Attached files
Exhibit 3.8
Amended
AMENDED AND RESTATED
BY-LAWS
OF
XSTREAM SYSTEMS, INC.
******
A DELAWARE CORPORATION
Dated: March 14, 2007
TABLE OF CONTENTS
Page | ||||
ARTICLE I MEETINGS OF STOCKHOLDERS |
1 | |||
Section 1. Place of Meetings |
1 | |||
Section 2. Annual Meeting |
1 | |||
Section 3. Special Meetings |
1 | |||
Section 4. Notice of Meetings |
1 | |||
Section 5. Voting List |
1 | |||
Section 6. Quorum |
2 | |||
Section 7. Adjournments |
2 | |||
Section 8. Action at Meetings |
2 | |||
Section 9. Voting and Proxies |
3 | |||
Section 10. Action Without Meeting |
3 | |||
ARTICLE II DIRECTORS |
3 | |||
Section 1. Number, Election, Tenure and Qualification |
3 | |||
Section 2. Enlargement |
4 | |||
Section 3. Vacancies |
4 | |||
Section 4. Resignation and Removal |
4 | |||
Section 5. General Powers |
4 | |||
Section 6. Chairman of the Board |
4 | |||
Section 7. Place of Meetings |
4 | |||
Section 8. Regular Meetings |
5 | |||
Section 9. Special Meetings |
5 | |||
Section 10. Quorum, Action at Meeting, Adjournments |
5 | |||
Section 11. Action by Consent |
5 | |||
Section 12. Telephonic Meetings |
5 | |||
Section 13. Committees |
5 | |||
Section 14. Compensation |
6 | |||
ARTICLE III OFFICERS |
6 | |||
Section 1. Enumeration |
6 | |||
Section 2. Election |
6 | |||
Section 3. Tenure |
6 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 4. President |
7 | |||
Section 5. Vice-Presidents |
7 | |||
Section 6. Secretary |
7 | |||
Section 7. Assistant Secretaries |
8 | |||
Section 8. Treasurer |
8 | |||
Section 9. Assistant Treasurers |
8 | |||
Section 10. Bond |
8 | |||
Section 11. Action With Respect to Securities Of Other Corporations |
8 | |||
ARTICLE IV NOTICES |
9 | |||
Section 1. Delivery |
9 | |||
Section 2. Waiver of Notice |
9 | |||
ARTICLE V INDEMNIFICATION |
9 | |||
Section 1. Actions other than by or in the Right of the Corporation |
9 | |||
Section 2. Actions by or in the Right of the Corporation |
9 | |||
Section 3. Success on the Merits |
10 | |||
Section 4. Specific Authorization |
10 | |||
Section 5. Advance Payment |
10 | |||
Section 6. Non-Exclusivity |
10 | |||
Section 7. Insurance |
10 | |||
Section 8. Continuation of Indemnification and Advancement of Expenses |
11 | |||
Section 9. Severability |
11 | |||
Section 10. Intent of Article |
11 | |||
ARTICLE VI CAPITAL STOCK |
11 | |||
Section 1. Certificates of Stock |
11 | |||
Section 2. Lost Certificates |
11 | |||
Section 3. Transfer of Stock |
12 | |||
Section 4. Record Date |
12 | |||
Section 5. Registered Stockholders |
12 | |||
ARTICLE VII CERTAIN TRANSACTIONS |
13 | |||
Section 1. Transactions with Interested Parties |
13 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 2. Quorum |
13 | |||
ARTICLE VIII GENERAL PROVISIONS |
13 | |||
Section 1. Dividends |
13 | |||
Section 2. Reserves |
13 | |||
Section 3. Checks |
14 | |||
Section 4. Fiscal Year |
14 | |||
Section 5. Seal |
14 | |||
Section 6. Execution Of Corporate Contracts And Instruments |
14 | |||
Section 7. Records and Reports |
14 | |||
ARTICLE IX AMENDMENTS |
15 | |||
ARTICLE X CORPORATE OFFICES |
15 | |||
Section 1. Other Offices |
15 | |||
ARTICLE XI ADDITIONAL PROVISIONS |
15 | |||
Section 1. General |
15 | |||
Section 2. Additional Definitions |
16 | |||
Addendum |
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Register of Amendments to the By-Laws |
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* * * * *
BY-LAWS
* * * * *
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders shall be held at such
place within or without the State of Delaware as may be fixed from time to time by the Board of
Directors or the Chief Executive Officer, or if not so designated, at the registered office of the
corporation.
