{"id":41543,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/bylaws-marathon-oil.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"bylaws-marathon-oil","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/formation\/bylaws-marathon-oil.html","title":{"rendered":"Bylaws – Marathon Oil"},"content":{"rendered":"

MARATHON OIL CORPORATION <\/strong><\/p>\n

BY-LAWS <\/strong><\/p>\n

February 23, 2011 <\/strong><\/p>\n

ARTICLE I.<\/p>\n

Stockholders.<\/p>\n

Section 1.1 Time and Place of Meetings of Stockholders. Unless the time and
\nplace of the annual meeting of stockholders for the purpose of electing
\ndirectors and transacting such other business as may be brought before the
\nmeeting are changed by the Board of Directors, as may be done from time to time,
\nprovided that all legal requirements for such change and notice to stockholders
\nare observed, such annual meeting of stockholders of the Corporation shall be
\nheld at the office of the Corporation153s registered agent in the State of
\nDelaware at 2 o153clock p.m., on the last Wednesday in April in each year, if not
\na legal holiday, and if a legal holiday, then on the next succeeding Wednesday
\nwhich is not a legal holiday.<\/p>\n

Special meetings of the stockholders (i) may be called at any time by the
\nBoard of Directors and (ii) shall be called by the chairman of the Board of
\nDirectors or the chief executive officer of the Corporation following receipt by
\nthe secretary of the Corporation of a written request of a holder or holders of
\nnot less than twenty-five percent of the outstanding shares of the Corporation153s
\ncommon stock. Any such request by a stockholder or stockholders to call a
\nspecial meeting must: (i) be accompanied by proof of ownership of record of not
\nless than twenty-five percent of the outstanding shares of the Corporation153s
\ncommon stock; (ii) specify the matter or matters to be acted upon at such
\nmeeting, each of which must be a proper subject for stockholder action under
\napplicable law, which specification must include the complete text of any
\nresolution or any amendment to any document applicable to the Corporation
\nintended to be presented at the meeting; (iii) state the reasons for conducting
\nsuch business at a special meeting of stockholders; and (iv) provide any other
\ninformation which may be required pursuant to these By-laws or any other
\ninformation with respect to the matter or matters requested to be acted upon
\nwhich may be required to be disclosed under the Delaware General Corporation Law
\nor included in a proxy statement filed pursuant to the rules of the Securities
\nand Exchange Commission, and, as to each stockholder requesting the meeting and
\neach other person, if any, who is a beneficial owner of the shares held by such
\nstockholder, (a) their name and address, (b) the class and number of shares of
\nthe Corporation which are owned beneficially or of record, and (c) any material\n<\/p>\n<\/p>\n

\n

interest in the business to be brought before the meeting. Without limiting
\nthe generality of the foregoing: (a) in the case of any such request to call a
\nspecial meeting for the purpose of (or for multiple purposes that include)
\nconsidering any nominee or nominees to serve on the Board of Directors, such
\nrequest shall set forth all the information required to be included in a notice
\nto which the provisions of the fourth sentence of Section 1.3 of these By-laws
\napply, and the provisions of the fifth sentence of Section 1.4 of these By-laws
\nshall be applicable; and (b) in the case of any such request to call a special
\nmeeting for other purpose or purposes, such request shall set forth all the
\ninformation required to be included in a notice to which the provisions of the
\nsixth sentence of Section 1.4 of these By-laws apply.<\/p>\n

Neither the annual meeting nor any special meeting of stockholders need be
\nheld within the State of Delaware.<\/p>\n

Any action required to be taken at any annual or special meeting of the
\nstockholders of the Corporation, or any action which may be taken at any annual
\nor special meeting of the stockholders or otherwise, may not be taken without a
\nmeeting, prior notice and a vote, and stockholders may not act by written
\nconsent.<\/p>\n

Section 1.2 Notice of Meetings of Stockholders. It shall be the duty of the
\nSecretary to cause notice of each annual or special meeting to be mailed to all
\nstockholders of record as of the record date as fixed by the Board of Directors
\nfor the determination of stockholders entitled to vote at such meeting. Such
\nnotice shall indicate briefly the action to be taken at such meeting and shall
\nbe mailed to the stockholders at the addresses of such stockholders as shown on
\nthe books of the Corporation at least 10 days but not more than 60 days
\npreceding the meeting. Only matters stated in the notice of a special meeting of
\nthe stockholders shall be brought before and acted upon at the meeting. Any such
\nnotice may be satisfied by electronic transmission, subject to the requirements
\nof Section 232 of the DGCL.<\/p>\n

Section 1.3. Nomination of Directors. Only persons who are nominated in
\naccordance with the following procedures shall be eligible for election as
\ndirectors. Nomination for election to the Board of Directors of the Corporation
\nat a meeting of stockholders may be made by the Board of Directors or by any
\nstockholder of record of the Corporation entitled to vote generally for the
\nelection of directors at such meeting who complies with the notice procedures
\nset forth in this Section 1.3. Such nominations, other than those made by or on
\nbehalf of the Board of Directors, shall be made by notice in writing delivered
\nor mailed by first-class United States mail, postage prepaid, to the Secretary,
\nand received not less than 90 days nor more than 120 days prior to the first
\nanniversary of the date on which the Corporation first mailed its proxy
\nmaterials for the preceding year153s annual meeting of stockholders; provided,
\nhowever, that if the date of the annual meeting is advanced more than 30 days
\nprior to or delayed by more than 30 days after the anniversary of the preceding
\nyear153s annual meeting, notice by the stockholder to be timely must be so
\ndelivered not later than the close of business on the later of (i) the
\n90th<\/sup> day prior to such annual meeting or (ii) the 10th<\/sup>
\nday following the day on which public announcement of the date of such<\/p>\n<\/p>\n

2<\/p>\n<\/p>\n

\n

meeting is first made. Such notice shall set forth (a) as to each proposed
\nnominee (i) the name, age, business address and, if known, residence address of
\neach such nominee, (ii) the principal occupation or employment of each such
\nnominee, (iii) the number of shares of each class of the capital stock of the
\nCorporation which are beneficially owned by each such nominee, and (iv) any
\nother information concerning the nominee that must be disclosed as to nominees
\nin proxy solicitations pursuant to Regulation 14A under the Securities Exchange
\nAct of 1934, as amended (including such person153s written consent to be named as
\na nominee and to serve as a director if elected); and (b) as to the stockholder
\ngiving the notice (i) the name and address, as they appear on the Corporation153s
\nbooks, of such stockholder, (ii) the number of shares of each class of the
\ncapital stock of the Corporation which are beneficially owned by such
\nstockholder, (iii) a description of any agreement, arrangement or understanding
\nrelating to any hedging or other transaction or series of transactions
\n(including any derivative or short position profit interest, option, hedging
\ntransaction or borrowing or lending of shares) that has been entered into or
\nmade by such stockholder, the effect or intent of which is to mitigate loss,
\nmanage risk or benefit from share price changes or to increase or decrease the
\nvoting power of such stockholder or any of its Stockholder Associated Persons
\n(as defined in Section 1.4), in any case with respect to any share of stock of
\nthe Corporation, and (iv) a description of any agreement, arrangement or
\nunderstanding with respect to such nomination between or among the stockholder
\nand any of its Stockholder Associated Persons, and any others (including their
\nnames) acting in concert with any of the foregoing. In addition, the notice
\nshall include a representation that the stockholder will notify the Corporation
\nin writing of any change in any of the information referenced above in this
\nSection 1.3 as of the record date for the meeting promptly following the later
\nof the record date or the date notice of the record date is first publicly
\ndisclosed. The Corporation may require any proposed nominee to furnish such
\nother information as may reasonably be required by the Corporation to determine
\nthe eligibility of such proposed nominee to serve as a director of the
\nCorporation. The provisions of this Section 1.3 regarding the timeliness of
\nnominations by a stockholder shall apply to each such nomination, regardless of
\nwhether a stockholder making such nomination (i) desires to have such nomination
\nreflected in the Corporation153s proxy statement for the meeting at which such
\nnomination is to be made or (ii) intends to prepare separate proxy materials.\n<\/p>\n

The chairman of the meeting shall, if the facts warrant, determine and
\ndeclare to the meeting that a nomination was not made in accordance with the
\nforegoing procedure, and if he should so determine, he shall so declare to the
\nmeeting and the defective nomination shall be disregarded.<\/p>\n

Section 1.4. Notice of Business at Annual Meetings. At an annual meeting of
\nthe stockholders, only such business shall be conducted as shall have been
\nproperly brought before the meeting. To be properly brought before an annual
\nmeeting, business must be (a) specified in the notice of meeting (or any
\nsupplement thereto) given by or at the direction of the Board of Directors,
\n(b) otherwise properly brought before the meeting by or at the direction of the
\nBoard of Directors, or (c) otherwise properly brought before the meeting by a\n<\/p>\n<\/p>\n

3<\/p>\n<\/p>\n

\n

stockholder of record. For business to be properly brought before an annual
\nmeeting by a stockholder, if such business relates to the election of directors
\nof the Corporation, the procedures in Article I, Section 1.3 must be complied
\nwith. If such business relates to any other matter, the stockholder must have
\ngiven timely notice thereof in writing to the Secretary. To be timely, a
\nstockholder153s notice must be delivered to or mailed and received at the
\nprincipal executive offices of the Corporation not less than 90 days nor more
\nthan 120 days prior to the first anniversary of the date on which the
\nCorporation first mailed its proxy materials for the preceding year153s annual
\nmeeting of stockholders; provided, however, that if the date of the annual
\nmeeting is advanced more than 30 days prior to or delayed by more than 30 days
\nafter the anniversary of the preceding year153s annual meeting, notice by the
\nstockholder to be timely must be so delivered not later than the close of
\nbusiness on the later of (i) the 90th<\/sup> day prior to such annual
\nmeeting or (ii) the 10th<\/sup> day following the day on which public
\nannouncement of the date of such meeting is first made. A stockholder153s notice
\nto the Secretary shall set forth as to each matter the stockholder proposes to
\nbring before the annual meeting (a) a brief description of the business desired
\nto be brought before the annual meeting and the reasons for conducting such
\nbusiness at the annual meeting, (b) the name and address, as they appear on the
\nCorporation153s books, of the stockholder proposing such business, (c) the number
\nof shares of each class of the capital stock of the Corporation which are
\nbeneficially owned by the stockholder, (d) any material interest of the
\nstockholder in such business and any Stockholder Associated Person (as defined
\nbelow), individually or in the aggregate, including any anticipated benefit to
\nthe stockholder or the Stockholder Associated Person therefrom, and (e) a
\ndescription of any agreement, arrangement or understanding relating to any
\nhedging or other transaction or series of transactions (including any derivative
\nor short position profit interest, option, hedging transaction or borrowing or
\nlending of shares) that has been entered into or made, the effect or intent of
\nwhich is to mitigate loss, manage risk or benefit from share price changes or to
\nincrease or decrease the voting power of such stockholder or any such
\nStockholder Associated Person, in any case with respect to any share of stock of
\nthe Corporation. In addition, the notice shall include a, representation that
\nthe stockholder will notify the Corporation in writing of any change in any of
\nthe information referenced above in this Section 1.4 as of the record date for
\nthe meeting promptly following the later of the record date or the date notice
\nof the record date is first publicly disclosed. With respect to the stockholder
\ngiving notice of proposal which includes any Stockholder Associated Person
\ncovered by clauses (d) or (e) of this paragraph of this Section 1.4, the
\nstockholder must give notice of (i) the name and address of such Stockholder
\nAssociated Person, if any, (ii) the number of shares of each class of capital
\nstock of the Corporation owned by such Stockholder Associated Person, if any,
\nand (iii) to the extent known by the stockholder giving the notice, the name and
\naddress of any other stockholder supporting the proposal of other business on
\nthe date of such stockholder153s notice. Notwithstanding anything in the By-laws
\nto the contrary, no business shall be conducted at any annual meeting except in
\naccordance with the procedures set forth in this Section 1.4 and in Section 1.3
\nof this Article I and except that any stockholder proposal which complies with
\nRule 14a-8 of the<\/p>\n<\/p>\n

