in alphabetical order and showing the address of each such            stockholder and the number of shares of record held by each such stockholder. Such list            shall be open for inspection by any stockholder, for purposes germane to such meeting,            during ordinary business hours, for the ten (10) days prior to such meeting, either (i)            on a reasonably accessible electronic network, so long as the information required to            gain access to such list is provided with the notice of such meeting, or (ii) during            ordinary business hours, at the principal executive office of the Corporation. If such            meeting is to be held at a place, such list shall also be produced and kept open at            such meeting during the whole time thereof and may be inspected by any stockholder who            is present thereat. If such meeting is to be held solely by remote communications, such            list shall also be produced and kept open during the whole time thereof for inspection            by any stockholder on a reasonable accessible electronic network and the information            required to gain access to such list shall be provided with the notice of such            meeting.

The stock records of the Corporation shall be conclusive evidence as to            who are the stockholders entitled to examine such stock records, the list described in            this Section 6 or the books of the Corporation or to vote at any meeting of            stockholders.

 

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| Section 7. | Quorum; Manner of Acting. |
|------------|---------------------------|

(a)       Except as otherwise            required by the Law or the Certificate of Incorporation or as provided with respect to            meetings consisting solely of holders of shares of Preferred Stock in the resolution or            resolutions providing for the issuance or creation of such shares, the presence, at the            commencement of such meeting, in person or by proxy, of holders of a majority of the            issued and outstanding shares of capital stock of the Corporation entitled to vote at a            meeting of stockholders shall be required in order to constitute a quorum for the            transaction of business thereat.

(b)       If so authorized by the            Board, stockholders and proxyholders not physically present at a meeting of            stockholders may, by remote communications, (i) participate in a meeting of            stockholders and (ii) be deemed present in person and vote at a meeting of            stockholders, regardless of whether such meeting is to be held at a place or by remote            communications, in each case so long as the Corporation shall have implemented            reasonable measures to (i) verify that each stockholder or proxyholder deemed present            and permitted to vote at such meeting by remote communications is a stockholder or            proxyholder and (ii) provide such stockholders and proxyholders with a reasonable            opportunity to participate in such meeting and to vote on matters submitted to a vote            of stockholders, including an opportunity to read or hear the proceedings. If any            stockholder or proxyholder votes at such meeting by remote communications, a record of            such vote shall be maintained by the Corporation.

(c)       Except as otherwise            required by the Law or the Certificate of Incorporation, as otherwise provided in these            By-Laws with respect to the election of directors and as otherwise provided with            respect to meetings consisting solely of holders of shares of Preferred Stock in the            resolution or resolutions providing for the issuance or creation of such shares, a            matter submitted to a vote at a meeting of stockholders shall have been approved only            if a quorum was present at the commencement of such meeting and the holders of a            majority of the issued and outstanding shares of the capital stock of the Corporation            entitled to vote on such matter shall have voted to approve such matter.

(d)       Every stockholder entitled            to vote or act at a meeting of stockholders may authorize another person or persons to            vote or act for him by proxy. Such authorization must be granted by a means permitted            by the Law. Among other means, such authorization may be granted by a proxy (i) in a            written instrument executed by a stockholder or such stockholder’s duly            authorized attorney-in-fact or (ii) transmitted by a stockholder or such            stockholder’s duly authorized attorney-in-fact by telegram, cablegram or            electronic transmission to a proxyholder or a proxy solicitation firm, proxy support            system or similar agent duly authorized by such proxyholder to receive such            transmission so long as such telegram, cablegram or other electronic transmission sets            forth or is submitted with information from which it can be determined that the            telegram, cablegram or other electronic transmission was authorized by such stockholder            or attorney-in-fact. Such proxy must be filed with the Secretary or such proxyholder,            proxy solicitation firm, proxy support agent or similar agent at or before such            meeting. No proxy shall be voted or acted upon after three (3) years from its date            unless such proxy provides that it may be voted or acted upon for a longer period. 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. A stockholder may revoke any proxy which is not irrevocable            by

 

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attending the relevant meeting of stockholders and voting or acting in            person, by filing with the Secretary or such proxyholder, proxy solicitation form,            proxy support agent or similar agent a written instrument revoking such proxy or by            filing with the Secretary or such proxyholder, proxy solicitation form, proxy support            agent or similar agent another duly executed proxy bearing a later date.

| Section 8. | Business                            Transacted. |
|------------|-------------------------------------------------|

(a)       No business shall be            transacted at any meeting of stockholders unless it shall have been brought in            accordance with this Section 8(a). Business may be brought (i) before a special meeting            of stockholders only by the person or persons calling such meeting as permitted by the            Certificate of Incorporation (which business shall be limited to the matters stated in            the notice of such meeting), (ii) before an annual meeting of stockholders only by or            at the direction of the Board or any other person or persons who could call a special            meeting of stockholders under the limited circumstances expressly permitted by the            Certificate of Incorporation or (iii) before any meeting of stockholders only by a            stockholder who is entitled to vote thereon at such meeting and who complies with the            procedures set forth in this Section 8(a). For business to be properly brought before            an annual meeting of stockholders by a stockholder, such stockholder must have given            timely notice of his intention to do so in writing to the Secretary.

To be timely, such notice must have been delivered or mailed to, and            received at, the principal executive office of the Corporation not less than one            hundred five (105) days and not more than one hundred thirty-five (135) days prior to            such meeting; provided, however, that if less than one hundred five (105) days’            notice or prior public disclosure of the date of such meeting is given to stockholders            or made, such notice must have been so delivered or mailed, and received, not later            than the close of business on the tenth (10th) day following the day on            which notice or public disclosure of the date of such meeting is given to stockholders            or made (except that this proviso shall not apply if such meeting is an annual meeting            which will be held on the date specified in clause (i) of Section 2 of this Article I            or within thirty (30) days thereafter).

Such notice must set forth as to each matter such stockholder proposes            to bring before such meeting (i) a brief description (which includes all of the            material aspects thereof) of the business desired to be brought before such meeting and            the reasons for conducting such business at such meeting, (ii) the name and address, as            they appear on the stock records of the Corporation, of such stockholder (and, if such            stockholder beneficially owns shares of capital stock of the Corporation through a            nominee, such nominee), (iii) the classes and number of shares of each class of capital            stock of the Corporation that are owned beneficially and of record by such stockholder,            his affiliates, all groups of which he is a member and all persons with whom he is            acting in concert (in each case, identifying them), (iv) any material direct or            indirect interest of such stockholder, affiliates, groups or persons in such business            and (v) whether such stockholder, affiliates, groups or persons has solicited, is            soliciting or plans to solicit proxies in respect of such matter.

Such notice shall be deemed to have not been timely given if, at any            time after it is first given, the information set forth therein ceases to be accurate            or complete in any material respect unless (i) such stockholder shall have given a            subsequent notice in writing to the Secretary

 

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correcting such inaccurate or incomplete information and (ii) such            subsequent notice shall have been delivered or mailed to, and received at, the            principal executive office of the Corporation within three (3) days after any of such            information shall have become inaccurate or incomplete in any material respect (and, in            any event, not less than one (1) day prior to such meeting). The chairman of such            meeting shall determine whether any business to be brought before such meeting will be            properly so brought in accordance with this Section 8(a) and, if he should determine            that such business will not be properly so brought, he shall so declare at such meeting            and such business shall not be transacted at such meeting.