Section 2. Annual Meeting. Unless directors are elected by written consent in lieu of
an annual meeting as permitted by law and these By-Laws, an annual meeting of stockholders shall be
held at such date and time as shall be designated from time to time by the Board of Directors or
the Chief Executive Officer, at which meeting the stockholders shall elect by a plurality vote a
board of directors and shall transact such other business as may be properly brought before the
meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of
Directors shall cause the meeting to be held as soon thereafter as convenient, which meeting shall
be designated a special meeting in lieu of annual meeting. The Board of Directors may, in its sole
discretion, determine that the meeting may be held solely by means of remote communication, as
permitted by Section 211 of the Delaware General Corporation Law (DGCL). At such meetings,
directors shall be elected and any other proper business may be transacted.
Section 3. Special Meetings. Special meetings of the stockholders, for any purpose or
purposes, may, unless otherwise prescribed by statute or by the Certificate of Incorporation, be
called by the Board of Directors or the Chief Executive Officer and shall be called by the Chief
Executive Officer or Secretary at the request in writing of a majority of the Board of Directors,
or at the request in writing of stockholders owning not less than twenty percent (20%) of the
entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request
shall state the purpose or purposes of the proposed meeting. Business transacted at any special
meeting shall be limited to matters relating to the purpose or purposes stated in the notice of
meeting.
Section 4. Notice of Meetings. Except as otherwise provided by law, written notice of
each meeting of stockholders, annual or special, stating the place, date and hour of the meeting
and, in the case of a special meeting, the purpose or purposes for which the meeting is called,
shall be given not less than ten (10) or more than sixty (60) days before the date of the meeting,
to each stockholder entitled to vote at such meeting.
Section 5. Voting List. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of
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each stockholder. Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10)
days prior to the meeting, either at a place within the city or town where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept at the time and
place of the meeting during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 6. Quorum. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders for the transaction of business, except as otherwise provided by
statute, the Certificate of Incorporation or these By-Laws. Where a separate vote by a class or
classes is required, a majority of the outstanding shares of such class or classes, present in
person or represented by proxy, shall constitute a quorum entitled to take action with respect to
that vote on that matter. If no quorum shall be present or represented at any meeting of
stockholders, such meeting may be adjourned in accordance with Section 7 hereof, until a quorum
shall be present or represented.
Section 7. Adjournments. Any meeting of stockholders may be adjourned from time to
time to any other time and to any other place at which a meeting of stockholders may be held under
these By-Laws, which time and place shall be announced at the meeting, by a majority of the
stockholders present in person or represented by proxy at the meeting and entitled to vote (whether
or not a quorum is present), or, if no stockholder is present or represented by proxy, by any
officer entitled to preside at or to act as Secretary of such meeting, without notice other than
announcement at the meeting. At such adjourned meeting, any business may be transacted which might
have been transacted at the original meeting, provided that a quorum either was present at the
original meeting or is present at the adjourned meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting.
Section 8. Action at Meetings. When a quorum is present at any meeting, the
affirmative vote of the holders of a majority of the stock present in person or represented by
proxy, entitled to vote and voting on the matter (or where a separate vote by a class or classes is
required, the affirmative vote of the majority of shares of such class or classes present in person
or represented by proxy at the meeting) shall decide any matter (other than the election of
Directors) brought before such meeting, unless the matter is one upon which by express provision of
law, the Certificate of Incorporation or these By-Laws, a different vote is required, in which case
such express provision shall govern and control the decision of such matter. The stock of holders
who abstain from voting on any matter shall be deemed not to have been voted on such matter.
Directors shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting, entitled to vote and voting on the election of Directors. The
Chief Executive Officer of the Corporation or, if no such officer has been appointed or in his or
her absence, the President of the Corporation or, in his or her absence, the Chairman of the Board
of Directors, shall call to order any meeting of the stockholders and act as chairman of the
meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting shall be
such person as the chairman of the meeting appoints.
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Section 9. Voting and Proxies. Unless otherwise provided in the Certificate of
Incorporation, each stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of capital stock having voting power held of record by such stockholder. Each
stockholder entitled to vote at a meeting of stockholders, or to express consent or dissent to
corporate action in writing without a meeting, may authorize another person or persons to act for
him by proxy, but no such proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period. The Corporation may, and to the extent required by
law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and make a written report thereof. The Corporation may designate one or more alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act
at a meeting of stockholders, the chairman of the meeting may, and to the extent required by law,
shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her ability. Every vote
taken by ballots shall be counted by a duly appointed inspector or inspectors. The requirement, if
any, of a written ballot may be satisfied by a ballot submitted by electronic transmission,
provided that any such electronic transmission must either set forth or be submitted with
information from which it can be determined that the electronic transmission was authorized by the
stockholder or proxyholder.
