EX-4.2



 





Exhibit 4.2




AMICUS THERAPEUTICS, INC.




AMENDED AND RESTATED BY-LAWS




Article I. — General.




     1.1. Offices.
The registered office of Amicus Therapeutics, Inc. (the “Company”) shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Company may also have offices at such
other places both within and without the State of Delaware as the board of directors of the Company
(the “Board of Directors”) may from time to time determine or the business of the Company may
require.



     1.2. Seal. The seal, if any, of the Company shall be in the form of a circle and shall have inscribed
thereon the name of the Company, the year of its organization and the words “Corporate Seal,
Delaware.”



     1.3. Fiscal Year. The fiscal year of the Company shall be the period from January 1 through December 31.



Article II. — Stockholders.




     2.1. Place of Meetings.
Each meeting of the stockholders shall be held upon notice as hereinafter provided, at such
place as the Board of Directors shall have determined and as shall be stated in such notice.



     2.2. Annual Meeting.
The annual meeting of the stockholders shall be held each year on such date and at such time
as the Board of Directors may determine. At each annual meeting the stockholders entitled to vote
shall elect such members of the Board of Directors as are standing for election, by plurality vote
by ballot, and they may transact such other corporate business as may properly be brought before
the meeting. At the annual meeting any business may be transacted, irrespective of whether the
notice calling such meeting shall have contained a reference thereto, except where notice is
required by law, the Company’s certificate of incorporation (as amended from time to time, the
“Certificate of Incorporation”), or these by-laws.



     2.3. Quorum.
At all meetings of the stockholders 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 requisite for the transaction of business except as otherwise provided by law,
the Company’s Certificate of Incorporation, or these by-laws. Whether or not there is such a
quorum at
any meeting, the chairman of the meeting or the stockholders entitled to vote thereat, present
in person or by proxy, by a majority vote, may adjourn the meeting from time to time without notice
other than announcement at the meeting. If the adjournment is for more than thirty (30) 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. At
such adjourned meeting, at which the requisite amount of voting stock shall be represented, any
business may be transacted that might have been transacted if the meeting had been held as
originally called. The stockholders present in person or by proxy at a duly called meeting at
which a quorum is present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.



 









 





     2.4. Right to Vote; Proxies. Subject to the provisions of the Company’s Certificate
of Incorporation, each holder of a share or shares of capital stock of the Company having the right
to vote at any meeting shall be entitled to one vote for each such share of stock held by him. Any
stockholder entitled to vote at any meeting of stockholders may vote either in person or by proxy,
but no proxy that is dated more than three years prior to the meeting at which it is offered shall
confer the right to vote thereat unless the proxy provides that it shall be effective for a longer
period. A proxy may be granted by a writing executed by the stockholder or his authorized agent or
by transmission or authorization of transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization, or like agent duly authorized by the person
who will be the holder of the proxy to receive such transmission, subject to the conditions set
forth in Section 212 of the Delaware General Corporation Law, as it may be amended from time to
time (the “DGCL”).



     2.5. Voting.
At all meetings of stockholders, except as otherwise expressly provided for by statute, the
Company’s Certificate of Incorporation or these by-laws, (i) in all matters other than the election
of directors, the affirmative vote of a majority of shares present in person or represented by
proxy at the meeting and entitled to vote on such matter shall be the act of the stockholders and
(ii) directors shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of directors.



     2.6. Notice of Annual Meetings.
Written notice of the annual meeting of the stockholders shall be mailed to each stockholder
entitled to vote thereat at such address as appears on the stock books of the Company at least ten
(10) days (and not more than sixty (60) days) prior to the meeting. The Board of Directors may
postpone any annual meeting of the stockholders at its discretion, even after notice thereof has
been mailed. It shall be the duty of every stockholder to furnish to the Secretary of the Company
or to the transfer agent, if any, of the class of stock owned by him and his post-office address,
and to notify the Secretary of any change therein. Notice need not be given to any stockholder who
submits a written waiver of notice signed by him before or after the time stated therein.
Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of
such meeting, except when the stockholder attends the meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written waiver of notice.