(b)       No individual shall be            eligible for election as a director unless he is nominated in accordance with this            Section 8(b). Nominations of individuals for election as directors may be made at a            meeting of stockholders at which directors are to be elected only (i) by or at the            direction of the Board, a nominating committee of the Board or any other person or            persons who could call a special meeting of stockholders under the limited            circumstances expressly permitted by the Certificate of Incorporation or (ii) by a            stockholder who is entitled to vote for the election of directors at such meeting and            who complies with the procedures set forth in this Section 8(b). For nominations to be            properly made at a meeting by a stockholder, such stockholder must have given timely            notice of his intention to do so in writing to the Secretary.

To be timely, such notice must have been delivered or mailed to, and            received at, the principal executive office of the Corporation not less than one            hundred five (105) days or more than one hundred thirty-five (135) days prior to such            meeting; provided, however, that if less than one hundred five (105) days’ notice            or prior public disclosure of the date of such meeting is given to stockholders or            made, such notice must have been so delivered or mailed, and received, not later than            the close of business on the tenth (10th) day following the day on which            notice or public disclosure of the date of such meeting is given to stockholders or            made (except that this proviso shall not apply if such meeting is an annual meeting            which will be held on the date specified in clause (i) of Section 2 of this Article I            or within thirty (30) days thereafter).

Such notice must set forth: (i) as to each individual whom such            stockholder proposes to nominate for election as a director, (a) the name, date of            birth, business address and residential address of such individual, (b) the principal            occupation or employment of such individual for at least the five (5) years preceding            the date of such notice, (c) the classes and number of each class of the capital stock            of the Corporation that are owned beneficially and of record by such individual, his            affiliates, all persons with whom he is acting in concert and all groups of which he is            a member (in each case, identifying them) and (d) all information relating to such            individual that is required to be disclosed in solicitations of proxies for election of            directors pursuant to Regulation 14A under the Securities Exchange Act of 1934, as            amended, and the rules and regulations thereunder (including each such            individual’s written consent to serve as director if elected); and (ii) as to the            stockholder giving such notice, (A) the name and address, as they appear on the stock            records of the Corporation, of such stockholder (and, if such stockholder beneficially            owns shares of capital stock of the Corporation through a nominee, such nominee), (B)            the classes and number of shares of each class of capital stock of the Corporation that            are owned beneficially and of record by such stockholder, his affiliates, all persons            acting in concert with him and all groups of which he is a member (in each case,            identifying them), (C) any professional, commercial, business or familial relationship            of such stockholder, affiliates, persons or groups (in each case, identifying them) to            such nominees, his affiliates, any person

 

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acting            in concert with him or any group of which he is a member (in each case, identifying            them) and (D) whether such stockholder, affiliates, persons or groups has solicited, is            soliciting or plans to solicit proxies in favor of such nominees.

Such notice shall be deemed to have not been timely given if, at any            time after it is first given, the information set forth therein ceases to be accurate            or complete in any material respect unless (i) such stockholder shall have given a            subsequent notice in writing to the Secretary correcting such inaccurate or incomplete            information and (ii) such subsequent notice shall have been delivered or mailed to, and            received at, the principal executive office of the Corporation within three (3) days            after any of such information shall have become inaccurate or incomplete in any            material respect (and, in any event, not less than one (1) day prior to such meeting).            The chairman of such meeting shall determine whether any nomination to be made at such            meeting will be properly so made in accordance with this Section 8(b) and, if he should            determine that such nomination will not be properly so made, he shall so declare at            such meeting and such nomination shall not be made at such meeting.

(c)       For the purposes of this            Section 8, “acting in concert” and “group” shall have the same            meanings as they have under the Securities Exchange Act of 1934, as amended, and the            rules and regulations thereunder.

| Section 9. | Order of Business;                            Voting. |
|------------|-------------------------------------------------------|

(a)       The Chairperson of the            Board or, in the absence of the Chairperson of the Board, the most senior officer            present, or, in the absence of all of them, a person designated by the Board, or in the            absence of all of them, a person designated by the holders of a majority of the            outstanding shares of capital stock of the Corporation present in person or by proxy            and entitled to vote at such meeting shall act as the chairman of such meeting. The            chairman of each meeting of stockholders shall call such meeting to order, determine            the order of business at such meeting and otherwise preside over such meeting. The            chairman of the meeting shall, among other things, announce at such meeting the opening            and closing of the polls for each matter submitted to a vote of stockholders at such            meeting.

(b)       The Secretary shall act as            secretary of each meeting of stockholders and keep the minutes thereof, but, in the            absence of the Secretary, the chairman of such meeting shall appoint some other person            to act as secretary of such meeting.

(c)       Unless required by the Law,            requested by any stockholder present in person or by proxy and entitled to vote at such            meeting or directed by the chairman of such meeting, neither the vote for the election            of directors nor upon any other business before any meeting of stockholders is required            to be conducted by written ballot. On a vote by written ballot, (i) each written ballot            cast by a stockholder voting in person shall state the name of such stockholder, the            number of shares of capital stock of the Corporation held of record by him and the            number of such shares voted by him and (ii) each ballot cast by proxy shall bear the            name of such proxy, the name of the stockholder for whom he is voting, the number of            shares of capital stock of the Corporation held of record by such stockholder and the            number of such shares voted on behalf of such stockholder.

 

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(d)       Shares of capital stock of            the Corporation held by the Corporation or any of its majority-owned subsidiaries in            treasury shall not be shares entitled to vote at, or to be counted in determining the            presence of a quorum for, any meeting of stockholders or be counted in determining the            total number of outstanding shares of capital stock of the Corporation. This Section            9(d) shall not limit the right of the Corporation or any of its subsidiaries to vote            any shares of capital stock of the Corporation held by the Corporation or such            subsidiary in a fiduciary capacity.

(e)       To the extent (but only to            the extent) expressly permitted by the Certificate of Incorporation, action required or            permitted to be taken at a meeting of stockholders may be taken without a meeting,            without any prior notice and without a vote thereon, if stockholders having not less            than the minimum number of votes that would be necessary to take such action at a            meeting at which all stockholders entitled to vote thereon were present and voting,            consent in writing to such action and such writing or writings are filed with the            minutes of proceedings of the stockholders. Prompt written notice of the taking of such            action shall be given by the Secretary to all stockholders who have not consented in            writing to such action.

| Section 10. | Inspectors. |
|-------------|-------------|

(a)       The Board in advance of any            meeting of stockholders may (and shall, if required by the Law) appoint one or more            inspectors to act at such meeting or any adjournment thereof. If inspectors are not so            appointed, the chairman of such meeting may and, on request of any stockholder present            in person or by proxy and entitled to vote at such meeting, shall appoint one or more            such inspectors. No director, nominee for director, officer or employee of the            Corporation shall be appointed as an inspector. Inspectors need not be stockholders. In            case any person so appointed fails to appear or act, the vacancy may be filled by            appointment of another person by the Board in advance of such meeting or at such            meeting by the chairman of such meeting.