Section 10. Action Without Meeting. Any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be (1) signed and dated by
the holders of outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted and (2) delivered to the Corporation within sixty days of the
earliest dated consent by delivery to its registered office in the State of Delaware (in which case
delivery shall be by hand or by certified or registered mail, return receipt requested), its
principal place of business, or an officer or agent of the Corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Written consents pursuant to this Section may be
satisfied by electronic transmission, provided that any such electronic transmission must either
set forth or be submitted with information from which it can be determined that the electronic
transmission was authorized by the stockholder.
ARTICLE II
DIRECTORS
Section 1. Number, Election, Tenure and Qualification. Subject to that certain
Shareholders Agreement to which this Corporation is a party, dated as of March 14, 2007 as may be
amended from time to time (the Shareholders Agreement) and Certificate of Incorporation, the
number of Directors which shall constitute the whole board shall be not less than one. Within such
limit, the number of Directors shall be determined by resolution of the Board of Directors or by
the stockholders at the annual meeting or at any special meeting of stockholders.
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Subject to the Shareholders Agreement, the directors shall be elected at the annual meeting or
at any special meeting of stockholders, or by written consent in lieu of an annual or special
meeting of the stockholders (provided, however, that if such consent is less than unanimous, such
action by written consent may be in lieu of holding an annual meeting only if all of the
directorships to which directors could be elected at an annual meeting held at the effective time
of such action are vacant and are filled by such action), except as provided in section 3 of this
Article, and each director elected shall hold office until his successor is elected and qualified,
unless sooner displaced. A director must be a natural person who is 18 years of age or older but
need not be a citizen of the United States, a resident of the State of Delaware or a stockholder.
Section 2. Enlargement. Subject to the Certificate of Incorporation and the
Shareholders Agreement, the number of the Board of Directors may be increased at any time by vote
of a majority of the Directors then in office.
Section 3. Vacancies. Subject to the Shareholders Agreement, vacancies and newly
created Directorships resulting from any increase in the authorized number of Directors may be
filled by a majority of the Directors then in office, though less than a quorum, or by a sole
remaining director, and the Directors so chosen shall hold office until the next annual election
and until their successors are duly elected and shall qualify, unless sooner displaced. If there
are no Directors in office, then an election of Directors may be held in the manner provided by
statute. In the event of a vacancy in the Board of Directors, the remaining Directors, except as
otherwise provided by law or these By-Laws, may exercise the powers of the full board until the
vacancy is filled.
Section 4. Resignation and Removal. Any director may resign at any time upon written
notice to the Corporation at its principal place of business or to the Chief Executive Officer or
Secretary. Such resignation shall be effective upon receipt unless it is specified to be effective
at some other time or upon the happening of some other event. Subject to the Shareholders
Agreement, any director or the entire Board of Directors may be removed, with or without cause, by
the holders of a majority of the shares then entitled to vote at an election of Directors, unless
otherwise specified by law or the Certificate of Incorporation.
Section 5. General Powers. The business and affairs of the Corporation shall be
managed by its Board of Directors, which may exercise all powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the stockholders.
Section 6. Chairman of the Board. If the Board of Directors appoints a chairman of
the board, he shall, when present, preside at all meetings of the stockholders and the Board of
Directors. He shall perform such duties and possess such powers as are customarily vested in the
office of the Chairman of the Board or as may be vested in him by the Board of Directors, but shall
not be considered an officer of the Corporation by virtue of holding such position.
Section 7. Place of Meetings. The Board of Directors may hold meetings, both regular
and special, either within or without the State of Delaware.
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Section 8. Regular Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be determined by the
board; provided that any director who is absent when such a determination is made shall be given
prompt notice of such determination. A regular meeting of the Board of Directors may be held
without notice immediately after and at the same place as the annual meeting of stockholders.