4<\/p>\n<\/p>\n

\n

proxy rules (or any successor provision) promulgated under the Securities
\nExchange Act of 1934, as amended, and is to be included in the Corporation153s
\nproxy statement for an annual meeting of stockholders shall be deemed to comply
\nwith the requirements of this Section 1.4. Without limiting the generality of
\nthe foregoing, the provisions of this Section 1.4 regarding the timeliness of a
\nstockholder153s notice for a matter to be brought before an annual meeting shall
\napply to each such matter to be brought before the meeting, regardless of
\nwhether the stockholder proposing to bring the matter before the meeting
\n(i) desires to have such matter reflected in the Corporation153s proxy statement
\nfor such meeting or (ii) intends to prepare separate proxy materials. Nothing in
\nSection 1.3 or in this Section 1.4 shall be deemed to give any stockholder the
\nright to have any nomination or proposal included in any proxy statement
\nprepared by the Corporation, and, to the extent any such right exists under
\napplicable law or governmental regulation, such right shall be limited to the
\nright provided under such applicable law or governmental regulation.<\/p>\n

The chairman of the meeting shall, if the facts warrant, determine and
\ndeclare to the meeting that business was not properly brought before the meeting
\nin accordance with the provisions of this Section 1.4, and if he should so
\ndetermine, the chairman shall so declare to the meeting that any such business
\nnot properly brought before the meeting shall not be transacted.<\/p>\n

For purposes of Section 1.3 and Section 1.4, “Stockholder Associated Person”
\nof any stockholder shall mean (i) any person acting in concert with such
\nstockholder, (ii) any person who beneficially owns shares of stock of the
\nCorporation owned of record or beneficially by such stockholder and (iii) any
\nperson controlling, controlled by or under common control, directly or
\nindirectly, such stockholder or any Stockholder Associated Person described in
\nclause (i) or (ii) of this definition.<\/p>\n

Section 1.5. Quorum. At each meeting of the stockholders the holders of
\none-third of the voting power of the outstanding shares of stock entitled to
\nvote generally at the meeting, present in person or represented by proxy, shall
\nconstitute a quorum, unless the representation of a larger number shall be
\nrequired by law, and, in that case, the representation of the number so required
\nshall constitute a quorum.<\/p>\n

Except as otherwise required by law, a majority of the voting power of the
\nshares of stock entitled to vote generally at a meeting and present in person or
\nby proxy, whether or not constituting a quorum, may adjourn, from time to time,
\nwithout notice other than by announcement at the meeting. At any such adjourned
\nmeeting at which a quorum shall be present, any business may be transacted which
\nmight have been transacted at the meeting as originally notified.<\/p>\n

Section 1.6. Organization. The chairman of the Board, or in his absence an
\nofficer-director of the Board designated by the chairman of the Board, or the
\nchief executive officer in the order named, shall call meetings of the
\nstockholders to order, and shall act as chairman of such meeting; provided,
\nhowever, that the<\/p>\n<\/p>\n

5<\/p>\n<\/p>\n

\n

Board of Directors may appoint any person to act as chairman of any meeting
\nin the absence of the chairman of the Board.<\/p>\n

The Secretary of the Corporation shall act as secretary at all meetings of
\nthe stockholders; but in the absence of the Secretary at any meeting of the
\nstockholders the presiding officer may appoint any person to act as secretary of
\nthe meeting.<\/p>\n

Section 1.7. Voting. At each meeting of the stockholders, every stockholder
\nshall be entitled to vote in person, or by proxy appointed by instrument in
\nwriting, subscribed by such stockholder or by his duly authorized attorney, or,
\nto the extent permitted by law, appointed by an electronic transmission, and
\ndelivered to the inspectors at the meeting; and such stockholder shall have the
\nnumber of votes for each share of capital stock standing registered in such
\nstockholder153s name at the date fixed by the Board of Directors pursuant to
\nSection 4.4 of Article IV of these By-laws as may be determined in accordance
\nwith the Corporation153s Certificate of Incorporation, or as may be provided by
\nlaw. Voting at meetings of stockholders must be by written ballot in all
\nelections of directors, but otherwise need not be by written ballot unless the
\nBoard of Directors, in its discretion, by resolution so requires or, in the case
\nof any such meeting, the chairman of that meeting, in his or her discretion, so
\nrequires. The Board of Directors, in its discretion, may authorize the
\nrequirement of a written ballot in any case to be satisfied by electronic
\ntransmission, subject to the requirements of Section 211(e) of the DGCL.<\/p>\n

At least ten days before each meeting of the stockholders, a full, true and
\ncomplete list, in alphabetical order, of all of the stockholders entitled to
\nvote at such meeting, showing the address of each stockholder, and indicating
\nthe class and number of shares held by each, shall be furnished and held open
\nfor inspection in such manner, as is required by law. Only the persons in whose
\nnames shares of stock stand on the books of the Corporation at the date fixed by
\nthe Board of Directors pursuant to Section 4.4 of Article IV of these By-laws,
\nas evidenced in the manner provided by law, shall be entitled to vote in person
\nor by proxy on the shares so standing in their names.<\/p>\n

Prior to any meeting, but subsequent to the date fixed by the Board of
\nDirectors pursuant to Section 4.4 of Article IV of these By-laws, any proxy may
\nsubmit his powers of attorney to the secretary, or to the treasurer, for
\nexamination. The certificate of the secretary, or of the treasurer, as to the
\nregularity of such powers of attorney, and as to the class and number of shares
\nheld by the persons who severally and respectively executed such powers of
\nattorney, shall be received as prima facie evidence of the class and number of
\nshares represented by the holder of such powers of attorney for the purpose of
\nestablishing the presence of a quorum at such meeting and of organizing the
\nsame, and for all other purposes.<\/p>\n

Except as otherwise provided in the Certificate of Incorporation, each
\ndirector shall be elected by the vote of a majority of the votes cast with
\nrespect to the director at any meeting for the election of directors at which a
\nquorum is present; provided, however, that the directors shall be elected by the
\nvote of a<\/p>\n<\/p>\n

6<\/p>\n<\/p>\n

\n

plurality of the shares represented in person or by proxy at any such meeting
\nand entitled to vote on the election of directors if, in connection with such
\nmeeting (i) the Secretary of the Corporation shall have received a notice that a
\nstockholder has nominated a person for election to the Board in compliance with
\nthe advance-notice requirements for stockholder nominees for director set forth
\nin Section 1.3 and (ii) such nomination shall not have been withdrawn by such
\nstockholder on or prior to the day next preceding the date the Corporation first
\nmails its notice of meeting for such meeting to the stockholders of the
\nCorporation. If directors are to be elected by a plurality of the votes cast
\npursuant to the provisions of the immediately preceding sentence, stockholders
\nshall not be provided the option to vote against any one or more of the
\nnominees, but shall only be provided the option to vote for one or more of the
\nnominees or withhold their votes with respect to one or more of the nominees.
\nFor purposes hereof, a majority of the votes cast means that the number of
\nshares voted “for” a director must exceed the number of votes cast “against”
\nthat director. (Accordingly, abstentions will not be taken into account for this
\npurpose.)<\/p>\n

In the case of any question to which the stockholder approval policy of any
\nnational securities exchange or quotation system on which capital stock of the
\nCorporation is traded or quoted on the Corporation153s application, the
\nrequirements under the Securities Exchange Act of 1934, as amended, or any
\nprovision of the Internal Revenue Code of 1986, as amended, or the rules and
\nregulations thereunder (the “Code”) applies, in each case for which question the
\nCertificate of Incorporation, these By-laws or the DGCL does not specify a
\nhigher voting requirement, that question will be decided by the requisite vote
\nthat stockholder approval policy, Exchange Act requirement or Code provision, as
\nthe case may be, specifies, or the highest requisite vote if more than one
\napplies.<\/p>\n

A majority of the votes of the shares present in person at the meeting and
\nthose represented by proxy and entitled to vote on the question whether to
\napprove the appointment of independent public accountants, if that question is
\nsubmitted for a vote of stockholders, will be sufficient to approve.<\/p>\n

All other elections, proposals and questions which have properly come before
\nany meeting will, unless the Certificate of Incorporation, these By-laws or
\napplicable law otherwise provides, be decided by a majority of the votes of the
\nshares present in person at the meeting and those represented by proxy and
\nentitled to vote at that meeting.<\/p>\n

Section 1.8. Inspectors. At each meeting of the stockholders, the polls shall
\nbe opened and closed, the proxies and ballots shall be received and be taken in
\ncharge, and all questions touching the qualification of voters and the validity
\nof proxies and the acceptance or rejection of votes, shall be decided by one or
\nmore inspectors. Such inspector or inspectors shall be appointed by the Board of
\nDirectors before the meeting. If for any reason any of the inspectors previously
\nappointed shall fail to attend or refuse or be unable to serve, inspectors in
\nplace of any so failing to attend or refusing or unable to serve, shall be
\nappointed in like manner.<\/p>\n<\/p>\n

7<\/p>\n<\/p>\n

\n

Section 1.9. Approval or Ratification of Acts or Contracts by Stockholders.
\nThe Board, in its discretion, may submit any act or contract for approval or
\nratification at any annual meeting of stockholders, or at any special meeting of
\nstockholders called for the purpose of considering any such act or contract,
\nand, except as applicable law or the Certificate of Incorporation otherwise
\nprovides, any act or contract that the holders of shares of stock of the
\nCorporation present in person or by proxy at that meeting and having a majority
\nof the votes entitled to vote on that approval or ratification approve or ratify
\nwill, provided that a quorum is present, be as valid and as binding on the
\nCorporation and on all stockholders as if every stockholder had approved or
\nratified it.<\/p>\n

Section 1.10. Conduct of Meetings. The Board may adopt by resolution such
\nrules and regulations for the conduct of meetings of stockholders as it deems
\nappropriate. Except to the extent inconsistent with those rules and regulations,
\nif any, the chairman of any meeting of stockholders will have the right and
\nauthority to prescribe such rules, regulations and procedures and to do all such
\nacts as, in the judgment of that chairman, are appropriate for the proper
\nconduct of that meeting. Those rules, regulations or procedures, by whomever so
\nadopted, may include the following:<\/p>\n