(b)       Each inspector appointed to            act at any meeting of stockholders shall, before entering upon the discharge of his            duties, take and sign an oath to execute faithfully the duties of inspector at such            meeting with strict impartiality and according to the best of his ability. Such            inspectors shall (i) determine the number of shares outstanding and the voting power of            each such share, the number of shares represented at such meeting, the existence of a            quorum and the validity and effect of proxies, (ii) receive votes or ballots, (iii)            hear and determine all challenges and questions arising in connection with the right to            vote, (iv) count and tabulate all votes or ballots, (v) determine the result and (vi)            do all acts which may be proper in connection with conducting a vote at such meeting,            with fairness to all stockholders. On the request of the chairman of such meeting or            any stockholder present in person or by proxy and entitled to vote at such meeting, the            inspectors shall make a report in writing of any challenge, question or matter            determined by them and execute a certificate of any fact found by them. Any such report            or certificate shall be prima facie evidence of the facts so stated and of the vote so            certified.

 

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ARTICLE II. BOARD OF DIRECTORS

| Section 1. | Powers; Qualifications; Number;                            Election. |
|------------|----------------------------------------------------------------------|

(a)       The business and affairs of            the Corporation shall be managed by or under the direction of the Board. Except as            otherwise provided in the Certificate of Incorporation, the Board may exercise all of            the authority and powers of the Corporation and do all of the lawful acts and things            which are not by the Law, the Certificate of Incorporation or these By-Laws directed or            required to be exercised or done by the stockholders. The directors shall act only as a            board and, subject to Article III, the individual directors shall have no power as            such. Each director shall be at least twenty-five (25) years of age. A director is not            required to be a resident of the State of Delaware or a stockholder. The Board shall            consist of that number of directors (but not less than three (3) or more than fifteen            (15)) as shall be fixed in accordance with the Certificate of Incorporation.

(b)       At all elections of            directors by stockholders entitled to vote thereon, the individuals receiving a            plurality of the votes cast shall be deemed to have been elected as            directors.

| Section 2. | Term of Office of a                            Director. |
|------------|----------------------------------------------------------|

The term of office of each director shall commence at the time of his            election and qualification and shall expire upon the due election and qualification of            his successor (which may be such director, if he is re-elected) at the annual meeting            of stockholders following his election or his earlier death, resignation or            removal.

| Section 3. | Resignations; Filling of                            Vacancies. |
|------------|----------------------------------------------------------------|

(a)       Any director may resign at            any time by giving written notice of his resignation to the Board or the Secretary.            Such resignation shall take effect at the time of receipt of such notice by the Board            or the Secretary, as the case may be, or at any later time specified therein and,            unless otherwise specified therein, the acceptance of such resignation shall not be            necessary to make it effective.

(b)       Any vacancy on the Board            can be filled as (but only as) provided in the Certificate of Incorporation. A director            elected to fill such a vacancy shall hold office as provided in the Certificate of            Incorporation.

| Section 4. | Meetings of the Board; Notice;                            Waiver. |
|------------|-------------------------------------------------------------------|

(a)       All regular meetings of the            Board shall be held at such places within or without the State of Delaware as may be            fixed by the Board. All special meetings of the Board shall be held at such places            within or without the State of Delaware as may be specified in the notices of such            meetings.

(b)       Regular meetings of the            Board for the transaction of such business as may be properly brought before such            meetings shall be held on such dates and at such times as may be fixed by the Board.            Notices of such regular meetings are not required to be given.

 

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(c)       Special meetings of the            Board may be called at any time by the Chairperson of the Board, the most senior            executive then serving, the General Counsel or any director. Each such meeting shall be            called by giving notice to that effect to the Secretary at least forty-eight (48) hours            before such meeting. Such notice shall state the place, date, hour and purpose or            purposes of such meeting. Promptly after receipt of such notice and, in any event, not            less than twenty-four (24) hours before such meeting, the Secretary shall give notice            of such meeting to all directors. Such notice shall state the place, date, hour and            purpose or purposes of such meeting and shall indicate that such notices are being sent            at the request of the person calling such meetings. Except as otherwise required by the            Law, each notice of each special meeting of the Board shall be given by (i) mail            addressed to a director at his residence or usual place of business at least seven (7)            days before the date of such meeting or (ii) personal delivery or telex, telephone,            telegraph, telecopier or other electronic transmission addressed to a director at his            usual place of business (or, if such director (i) has designated some other place to            receive notices or (ii) does not have a usual place of business and has not designated            some other place, such other place or his principal residence, respectively) at least            twenty-four (24) hours before such meeting. If mailed, such notice shall be deemed to            have been given to a director five (5) days after it is deposited in the United States            mail, postage prepaid, directed to such director at his usual place of business (or, if            such director (i) has designated some other place to receive notices or (ii) does not            have a usual place of business and has not designated some other place, such other            place or his principal residence, respectively).

(d)       A written waiver of notice            of a meeting of the Board signed by a director, before or after such meeting, shall be            deemed to be equivalent to the giving of proper notice to such director of such            meeting. Attendance of a director at a meeting of the Board shall constitute a waiver            of notice of such meeting, except when such director attends such meeting for the            express purpose of objecting (and, in fact objects), at the commencement of such            meeting, to the transaction of any business at such meeting because such meeting was            not lawfully called or convened. Neither the business to be transacted at nor the            purpose of any regular or special meeting of the Board is required to be specified in            any written waiver of notice of such meeting.

| Section 5. | Quorum;                            Adjournment. |
|------------|-------------------------------------------------|

The presence of a majority of the Whole Board (as defined in the            Certificate of Incorporation) at any meeting of the Board shall be required in order to            constitute a quorum for the transaction of business thereat. Any meeting of the Board            may be adjourned from time to time until the business to be transacted at such meeting            is completed. If a quorum shall not be present at any such meeting, a majority of the            directors present may adjourn such meeting to another date, hour and place. When a            meeting of the Board is adjourned to another date, hour and place, it shall not be            necessary to give any notice of the adjourned meeting if the date, hour and place to            which such meeting is adjourned are announced at such meeting. Any business may be            transacted at such adjourned meeting which might have been transacted at such            meeting.

| Section 6. | Manner of                            Acting. |
|------------|----------------------------------------------|

(a)       The Board may designate a            Chairperson of the Board, who may be called Chairman or Chairwoman of the Board, as            appropriate. The Chairperson of the Board shall preside at all meetings of stockholders            and of the Board. He shall perform such other duties as

 

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the            Board may from time to time assign to him. In the absence of the Chairperson of the            Board, a person designated by a majority of the directors present at a meeting of the            Board shall serve as the chairman of such meeting. The chairman of each meeting of the            Board shall call such meeting to order, determine the order of business at such meeting            and otherwise preside over such meeting.

(b)       The Secretary shall act as            secretary of each meeting of the Board and keep the minutes thereof, but, in the            absence of the Secretary, the chairman of such meeting shall appoint some other person            to act as secretary of such meeting.

(c)       At each meeting of the            Board, each director shall be entitled to one vote. Except as otherwise provided in the            Certificate of Incorporation or these By-Laws, a matter submitted to a vote at a            meeting of the Board shall have been approved only if a quorum was present at the time            of the vote thereon and a majority of the directors present at that time shall have            voted to approve such matter.