Section 9. Special Meetings. Special meetings of the board may be called by the
Chairman of the Board, Chief Executive Officer, President or Secretary with three (3) days notice
to each director, either personally or by telegram, cable, telecopy, commercial delivery service,
telex or similar means sent to his business or home address, or three (3) days notice by written
notice deposited in the mail, shall be given to each director by the Secretary or by the officer or
one of the Directors or aforementioned stockholder calling the meeting. A notice or waiver of
notice of any meeting of the Board of Directors need not specify the purposes of the meeting.
Section 10. Quorum, Action at Meeting, Adjournments. At all meetings of the board a
majority of Directors then in office, but in no event less than one third of the entire board,
shall constitute a quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by law or by the Certificate of
Incorporation. For purposes of this section, the term entire board shall mean the number of
Directors last fixed by the stockholders or Directors, as the case may be, in accordance with the
Certificate of Incorporation, law and these By-Laws; provided, however, that if less than all the
number so fixed of Directors were elected, the entire board shall mean the greatest number of
Directors so elected to hold office at any one time pursuant to such authorization. If a quorum
shall not be present at any meeting of the Board of Directors, a majority of the Directors present
thereat may adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 11. Action by Consent. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the
Board of Directors or of any committee thereof may be taken without a meeting, if all members of
the board or committee, as the case may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the board or committee.
Section 12. Telephonic Meetings. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, members of the Board of Directors or of any committee thereof may
participate in a meeting of the Board of Directors or of any committee, as the case may be, by
means of conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.
Section 13. Committees. Subject to the Shareholders Agreement, the Board of Directors
may designate one or more committees, each committee to consist of one or more of the Directors of
the Corporation. The board may designate one or more Directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
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of the committee. Any such committee, to the extent provided in the resolution of the Board
of Directors, shall have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to (a) adopting, amending or repealing the By-Laws of the
Corporation or any of them or (b) approving or adopting, or recommending to the stockholders any
action or matter expressly required by law to be submitted to stockholders for approval. Such
committee or committees shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep regular minutes of its
meetings and make such reports to the Board of Directors as the Board of Directors may request.
Except as the Board of Directors may otherwise determine, any committee may make rules for the
conduct of its business, but unless otherwise provided by the Directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is provided in these
By-Laws for the conduct of its business by the Board of Directors.
Section 14. Compensation. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority to fix from time to
time the compensation of Directors. The Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and the performance of their responsibilities
as Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors
and/or a stated salary as director. No such payment shall preclude any director from serving the
Corporation or its parent or subsidiary corporations in any other capacity and receiving
compensation therefor. The Board of Directors may also allow compensation for members of special
or standing committees for service on such committees.
ARTICLE III
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a Chief Executive Officer, President, a Secretary and a Treasurer and
such other officers with such titles, terms of office and duties as the Board of Directors may from
time to time determine, including a Chairman of the Board, one or more Vice-Presidents, and one or
more Assistant Secretaries and Assistant Treasurers. If authorized by resolution of the Board of
Directors, the Chief Executive Officer may be empowered to appoint from time to time Assistant
Secretaries and Assistant Treasurers. Any number of offices may be held by the same person, unless
the Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election. The Board of Directors at its first meeting after each annual
meeting of stockholders shall choose a President, a Secretary and a Treasurer. Other officers may
be appointed by the Board of Directors at such meeting, at any other meeting, or by written
consent.
Section 3. Tenure. The officers of the Corporation shall hold office until their
successors are chosen and qualify, unless a different term is specified in the vote choosing or
appointing him, or until his earlier death, resignation or removal. Any officer elected or
appointed by the Board of Directors or by the Chief Executive Officer may be removed at any
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time, with or without cause, by the affirmative vote of a majority of the Board of Directors
or a committee duly authorized to do so, except that any officer appointed by the Chief Executive
Officer may also be removed at any time, with or without cause, by the Chief Executive Officer.
Any vacancy occurring in any office of the Corporation may be filled by the Board of Directors, at
its discretion. Any officer may resign by delivering his written resignation to the Corporation at
its principal place of business or to the Chief Executive Officer or the Secretary. Such
resignation shall be effective upon receipt unless it is specified to be effective at some other
time or upon the happening of some other event.
Section 4. President. The President shall be the Chief Executive Officer unless the
Board of Directors otherwise provides. If no Chief Executive Officer shall have been appointed by
the Board of Directors, all references herein to the Chief Executive Officer shall be to the
President. The President shall, unless the Board of Directors provides otherwise in a specific
instance or generally, preside at all meetings of the stockholders and the Board of Directors, have
general and active management of the business of the Corporation and see that all orders and
resolutions of the Board of Directors are carried into effect. The President shall execute bonds,
mortgages, and other contracts requiring a seal, under the seal of the corporation, except where
required or permitted by law to be otherwise signed and executed and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some other officer or
agent of the corporation.