(a) the establishment of an agenda or order of business for the meeting;<\/p>\n

(b) rules and procedures for maintaining order at the meeting and the safety
\nof those present;<\/p>\n

(c) limitations on attendance at or participation in the meeting to
\nstockholders of record, their duly authorized and constituted proxies or such
\nother persons as the chairman of the meeting may determine;<\/p>\n

(d) restrictions on entry to the meeting after the time fixed for the
\ncommencement thereof; and<\/p>\n

(e) limitations on the time allotted to questions or comments by
\nparticipants.<\/p>\n

Except to the extent the Board or the chairman of any meeting otherwise
\nprescribes, no rules of parliamentary procedure will govern any meeting of
\nstockholders.<\/p>\n

ARTICLE II.<\/p>\n

Board of Directors.<\/p>\n

Section 2.1. Number, Classes and Terms of Office. The business and affairs of
\nthe Corporation shall be managed by or under the direction of the Board of
\nDirectors.<\/p>\n

The number of directors shall be fixed from time to time by resolution of the
\nBoard, but the number thereof shall not be less than three.<\/p>\n

At the 2007 annual meeting of stockholders of the Corporation, the successors
\nof the directors whose terms expire at that meeting shall be elected<\/p>\n<\/p>\n

8<\/p>\n<\/p>\n

\n

for a term expiring at the 2008 annual meeting of the stockholders of the
\nCorporation; at the 2008 annual meeting of the stockholders of the Corporation,
\nthe successors of the directors whose terms expire at that meeting shall be
\nelected for a term expiring at the 2009 annual meeting of the stockholders of
\nthe Corporation; and at each annual meeting of the stockholders of the
\nCorporation thereafter, the directors shall be elected for terms expiring at the
\nnext succeeding annual meeting of the stockholders of the Corporation.<\/p>\n

In the case of any increase in the number of directors of the Corporation,
\nthe additional director or directors shall be elected only by the Board.<\/p>\n

Section 2.2. Vacancies. Except as otherwise provided by law, in the case of
\nany vacancy in the Board through death, resignation, disqualification or other
\ncause, a successor to hold office for the unexpired portion of the term of the
\ndirector whose place shall be vacant, and until the election of his successor,
\nshall be elected only by a majority of the Board then in office, though less
\nthan a quorum.<\/p>\n

Section 2.3. Removal. Directors of the Corporation may be removed with or
\nwithout cause.<\/p>\n

Section 2.4. Retirements. No director shall continue to serve on the Board
\nbeyond the last day of the annual stockholder election term during which such
\ndirector attains the age of 72, except that a former chief executive officer of
\nthe Corporation shall not continue to serve on the Board beyond the last day of
\nthe annual stockholder election term during which the age of 70 is attained.
\nNotwithstanding the foregoing, officer-directors, other than a chief executive
\nofficer, shall retire from the Board at the time such officer-director ceases to
\nbe a principal officer of the Corporation.<\/p>\n

Section 2.5 Place of Meetings, etc. The Board may hold its meetings, and may
\nhave an office and keep the books of the Corporation (except as otherwise may be
\nprovided for by law) in such place or places in the State of Delaware or outside
\nof the State of Delaware, as the Board from time to time may determine.<\/p>\n

Section 2.6. Regular Meetings. Regular meetings of the Board shall be held at
\nsuch times as may be fixed by resolution of the Board. The Secretary shall give
\nnotice, as provided for special meetings, for each regular meeting.<\/p>\n

Section 2.7. Special Meetings. Special meetings of the Board shall be held
\nwhenever called by direction of the chairman of the Board, an officer-director,
\nchief executive officer, or a majority of the directors then in office.<\/p>\n

The Secretary shall give notice of each special meeting by mailing the same
\nat least two days before the meeting, or by telegraph, telecopier, electronic
\ntransmission or other communications device at least one day before the meeting,
\nto each director; but such notice may be waived by any director. Unless
\notherwise indicated in the notice thereof, any and all business may be
\ntransacted at a special meeting. At any meeting at which every director shall be
\npresent, even though without any notice, any business may be transacted.<\/p>\n

Section 2.8. Telephonic and Other Meetings. Members of the Board may hold and
\nparticipate in any Board meeting by means of conference telephone or<\/p>\n<\/p>\n

9<\/p>\n<\/p>\n

\n

other communications equipment that permits all persons participating in the
\nmeeting to hear each other, and participation of any director in a meeting under
\nthis Section 2.8 will constitute the presence in person of that director at that
\nmeeting for purposes of these By-laws, except in the case of a director who so
\nparticipates only for the express purpose of objecting, at the beginning of the
\nmeeting, to the transaction of any business on the ground that the meeting has
\nnot been called or convened in accordance with applicable law or these By-laws.\n<\/p>\n

Section 2.9. Quorum. A majority of the total number of directors then in
\noffice shall constitute a quorum for the transaction of business; but if at any
\nmeeting of the Board there be less than a quorum present, a majority of those
\npresent may adjourn the meeting from time to time.<\/p>\n

At any meeting of the Board all matters shall be decided by the affirmative
\nvote of a majority of directors then present, provided, that the affirmative
\nvote of at least one-third of all the directors then in office shall be
\nnecessary for the passage of any resolution.<\/p>\n

Section 2.10. Order of Business. At meetings of the Board business shall be
\ntransacted in such order as, from time to time, the Board may determine by
\nresolution.<\/p>\n

At all meetings of the Board, the chairman of the Board, or in his absence an
\nofficer-director designated by the chairman of the Board, or the chief executive
\nofficer, in the order named, shall preside.<\/p>\n

Section 2.11. Compensation of Directors. Each director of the Corporation who
\nis not a salaried officer or employee of the Corporation, or of a subsidiary of
\nthe Corporation, shall receive such allowances for serving as a director and
\nsuch fees for attendance at meetings of the Board or any committee appointed by
\nthe Board as the Board may from time to time determine.<\/p>\n

Section 2.12. Board Committees.<\/p>\n

(a) The Board may, by resolution or by election of a majority vote, designate
\none or more Board Committees consisting of one or more of the directors. The
\nBoard may designate one or more directors as alternate members of any Board
\nCommittee, who may replace any absent or disqualified member at any meeting of
\nthat committee. The member or members present at any meeting of any Board
\nCommittee and not disqualified from voting at that meeting may, whether or not
\nconstituting a quorum, unanimously appoint another director to act at that
\nmeeting in any place of any member of that committee who is absent from or
\ndisqualified to vote at that meeting.<\/p>\n

(b) The Board by resolution may change the membership of any Board Committee
\nat any time and fill vacancies on any of those committees. A majority of the
\nmembers of any Board Committee will constitute a quorum for the transaction of
\nbusiness by that committee unless the Board by resolution requires a greater
\nnumber for that purpose. The Board by resolution may elect a chairman of any
\nBoard Committee. Except as expressly provided in these By-laws, the election or
\nappointment of any director to a Board Committee will not create any contract
\nrights of that director, and the Board153s removal of any<\/p>\n<\/p>\n

10<\/p>\n<\/p>\n

\n

member of any Board Committee will not prejudice any contract rights that
\nmember otherwise may have.<\/p>\n

(c) Under Section 2.12(a) hereof, the Board may designate an executive
\ncommittee to exercise, subject to applicable provisions of law, any or all of
\nthe powers of the Board in the management of the business and affairs of the
\nCorporation when the Board is not in session.<\/p>\n

(d) Each other Board Committee the Board of Directors may designate under
\nSection 2.12(a) hereof will, subject to applicable provisions of law, have and
\nmay exercise all the powers and authorities of the Board to the extent the Board
\nof Directors153 resolution designating that committee so provides.<\/p>\n

(e) Board Committee Rules; Minutes. Unless the Board otherwise provides, each
\nBoard Committee may make, alter and repeal rules for the conduct of its
\nbusiness. In the absence of those rules, each Board Committee will conduct its
\nbusiness in the same manner as the Board of Directors conducts its business
\nunder Article II. Each committee will keep regular minutes of its meetings and
\nwill report the same to the Board of Directors as a whole.<\/p>\n

ARTICLE III.<\/p>\n

Officers.<\/p>\n

Section 3.1. Officers. The principal officers of the Corporation will be
\nelected by the Board and shall include a chief executive officer, president,
\nchief accounting officer, chief financial officer, vice presidents, general
\ncounsel, secretary and treasurer. All other offices, titles, powers and duties
\nwith respect to principal officers shall be determined by the Board from time to
\ntime. Each principal officer who shall be a member of the Board of Directors
\nshall be considered an officer-director.<\/p>\n

The Board of Directors or any Board Committee or officer designated by it may
\nappoint such other officers as necessary, who shall have such authority and
\nshall perform such duties as from time to time may be assigned to them by or
\nwith the authority of the Board of Directors.<\/p>\n

One person may hold two or more offices.<\/p>\n

In its discretion, the Board of Directors may leave unfilled any office.<\/p>\n

All officers, agents and employees shall be subject to removal at any time by
\nthe Board of Directors. All officers, agents and employees, other than officers
\nelected by the Board of Directors, shall hold office at the discretion of the
\ncommittee or of the officer appointing them.<\/p>\n

Each of the salaried officers of the Corporation shall devote his entire
\ntime, skill and energy to the business of the Corporation, unless the contrary
\nis expressly consented to by the Board of Directors.<\/p>\n<\/p>\n

11<\/p>\n<\/p>\n

\n

Section 3.2. Powers and Duties of the Chief Executive Officer. Subject to the
\nBoard of Directors, the chief executive officer of the Corporation shall be in
\ngeneral charge of the affairs of the Corporation.<\/p>\n

Section 3.3. Powers and Duties of the President. Subject to the chief
\nexecutive officer and the Board of Directors, the president shall have such
\nduties as may be assigned by the Board.<\/p>\n

Section 3.4. Powers and Duties of the Chief Accounting Officer and Chief
\nFinancial Officer. The chief accounting officer and chief financial officer
\nshall each have such authority and shall perform such duties, as may be assigned
\nby the Board.<\/p>\n

Section 3.5. Powers and Duties of the General Counsel. The general counsel
\nshall be the chief consulting officer of the Corporation in all legal matters,
\nand, subject to the Board of Directors, shall have general control of all
\nmatters of legal import concerning the Corporation.<\/p>\n

Section 3.6. Powers and Duties of the Treasurer. Subject to the officer
\ndesignated by the Board of Directors, the treasurer shall have custody of all
\nthe funds and securities of the Corporation which may have come into the hand of
\nthe Corporation; when necessary or proper he or she shall endorse, or cause to
\nbe endorsed, on behalf of the Corporation, for collection, checks, notes and
\nother obligations, and shall cause the deposit of same to the credit of the
\nCorporation in such bank or banks or depositary as the Board of Directors may
\ndesignate or as the Board of Directors by resolution may authorize; he or she
\nshall sign all receipts and vouchers for payments made to the Corporation other
\nthan routine receipts and vouchers, the signing of which he or she may delegate;
\nhe or she shall sign all checks made by the Corporation; provided, however, that
\nthe Board of Directors may authorize and prescribe by resolution the manner in
\nwhich checks drawn on banks or depositaries shall be signed, including the use
\nof facsimile signatures, and the manner in which officers, agents or employees
\nshall be authorized to sign; he or she may sign with the president or a vice
\npresident all certificates of shares in the capital stock; whenever required by
\nthe Board of Directors, he or she shall render a statement of his or her cash
\naccount; he or she shall enter regularly, in books of the Corporation to be kept
\nfor the purpose, full and accurate account of all moneys received and paid by
\nhim or her on account of the Corporation; he or she shall, at all reasonable
\ntimes, exhibit his or her books and accounts to any director of the Corporation
\nupon application at his or her office during business hours; and he or she shall
\nperform all acts incident to the position of treasurer.<\/p>\n

