Attached files
Exhibit 3.2
State of Delaware | ||||||
Secretary of State | ||||||
Division of Corporations | ||||||
Delivered 05:21 PM 01/04/2005 | ||||||
STATE OF DELAWARE | FILED 05:13 PM 01/04/2005 | |||||
CERTIFICATE OF AMENDMENT | SRV 050006356 3808804 FILE | |||||
OF CERTIFICATE OF INCORPORATION | ||||||
OF |
XSTREAM
SYSTEMS, INC.
a corporation organized and existing under and by virtue of the General Corporation Law of the
State of Delaware.
DOES HEREBY CERTIFY:
FIRST: That by Unanimous Written Consent of the Board of Directors of XStream Systems, Inc.,
resolutions were duly adopted setting forth proposed amendments of the Certificate of
Incorporation of said corporation, declaring said amendments to be advisable and, by Unanimous
Written Consent, the stockholders of said corporation approved the proposed amendments of the
Certificate of Incorporation of said corporation. The resolutions setting forth the proposed
amendments are as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be amended
by changing the Article thereof numbered Fourth so that, as amended, said
Article shall be and read as follows:
FOURTH: CAPITAL STOCK
A. Classes of Stock. The Corporation is authorized to issue two
classes of stock to be designated, respectively, Common Stock and
Preferred Stock.
1. Common Stock. The total number of shares of Common
Stock that the Corporation is authorized to issue is Ten Million
(10,000,000) shares, each with a par value of $0.0001 per share.
2. Preferred Stock. The Corporation is authorized to issue
Three Million (3,000,000) shares, each with a par value of $0.0001
per share, of Preferred Stock of different series as described below.
B. Rights, Preferences and Restrictions of Preferred Stock. The
Preferred Stock authorized may be issued from time to time in one or
more series with the rights, preferences and designations for each such
series of Preferred Stock to be determined by the Corporations Board of
Directors.
;and be it further
RESOLVED,
that the Certificate of Incorporation of this corporation be amended
to add Article Eighth so that said Article shall be and read as follows:
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(a) A corporation shall have power to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action by or in the right
of the corporation) by reason of the fact that the person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe the persons conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which the person reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that the persons
conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including attorneys fees) actually and
reasonably incurred by the person in connection with the defense or settlement of such action or
suit if the person acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
(c) To the extent that a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim, issue of matter therein, such
person
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shall be indemnified against expenses (including attorneys fees) actually and reasonably
incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper in
the circumstances because the person has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e) Expenses (including attorneys fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation as authorized in this section. Such
expenses (including attorneys fees) incurred by former directors and
officers or other employees and agents may be so paid upon such terms
and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such persons official capacity and as to
action In another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any
such capacity, or arising out of such persons status as such, whether or
not the corporation would have the power to indemnify such person
against such liability under this section.
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(h) For purposes of this section, references to the corporation shall include, in
addition to the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is or was
a director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under this section with respect
to the resulting or surviving corporation as such person would have with respect to
such constituent corporation if its separate existence had continued.
(i) For purposes of this section, references to other enterprises shall include
employee benefit plans; references to fines shall include any excise taxes
assessed on a person with respect to any employee benefit plan; and references to
serving at the request of the corporation shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner not opposed to the best interests of the corporation as referred
to in this section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and
determine all actions for advancement of expenses or indemnification brought under
this section or under any bylaw, agreement, vote of stockholders or disinterested
directors, or otherwise. The Court of Chancery may summarily determine a
corporations obligation to advance expenses (including attorneys fees).
SECOND: That thereafter, pursuant to resolution of its Board of Directors, the shareholders of
the Corporation, by Unanimous Written Consent, voted in favor of the amendments.
THIRD: That said amendments were duly adopted in accordance with the provisions of Section
242 of the General Corporation Law of the State of Delaware.
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FOURTH: That the capital of said corporation shall not be reduced under or by reason of said
amendments.
IN
WITNESS WHEREOF, said XStream Systems, Inc. has caused this certificate to be signed by Brian
T. Mayo, President of the Corporation, this
29th
day of November, 2004.
/s/ Brian T. Mayo | ||||
Brian T. Mayo, President | ||||
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