(d)       Any action required or            permitted to be taken at any meeting of the Board may be taken without a meeting if all            of the directors consent in writing (which writings may be executed in counterparts or            be different writings) or by electronic transmission to such action. Such writing or            writings or electronic transmission or transmissions shall be filed with the minutes of            proceedings of the Board.

| Section 7. | Annual Meeting of                            Directors. |
|------------|---------------------------------------------------------|

An annual meeting of the Board for the transaction of such business as            may be properly brought before such meeting shall be held promptly following each            annual meeting of stockholders.

| Section 8. | Participation in Meeting by                            Telephone. |
|------------|-------------------------------------------------------------------|

One or more directors may participate in a meeting of the Board by means            of conference telephone or similar communications equipment by means of which all            persons participating in such meeting can hear each other at the same time.            Participation in a meeting of the Board by such means shall constitute presence in            person at such meeting.

| Section 9. | Compensation and Expenses of                            Directors. |
|------------|--------------------------------------------------------------------|

Directors may be compensated for rendering services as such as            determined from time to time by the Board. Directors shall be reimbursed for expenses            incurred by them in connection with rendering services as such.

| Section 10. | Related Party                            Transactions. |
|-------------|--------------------------------------------------------|

Notwithstanding anything contained herein or in the Law to the contrary,            the Board shall use reasonable efforts to cause each transaction between the            Corporation and any of its subsidiaries, on the one hand, and any of our affiliates            (other than our subsidiaries or other controlled affiliates), on the other hand, to be            disclosed to the Board prior to entry into a binding commitment to consummate (or, if            there is no such commitment, the consummation of) such

 

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transaction. The Board shall not authorize or permit the entry to any            commitment to consummate (or the consummation of any) transaction so disclosed unless a            majority of the independent and disinterested directors shall have determined that the            terms of such transaction are no less favorable to the Corporation and its subsidiaries            than they could obtain from non-affiliates and shall have approved such transaction.            For purposes of this Section 10, “affiliate” shall have the same meaning as            it has under the Securities Exchange Act of 1934, as amended. This Section 10 shall not            apply to compensation of directors, as such, reimbursement of their expenses as such,            or transactions of a deminimus nature.

 

ARTICLE III. COMMITTEES OF THE BOARD

| Section 1. | Regular                            Committees. |
|------------|------------------------------------------------|

The Board may, pursuant to a resolution or resolutions adopted by an            affirmative vote of a majority of the Whole Board, designate one or more committees of            the Board. The members of each such committee shall consist of such directors (but only            such directors) designated by the Board, pursuant to a resolution or resolutions            adopted by an affirmative vote of a majority of the Whole Board. The Board may,            pursuant to a resolution or resolutions adopted by an affirmative vote of a majority of            the Whole Board, designate one or more directors as alternate members of any committee            who may replace any absent or disqualified member of any committee at any meeting of            such committee. Any vacancy on any committee resulting from death, resignation or any            other event or circumstance, which is not filled by an alternate member, shall be            filled by (and only by) the Board, pursuant to a resolution or resolutions adopted by            an affirmative vote of a majority of the Whole Board. Directors elected to fill such            vacancies shall hold office for the balance of the terms of the members whose vacancies            are so filled. Each committee will report its actions in the interim between meetings            of the Board at the next meeting of the Board or as otherwise directed by the            Board.

| Section 2. | Regular Committee                            Powers. |
|------------|------------------------------------------------------|

Any committee of the Board, to the extent (but only to the extent)            provided in a resolution or resolutions adopted by the affirmative vote of a majority            of the Whole Board, (i) shall have and may exercise all of the powers and authority of            the Board and do all of the lawful acts and things which may be done by the Board in            the management of the business and affairs of the Corporation and (ii) may authorize            the seal of the Corporation to be affixed to all papers which may require it; provided,            however, that no such committee shall have the power or authority to: amend the            Certificate of Incorporation; adopt an agreement of merger or consolidation; recommend            to the stockholders the sale, lease or exchange of all or substantially all of the            Corporation’s property and assets; recommend to the stockholders a dissolution of            the Corporation or a revocation of a dissolution of the Corporation; except as            otherwise provided in the Certificate of Incorporation, call a meeting of stockholders;            amend or repeal these By-Laws or adopt new By-Laws; or, unless the Certificate of            Incorporation, these By-Laws or resolutions adopted by the affirmative vote of a            majority of the Whole Board shall expressly so provide, declare a dividend, authorize            the issuance of shares of capital stock of the Corporation or adopt a certificate of            ownership and merger.

 

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| Section 3. | Advisory                            Committees. |
|------------|-------------------------------------------------|

The Board or a committee of the Board may designate one or more advisory            committees to report to the Board or a committee of the Board. Each such advisory            committee shall consist of one or more individuals designated by the Board or the            committee of the Board which designated such advisory committee. Such individuals are            not required to be directors. The Board may designate one or more individuals as            alternate members of any advisory committee who may replace any absent or disqualified            member of any advisory committee at any meeting of such committee. Any absence of any            member of any advisory committee or vacancy on any advisory committee resulting from            death, resignation or any other event or circumstance, which is not filled by an            alternate member, shall be filled only by the Board or the committee of the Board which            designated such advisory committee. Individuals elected to fill such vacancies shall            hold office for the balance of the terms of the members whose vacancies are so filled.            Each advisory committee will report its actions in the interim between meetings of the            Board or the committee of the Board which designated such advisory committee at the            next meeting of the Board or the committee of the Board which designated such advisory            committee or as otherwise directed by the Board or the committee of the Board which            designated such advisory committee. An advisory committee shall have none of the powers            or authority of the Board or any committee of the Board.

| Section 4. | Procedures. |
|------------|-------------|

Unless otherwise expressly authorized by the Board in the resolution or            resolutions designating such committee or advisory committee, the members of committees            or advisory committees shall act only as a committee, and the individual members shall            have no power as such. Any member of any committee or advisory committee may be removed            as such at any time by the affirmative vote of a majority of the Whole Board. The            presence, at any meeting thereof, of a majority of the total number of members which a            committee or advisory committee would have if there were no vacancies thereon shall be            required in order to constitute a quorum for the transaction of business at such            meeting. The term of office of each member of any committee or advisory committee shall            commence at the time of his election and qualification and shall continue until his            successor shall have been duly elected or until his earlier death, resignation or            removal. Except as otherwise provided in this Article III or in the resolution or            resolutions designating such committee or advisory committee and except for the            reference to presiding at meetings of stockholders in Section 6(a) of Article II,            Sections 4, 5, 6, 7 and 8 of Article II shall apply to committees and advisory            committees and members thereof as if references therein to the Board and directors were            references to such committees and members, respectively.

ARTICLE IV. OFFICERS

| Section 1. | Officers. |
|------------|-----------|

The Corporation shall have one or more executive officers and a            corporate secretary. Such executive officers may include one or more of the following            positions: a Chairperson (when the Chairperson of the Board is designated as an officer            by the Board); a Chief Executive Officer; a President; one or more other Chief Officers            (such as a Chief Operating Officer, a Chief

 

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Financial Officer or a Chief Information Officer); the General Counsel;            one or more Vice Presidents (one or more of whom may be designated as an Executive Vice            President or a Senior Vice President); and a Treasurer. The corporate secretary shall            be the Secretary or some other officer designated, generally or in the specific            circumstance, to take actions which would otherwise be performed by the            Secretary.