The treasurer shall give a bond for the faithful discharge of the assigned
\nduties in such sum as the Board of Directors may require.<\/p>\n

Section 3.7. Powers and Duties of Secretary. The secretary shall keep the
\nminutes of all meetings of the Board of Directors, and the minutes of all
\nmeetings of the stockholders, and also (unless otherwise directed by the Board
\nof Directors) the minutes of all committees, in books provided for that purpose;
\nhe or she shall attend to the giving and serving of all notices of the
\nCorporation; he or she may sign with any other duly authorized person, in the
\nname of the<\/p>\n<\/p>\n

12<\/p>\n<\/p>\n

\n

Corporation, all contracts authorized by the Board of Directors, and affix
\nthe seal of the Corporation thereto; he or she shall have charge of the
\ncertificate books, transfer books and stock ledgers, and such other books and
\npapers as the Board of Directors may direct, all of which shall, at all
\nreasonable times, be open to the examination of any director, upon application
\nat the secretary153s office during business hours; and he or she shall in general
\nperform all the duties incident to the office of secretary, subject to the
\ncontrol of the Board of Directors.<\/p>\n

Section 3.8. Voting upon Interests in Other Business Entities. Unless
\notherwise ordered by the Board of Directors, any person or persons appointed in
\nwriting by any of them shall have full power and authority on behalf of the
\nCorporation to attend and to act and to vote at any meetings of stockholders of
\nany corporation in which the Corporation may hold stock, or at any other
\nmeetings of holders of ownership interests in business entities in which the
\nCorporation may hold an interest, including limited liability companies, and at
\nany such meeting shall possess and may exercise any and all rights and powers
\nincident to the ownership of such stock or other interest, and which, as the
\nowner thereof, the Corporation might have possessed and exercised if present.
\nThe Board of Directors, by resolution, from time to time, may confer like powers
\nupon any other person or persons.<\/p>\n

Section 3.9. Term of Office, etc. Each officer will hold office until the
\nfirst regular meeting of the Board in each year (at which a quorum shall be
\npresent) held next after the annual meeting of stockholders, and until a
\nsuccessor is elected and qualified or until such officer153s earlier resignation
\nor removal. No officer of the Corporation will have any contractual right
\nagainst the Corporation for compensation by reason of the election or
\nappointment as an officer of the Corporation beyond the date of service as such,
\nexcept as a written employment or other contract otherwise may provide. The
\nBoard may remove any officer with or without cause at any time, but any such
\nremoval will not prejudice the contractual rights of that officer, if any,
\nagainst the Corporation. The Board by resolution may fill any vacancy occurring
\nin any office of the Corporation by death, resignation, removal or otherwise for
\nthe unexpired portion of the term of that office at any time.<\/p>\n

ARTICLE IV.<\/p>\n

Capital Stock – Seal.<\/p>\n

Section 4.1. Certificates of Shares. Shares of each class of the capital
\nstock of the Corporation shall be uncertificated and shall not be represented by
\ncertificates, except to the extent as may be required by applicable law or as
\nmay otherwise be authorized by the Secretary or an assistant secretary of the
\nCorporation. Ownership of any such uncertificated shares shall be evidenced by
\nbook-entry notation on the stock transfer records of the Corporation.
\nNotwithstanding the foregoing, shares of capital stock of the Corporation
\nrepresented by a certificate and issued and outstanding on February 23, 2011
\nshall remain represented by a certificate until such certificate is surrendered
\nto the Corporation. All certificates surrendered to the Corporation shall be\n<\/p>\n<\/p>\n

13<\/p>\n<\/p>\n

\n

cancelled, and no new certificate shall be issued, except as may be required
\nby applicable law or as may be authorized by the Secretary or an assistant
\nsecretary of the Corporation.<\/p>\n

No certificate representing shares of capital stock of the Corporation shall
\nbe valid unless it is signed by two principal officers of the Corporation, or
\none principal officer and an assistant secretary or an assistant treasurer of
\nthe Corporation, but, where such certificate is signed by a registrar other than
\nthe Corporation or its employee the signatures of any such officer and, where
\nauthorized by resolution of the Board of Directors, any transfer agent may be
\nfacsimiles. In case any officer or transfer agent of the Corporation who has
\nsigned, or whose facsimile signature has been placed upon, any such certificate
\nshall have ceased to such be such officer or transfer agent of the Corporation
\nbefore such certificate is issued, such certificate may be issued by the
\nCorporation with the same effect as though the person or persons were such
\nofficer or transfer agent of the Corporation at the date of issue.<\/p>\n

With respect to each class of capital stock of the Corporation, any
\ncertificates issued shall be consecutively numbered. The name of the person
\nowning the shares represented thereby, with the class and number of such shares
\nand the date of issue, shall be entered on the Corporation153s books.<\/p>\n

Section 4.2. Transfer of Shares. Transfers of shares shall be made on the
\nstock transfer records of the Corporation only by the registered holder thereof,
\nor by such holder153s attorney thereunto authorized by power of attorney duly
\nexecuted and filed with the Corporation153s Secretary, or with a transfer agent
\nduly appointed, and upon surrender of the certificate or certificates for such
\nshares properly endorsed, if such shares are represented by a certificate, and
\npayment of all taxes thereon. Upon receipt of proper transfer instructions from
\nthe registered holder of uncertificated shares, from an approved source duly
\nauthorized by such holder or from such holder153s attorney thereunto authorized by
\npower of attorney duly executed and filed with the Corporation153s Secretary, or
\nwith a transfer agent duly appointed, such uncertificated shares shall be
\ncancelled and issuance of new equivalent uncertificated shares shall be made to
\nthe person entitled thereto and the transaction shall be recorded on the stock
\ntransfer records of the Corporation. The person in whose name shares stand on
\nthe Corporation153s stock transfer records shall be deemed the absolute owner
\nthereof for all purposes as regards the Corporation and, accordingly, the
\nCorporation shall not be bound to recognize any equitable or other claim to or
\ninterest in such shares on the part of any other person, whether or not it shall
\nhave express or other notice thereof.<\/p>\n

Section 4.3. Regulations. The Board of Directors shall have power and
\nauthority to make all such additional rules and regulations as it may deem
\nexpedient concerning the issue, transfer and registration or replacement of
\nshares of the capital stock of the Corporation.<\/p>\n

The Board of Directors may appoint one or more transfer agents or assistant
\ntransfer agents, including the Corporation, and one or more registrars<\/p>\n<\/p>\n

14<\/p>\n<\/p>\n

\n

of transfers, including the Corporation, and may require any stock
\ncertificates to bear the signature of a transfer agent or assistant transfer
\nagent and a registrar of transfers. The Board of Directors may at any time
\nterminate the appointment of any transfer agent or any assistant transfer agent
\nor any registrar of transfers.<\/p>\n

Section 4.4. Fixing Date for Determination of Stockholders153 Rights. The Board
\nof Directors is authorized from time to time to fix in advance a date, not
\nexceeding 60 days preceding the date of any meeting of stockholders, or the date
\nfor the payment of any dividend, or the date for the allotment of rights, or the
\ndate when any change or conversion or exchange of capital stock shall go into
\neffect, as a record date for the determination of the stockholders entitled to
\nnotice of, and to vote at, any such meeting and any adjournment thereof, or
\nentitled to receive payment of any such dividend, or to any such allotment of
\nrights, or to exercise the rights in respect of any such change, conversion or
\nexchange of capital stock, and in such case such stockholders and only such
\nstockholders as shall be stockholders of record on the date so fixed shall be
\nentitled to such notice of, and to vote at, such meeting and any adjournment
\nthereof, or to receive payment of such dividend, or to receive such allotment of
\nrights, or to exercise such rights, as the case may be, notwithstanding any
\ntransfer of any stock on the books of the Corporation after any such record date
\nfixed as aforesaid.<\/p>\n

Section 4.5. Dividends. The Board of Directors may from time to time declare
\nsuch dividends as they shall deem advisable and proper, subject to such
\nrestrictions as may be imposed by law and the Corporation153s Certificate of
\nIncorporation.<\/p>\n

Section 4.6. Facsimile Signatures. In addition to the provisions for the use
\nof facsimile signatures elsewhere specifically authorized in these By-laws,
\nfacsimile signatures of any officer or officers of this Corporation may be used
\nwhenever and as authorized by the Board of Directors.<\/p>\n

Section 4.7. Corporate Seal. The Board of Directors shall provide a suitable
\nseal, containing the name of the Corporation, which seal shall be in charge of
\nthe Secretary. Unless otherwise directed by the Board of Directors, duplicates
\nof the seal may be kept and used by the treasurer or by any assistant secretary
\nor assistant treasurer.<\/p>\n

ARTICLE V.<\/p>\n

Indemnification.<\/p>\n

Section 5.1. Right to Indemnification. The Corporation shall indemnify and
\nhold harmless to the fullest extent permitted by law any person who was or is
\nmade or is threatened to be made a party or is involved in any Proceeding
\nwhether civil, criminal, administrative or investigative by reason of the fact
\nthat he, or a person for whom he is the legal representative, is or was a
\ndirector,<\/p>\n<\/p>\n

15<\/p>\n<\/p>\n

\n

officer, employee or agent of the Corporation or is or was serving at the
\nrequest of the Corporation as a director, officer, employee or agent of another
\ncorporation or of a partnership, joint venture, trust, enterprise or non-profit
\nentity, including service with respect to employee benefit plans, against all
\nexpenses, liability, and loss reasonably incurred or suffered by such person.
\nThe Corporation shall indemnify any person seeking indemnity in connection with
\na Proceeding initiated by such person only if the Proceeding was authorized by
\nthe Board of Directors of the Corporation.<\/p>\n

Section 5.2. Advancement of Expenses.<\/p>\n

(a) If and whenever any Indemnitee is, or is threatened to be made, a party
\nto any Proceeding that may give rise to a right of that Indemnitee to
\nindemnification under Section 5.1, the Corporation will advance (unless such
\nadvance is in violation of law) all Expenses reasonably incurred by or on behalf
\nof that Indemnitee in connection with that Proceeding within 10 days after the
\nCorporation receives a statement or statements from that Indemnitee requesting
\nthe advance or advances from time to time, whether prior to or after final
\ndisposition of that Proceeding; provided, however, that the Corporation will
\nhave no obligation to advance Expenses if such advance will be in violation of
\napplicable law. Each such statement must reasonably evidence the Expenses
\nincurred by or on behalf of that Indemnitee and include or be preceded or
\naccompanied by an undertaking by or on behalf of that Indemnitee to repay any
\nExpenses advanced if it ultimately is determined that the Indemnitee is not
\nentitled to be indemnified by the Corporation under Section 5.1 against those
\nExpenses. The Corporation will accept any such undertaking without reference to
\nthe financial ability of Indemnitee to make repayment. If the Corporation
\nadvances Expenses in connection with any Claim as to which an Indemnitee has
\nrequested or may request indemnification under Section 5.1 and a determination
\nis made under Section 5.4 that the Indemnitee is not entitled to that
\nindemnification, the Indemnitee will not be required to reimburse the
\nCorporation for those advances until the 180th day following the date of that
\ndetermination; provided, however, that if the Indemnitee timely commences and
\nthereafter prosecutes in good faith a judicial proceeding or arbitration under
\nSection 5.6 or otherwise to obtain that indemnification, the Indemnitee will not
\nbe required to reimburse the Corporation for those Expenses until a
\ndetermination in that proceeding or arbitration that the Indemnitee is not
\nentitled to that indemnification has become final and nonappealable.<\/p>\n