Section 5. Vice-Presidents. In the absence of the President or in the event of his or
her inability or refusal to act, the Vice-President, or if there be more than one Vice-President,
the Vice-Presidents in the order designated by the Board of Directors or the Chief Executive
Officer (or in the absence of any designation, then in the order determined by their tenure in
office) shall perform the duties of the President, and when so acting, shall have all the powers of
and be subject to all the restrictions upon the President. The Vice-Presidents shall perform such
other duties and have such other powers as the Board of Directors or the Chief Executive Officer
may from time to time prescribe.
Section 6. Secretary. The Secretary shall have such powers and perform such duties as
are incident to the office of Secretary. The Secretary shall maintain a stock ledger and prepare
lists of stockholders and their addresses as required and shall be the custodian of corporate
records. The Secretary shall attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation and of the Board of
Directors in a book to be kept for that purpose and shall perform like duties for the standing
committees when required. The Secretary shall give, or cause to be given, notice of all meetings
of the Stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be from time to time prescribed by the Board of Directors or Chief Executive Officer,
under whose supervision the Secretary shall be. The Secretary shall have custody of the corporate
seal of the Corporation and the Secretary, or an assistant Secretary, shall have authority to affix
the same to any instrument requiring it and when so affixed, it may be attested by his or her
signature or by the signature of such assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to attest the affixing by
his or her signature.
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Section 7. Assistant Secretaries. The assistant Secretary, or if there be more than
one, the assistant secretaries in the order determined by the Board of Directors, the Chief
Executive Officer or the Secretary (or if there be no such determination, then in the order
determined by their tenure in office), shall, in the absence of the Secretary or in the event of
his or her inability or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board of Directors, the Chief
Executive Officer or the Secretary may from time to time prescribe. In the absence of the
Secretary or any assistant Secretary at any meeting of stockholders or Directors, the person
presiding at the meeting shall designate a temporary or acting Secretary to keep a record of the
meeting.
Section 8. Treasurer. The Treasurer shall perform such duties and shall have such
powers as may be assigned to him or her by the Board of Directors or the Chief Executive Officer.
In addition, the Treasurer shall perform such duties and have such powers as are incident to the
office of Treasurer. The Treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board of
Directors, when the Chief Executive Officer or Board of Directors so requires, an account of all
his or her transactions as Treasurer and of the financial condition of the corporation.
Section 9. Assistant Treasurers. The assistant Treasurer, or if there shall be more
than one, the assistant Treasurers in the order determined by the Board of Directors, the Chief
Executive Officer or the Treasurer (or if there be no such determination, then in the order
determined by their tenure in office), shall, in the absence of the Treasurer or in the event of
his or her inability or refusal to act, perform the duties and exercise the powers of the Treasurer
and shall perform such other duties and have such other powers as the Board of Directors, the Chief
Executive Officer or the Treasurer may from time to time prescribe.
Section 10. Bond. If required by the Board of Directors, any officer shall give the
Corporation a bond in such sum and with such surety or sureties and upon such terms and conditions
as shall be satisfactory to the Board of Directors, including without limitation a bond for the
faithful performance of the duties of his office and for the restoration to the Corporation of all
books, papers, vouchers, money and other property of whatever kind in his possession or under his
control and belonging to the corporation.
Section 11. Action With Respect to Securities Of Other Corporations. Unless otherwise
directed by the Board of Directors, the Chief Executive Officer, the President or any officer of
the Corporation authorized by the Chief Executive Officer or the President is authorized to vote
and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of
stockholders of or with respect to any action of stockholders of any other corporation in which the
Corporation may hold securities and otherwise to exercise any and all rights and powers which the
Corporation may possess by reason of its ownership of securities in such other corporation.
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ARTICLE IV
NOTICES
Section 1. Delivery. Whenever, under the provisions of law, or of the Certificate of
Incorporation or these By-Laws, written notice is required to be given to any director or
stockholder, such notice may be given by mail, addressed to such director or stockholder, at his
address as it appears on the records of the corporation, with postage thereon prepaid, and such
notice shall be deemed to be given at the time when the same shall be deposited in the United
States mail. Unless written notice by mail is required by law, written notice may also be given by
telegram, cable, telecopy, commercial delivery service, telex or similar means, addressed to such
director or stockholder at his address as it appears on the records of the corporation, in which
case such notice shall be deemed to be given when delivered into the control of the persons charged
with effecting such transmission, the transmission charge to be paid by the Corporation or the
person sending such notice and not by the addressee. Oral notice or other in hand delivery (in
person or by telephone) shall be deemed given at the time it is actually given.