Executive officers and the Secretary shall be elected by the Board. The            Board may elect executive officers and the Secretary at any time and from time to time.            Any or all of the positions contemplated under this Article IV may be held by the same            person. Unless otherwise designated by the Board or these By-Laws, officers shall            report to other officers as designated by the Chief Executive Officer or, if the            position of Chief Executive Officer is vacant, by the most senior executive officer            then serving.

The designation or reference under these By-Laws to an officer as an            executive officer is made solely to distinguish such officers from the corporate            secretary and additional officers described in Section 10 of this Article IV and does            not constitute the designation of such officer as an executive officer under applicable            securities laws, under the rules and regulations of the Securities and Exchange            Commission or for any other purpose.

| Section 2. | Chief Executive Officer. |
|------------|--------------------------|

The Chief Executive Officer shall be the principal executive officer of            the Corporation and shall, subject to the control of the Board, have general authority            and exercise general supervision over the business and affairs of the Corporation. The            Chief Executive Officer shall see that all orders of the Board are carried into effect            and shall have responsibility for implementation of the strategies, plans and policies            of the Corporation. The Chief Executive Officer shall, generally, perform such duties            as may from time to time be assigned to him by the Board or these By-Laws and is            authorized to enter into contracts and execute and deliver instruments on behalf of the            Corporation in the ordinary course of its business without specific approval of the            Board.

| Section 3. | Chairperson. |
|------------|--------------|

The Chairperson of the Board may be designated as an executive officer            by the Board. Unless so designated, the Chairperson of the Board shall not be an            officer. If so designated, the Chairperson of the Board shall be called, in these            By-Laws, in his capacity as an executive officer, the Chairperson (or Chairman or            Chairwoman, as appropriate) and, in his capacity as a director and Chairperson of the            Board, the Chairperson of the Board.

If so designated, the Chairperson shall be a senior executive officer of            the Corporation and shall, subject to the control of the Board, have general authority            and exercise general supervision over the business and affairs of the Corporation, with            emphasis on strategic direction and initiatives. In the absence of a Chief Executive            Officer and a President, the Chairperson shall see that all orders of the Board are            carried into effect and shall have responsibility for implementation of the strategies,            plans and policies of the Corporation. The Chairperson shall perform such duties as may            from time to time be assigned to him by the Board or these By-Laws and is authorized to            enter into contracts and execute and deliver instruments on behalf of the

 

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Corporation in the ordinary course of its business without specific            approval of the Board, the Chief Executive Officer or the President.

The Chairperson may be an employee of the Corporation. Unless designated            as an employee by the Board, the Chairperson shall not be an employee.

| Section 4. | President. |
|------------|------------|

If the position of Chief Executive Officer is occupied, the President            shall, subject to the control of the Board and the Chief Executive Officer, have            general authority and exercise general supervision over the business and affairs of the            Corporation, with emphasis on such matters as may be assigned to him by the Board or            the Chief Executive Officer, and shall report to the Chief Executive Officer. If the            position of Chief Executive Officer is vacant, the President shall, subject to the            control of the Board, have general authority and exercise general supervision over the            business and affairs of the Corporation, shall see that all orders of the Board are            carried into effect and shall have responsibility for implementation of the strategies,            plans and policies of the Corporation. The President shall, generally, perform such            duties as may from time to time be assigned to him or her by the Board, the Chief            Executive Officer or these By-Laws and is authorized to enter into contracts and            execute and deliver instruments on behalf of the Corporation in the ordinary course of            its business without specific approval of the Board or the Chief Executive            Officer.

| Section 5. | Chief Officers. |
|------------|-----------------|

A Chief Officer shall, subject to the control of the Board and the Chief            Executive Officer (or, if the position of Chief Executive Officer is vacant, the            President), have authority and general supervision over such matters as may be assigned            to him by the Board and the Chief Executive Officer (or, if the position of Chief            Executive Officer is vacant, the President) and shall report to such other executive            officers as may be specified by the Chief Executive Officer (or, if the position of            Chief Executive officer is vacant, the President).

A Chief Financial Officer shall keep full and accurate accounts of            assets, liabilities, receipts, disbursements and other transactions of the Corporation            in books belonging to the Corporation, cause regular audits of such books to be made,            render to the other executive officers and the Board an account of the financial            condition of the Corporation whenever requested and have authority and supervision over            the Treasurer. If the position of Treasurer is vacant, the Chief Financial Officer            shall perform the duties of the Treasurer with all powers of, and subject to all of the            restrictions upon, the Treasurer.

A Chief Officer shall, generally, perform such duties as may from time            to time be assigned to him by the Board, the Chief Executive Officer (or, if the            position of Chief Executive Officer is vacant, the President), the other executive            officers to whom he reports or these By-Laws and is authorized to enter into contracts            and execute and deliver instruments on behalf of the Corporation in the ordinary course            of its business relating to such matters and duties without specific approval of the            Board, the Chief Executive Officer (or, if the position of Chief Executive Officer is            vacant, the President) or the other executive officers to whom he reports.

 

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| Section 6. | General Counsel. |
|------------|------------------|

The General Counsel shall, subject to control of the Board, have general            authority and exercise general supervision over the legal and regulatory affairs of the            Corporation (including legal and regulatory compliance) and shall report to the Board            and the Chief Executive Officer (or, if the position of Chief Executive Officer is            vacant, the President). The General Counsel shall see that all orders of the Board with            respect to such affairs are carried into effect. The General Counsel shall, generally,            perform such duties as may from time to time be assigned to him by the Board, the Chief            Executive Officer (or, if the position of Chief Executive Officer is vacant, the            President) or these By-Laws and is authorized to enter into contracts and execute and            deliver instruments on behalf of the Corporation in the ordinary course of its business            relating to such affairs and duties without specific approval of the Board or the Chief            Executive Officer (or, if the position of Chief Executive officer is vacant, the            President).

| Section 7. | Vice Presidents. |
|------------|------------------|

Each Vice President shall, subject to the control of the Board and the            more senior executive officers then serving to whom such Vice President directly or            indirectly reports, perform all duties as may from time to time be assigned to him by            the Board, the more senior executive officers then serving to whom such Vice President            directly or indirectly reports or these By-Laws. In case of the absence of appropriate            more senior executive officers, any Vice President designated by the Board shall            perform the duties of the absent executive officers with all powers of, and subject to            all of the restrictions upon, the absent executive officers, as applicable.

| Section 8. | Treasurer. |
|------------|------------|

The Treasurer shall, subject to the control of the Board (and, if the            position of Chief Financial Officer is occupied, the Chief Financial Officer), have            charge and custody of and be responsible for all of the funds and securities of the            Corporation and deposit all moneys and other valuable effects in the name of and to the            credit of the Corporation in banks or other depositories. The Treasurer shall, subject            to the control of the Board (and, if the position of Chief Financial Officer is            occupied, the Chief Financial Officer), disburse the funds of the Corporation as            ordered by the Board or the other executive officers of the Corporation in accordance            with these By-Laws, taking proper vouchers for such disbursements, and shall render to            the other executive officers and to the Board (at its meetings or whenever the Board            may require) a statement of all his transactions as treasurer. If the position of Chief            Financial Officer is vacant, the Treasurer shall also perform the duties of the Chief            Financial Officer to the extent that such duties have not been assigned by the Board to            some other executive officer. In general, the Treasurer shall, subject to the control            of the Board (and, if the position of Chief Financial Officer is occupied, the Chief            Financial Officer), perform all of the duties incident to the office of treasurer and            such other duties as may from time to time be assigned to him by the Board, the other            executive officers or these By-Laws.