(b) The Corporation may advance Expenses under Section 5.2(a) to an
\nIndemnitee or, at the Corporation153s option, directly to the Person to which
\nthose Expenses are owed, and any Indemnitee153s request for an advance under
\nSection 5.2(a) will constitute that Indemnitee153s consent to any such direct
\npayment, to Indemnitee153s legal counsel or any other Person.<\/p>\n

Section 5.3. Notification and Defense of Claims.<\/p>\n

(a) If any Indemnitee receives notice, otherwise than from the Corporation,
\nthat the Indemnitee is or will be made, or is threatened to be made,<\/p>\n<\/p>\n

16<\/p>\n<\/p>\n

\n

a party to any Proceeding in respect of which the Indemnitee intends to seek
\nindemnification under this Article V, the Indemnitee must promptly notify the
\nCorporation in writing of the nature and, to the Indemnitee153s knowledge, status
\nof that Proceeding. If this Section 5.3(a) requires any Indemnitee to give such
\na notice, but that Indemnitee fails to do so, that failure will not relieve the
\nCorporation from, or otherwise affect the obligations the Corporation may have
\nto indemnify that Indemnitee under this Article V, unless the Corporation can
\nestablish that the failure has resulted in actual prejudice to the Corporation.\n<\/p>\n

(b) Except as this Section 5.3(b) otherwise provides, in the case of any
\nProceeding in respect of which any Indemnitee seeks indemnification under this
\nArticle V:<\/p>\n

(1) the Corporation and any Related Enterprise that also may be obligated to
\nindemnify that Indemnitee in respect of that Proceeding will be entitled to
\nparticipate at its own expense in that Proceeding;<\/p>\n

(2) the Corporation or that Related Enterprise, or either of them, will be
\nentitled to assume the defense of all Claims, other than (A) Corporation Claims,
\nif any, and (B) other Claims, if any, as to which that Indemnitee shall
\nreasonably reach the conclusion clause (3) of the next sentence describes, in
\nthat Proceeding against that Indemnitee by prompt written notice of that
\nelection to that Indemnitee; and<\/p>\n

(3) if clause (2) above entitles the Corporation or that Related Enterprise
\nto assume the defense of any of those Claims and it delivers to that Indemnitee
\nnotice of that assumption under clause (2), the Corporation will not be liable
\nto that Indemnitee under this Article V for any fees or expenses of legal
\ncounsel for that Indemnitee which that Indemnitee incurs after that Indemnitee
\nreceives that notice.<\/p>\n

That Indemnitee will have the right to employ that Indemnitee153s own legal
\ncounsel in that Proceeding, but, as clause (3) of the preceding sentence
\nprovides, will bear the fees and expenses of that counsel unless:<\/p>\n

(1) the Corporation has authorized that Indemnitee in writing to retain that
\ncounsel;<\/p>\n

(2) the Corporation shall not within a reasonable period of time actually
\nhave employed counsel to assume the defense of those Claims; or<\/p>\n

(3) that Indemnitee shall have (A) reasonably concluded that a conflict of
\ninterest may exist between that Indemnitee and the Corporation as to the defense
\nof one or more of those Claims and (B) communicated that conclusion to the
\nCorporation in writing.<\/p>\n

(c) The Corporation will not be obligated hereunder to, or to cause another
\nCorporation Entity to, indemnify any Indemnitee against or hold that Indemnitee
\nharmless from and in respect of any amounts paid, or agreed to be paid, by that
\nIndemnitee in settlement of any Claim against that Indemnitee which that
\nIndemnitee effects without the Corporation153s prior written consent. The
\nCorporation will not settle any Claim against any Indemnitee in any manner that\n<\/p>\n<\/p>\n

17<\/p>\n<\/p>\n

\n

would impose any penalty or limitation on that Indemnitee without that
\nIndemnitee153s prior written consent. Neither the Corporation nor any Indemnitee
\nwill unreasonably delay or withhold consent to any such settlement the other
\nparty proposes to effect.<\/p>\n

Section 5.4. Procedure for Determination of Entitlement to Indemnification.\n<\/p>\n

(a) To obtain indemnification under this Article V, any Indemnitee must
\nsubmit to the Corporation a written request therefor which specifies the Section
\nor Sections under which that Indemnitee is seeking indemnification and which
\nincludes, or is accompanied by, such documentation and information as is
\nreasonably available to that Indemnitee and is reasonably necessary to determine
\nwhether and to what extent that Indemnitee is entitled to that indemnification.
\nAny Indemnitee may request indemnification under this Article V at any time and
\nfrom time to time as that Indemnitee deems appropriate in that Indemnitee153s sole
\ndiscretion. In the case of any request by any Indemnitee for indemnification
\nunder Section 5.1 as to any Claim which is pending or threatened at the time
\nthat Indemnitee delivers that request to the Corporation and would not be
\nresolved with finality, whether by judgment, order, settlement or otherwise, on
\npayment of the indemnification requested, the Corporation may defer the
\ndetermination under Section 5.4(c) of that Indemnitee153s entitlement to that
\nindemnification to a date that is no later than 45 days after the effective date
\nof that final resolution if the Board concludes in good faith that an earlier
\ndetermination would be materially prejudicial to the Corporation or a Related
\nEnterprise.<\/p>\n

(b) On written request by any Indemnitee under Section 5.4(a) for
\nindemnification under Section 5.1, the determination of that Indemnitee153s
\nentitlement to that indemnification will be made:<\/p>\n

(1) if that Indemnitee will be a director or officer of the Corporation at
\nthe time that determination is made, under Section 5.4(c) in each case; or<\/p>\n

(2) if that Indemnitee will not be a director or officer of the Corporation
\nat the time that determination is made, under Section 5.4(c) in any case, if so
\nrequested in writing by that Indemnitee or so directed by the Board, or, in the
\nabsence of that request and direction, as the Board shall duly authorize or
\ndirect.<\/p>\n

(c) Each determination of any Indemnitee153s entitlement to indemnification
\nunder Section 5.1 to which this Section 5.4(c) applies will be made as follows:\n<\/p>\n

(1) by a majority vote of the Disinterested Directors, even though less than
\na quorum; or<\/p>\n

(2) by a committee of Disinterested Directors a majority vote of the
\nDisinterested Directors may designate, even though less than a quorum; or<\/p>\n<\/p>\n

18<\/p>\n<\/p>\n

\n

(3) if (A) there are no Disinterested Directors or (B) a majority vote of the
\nDisinterested Directors so directs, by an Independent Counsel in a written
\nopinion to the Board, a copy of which the Corporation will deliver to that
\nIndemnitee;<\/p>\n

provided, however, that if that Indemnitee has so requested in that
\nIndemnitee153s request for indemnification, an Independent Counsel will make that
\ndetermination in a written opinion to the Board, a copy of which the Corporation
\nwill deliver to Indemnitee.<\/p>\n

(d) If it is determined that any Indemnitee is entitled to indemnification
\nunder Section 5.1, the Corporation will, or will cause another Corporation
\nEntity to, subject to the provisions of Section 5.4(f):<\/p>\n

(1) within 10 days after that determination pay to that Indemnitee all
\namounts (A) theretofore incurred by or on behalf of that Indemnitee in respect
\nof which that Indemnitee is entitled to that indemnification by reason of that
\ndetermination and (B) requested from the Corporation in writing by that
\nIndemnitee; and<\/p>\n

(2) thereafter on written request by that Indemnitee, pay to that Indemnitee
\nwithin 10 days after that request such additional amounts theretofore incurred
\nby or on behalf of that Indemnitee in respect of which that Indemnitee is
\nentitled to that indemnification by reason of that determination.<\/p>\n

Each Indemnitee must cooperate with the person, persons or entity making the
\ndetermination under Section 5.4(c) with respect to that Indemnitee153s entitlement
\nto indemnification under Section 5.1, including providing to such person,
\npersons or entity, on reasonable advance request, any documentation or
\ninformation that is:<\/p>\n

(1) not privileged or otherwise protected from disclosure;<\/p>\n

(2) reasonably available to that Indemnitee; and<\/p>\n

(3) reasonably necessary to that determination.<\/p>\n

(e) If an Independent Counsel is to make a determination under Section 5.4(c)
\nof entitlement of any Indemnitee to indemnification under Section 5.1, the Board
\nwill select the Independent Counsel and give written notice to that Indemnitee
\nwhich names the person or firm it has selected, whereupon that Indemnitee may,
\nwithin 10 days after that Indemnitee153s receipt of that notice, deliver to the
\nSecretary a written objection to the selection; provided, however, that any such
\nobjection may be asserted only on the ground that the person or firm selected is
\nnot an “Independent Counsel” as Section 5.11 defines that term, and the
\nobjection must set forth with particularity the factual basis for that
\nassertion. Absent a proper and timely objection, the person or firm so selected
\nwill act as Independent Counsel under Section 5.4(c). If any such written
\nobjection is so made and substantiated, the person or firm so selected may not
\nserve as Independent Counsel unless and until the objection is withdrawn or a
\ncourt of competent jurisdiction has determined that the objection is without
\nmerit.<\/p>\n<\/p>\n

19<\/p>\n<\/p>\n

\n

If the person or firm that will act as Independent Counsel has not been
\ndetermined within 30 days after any Indemnitee153s submission of the related
\nrequest for indemnification, either the Corporation or that Indemnitee may
\npetition the Court of Chancery for resolution of any objection that has been
\nmade by that Indemnitee to the Board153s selection of Independent Counsel or for
\nthe appointment as Independent Counsel of a person or firm selected by the Court
\nof Chancery or by such other person or firm as the Court of Chancery designates,
\nand the person or firm with respect to whom all objections are so resolved or
\nthe person or firm so appointed will act as Independent Counsel under
\nSection 5.4(c).<\/p>\n

The Corporation will pay any and all reasonable fees and expenses the
\nIndependent Counsel incurs in connection with acting under Section 5.4(c), and
\nthe Corporation will pay all reasonable fees and expenses incident to the
\nprocedures this Section 5.4(e) sets forth, regardless of the manner in which the
\nIndependent Counsel is selected or appointed.<\/p>\n

If any Indemnitee becomes entitled to, and does, initiate any judicial
\nproceeding or arbitration under Section 5.6, the Corporation will terminate its
\nengagement of the person or firm acting as Independent Counsel, whereupon that
\nperson or firm will be, subject to the applicable standards of professional
\nconduct then prevailing, relieved of any further responsibility in the capacity
\nof Independent Counsel.<\/p>\n