     2.7. Stockholders’ List.
A complete list of the stockholders entitled to vote at any meeting of stockholders, arranged
in alphabetical order and showing the address of each stockholder, and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary and shall be open to
the examination of any stockholder, for any purpose germane to the meeting for a period of at least
ten days before such meeting (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of the meeting, or
(ii) during ordinary business hours, at the principal place of business of the Company, and said
list shall be produced and kept at the time and place of such meeting during the whole time of said
meeting, and may be inspected by any stockholder who is present at the place of said meeting, or,
if the meeting is to be held solely by means of remote communication, on a reasonably accessible
electronic network and the information required to access such list shall be provided with the
notice of the meeting.



     2.8. Special Meetings.
Special meetings of the stockholders for any purpose or purposes, unless otherwise provided by
statute, may be called only by the Chairman of the Board of Directors, the President, or a majority
of the Board of Directors. Any such person or persons may postpone



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any special meeting of the
stockholders at its or their discretion, even after notice thereof has been mailed.



     2.9. Notice of Special Meetings.
Written notice of a special meeting of stockholders, stating the time and place and object
thereof shall be mailed, postage prepaid, not less than ten (10) nor more than sixty (60) days
before such meeting, to each stockholder entitled to vote thereat, at such address as appears on
the books of the Company. No business may be transacted at such meeting except that referred to in
said notice, or in a supplemental notice given also in compliance with the provisions hereof, or
such other business as may be germane or supplementary to that stated in said notice or notices.
Notice need not be given to any stockholder who submits a written waiver of notice signed by him
before or after the time stated therein. Attendance of a stockholder at a meeting of stockholders
shall constitute a waiver of notice of such meeting, except when the stockholder attends the
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction
of any business because the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the stockholders need be
specified in any written waiver of notice.



     2.10. Inspectors.



     1. One or more inspectors may be appointed by the Board of Directors before or at any meeting
of stockholders, or, if no such appointment shall have been made, the presiding officer may make
such appointment at the meeting. At the meeting for which the inspector or inspectors are
appointed, he or they shall open and close the polls, receive and take charge of the proxies and
ballots, and decide all questions touching on the qualifications of voters, the validity of
proxies, and the acceptance and rejection of votes. If any inspector previously appointed shall
fail to attend or refuse or be unable to serve, the presiding officer shall appoint an inspector in
his place.



     2. At any time at which the Company has a class of voting stock that is (i) listed on a
national securities exchange, (ii) authorized for quotation on an inter-dealer quotation system of
a registered national securities association, or (iii) held of record by more than 2,000
stockholders,
the provisions of Section 231 of the DGCL with respect to inspectors of election and voting
procedures shall apply, in lieu of the provisions of paragraph 1 of this § 2.10.



     2.11. Stockholders’ Consent in Lieu of Meeting.
Unless otherwise provided in the Company’s Certificate of Incorporation, any action required
to be taken at any annual or special meeting of stockholders of the Company, or any action that may
be taken at any annual or special meeting of such stockholders, may be taken only at such a
meeting, and not by written consent of stockholders.



     2.12. Procedures. For nominations for election to the Board of Directors or for
other business to be properly brought by a stockholder before a meeting of stockholders, the
stockholder must first have given timely written notice thereof to the Secretary of the Company.
To be timely, a notice of nominations or other business to be brought before an annual meeting of
stockholders must be delivered to the Secretary not less than 120 nor more than 150 days prior to
the first anniversary of the date of the Company’s proxy statement delivered to stockholders in
connection with the preceding year’s annual meeting, or if the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary, or if no proxy statement was
delivered to stockholders by the Company in connection with the preceding year’s annual meeting,
such notice must be delivered not earlier than 90 days prior to such annual meeting and not later
than the later of (i) 60 days prior to the annual meeting or (ii) 10 days following the date on
which public announcement of the date of such annual meeting is first made by the Company. With
respect to special meetings of