 

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| Section 9. | Secretary. |
|------------|------------|

The Secretary shall, subject to direction by the Board, act as secretary            of, and keep the minutes of, the proceedings of the Board and the stockholders in books            belonging to the Corporation, give or cause to be given notice of all meetings of            stockholders and directors as required by these By-Laws, be custodian of the seal of            the Corporation, affix the seal, or cause it to be affixed, to all certificates for            shares of capital stock of the Corporation and to all documents the execution of which            on behalf of the Corporation under its seal shall have been specifically or generally            authorized by the Board, have charge of the stock records of the Corporation and of the            other books, records and papers of the Corporation relating to its organization as a            corporation and see that the reports, statements and other documents required by law            relating to the maintenance of the existence, qualifications and franchises of the            Corporation as a corporation are properly kept or filed. The Secretary shall, subject            to direction by the Board, generally perform all of the duties incident to the office            of secretary and such other duties as may from time to time be assigned to him by the            Board, the executive officers or these By-Laws.

| Section 10. | Additional Officers. |
|-------------|----------------------|

The Board may at any time and from time to time elect or appoint such            other officers (including, without limitation, assistant executive officers),            employees, agents, consultants, representatives and advisors of the Corporation as the            Board may deem proper, each of whom shall hold office for such period, have such            authority and perform such duties as the Board or the executive officers to whom they            directly or indirectly report may from time to time determine.

| Section 11. | Removal. |
|-------------|----------|

Any officer, assistant, employee, agent, consultant, representative or            advisor of the Corporation may be removed at any time by the Board or an executive            officer to whom he directly or indirectly reports, except that an executive officer            (other than an assistant executive officer) of the Corporation may be removed or            replaced, directly or indirectly (including, without limitation, removal or replacement            effected by reason of election and qualification of a successor, demotion, relocation,            failure to re-elect or diminution in duties or compensation), pursuant to (but only            pursuant to) a resolution or resolutions adopted by the affirmative vote of a majority            of the Whole Board (excluding, if such officer is also a director, such            director).

| Section 12. | Resignations. |
|-------------|---------------|

Any officer may resign from office at any time by giving written notice            of resignation to the Board, an executive officer to whom he directly or indirectly            reports or the Secretary. The resignation of any officer shall take effect at the time            of receipt of such notice by the Board, such an executive officer or the Secretary or            at any later time specified therein and, unless otherwise specified therein, the            acceptance of such resignation shall not be necessary to make it effective. No such            resignation shall affect any rights which the Corporation may have under any agreement            with such officer.

 

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| Section 13. | Giving of Bond by                            Officers. |
|-------------|--------------------------------------------------------|

All officers of the Corporation, if required to do so by the Board,            shall furnish bonds to the Corporation for the faithful performance of their duties            subject to such penalties and with such conditions and security as the Board may from            time to time require. All expenses of any such bond shall be paid by the            Corporation.

| Section 14. | Compensation of                            Officers. |
|-------------|------------------------------------------------------|

Compensation of officers of the Corporation may be fixed at any time and            from time to time by the Board or, in the case of officers other than the Chief            Executive Officer, by the Chief Executive Officer pursuant to authority delegated to            him by the Board.

| Section 15. | Term of Office. |
|-------------|-----------------|

Subject to Sections 11 and 12 of this Article IV, the term of office of            each officer shall commence at the time of his election and qualification and shall            continue until his successor shall have been duly elected and qualified or his earlier            death, resignation or removal.

| Section 16. | Voting Stock Held by                            Corporation. |
|-------------|--------------------------------------------------------------|

Except as otherwise determined from time to time by the Board, the Chief            Executive Officer (or, if the position of Chief Executive Officer is vacant, the            President) shall have full power and authority in the name and on behalf of the            Corporation to attend, act and vote at any meeting of stockholders, partners or owners            of any corporation, partnership or other entity in which the Corporation may hold            stock, a partnership interest or another ownership interest and at any such meeting            shall possess and may exercise any and all rights and powers incident to the ownership            of such stock or interest which, as the owner thereof, the Corporation might have            possessed and exercised. The Board may from time to time confer like powers upon any            other person or persons and the Chief Executive Officer and the President may delegate            his powers under this Section 16 to any other officer of the Corporation.

ARTICLE V. INDEMNIFICATION

| Section 1. | Indemnification. |
|------------|------------------|

(a)       Each person who is or was            made a party or is threatened to be made a party to, or is or was involved (including,            without limitation, involvement as a witness) in, any action, suit or proceeding,            whether civil (including, without limitation, arbitral), criminal, administrative or            investigative (a “proceeding”), by reason of the fact that he, or a person            of whom he is the legal representative, is or was a director or officer of the            Corporation or is or was serving at the request of the Corporation as a director,            officer, partner, member, manager, employee, agent or trustee of another corporation or            of a partnership, joint venture, limited liability company, trust or other entity or            enterprise (including, without limitation, a direct or indirect subsidiary of the            Corporation and an employee benefit plan of the Corporation or any of its            subsidiaries), whether the basis of such proceeding is alleged action or inaction in an            official capacity as an officer or director or in any other capacity while so serving,            shall be indemnified by the Corporation for and held harmless by the Corporation from            and against, to the fullest extent authorized by the

 

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Law,            as the same exists or may hereafter be amended (but, in the case of any such amendment,            only to the extent that such amendment permits the Corporation to provide broader or            greater rights to indemnification than the Law prior to such amendment permitted the            Corporation to provide), all expenses, liabilities and losses reasonably incurred or            suffered by such person in connection therewith; provided, however, that except as            provided herein with respect to proceedings seeking to enforce rights to            indemnification, the Corporation shall indemnify any such person seeking            indemnification in connection with a proceeding (or part thereof) initiated by such            person only if such proceeding (or part thereof) was authorized by the            Board.