(f) The amount of any indemnification against Expenses to which any
\nIndemnitee becomes entitled under any provision of this Article V, including
\nSection 5.1, will be determined subject to the provisions of this
\nSection 5.4(f). Each Indemnitee will have the burden of showing that that
\nIndemnitee actually has incurred the Expenses for which that Indemnitee requests
\nindemnification. If the Corporation or a Corporation Entity has made any advance
\nin respect of any Expense incurred by any Indemnitee without objecting in
\nwriting to that Indemnitee at the time of the advance to the reasonableness
\nthereof, the incurrence of that Expense by that Indemnitee will be deemed for
\nall purposes hereof to have been reasonable. In the case of any Expense as to
\nwhich such an objection has been made, or any Expense for which no advance has
\nbeen made, the incurrence of that Expense will be presumed to have been
\nreasonable, and the Corporation will have the burden of proof to overcome that
\npresumption.<\/p>\n

Section 5.5 Presumptions and Effect of Certain Proceedings.<\/p>\n

(a) In making a determination under Section 5.4(c) with respect to
\nentitlement of any Indemnitee to indemnification under Section 5.1, the person,
\npersons or entity making that determination must presume that that Indemnitee is
\nentitled to that indemnification if that Indemnitee has submitted a request for
\nindemnification in accordance with Section 5.4(a), and the Corporation will have
\nthe burden of proof to overcome that presumption in connection with the making
\nby any person, persons or entity of any determination contrary to that
\npresumption.<\/p>\n<\/p>\n

20<\/p>\n<\/p>\n

\n

(b) The termination of any Proceeding or of any Claim therein, by judgment,
\norder, settlement or conviction, or on a plea of nolo contendere or its
\nequivalent, will not, except as this Article V otherwise expressly provides, of
\nitself adversely affect the right of any Indemnitee to indemnification under
\nthis Article V or, in the case of any determination under Section 5.4(c) of any
\nIndemnitee153s entitlement to indemnification under Section 5.1, create a
\npresumption that that Indemnitee did not act in good faith and in a manner that
\nIndemnitee reasonably believed to be in or not opposed to the best interests of
\nthe Corporation or, with respect to any criminal action or proceeding, that
\nIndemnitee had reasonable cause to believe that that Indemnitee153s conduct was
\nunlawful.<\/p>\n

(c) Any service of any Indemnitee as a Functionary of the Corporation or any
\nRelated Enterprise which imposes duties on, or involves services by, that
\nIndemnitee with respect to any Related Enterprise that is an employee benefit or
\nwelfare plan or related trust, if any, or that plan153s participants or that
\ntrust153s beneficiaries, will be deemed for all purposes hereof as service at the
\nrequest of the Corporation, and any action that Indemnitee takes or omits to
\ntake in connection with any such plan or trust will, if taken or omitted in good
\nfaith by that Indemnitee and in a manner that Indemnitee reasonably believed to
\nbe in the interest of the participants in or beneficiaries of that plan or
\ntrust, be deemed to have been taken or omitted in a manner “not opposed to the
\nbest interests of the Corporation” for all purposes of this Article V.<\/p>\n

(d) For purposes of any determination under this Article V as to whether any
\nIndemnitee has performed services or engaged in conduct on behalf of any
\nEnterprise in good faith, that Indemnitee will be deemed to have acted in good
\nfaith if that Indemnitee acted in reliance on the records of the Enterprise or
\non information, opinions, reports or statements, including financial statements
\nand other financial information, concerning the Enterprise or any other Person
\nwhich were prepared or supplied to that Indemnitee by:<\/p>\n

(1) one or more of the officers or employees of the Enterprise;<\/p>\n

(2) appraisers, engineers, investment bankers, legal counsel or other Persons
\nas to matters that Indemnitee reasonably believed were within the professional
\nor expert competence of those Persons; and<\/p>\n

(3) any committee of the board of directors or equivalent managing body of
\nthe Enterprise of which that Indemnitee is or was, at the relevant time, not a
\nmember;<\/p>\n

provided, however, that if that Indemnitee has actual knowledge as to any
\nmatter that makes any such reliance unwarranted as to that matter, this
\nSection 5.5(d) will not entitle that Indemnitee to any presumption that that
\nIndemnitee acted in good faith respecting that matter.<\/p>\n

(e) For purposes of any determination under this Article V as to whether any
\nIndemnitee is entitled to indemnification under Section 5.1, neither the
\nknowledge nor the conduct of any other Functionary of the Corporation or any
\nRelated Enterprise shall be imputed to that Indemnitee.<\/p>\n<\/p>\n

21<\/p>\n<\/p>\n

\n

(f) Any Indemnitee will be deemed a party to a Proceeding for all purposes of
\nthis Article V if that Indemnitee is named as a defendant or respondent in a
\ncomplaint or petition for relief in that Proceeding, regardless of whether that
\nIndemnitee ever is served with process or makes an appearance in that
\nProceeding.<\/p>\n

(g) If any Indemnitee serves or served as a Functionary of a Related
\nEnterprise, that service will be deemed to be “at the request of the
\nCorporation” for all purposes of this Article V notwithstanding that the request
\nis not evidenced by a writing or shown to have been made orally. In the event
\nthe Corporation were to extend the rights of indemnification and advancement of
\nExpenses under this Article V to any Indemnitee153s serving at the request of the
\nCorporation as a Functionary of any Enterprise other than the Corporation or a
\nRelated Enterprise, that Indemnitee must show that the request was made by the
\nBoard or at its authorization.<\/p>\n

Section 5.6 Remedies of Indemnitee in Certain Cases. (a) If any Indemnitee
\nmakes a written request in compliance with Section 5.4(a) for indemnification
\nunder Section 5.1 and either:<\/p>\n

(1) no determination as to the entitlement of that Indemnitee to that
\nindemnification is made before the last to occur of (A) the close of business on
\nthe date, if any, the Corporation has specified under Section 5.4(a) as the
\noutside date for that determination or (B) the elapse of the 45-day period
\nbeginning the day after the date the Corporation receives that request; or<\/p>\n

(2) a determination is made under Section 5.4(c) that that Indemnitee is not
\nentitled to that indemnification in whole or in any part in respect of any Claim
\nto which that request related,<\/p>\n

that Indemnitee will be entitled to an adjudication from the Court of
\nChancery of that Indemnitee153s entitlement to that indemnification.
\nAlternatively, that Indemnitee, at that Indemnitee153s option, may seek an award
\nin arbitration to be conducted by a single arbitrator in accordance with the
\nCommercial Arbitration Rules of the American Arbitration Association. In the
\ncase of any determination under Section 5.5(d) that is adverse to an Indemnitee,
\nthat Indemnitee must commence any such judicial proceeding or arbitration within
\n180 days following the date on which that Indemnitee first has the right to
\ncommence that proceeding under this Section 5.6(a) or that Indemnitee will be
\nbound by that determination for all purposes of this Article V.<\/p>\n

(b) If a determination has been made under Section 5.4 that an Indemnitee is
\nnot entitled to indemnification under Section 5.1, any judicial proceeding or
\narbitration commenced by that Indemnitee under this Section 5.6 will be
\nconducted in all respects as a de novo trial or arbitration on the merits, and
\nthat Indemnitee will not be prejudiced by reason of that adverse determination.
\nIn any judicial proceeding or arbitration commenced under this Section 5.6, the
\nCorporation will have the burden of proving that the Indemnitee is not entitled
\nto indemnification hereunder, and the Corporation may not, for any<\/p>\n<\/p>\n

22<\/p>\n<\/p>\n

\n

purpose, refer to or introduce into evidence any determination under
\nSection 5.4(c) which is adverse to the Indemnitee.<\/p>\n

(c) If a determination has been made under Section 5.4 that any Indemnitee is
\nentitled to indemnification under Section 5.1, the Corporation will be bound by
\nthat determination in any judicial proceeding or arbitration that Indemnitee
\nthereafter commences under this Section 5.6 or otherwise, absent:<\/p>\n

(1) a misstatement by that Indemnitee of a material fact, or an omission by
\nthat Indemnitee of a material fact necessary to make that Indemnitee153s
\nstatements not materially misleading, in connection with that Indemnitee153s
\nrequest for indemnification; or<\/p>\n

(2) a prohibition of that indemnification under applicable law.<\/p>\n

(d) If any Indemnitee, under this Section 5.6 or otherwise, seeks a judicial
\nadjudication of or an award in arbitration to enforce that Indemnitee153s rights
\nunder this Article V, that Indemnitee will be entitled to recover from the
\nCorporation, and will be indemnified by the Corporation against, any and all
\nexpenses, of the types the definition of Expenses in Section 5.11 describes,
\nreasonably incurred by or on behalf of that Indemnitee in that judicial
\nadjudication or arbitration, but only if that Indemnitee prevails therein. If it
\nis determined in that judicial adjudication or arbitration that that Indemnitee
\nis entitled to receive part of, but not all, the indemnification or advancement
\nof expenses sought, the expenses incurred by that Indemnitee in connection with
\nthat judicial adjudication or arbitration will be appropriately prorated between
\nthose in respect of which this Article V entitles that Indemnitee to
\nindemnification and those that Indemnitee must bear.<\/p>\n

(e) In any judicial proceeding or arbitration under this Section 5.6, the
\nCorporation:<\/p>\n

(1) will not, and will not permit any other Person acting on its behalf to,
\nassert that the procedures or presumptions this Article V establishes are not
\nvalid, binding and enforceable; and<\/p>\n

(2) will stipulate that it is bound by all the provisions of this Article V.\n<\/p>\n

Section 5.7 Non-exclusivity; Equivalence to Contract Rights; Survival of
\nRights; Insurance; Subrogation.<\/p>\n

(a) The rights to indemnification and advancement of Expenses and the
\nremedies this Article V provides are not and will not be deemed exclusive of any
\nother rights or remedies to which any Indemnitee may at any time be entitled
\nunder applicable law, the Certificate of Incorporation, any agreement, a vote of
\nstockholders or Disinterested Directors, or otherwise, but each such right or
\nremedy under this Article V will be cumulative with all such other rights and
\nremedies. The rights to indemnification and advancement of Expenses this Article
\nV provides shall be considered the equivalent of a contract right that vests
\nupon the occurrence or alleged occurrence of any act or omission that forms the\n<\/p>\n<\/p>\n

23<\/p>\n<\/p>\n

\n

basis for or is related to the claim for which indemnification is sought by
\nan Indemnitee, to the same extent as if the provisions of this Article V were
\nset forth in a separate, written contract between such Indemnitee and the
\nCorporation, and no amendment, modification or repeal of this Article V or any
\nprovision hereof will limit or restrict any right of any Indemnitee under this
\nArticle V in respect of any action that Indemnitee has taken or omitted in that
\nIndemnitee153s capacity as a Functionary of the Corporation or any Related
\nEnterprise prior to that amendment, modification or repeal. This Article V will
\nnot limit or restrict the power or right of the Corporation, to the extent and
\nin the manner applicable law permits, to indemnify and advance expenses to
\nPersons other than Indemnitees when and as authorized by the Board or by other
\nappropriate corporate action.<\/p>\n