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stockholders, such notice must be delivered to the Secretary not
more than 90 days prior to such meeting and not later than the later of (i) 60 days prior to such
meeting or (ii) 10 days following the date on which public announcement of the date of such meeting
is first made by the Company. Such notice must contain the name and address of the stockholder
delivering the notice and a statement with respect to the amount of the Company’s stock
beneficially and/or legally owned by such stockholder, the nature of any such beneficial ownership
of such stock, the beneficial ownership of any such stock legally held by such stockholder but
beneficially owned by one or more others, and the length of time for which all such stock has been
beneficially and/or legally owned by such stockholder, and information about each nominee for
election as a director substantially equivalent to that which would be required in a proxy
statement pursuant to the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Securities and Exchange Commission thereunder, and/or a description
of the proposed business to be brought before the meeting, as the case may be.



Article III. — Directors.




     3.1. Number of Directors.



     1. Except as otherwise provided by law, the Company’s Certificate of Incorporation, or these
by-laws, the property and business of the Company shall be managed by or under the direction of the
Board of Directors. Directors need not be stockholders, residents of Delaware, or citizens of the
United States. The use of the phrase “whole board” herein refers to the total number of directors
which the Company would have if there were no vacancies.



     2. The number of directors constituting the full Board of Directors shall be as determined by
the Board of Directors from time to time. The Board of Directors shall be divided into three
classes of directors, as determined by the Board of Directors, such classes to be as nearly equal
in number of directors as possible, having staggered three-year terms of office, the term of
office of the directors of the first such class to expire as of the first annual meeting of the
Company’s stockholders following the closing of the initial public offering of the Company’s common
stock, those of the second class to expire as of the second annual meeting of the Company’s
stockholders following such closing, and those of the third class as of the third annual meeting of
the Company’s stockholders following such closing, such that at each annual meeting of stockholders
after such closing, nominees will stand for election to succeed those directors whose terms are to
expire as of such meeting. Members of the Board of Directors shall hold office until the annual
meeting of stockholders at which their respective successors are elected and qualified or until
their earlier death, incapacity, resignation, or removal. Except as the DGCL or the Company’s
Certificate of Incorporation may otherwise require, in the interim between annual meetings of
stockholders or special meetings of stockholders called for the election of directors and/or for
the removal of one or more directors and for the filling of any vacancy in that connection, any
vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of
directors for cause, may be filled by the vote of a majority of the remaining directors then in
office, although less than a quorum, or by the sole remaining director.



     (c) If the office of any director becomes vacant by reason of death, resignation,
disqualification, removal, failure to elect, or otherwise, the remaining directors, although more
or less than a quorum, by a majority vote of such remaining directors may elect a successor or
successors who shall hold office for the unexpired term.



     3.2. Resignation.
Any director of the Company may resign at any time by giving written notice to the Chairman of
the Board, the President, or the Secretary of the Company. Such



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resignation shall take effect at
the time specified therein, at the time of receipt if no time is specified therein and at the time
of acceptance if the effectiveness of such resignation is conditioned upon its acceptance. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it
effective.



     3.3. Removal.
Except as may otherwise be provided by the DGCL or the Company’s Certificate of Incorporation,
any director or the entire Board of Directors may be removed only for cause and only by the vote of
the holders of a majority of the shares of the Company’s stock entitled to vote for the election of
directors.



     3.4. Place of Meetings and Books.
The Board of Directors may hold their meetings and keep the books of the Company outside the
State of Delaware, at such places as they may from time to time determine.



     3.5. General Powers.
In addition to the powers and authority expressly conferred upon them by these by-laws, the
Board of Directors may exercise all such powers of the Company and do all such lawful acts and
things as are not by statute or by the Company’s Certificate of Incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.