Section 2. Waiver of Notice. Whenever any notice is required to be given under the
provisions of law or of the Certificate of Incorporation or of these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE V
INDEMNIFICATION
Section 1. Actions other than by or in the Right of the Corporation. The Corporation
shall 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 (a Proceeding) (other than an action by or in the right of the
corporation) by reason of the fact that such 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 (an Indemnitiee), against expenses, liabilities and losses (including reasonable
attorneys fees), judgments, fines, ERISA excise taxes, penalties and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action, suit or proceeding
if such person acted in good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe such 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 such 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 such persons conduct was unlawful.
Section 2. Actions by or in the Right of the Corporation. The Corporation shall
indemnify any Indemnitee against expenses, liabilities, and losses (including reasonable
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attorneys fees), judgments, fines, ERISA excise taxes, penalties, and amounts actually and
reasonably incurred by such person in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner he or she 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 unless and only to the extent that the Court of Chancery of the State of Delaware 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 of the State of
Delaware or such other court shall deem proper.
Section 3. Success on the Merits. To the extent that any person described in Section
1 or 2 of this Article V has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in said Sections, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including reasonable attorneys fees) actually
and reasonably incurred by him in connection therewith.
Section 4. Specific Authorization. Any indemnification under Section 1 or 2 of this
Article V (unless ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of any person described in said Sections is
proper in the circumstances because he has met the applicable standard of conduct set forth in said
Sections. Such determination shall be made (1) by the Board of Directors by a majority vote of
Directors who were not parties to such Proceeding (even though less than a quorum), or (2) if there
are no disinterested Directors or if a majority of disinterested Directors so directs, by
independent legal counsel (who may be regular legal counsel to the Corporation) in a written
opinion, or (3) by the stockholders of the Corporation.
Section 5. Advance Payment. Expenses incurred in defending a pending or threatened
civil or criminal 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
any person described in said Section to repay such amount if it shall ultimately be determined that
he or she is not entitled to indemnification by the Corporation as authorized in this Article V.
Section 6. Non-Exclusivity. The indemnification and advancement of expenses provided
by, or granted pursuant to, the other Sections of this Article V shall not be deemed exclusive of
any other rights to which those provided indemnification or advancement of expenses may be entitled
under any By-Law, agreement, vote of stockholders or disinterested Directors or otherwise, both as
to action in his official capacity and as to action in another capacity while holding such office.
Section 7. Insurance. The Board of Directors may authorize, by a vote of the majority
of the full board, the Corporation 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 him
and incurred by him in any such capacity, or arising out of his status as such,
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whether or not the Corporation would have the power to indemnify him against such liability
under the provisions of this Article V.
Section 8. Continuation of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article V
shall 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.
Section 9. Severability. If any word, clause or provision of this Article V or any
award made hereunder shall for any reason be determined to be invalid, the provisions hereof shall
not otherwise be affected thereby but shall remain in full force and effect.
Section 10. Intent of Article. The intent of this Article V is to provide for
indemnification and advancement of expenses to the fullest extent permitted by Section 145 of the
General Corporation Law of Delaware. To the extent that such Section or any successor section may
be amended or supplemented from time to time, this Article V shall be amended automatically and
construed so as to permit indemnification and advancement of expenses to the fullest extent from
time to time permitted by law.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates of Stock. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or in the name of the Corporation by, the chairman or
Vice-chairman of the Board of Directors, or the President or a Vice-President and the Treasurer or
an assistant Treasurer, or the Secretary or an assistant Secretary of the corporation, certifying
the number of shares owned by such holder in the corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
Certificates may be issued for partly paid shares and in such case upon the face or back of the
certificates issued to represent any such partly paid shares, the total amount of the consideration
to be paid therefor, and the amount paid thereon shall be specified. No certificates shall be
issued in bearer form.
Section 2. Lost Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or certificates, or his legal representative, to give reasonable evidence of such loss, theft or
destruction, to advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of such new certificate.