(b)       Such right to            indemnification shall include the right of such a director, officer, partner, member,            manager, employee, agent or trustee to be paid the expenses incurred in preparing for,            participating (including, without limitation, participation as a witness) in, defending            and settling or otherwise resolving a proceeding (collectively called the            “defense of a proceeding”) in advance of its final disposition to the            fullest extent authorized by the Law, as the same exists or may hereafter be amended            (but, in the case of any such amendment, only to the extent that such amendment permits            the Corporation to provide broader or greater rights to indemnification than the Law            prior to such amendment permitted the Corporation to provide); provided, however, that,            if the Law requires, the payment of such expenses incurred by a director or officer of            the Corporation in his capacity as a director or officer of the Corporation (and not in            any other capacity in which service was or is rendered by such person while a director            or officer of the Corporation, including, without limitation, service to an employee            benefit plan) in advance of the final disposition of a proceeding shall be made only            upon delivery to the Corporation of an undertaking, by or on behalf of such director or            officer, to repay all amounts so advanced if it shall ultimately be determined that            such director or officer is not entitled to be indemnified by the Corporation. Such an            undertaking shall not and shall not be deemed to require repayment if such director or            officer is entitled to be indemnified by the Corporation for any reason or on any            basis. No collateral shall be required to secure performance by such person of his            obligations under such an undertaking. An undertaking delivered to the Corporation            shall be sufficient regardless of the prospective ability of the person delivering such            undertaking to perform his obligations thereunder.

(c)       Such right to            indemnification may be granted to any other employee or agent of the Corporation or its            subsidiaries if, and to the extent, authorized by the Board, the Chief Executive            Officer (or, if the position of Chief Executive Officer is vacant, the President) or            the General Counsel.

(d)       If a claim under this            Article V is not paid in full by the Corporation within thirty (30) days after a            written demand therefor has been received by the Corporation, the claimant may at any            time thereafter bring suit against the Corporation to recover the unpaid amount of the            claim and, if successful in whole or in part, the claimant shall also be entitled to be            paid all expenses of prosecuting such suit. It shall be a defense to any such suit            (other than a suit brought to enforce a claim for expenses incurred in the defense of a            proceeding in advance of its final disposition where the required undertaking, if any            is required, has been tendered to the Corporation) that the claimant has not met the            standards of conduct which make it permissible under the Law for the Corporation to            indemnify the claimant for the amount claimed, but the burden of proving such defense            shall be on the Corporation. Neither the failure of the Corporation (including the            Board, independent legal counsel to the Corporation or the

 

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stockholders) to have made a determination prior to the commencement of            such suit that indemnification of the claimant is proper in the circumstances because            he has met the applicable standard of conduct set forth in the Law nor an actual            determination by the Corporation (including the Board, independent legal counsel to the            Corporation or the stockholders) that the claimant has not met such applicable standard            of conduct shall be a defense to such suit or create a presumption in such suit that            the claimant has not met the applicable standard of conduct.

| Section 2. | Indemnification Not                            Exclusive. |
|------------|-----------------------------------------------------------|

The indemnification of any person under this Article V, or the right of            any person to indemnification under this Article V, shall not limit or restrict in any            way the power of the Corporation to indemnify or pay expenses for such person in any            other manner permitted by law or be deemed exclusive of, or invalidate, any other right            which such person may have or acquire under any law, agreement, vote of stockholders or            disinterested directors, or otherwise.

| Section 3. | Successors. |
|------------|-------------|

The right of any person to indemnification under this Article V shall            (i) survive and continue as to a person who has ceased to be such an officer, director,            partner, member, manager, employee, agent or trustee, (ii) inure to the benefit of the            heirs, distributees, beneficiaries, executors, administrators and other legal            representatives of such person, (iii) not be impaired, eliminated or otherwise            adversely affected after such cessation due to any action or inaction by the            Corporation, the Board or the stockholders (including, without limitation, amendment of            these By-Laws (including, without limitation, a modification or repeal of this Article            V) or the Certificate of Incorporation or a merger, consolidation, recapitalization,            reorganization or sale of assets of the Corporation or any of its subsidiaries), with            respect to any claim, proceeding or suit which arose or transaction, matter, event or            condition which occurred or existed before such cessation, (iv) be a contract right,            enforceable as such, and (v) be binding upon all successors of the            Corporation.

For purposes of this Article V, a “successor” of the            Corporation includes (i) any person who acquires a majority of the assets or businesses            of the Corporation and its subsidiaries (on a consolidated basis) in a single            transaction or a series of related transactions, (ii) any person with whom the            Corporation merges or consolidates (unless the Corporation is the survivor of such            merger or consolidation) and (iii) any person who is the ultimate parent of any person            with whom the Corporation merges or consolidates where the Corporation is the survivor            of such merger or consolidation (unless the person with whom the Corporation merges or            consolidates was, prior to such merger or consolidation, more creditworthy and had a            larger market capitalization than the Corporation prior to such merger or            consolidation). For purposes of the preceding sentence, “merger,”            “consolidation” and like terms shall include binding share exchanges and            similar transactions.

The Board shall, as a condition precedent to any transaction described            in the preceding paragraph, require the successor to irrevocably and unconditionally            assume the obligations contemplated by this Article V.

 

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| Section 4. | Insurance. |
|------------|------------|

The Corporation may purchase and maintain insurance on behalf of any            person who is or was such an officer, director, partner, member, manager, employee,            agent or trustee against any liability asserted against such person as such an officer,            director, partner, member, manager, employee, agent or trustee or arising out of such            person’s status as such an officer, director, partner, member, manager, employee,            agent or trustee, whether or not the Corporation would have the power to indemnify such            person against such liability under the provisions of this Article V or applicable            law.

The Corporation shall not, without prior approval of the Board (and, as            to each director and executive officer of the Corporation who ceased to be a director            or executive officer within three (3) years prior to the effective date thereof, the            prior approval of each such director and executive officer), reduce or eliminate in any            material respect, or fail to renew, any such insurance then in effect. A reduction in            insurance includes, without limitation, an increase in deductibles or co-payments, a            reduction in the aggregate amount of insurance or an addition of exclusions from            coverage or other reduction in scope of coverage.

| Section 5. | Definition of Certain                            Terms. |
|------------|---------------------------------------------------------|

(a)       For purposes of this            Article V: references to “fines” shall include any excise taxes assessed on            a person with respect to an employee benefit plan; any service as a director, officer,            fiduciary, employee or agent of the Corporation or any of its subsidiaries which            imposes duties on, or involves services by, such director, officer, fiduciary, employee            or agent with respect to an employee benefit plan, its trusts, its participants or its            beneficiaries (including, without limitation, service as a member of any committee that            manages, administers or performs similar functions with respect to any employee benefit            plan, trust, participant or beneficiary) shall be deemed to be service covered by            Section 1(a) of this Article V; references to “indemnification” and like            terms shall include holding harmless and payment of expenses as provided herein; and            references to “proceedings” included all related appeals of any            kind.

(b)       For the purposes of this            Article V and the Law, 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, its trusts, its participants or its beneficiaries shall be            deemed to have acted in a manner “not opposed to the best interest of the            Corporation.”

(c)       For the purposes of this            Article V: references to “expenses” shall include all attorneys’            fees, retainers, court costs, transcript costs, expert fees, witness fees, travel            expenses, duplicating costs, printing and binding costs, telephone charges, postage,            delivery service fees and other disbursements or expenses of the types customarily            incurred in connection with the defense of a proceeding or prosecution of a suit, all            costs relating to any appeal bond and all federal, state, local or foreign taxes,            charges, duties and similar imposts and assessments incurred or assessed as a result of            the actual or deemed receipt of any expenses under this Article V; and references to            “liabilities and losses” shall include judgments, fines, amounts paid or to            be paid in settlement, and assessments, and all federal, state, local or foreign taxes,            charges, duties and similar imposts and assessments incurred or assessed as a result of            the actual or deemed receipt of any liabilities or losses under this Article            V.