     3.6.  Other Committees.
The Board of Directors may designate one or more committees, by resolution or resolutions
passed by a majority of the whole board; such committee or committees shall consist of one or more
directors of the Company, and to the extent provided in the resolution or resolutions designating
them, shall have and may exercise specific powers of the Board of Directors in the management of
the business and affairs of the Company to the extent permitted by statute and shall have power to
authorize the seal of the Company to be affixed to all papers that may require it. 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.



     3.7. Powers Denied to Committees.
Committees of the Board of Directors shall not, in any event, have any power or authority to
amend the Company’s Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of shares adopted by the
Board of Directors as provided in Section 151(a) of the DGCL, fix the designations and any of the
preferences or rights of such shares relating to dividends, redemption, dissolution, any
distribution of assets of the Company or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any other class or classes
of stock of the Company or fix the number of shares of any series of stock or authorize the
increase or decrease of the shares of any series), adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease, or exchange of all or substantially all of the
Company’s property and assets, recommend to the stockholders a dissolution of the Company or a
revocation of a dissolution, or to amend the by-laws of the Company. Further, no committee of the
Board of Directors shall have the power or authority to declare a dividend, to authorize the
issuance of stock, or to adopt a certificate of ownership and merger pursuant to Section 253 of the
DGCL, unless the resolution or resolutions designating such committee expressly so provides.



     3.8. Substitute Committee Member.
In the absence or on the disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of such absent or disqualified member. Any committee shall keep regular
minutes of its proceedings and report the same to the Board of Directors as may be required by the
Board of Directors.



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     3.9. Compensation of Directors.
The Board of Directors shall have the power to fix the compensation of directors and members
of committees of the Board. The directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting
of the Board of Directors or a stated salary as director. No such payment shall preclude any
director from serving the Company in any other capacity and receiving compensation therefore.
Members of special or standing committees may be allowed like compensation for attending committee
meetings.



     3.10. Regular Meetings.
No notice shall be required for regular meetings of the Board of Directors for which the time
and place have been fixed. Written, oral, or any other mode of notice of the time and place
shall be given for special meetings in sufficient time for the convenient assembly of the
directors thereat. Notice need not be given to any director who submits a written waiver of notice
signed by him before or after the time stated therein. Attendance of any such person at a meeting
shall constitute a waiver of notice of such meeting, except when he attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the directors need be specified in any
written waiver of notice .



     3.11. Special Meetings.
Special meetings of the board may be called by the Chairman of the Board, if any, or the
President, on two (2) days notice to each director, or such shorter period of time before the
meeting as will nonetheless be sufficient for the convenient assembly of the directors so notified;
special meetings shall be called by the Secretary in like manner and on like notice, on the written
request of two or more directors.



     3.12. Quorum.
At all meetings of the Board of Directors, a majority of the whole board shall be necessary
and sufficient to 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 permitted or provided by statute, or by the
Company’s Certificate of Incorporation, or by these by-laws. If at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of those present may adjourn the
meeting from time to time until a quorum is obtained, and no further notice thereof need be given
other than by announcement at said meeting that shall be so adjourned.



     3.13. Telephonic Participation in Meetings.
Members of the Board of Directors or any committee designated by the Board of Directors may
participate in a meeting of the Board of Directors or committee by means of conference telephone or
similar communications equipment by means of which all persons participating in the meeting can
hear one another, and participation in a meeting pursuant to this section shall constitute presence
in person at such meeting.



     3.14. Action by Consent.
Unless otherwise restricted by the Company’s 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 written consent thereto is signed by all
members of the Board of Directors or of such committee as the case may be, and such written consent
is filed with the minutes of proceedings of the Board of Directors or committee.



Article IV. — Officers.




     4.1. Selection; Statutory Officers.
The officers of the Company shall be chosen by the Board of Directors. There shall be a
President, a Secretary, and a Treasurer, and there may be a



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Chairman of the Board of Directors, one
or more Vice Presidents, one or more Assistant Secretaries, and one or more Assistant
Treasurers, as the Board of Directors may elect. Any number of offices may be held by the same
person, except that the offices of President and Secretary shall not be held by the same person
simultaneously.