(b) If the Corporation maintains an insurance policy or policies providing
\nliability insurance for directors or officers of the Corporation, each
\nIndemnitee will be covered by the policy or policies in accordance with its or
\ntheir terms to the maximum extent of the coverage available for any such
\ndirector or officer under the policy or policies. If the Corporation receives
\nwritten notice from any source of a pending Proceeding to which any Indemnitee
\nis a party and in respect of which that Indemnitee might be entitled to
\nindemnification under Section 5.1 and the Corporation then maintains any such
\npolicy of which that Indemnitee is a beneficiary, the Corporation will:<\/p>\n

(1) promptly give notice of that Proceeding to the relevant insurers in
\naccordance with the applicable policy procedures; and<\/p>\n

(2) thereafter take all action necessary to cause those insurers to pay, on
\nbehalf of that Indemnitee, all amounts payable in accordance with the applicable
\npolicy terms as a result of that Proceeding;<\/p>\n

provided, however, that the Corporation need not comply with the provisions
\nof this sentence if its failure to do so would not actually be prejudicial to
\nthat Indemnitee in any material respect.<\/p>\n

(c) The Corporation will not be liable under this Article V to make or cause
\nto be made any payment of amounts otherwise indemnifiable under this Article V,
\nor to make or cause to be made any advance this Article V otherwise requires it
\nto make or cause to be made, to or for the account of any Indemnitee, if and to
\nthe extent that the Indemnitee has otherwise actually received or had applied
\nfor the Indemnitee153s benefit that payment or advance or otherwise obtained the
\nentire benefit therefrom under any insurance policy, any other contract or
\nagreement or otherwise.<\/p>\n

(d) If the Corporation makes or causes to be made any payment under this
\nArticle V to or for the account of any Indemnitee, it will be subrogated to the
\nextent of that payment to all the rights of recovery of that Indemnitee, who
\nmust execute all papers required and take all action necessary to secure those
\nrights, including execution of such documents as are necessary to enable the
\nCorporation to bring suit to enforce those rights.<\/p>\n<\/p>\n

24<\/p>\n<\/p>\n

\n

(e) The Corporation153s obligation to make or cause to be made any payment or
\nadvance under this Article V to or for the account of any Indemnitee with
\nrespect to that Indemnitee153s service at the request of the Corporation as a
\nFunctionary of any Related Enterprise will be reduced by any amount that
\nIndemnitee has actually received as indemnification or advancement of expenses
\nfrom that Related Enterprise.<\/p>\n

Section 5.8 Benefit of this Article V. The provisions of this Article V will
\ninure to the benefit of each Indemnitee and that Indemnitee153s spouse, heirs,
\nexecutors and administrators.<\/p>\n

Section 5.9 Severability. If any provision or provisions of this Article V is
\nor are invalid, illegal or unenforceable for any reason whatsoever:<\/p>\n

(1) the validity, legality and enforceability of the remaining provisions of
\nthis Article V, including each portion of any Section containing any such
\ninvalid, illegal or unenforceable provision which is not itself invalid, illegal
\nor unenforceable, will not in any way be affected or impaired thereby;<\/p>\n

(2) such provision or provisions will be deemed reformed to the extent
\nnecessary to conform to applicable law and to give the maximum effect to the
\nintent of the Corporation as expressed in this Article V; and<\/p>\n

(3) to the fullest extent possible, the provisions of this Article V,
\nincluding each portion of any Section containing any such invalid, illegal or
\nunenforceable provision which is not itself invalid, illegal or unenforceable,
\nwill be construed so as to give effect to the intent manifested thereby.<\/p>\n

Section 5.10 Exceptions to Right of Indemnification or Advancement of
\nExpenses. No provision in this Article V will obligate the Corporation to pay or
\ncause to be paid any indemnity to or for the account of any Indemnitee in
\nconnection with or as a result of:<\/p>\n

(1) any Claim made against that Indemnitee for an accounting of profits,
\nunder Section 16(b) of the Exchange Act or similar provision of state statutory
\nor common law, from the purchase and sale, or sale and purchase, by that
\nIndemnitee of securities of the Corporation or any Related Enterprise; or<\/p>\n

(2) except for any Claim initiated by that Indemnitee, whether as a cause of
\naction or as a defense to a cause of action under Section 5.6 or otherwise, to
\nenforce or establish, by declaratory judgment or otherwise, that Indemnitee153s
\nrights or remedies under this Article V, any Claim initiated by that Indemnitee
\nwithout the prior authorization of the Board against the Corporation or any
\nRelated Enterprise or any of their respective present or former Functionaries.\n<\/p>\n

Section 5.11 Definitions. (a) For purposes of this Article V:<\/p>\n

“Affiliate<\/em>” has the meaning Exchange Act Rule 12b-2 specifies.<\/p>\n

“Claim<\/em>” means any claim for damages or a declaratory, equitable or
\nother substantive remedy, or any other issue or matter, in any Proceeding.<\/p>\n<\/p>\n

25<\/p>\n<\/p>\n

\n

“Corporation Claim<\/em>” means, in the case of any Indemnitee, any Claim
\nbrought by or in the right of the Corporation or a Related Enterprise against
\nthat Indemnitee.<\/p>\n

“Corporation Entity<\/em>” means any Related Enterprise, other than an
\nemployee benefit or welfare plan or its related trust, if any.<\/p>\n

“Court of Chancery<\/em>” means the Court of Chancery of the State of
\nDelaware.<\/p>\n

“Disinterested Director<\/em>” means a director of the Corporation who is
\nnot and was not a party to the Proceeding, or any Claim therein, in respect of
\nwhich indemnification is sought by any Indemnitee under this Article V.<\/p>\n

“Enterprise<\/em>” means any business trust, corporation, joint venture,
\nlimited liability company, partnership or other entity or enterprise, including
\nany operational division of any entity, or any employee benefit or welfare plan
\nor related trust.<\/p>\n

“Expenses<\/em>” include all attorneys153 fees, retainers, court costs,
\ntranscript costs, fees of experts, witness fees, travel expenses, duplicating
\ncosts, printing and binding costs, telephone charges, postage, delivery service
\nfees, all other disbursements or expenses of the types customarily incurred in
\nconnection with prosecuting, defending, preparing to prosecute or defend,
\ninvestigating, being or preparing to be a witness in, or otherwise participating
\nin, a Proceeding. Should any payments by the Corporation to or for the account
\nof any Indemnitee under this Article V be determined to be subject to any
\nfederal, state or local income or excise tax, “Expenses” also will include such
\namounts as are necessary to place that Indemnitee in the same after-tax
\nposition, after giving effect to all applicable taxes, that Indemnitee would
\nhave been in had no such tax been determined to apply to those payments.<\/p>\n

“Functionary<\/em>” of any Enterprise means any director, officer,
\nmanager, administrator, employee, agent, representative or other functionary of
\nthat Enterprise, including, in the case of any employee benefit or welfare plan,
\nany member of any committee administering that plan or any individual to whom
\nthe duties of that committee are delegated.<\/p>\n

“Indemnitee<\/em>” means at any time any director, officer, employee or
\nagent of the Corporation or any person that is or was serving at the request of
\nthe Corporation as a director, officer, employee or agent of another corporation
\nor of a partnership, joint venture, trust, limited liability company,
\nenterprise, non-profit entity or other entity including, without limitation,
\nservice with respect to employee benefit plans.<\/p>\n

“Independent Counsel<\/em>” means, in the case of any determination under
\nSection 5.4(c) of the entitlement of any Indemnitee to indemnification under
\nSection 5.1, a law firm, or a member of a law firm, that or who is experienced
\nin matters of corporation law and neither presently is, nor in the past five
\nyears has been, retained to represent:<\/p>\n

(1) the Corporation or any of its Affiliates or that Indemnitee in any matter
\nmaterial to any such Person; or<\/p>\n<\/p>\n

26<\/p>\n<\/p>\n

\n

(2) any other party to the Proceeding giving rise to a claim of that
\nIndemnitee for that indemnification;<\/p>\n

notwithstanding the foregoing, the term “Independent Counsel” does not
\ninclude at any time any Person who, under the applicable standards of
\nprofessional conduct then prevailing, would have a conflict of interest in
\nrepresenting either the Corporation or a Related Enterprise or that Indemnitee
\nin an action to determine that Indemnitee153s rights under these By-laws.<\/p>\n

“Person<\/em>” means any natural person, sole proprietorship, corporation,
\npartnership, limited liability company, business trust, unincorporated
\norganization or association, mutual company, joint stock company, joint venture
\nor any other entity of any kind having a separate legal status or any estate,
\ntrust, union or employee organization or governmental authority.<\/p>\n

“Proceeding<\/em>” includes:<\/p>\n

(1) any threatened, pending or completed action, suit, arbitration, alternate
\ndispute resolution procedure, investigation, inquiry or other threatened, actual
\nor completed proceeding, whether of a civil, criminal, administrative,
\ninvestigative or private nature and irrespective of the initiator thereof; and\n<\/p>\n

(2) any appeal in any such proceeding.<\/p>\n

“Related Enterprise<\/em>” means at any time any Enterprise:<\/p>\n

(1) 50% or more of the outstanding capital stock or other ownership interests
\nof which, or the assets of which, the Corporation owns or controls, or
\npreviously owned or controlled, directly or indirectly, at that time;<\/p>\n

(2) 50% or more of the outstanding voting power of the outstanding capital
\nstock or other ownership interests of which the Corporation owns or controls, or
\npreviously owned or controlled, directly or indirectly, at that time;<\/p>\n

(3) that is, or previously was, an Affiliate of the Corporation which the
\nCorporation controls, or previously controlled, by ownership, contract or
\notherwise and whether alone or together with another Person, directly or
\nindirectly, at that time; or<\/p>\n

(4) if that Enterprise is an employee benefit or welfare plan or related
\ntrust, whose participants or beneficiaries are present or former employees of
\nthe Corporation or any other Related Enterprise.<\/p>\n

Section 5.12 Contribution. If it is established, under Section 5.4(c) or
\notherwise, that any Indemnitee has the right to be indemnified under Section 5.1
\nin respect of any Claim, but that right is unenforceable by reason of any
\napplicable law or public policy, then, to the fullest extent applicable law
\npermits,<\/p>\n<\/p>\n

27<\/p>\n<\/p>\n

\n

the Corporation, in lieu of indemnifying or causing the indemnification of
\nthat Indemnitee under Section 5.1, will contribute or cause to be contributed to
\nthe amount that Indemnitee has incurred, whether for judgments, fines,
\npenalties, excise taxes, amounts paid or to be paid in settlement or for
\nExpenses reasonably incurred, in connection with that Claim, in such proportion
\nas is deemed fair and reasonable in light of all the circumstances of that Claim
\nin order to reflect:<\/p>\n

(1) the relative benefits that Indemnitee and the Corporation have received
\nas a result of the event(s) or transaction(s) giving rise to that Claim; or<\/p>\n

(2) the relative fault of that Indemnitee and of the Corporation and its
\nother Functionaries in connection with those event(s) or transaction(s).<\/p>\n