 

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ARTICLE VI. CONTRACTS; BANK ACCOUNTS

| Section 1. | Execution of                            Contracts. |
|------------|----------------------------------------------------|

Except as provided otherwise in these By-Laws, the Board may from time            to time authorize any officer, employee, agent or representative of the Corporation, in            the name and on behalf of the Corporation, to enter into any contract or execute and            deliver any instrument. Such authorization may be general or confined to specific            instances. Unless so authorized by the Board or these By-Laws, no officer, employee,            agent or representative shall have any power or authority to bind the Corporation by            any contract or engagement, to pledge its credit or to render it pecuniarily liable for            any purpose or to any amount.

| Section 2. | Checks; Drafts;                            Notes. |
|------------|---------------------------------------------------|

All checks, drafts and other orders for the payment of moneys out of the            funds of the Corporation and all notes or other evidences of indebtedness of the            Corporation shall be signed in the name and on behalf of the Corporation in the manner            authorized from time to time by the Board or these By-Laws.

| Section 3. | Deposits. |
|------------|-----------|

All funds of the Corporation not otherwise employed shall be deposited            from time to time to the credit of the Corporation in the banks, trust companies or            other depositories selected from time to time by the Board or by an officer, employee,            agent or representative of the Corporation to whom such authority may from time to time            be delegated by the Board or these By-Laws. For the purpose of making such a deposit,            any officer, employee, agent or representative to whom authority to make such a deposit            is delegated by the Board or these By-Laws may endorse, assign and deliver checks,            drafts and other orders for the payment of moneys which are payable to the order of the            Corporation.

ARTICLE VII. SHARES; DIVIDENDS

| Section 1. | Certificates. |
|------------|---------------|

Shares of the capital stock of the Corporation may, but shall not be            required to, be issued in certificated form. If such stock is certificated, the            certificates shall be duly numbered and registered in the order of their issue.            Certificates for shares of capital stock and other securities of the Corporation shall            be issued in such forms as the Board may prescribe. Such certificates shall be signed            by the Chairperson of the Board, the Chief Executive Officer, the President or a Vice            President and by the Secretary or the Treasurer. The seal of the Corporation or a            facsimile thereof shall be affixed on such certificates, and such certificates shall be            countersigned and registered in such manner, if any, as the Board may prescribe. The            signatures of the officers upon such certificates may be facsimiles. In case any            officer, transfer agent or registrar who has signed or whose facsimile signature has            been placed upon any certificate shall have ceased to be such an officer, transfer            agent or registrar before such certificate is issued, such certificate may be issued            with the same effect as if he were such officer, transfer agent or registrar on the            date of issuance of such certificate. Except as otherwise provided by law, the rights            and obligations of the holders of uncertificated shares and the rights and obligations            of holders of certificates

 

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representing shares of stock of the same class and same series shall be            identical. Within a reasonable time after the issuance or transfer of uncertificated            stock, the Corporation may send to the registered owner thereof a written notice that            sets forth the name of the Corporation, that the Corporation is organized under the            laws of the State of Delaware, the name of the stockholder, the number and class (and            the designation of the series, if any) of the shares represented, and any restrictions            on the transfer or registration of such shares of stock imposed by the Certificate of            Incorporation, these By-Laws, any agreement among stockholders or any agreement between            stockholders and the Corporation.

| Section 2. | Transfers. |
|------------|------------|

The capital stock held of record shall be transferable only on the            transfer books of the Corporation, subject to these By-Laws, by the owner in person, or            by attorney or legal representative, written evidence of whose authority shall be filed            with the Corporation. No transfer of shares of capital stock shall be valid until such            transfer has been entered on the books of the Corporation by an entry showing from and            to whom transferred and, (i) if the stock is certificated, the transfer shall not be            valid until the surrender of the certificate, duly endorsed or accompanied by proper            evidence of succession, assignation or transfer, and cancellation of the certificate            representing the same or (ii) if the stock is uncertificated, the transfer shall not be            valid unless accompanied by a duly executed stock transfer power or other proper            transfer instructions from the registered owner of such uncertificated shares, or from            a duly authorized attorney or from an individual presenting proper evidence of            succession, assignment or authority to transfer the shares. The person in whose name            shares of capital stock of the Corporation stand on the records of the Corporation            shall be deemed the owner of such shares for all purposes as regards the Corporation.            The Board may make such additional rules and regulations and take such action as it may            deem expedient, not inconsistent with the Certificate of Incorporation and these            By-Laws, concerning the issue, transfer and registration of certificates.

| Section 3. | Lost or Destroyed                            Certificates. |
|------------|------------------------------------------------------------|

The Corporation may issue (i) a new certificate or certificates of stock            or (ii) uncertificated shares in place of any certificate or certificates previously            issued by the Corporation for shares of capital stock of the Corporation in order to            replace any certificate theretofore issued by it alleged to have been lost, stolen or            destroyed, and the Corporation may require the holder of the lost, stolen or destroyed            certificate, or his legal representative, to give to the Corporation a bond or other            security to indemnify it against all losses, liabilities and expenses (including            attorney’s fees and expenses) incurred in connection with investigating,            defending and settling any claim that may be made against it on account of the alleged            loss, theft or destruction of such certificate or the issuance of such new            certificate.

| Section 4. | Fractions of a                            Share. |
|------------|--------------------------------------------------|

The Corporation shall have the authority to issue (but shall not be            obligated, under these By-Laws, to issue) fractions of a share of any class or series            of capital stock of the Corporation. In lieu of issuing a fraction of a share of any            class or series of capital stock of the Corporation, the Corporation may (i) make such            payments or (ii) issue that number of whole shares of such class or series of capital            stock of the Corporation, in each case as may be determined using such

 

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equitable method as any officer of the Corporation or the Board may            select or the Certificate of Incorporation or the Law may require.

| Section 5. | Dividends. |
|------------|------------|

Subject to the provisions of the Certificate of Incorporation and to the            extent permitted by the Law, the Board may declare and the Corporation may pay            dividends on shares of any class or series of capital stock of the Corporation at such            times and in such amounts as, in the opinion of the Board, the conditions of the            business of the Corporation render advisable. Before declaration or payment of any            dividend or making of any distribution, the Board may set aside out of the surplus or            net profits of the Corporation such sum or sums as the Board may from time to time, in            its absolute discretion, deem proper as a reserve fund to meet contingencies or for            equalizing dividends, for repairing or maintaining any property of the Corporation or            for such other purposes as the Board may from time to time deem to be in the best            interests of the Corporation.

ARTICLE VIII. CORPORATE SEAL

The Board may adopt a corporate seal of the Corporation which shall be            in such form as the Board may from time to time determine. When authorized by these            By-Laws or by the Board, a facsimile of the corporate seal may be affixed in lieu of            the corporate seal.

ARTICLE IX. FISCAL YEAR

The fiscal year of the Corporation shall be fixed from time to time by            the Board.

ARTICLE X. AMENDMENTS

These By-Laws, in whole or in part, may be amended or repealed and new            By-Laws, in whole or in part, may be adopted as (but only as) provided in the            Certificate of Incorporation.

* *            *

 

 

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