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Section 3. Transfer of Stock. Upon surrender to the Corporation or the transfer agent
of the Corporation of a certificate for shares, duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, and proper evidence of compliance with other
conditions to rightful transfer, it shall be the duty of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the transaction upon its
books. Transfers of stock shall be made only upon the transfer books of the Corporation kept at an
office of the Corporation or by transfer agents designated to transfer shares of the stock of the
Corporation.
Section 4. Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the
Board of Directors may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and which shall not be more
than sixty days nor less then ten days before the date of such meeting. A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting. If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day before the day on which notice is given, or, if notice is waived, at the close
of business on the day before the day on which the meeting is held. In order that the Corporation
may determine the stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and which shall not be
more than ten days after the date upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date is fixed, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by statute, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to the Corporation as
provided in Section 10 of Article I. If no record date is fixed and prior action by the Board of
Directors is required, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business on the date on
which the Board of Directors adopts the resolution taking such prior action. In order that the
Corporation may determine the stockholders entitled to receive payment of any dividend or other
distribution or allotment of any rights or the stockholders entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted, and which shall be not more than sixty days prior
to such action. If no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of Directors adopts
the resolution relating to such purpose.
Section 5. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and assessments a person
registered on its books as the owner of shares, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or
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not it shall have express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
CERTAIN TRANSACTIONS
Section 1. Transactions with Interested Parties. No contract or transaction between
the Corporation and one or more of its Directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one or more of its
Directors or officers are Directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee thereof which authorizes the contract or
transaction or solely because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the Board of Directors or the committee, and the board or
committee in good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested Directors, even though the disinterested Directors be less than a
quorum; or
(b) The material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board of Directors, a committee thereof, or the stockholders.
Section 2. Quorum. Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation, if any,
may be declared by the Board of Directors at any regular or special meeting or by written consent,
pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Reserves. The Directors may set apart out of any funds of the Corporation
available for dividends a reserve or reserves for any proper purpose and may abolish any such
reserve.
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Section 3. Checks. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall begin on the first
day of January.
Section 5. Seal. The Board of Directors may, by resolution, adopt a corporate seal.
The corporate seal shall have inscribed thereon the name of the corporation, the year of its
organization and the word Delaware. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise. The seal may be altered from time to time by
the Board of Directors.
Section 6. Execution Of Corporate Contracts And Instruments. The Board of Directors
may, except as otherwise provided in these By-laws, authorize any officer or officers, or agent or
agents, to enter into any contract or execute any instrument in the name of and on behalf of the
Corporation; such authority may be general or confined to specific instances. Unless so authorized
or ratified by the Board of Directors or within the agency power of an officer, no officer, agent
or employee shall have any power or authority to bind the Corporation by any contract or engagement
or to pledge its credit or to render it liable for any purpose or for any amount.
Section 7. Records and Reports. The Corporation shall, either at its principal
executive offices or at such place or places as designated by the Board of Directors, keep a record
of its stockholders listing their names and addresses and the number and class of shares held by
each stockholder, a copy of these By-laws as amended to date, accounting books and other records.
Subject to Section 220 of DGCL, any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have the right during the usual
hours for business to inspect for any proper purpose the Corporations stock ledger, a list of its
stockholders, and its other books and records and to make copies or extracts therefrom. A proper
purpose shall mean a purpose reasonably related to such persons interest as a stockholder. In
every instance where an attorney or other agent is the person who seeks the right to inspection,
the demand under oath shall be accompanied by a power of attorney or such other writing that
authorizes the attorney or other agent to so act on behalf of the stockholder. The demand under
oath shall be directed to the Corporation at its registered office in Delaware or at its principal
place of business. A complete list of stockholders entitled to vote at any meeting of
stockholders, arranged in alphabetical order for each class of stock and showing the address of
each such stockholder and the number of shares registered in each such stockholders name, shall be
open to the examination of any such stockholder for a period of at least 10 days before the meeting
to the extent and in the manner provided by law. The stock list shall also be open to the
examination of any stockholder during the whole time of the meeting as provided by law. This list
shall presumptively determine the identity of the stockholders entitled to vote at the meeting and
the number of shares held by each of them. Any director shall have the right to examine the
Corporations stock ledger, a list of its stockholders, and its other books and records for a
purpose reasonably related to his or her position as a director.