Section 5.13 Submission to Jurisdiction. Each Indemnitee, by seeking any
\nindemnification or advance of Expenses under this Article V, will be deemed,
\nexcept with respect to any arbitration that Indemnitee commences under
\nSection 5.6:<\/p>\n

(1) to have agreed that any action or proceeding arising out of or in
\nconnection with this Article V must be brought only in the Court of Chancery and
\nnot in any other state or federal court in the United States of America or any
\ncourt in any other country;<\/p>\n

(2) to have consented to submit to the exclusive jurisdiction of the Court of
\nChancery for purposes of any action or proceeding arising out of or in
\nconnection with this Article V;<\/p>\n

(3) to have waived any objection to the laying of venue of any such action or
\nproceeding in the Court of Chancery; and<\/p>\n

(4) to have waived, and to have agreed not to plead or to make, any claim
\nthat any such action or proceeding brought in the Court of Chancery has been
\nbrought in an improper or otherwise inconvenient forum. The Corporation shall
\nindemnify and hold harmless to the fullest extent permitted by law any person
\nwho was or is made or is threatened to be made a party or is involved in any
\naction, suit, or proceeding whether civil, criminal, administrative or
\ninvestigative (“proceeding”) by reason of the fact that he, or a person for whom
\nhe is the legal representative, is or was a director, officer, employee or agent
\nof the Corporation or is or was serving at the request of the Corporation as a
\ndirector, officer, employee or agent of another corporation or of a partnership,
\njoint venture, trust, enterprise or non-profit entity, including service with
\nrespect to employee benefit plans, against all expenses, liability, and loss
\nreasonably incurred or suffered by such person. The Corporation shall indemnify
\nany person seeking indemnity in connection with a proceeding initiated by such
\nperson only if the proceeding was authorized by the Board of Directors of the
\nCorporation.<\/p>\n

ARTICLE VI.<\/p>\n<\/p>\n

28<\/p>\n<\/p>\n

\n

Miscellaneous.<\/p>\n

Section 6.1 Amendments. The Board of Directors shall have the power to adopt,
\namend and repeal the By-laws at any regular or special meeting of the Board,
\nprovided that notice of intention to adopt, amend or repeal the By-laws in whole
\nor in part shall have been included in the notice of meeting; or, without any
\nsuch notice, by a vote of two-thirds of the directors then in office.<\/p>\n

Stockholders may adopt, amend and repeal the By-laws at any regular or
\nspecial meeting of the stockholders by an affirmative vote of the majority of
\nshares present in person or represented by proxy at the meeting and entitled to
\nvote thereon, provided that notice of intention to adopt, amend or repeal the
\nBy-laws in whole or in part shall have been included in the notice of the
\nmeeting.<\/p>\n

Section 6.2 Offices. The Corporation153s registered office shall be in the City
\nof Wilmington, County of New Castle, State of Delaware. The Corporation may have
\nsuch other offices within and without the State of Delaware as have heretofore
\nbeen established or may hereafter be established by or with the authority of the
\nBoard. The Corporation153s administrative office shall be located at 5555 San
\nFelipe Road, Houston, Texas.<\/p>\n

Section 6.3 Fiscal Year.<\/em> The fiscal year of the Corporation will end
\non December 31.<\/p>\n

Section 6.4 Interested Directors; Quorum.<\/em> No contract or transaction
\nbetween the Corporation and one or more of its directors or officers, or between
\nthe Corporation and any other Entity in which one or more of its directors or
\nofficers are directors or officers (or hold equivalent offices or positions), or
\nhave a financial interest, will be void or voidable solely for this reason, or
\nsolely because the director or officer is present at or participates in the
\nmeeting of the Board or Board Committee which authorizes the contract or
\ntransaction, or solely because his or her votes are counted for that purpose,
\nif:<\/p>\n

(1) the material facts as to the relationship or interest of the director or
\nofficer and as to the contract or transaction are disclosed or are known to the
\nBoard or the Board Committee, and the Board or Board Committee in good faith
\nauthorizes the contract or transaction by the affirmative votes of a majority of
\nthe disinterested directors, even though the disinterested directors be less
\nthan a quorum; or<\/p>\n

(2) the material facts as to the relationship of the director or officer or
\ninterest and as to the contract or transaction are disclosed or are known to the
\nstockholders entitled to vote thereon, and the contract or transaction is
\nspecifically approved in good faith by vote of those stockholders; or<\/p>\n

(3) the contract or transaction is fair as to the Corporation as of the time
\nit is authorized, approved or ratified by the Board, a Board Committee or the
\nstockholders.<\/p>\n<\/p>\n

29<\/p>\n<\/p>\n

\n

Common or interested directors may be counted in determining the presence of
\na quorum at a meeting of the Board or of a Board Committee which authorizes the
\ncontract or transaction.<\/p>\n

Section 6.5 Form of Records.<\/em> Any records the Corporation maintains
\nin the regular course of its business, including its stock ledger, books of
\naccount, and minute books, may be kept on, or be in the form of, punch cards,
\nmagnetic tape, photographs, microphotographs or any other information storage
\ndevice, provided that the records so kept can be converted into clearly legible
\nform within a reasonable time.<\/p>\n

Section 6.6 Notices; Waiver of Notice. Whenever any notice is required to be
\ngiven to any stockholder, director or member of any Board Committee under the
\nprovisions of the DGCL, the Certificate of Incorporation or these By-laws, that
\nnotice will be deemed to be sufficient if given (a) by telegraphic, facsimile,
\ncable or wireless or electronic transmission or (b) by deposit of the same in
\nthe United States mail, with postage paid thereon, addressed to the person
\nentitled thereto at his address as it appears in the records of the Corporation,
\nand that notice will be deemed to have been given on the day of such
\ntransmission or mailing, as the case may be.<\/p>\n

Whenever any notice is required to be given to any stockholder or director
\nunder the provisions of the DGCL, the Certificate of Incorporation or these
\nBy-laws, a waiver thereof in writing signed by or by electronic transmission
\nfrom the person or persons entitled to that notice, whether before or after the
\ntime stated therein, will be equivalent to the giving of that notice. Attendance
\nof a person at a meeting will constitute a waiver of notice of that meeting,
\nexcept when the person attends a meeting for the express purpose of objecting,
\nat the beginning of the meeting, to the transaction of any business because the
\nmeeting is not lawfully called or convened. Neither the business to be
\ntransacted at, nor the purpose of, any regular or special meeting of the
\nstockholders, the Board or any Board Committee need be specified in any waiver
\nof notice in writing or by electronic transmission unless the Certificate of
\nIncorporation or these By-laws so require.<\/p>\n

Section 6.7 Resignations. Any director or officer of the Corporation may
\nresign at any time. Any such resignation must be made in writing or by
\nelectronic transmission to the Corporation and will take effect at the time
\nspecified in that writing or electronic transmission, or, if that resignation
\ndoes not specify any time, at the time of its receipt by the chairman or the
\nsecretary. The acceptance of a resignation will not be necessary to make it
\neffective, unless that resignation expressly so provides.<\/p>\n

If an incumbent director who is nominated for re-election to the Board does
\nnot receive sufficient votes “for” to be elected in accordance with Section 1.7,
\nthat incumbent director shall promptly tender his or her resignation to the
\nBoard. The Corporate Governance and Nominating Committee of the Board (the
\n“Corporate Governance and Nominating Committee”) shall make a recommendation to
\nthe Board as to whether to accept or reject the tendered resignation, or whether
\nother action should be taken. The Board shall act on the<\/p>\n<\/p>\n

30<\/p>\n<\/p>\n

\n

tendered resignation, taking into account the Corporate Governance and
\nNominating Committee153s recommendation, and publicly disclose (by a press
\nrelease, a filing with the Securities and Exchange Commission or other broadly
\ndisseminated means of communication) its decision regarding the tendered
\nresignation within 90 days from the date of the certification of the election
\nresults. The Corporate Governance and Nominating Committee in making its
\nrecommendation, and the Board in making its decision, may each consider any
\nfactors or other information that it considers appropriate and relevant. The
\ndirector who tenders his or her resignation should not participate in the
\nrecommendation of the Corporate Governance and Nominating Committee or the
\ndecision of the Board with respect to his or her resignation. If such incumbent
\ndirector153s resignation is not accepted by the Board, such director shall
\ncontinue to serve until the next annual meeting of the stockholders of the
\nCorporation and until his or her successor is duly elected, or his or her
\nearlier resignation or removal. If a director153s resignation is accepted by the
\nBoard pursuant to this Section 6.7, or if a nominee for director is not elected
\nand the nominee is not an incumbent director, then the Board, in its sole
\ndiscretion, may fill any resulting vacancy pursuant to the provisions of Article
\nSeventh of the Certficate of Incorporation or may decrease the size of the Board
\npursuant to the provisions of Section 2.1.<\/p>\n

Section 6.8 Facsimile Signatures. In addition to the provisions for the use
\nof facsimile signatures these By-laws elsewhere specifically authorize,
\nfacsimile signatures of any officer or officers of the Corporation may be used
\nas and whenever the Board by resolution so authorizes.<\/p>\n

Section 6.9 Reliance on Books, Reports and Records. Each director and each
\nmember of any Board Committee designated by the Board will, in the performance
\nof his duties, be fully protected in relying in good faith on the books of
\naccount or reports made to the Corporation by any of its officers, or by an
\nindependent certified public accountant, or by an appraiser selected with
\nreasonable care by the Board or by any such committee, or in relying in good
\nfaith upon other records of the Corporation.<\/p>\n

Section 6.10 Certain Definitional Provisions. (a) In these By-laws:<\/p>\n

“Board” or “Board of Directors” means the board of directors of the
\nCorporation.<\/p>\n

“Board Committee” means any committee of the Board.<\/p>\n

“Certificate of Incorporation” means at any time the original certificate of
\nincorporation of the Corporation as amended and restated from time to time to
\nthat time, including each certificate of designation, if any, respecting any
\nclass or series of preferred stock of the Corporation.<\/p>\n

“Chairman” or “chairman” means the chairman of the Board.<\/p>\n

“DGCL” means the General Corporation Law of the State of Delaware.<\/p>\n<\/p>\n

31<\/p>\n<\/p>\n

\n

“Exchange Act” means the Securities Exchange Act of 1934, as amended.<\/p>\n

“Secretary” or “secretary” means the secretary of the Corporation.<\/p>\n

(b) When used in these By-laws, the words “herein,” “hereof” and “hereunder”
\nand words of similar import refer to these By-laws as a whole and not to any
\nprovision of these By-laws, and the words “Article” and “Section” refer to
\nArticles and Sections of these By-laws unless otherwise specified.<\/p>\n

(c) Whenever the context so requires, the singular number includes the plural
\nand vice versa, and a reference to one gender includes the other gender and the
\nneuter.<\/p>\n

(d) The word “including” (and, with correlative meaning, the word “include”)
\nmeans including, without limiting the generality of any description preceding
\nthat word, and the words “shall” and “will” are used interchangeably and have
\nthe same meaning.<\/p>\n

Section 6.11 Captions. Captions to Articles and Sections of these By-laws are
\nincluded for convenience of reference only, and these captions do not constitute
\na part hereof for any other purpose or in any way affect the meaning or
\nconstruction of any provision hereof.<\/p>\n<\/p>\n

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