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ARTICLE IX
AMENDMENTS
Subject to the Certificate of Incorporation, the By-laws of the Corporation may be altered,
amended or repealed or new By-Laws may be adopted by the stockholders or by the Board of Directors;
provided, however, that no by-law may be adopted, amended or repealed by the stockholders except by
the vote or written consent of at least a majority of the voting power of the Corporation. The
fact that such power has been so conferred upon the Board of Directors shall not divest the
stockholders of the power, nor limit their power, to adopt, amend or repeal Bylaws as set forth in
this Article IX.
ARTICLE X
CORPORATE OFFICES
Section 1. Other Offices. The Board of Directors may at any time establish other
offices at any place or places where the Corporation is qualified to do business.
ARTICLE XI
ADDITIONAL PROVISIONS
Section 1. General. So long as any shares of Series A Preferred, Additional Preferred
or Conversion Common Shares are outstanding, the Corporation shall not take, and shall not permit
any of its Subsidiaries to take, any of the following actions without the approval of at least a
majority of the Board of Directors (including the approval of at least one of the Investor
Directors):
(a) adopt or approve a business plan and budget, or adopt or approve any amendment to an
existing business plan or budget, for a fiscal year (such business plan and budget, or any
amendment thereto, so approved by the Board, a Budget);
(b) adopt, amend or modify, or increase the number of shares reserved under, any employee
benefit plan, stock option plan or employee stock ownership plan, or other plan adopted by the
Corporation for issuance of shares of common stock or any other securities to its employees,
officers, directors or consultants (including, without limitation, the Corporations 2004 Stock
Option Incentive Plan);
(c) enter into or be a party to any transaction or arrangement after the First Closing Date
(as defined in the Preferred Stock Purchase Agreement), or materially modify, any existing
transaction or arrangement, with any Affiliate (other than transactions or arrangements between the
Corporation and a wholly owned Subsidiary of the Corporation or between wholly owned Subsidiaries
of the Corporation and other than customary employment arrangements which are on reasonable terms
and have been approved by the Board);
(d) hire or terminate a Chief Executive Officer or Chief Financial Officer, or promote any
employee to either such position;
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(e) file any claim (other than a cross-claim or counter-claim), action, suit or other
proceeding against any Person (other than holders of the Series A Preferred or any of their
Affiliates or agents) that is material to the business of the Corporation and its Subsidiaries,
taken as a whole;
(f) terminate or change the Corporations independent accountants or outside legal counsel;
(g) hire or otherwise engage any investment bank or similar financial advisory firm in
connection with a Qualified IPO or a Sale of the Corporation; or
(h) establish or acquire any Subsidiary (other than a wholly owned Subsidiary).
Section 2. Additional Definitions. For purposes of this Article, the following terms
shall have the respective specified meanings:
Additional Preferred means a series of preferred stock of the Corporation having a dividend,
liquidation and redemption preference prior to the Series A Preferred, but otherwise having the
same terms and provisions as the Series A Preferred; provided no such shares may be created or
issued except as contemplated in Section 3.4 of the Preferred Stock Purchase Agreement.
Affiliates shall have the meaning set forth in the Shareholders Agreement.
Conversion Common Shares means (i) the common stock issued or issuable upon conversion of
the Series A Preferred, (ii) the common stock issued or issuable upon conversion or redemption of
any Additional Preferred and (iii) any common stock issued or issuable with respect to the
securities referred to in clauses (i) or (ii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation or other
reincorporation. As to any particular Conversion Common Shares, such shares shall cease to be
Conversion Common Shares when they have been (x) effectively registered under the Securities Act of
1933, as amended, and disposed of in accordance with the registration statement covering them, (y)
distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act of 1933, as then in effect, or any comparable statement under any similar federal
statute then in force or (z) repurchased by the Corporation.
Investor Director shall mean any director of the Board designated by the Investors pursuant
to the terms of the Shareholders Agreement.
Investors has the meaning set forth in the Shareholders Agreement.
Person shall have the meaning set forth in the Shareholders Agreement.
Preferred Stock Purchase Agreement means the Series A Preferred Stock Purchase Agreement
dated as of March 14, 2007 by and among the Corporation and the purchasers of Series A Preferred
named therein.
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Qualified IPO shall have the meaning set forth in the Preferred Stock Purchase Agreement.
Sale of the Corporation shall have the meaning set forth in the Shareholders Agreement.
Series A Preferred means the Series A Redeemable Convertible Preferred Stock of the
Corporation, $.0001 par value per share.
Subsidiary shall have the meaning set forth in the Shareholders Agreement.
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Register of Amendments to the By-Laws
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