     4.2. Time of Election.
The officers above named shall be chosen by the Board of Directors at its first meeting after
each annual meeting of stockholders. None of said officers need be a director.



     4.3. Additional Officers.
The Board of Directors may appoint such other officers and agents as it shall deem necessary,
who shall hold their offices for such terms and shall exercise such powers and perform such duties
as shall be determined from time to time by the Board of Directors.



     4.4. Terms of Office.
Each officer of the Company shall hold office until his successor is chosen and qualified, or
until his earlier resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors.



     4.5. Compensation of Officers.
The Board of Directors shall have power to fix the compensation of all officers of the
Company. It may authorize any officer, upon whom the power of appointing subordinate officers may
have been conferred, to fix the compensation of such subordinate officers.



     4.6. Chairman of the Board.
The Chairman of the Board of Directors shall preside at all meetings of the stockholders and
directors, and shall have such other duties as may be assigned to him from time to time by the
Board of Directors.



     4.7. President.
Unless the Board of Directors otherwise determines, the President shall be the chief executive
officer and head of the Company. Unless there is a Chairman of the Board, the President shall
preside at all meetings of directors and stockholders. Under the supervision of the Board of
Directors, the President shall have the general control and management of its business and affairs,
subject, however, to the right of the Board of Directors to confer any specific power, except such
as may be by statute exclusively conferred on the President, upon any other officer or officers of
the Company. The President shall perform and do all acts and things incident to the position of
President and such other duties as may be assigned to him from time to time by the Board of
Directors.



     4.8. Vice-Presidents.
The Vice-Presidents shall perform such of the duties of the President on behalf of the Company
as may be respectively assigned to them from time to time by the Board of Directors or by the
President. The Board of Directors may designate one of the Vice-Presidents as the Executive
Vice-President, and in the absence or inability of the President to act, such Executive Vice-President shall have and possess all of the powers and discharge all of the duties of the
President, subject to the control of the Board of Directors.



     4.9. Treasurer.
The Treasurer shall have the care and custody of all the funds and securities of the Company
that may come into his hands as Treasurer, and the power and authority to endorse checks, drafts
and other instruments for the payment of money for deposit or collection when necessary or proper
and to deposit the same to the credit of the Company in such bank or banks or depository as the
Board of Directors, or the officers or agents to whom the Board of Directors may delegate such
authority, may designate, and he may endorse all commercial documents requiring endorsements for or
on behalf of the Company. He may sign all receipts and vouchers for the payments made to the
Company. He shall render an account of his transactions to



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the Board of Directors as often as the
Board of Directors or the committee shall require the same. He shall enter regularly in the books
to be kept by him for that purpose full and adequate account of all moneys received and paid by him
on account of the Company. He shall perform all acts incident to the position of Treasurer,
subject to the control of the Board of Directors. He shall when requested, pursuant to vote of the
Board of Directors, give a bond to the Company conditioned for the faithful performance of his
duties, the expense of which bond shall be borne by the Company.



     4.10. Secretary.
The Secretary shall keep the minutes of all meetings of the Board of Directors and of the
stockholders; he shall attend to the giving and serving of all notices of the Company. Except as
otherwise ordered by the Board of Directors, he shall attest the seal of the Company upon all
contracts and instruments executed under such seal and shall affix the seal of the Company thereto
and to all certificates of shares of capital stock of the Company. He shall have charge of the
stock certificate book, transfer book and stock ledger, and such other books and papers as the
Board of Directors may direct. He shall, in general, perform all the duties of Secretary, subject
to the control of the Board of Directors.



     4.11. Assistant Secretary.
The Board of Directors or any two of the officers of the Company acting jointly may appoint or
remove one or more Assistant Secretaries of the Company. Any Assistant Secretary upon his
appointment shall perform such duties of the Secretary, and also any and all such other duties as
the Board of Directors or the President or the Executive Vice-President or the Treasurer or the
Secretary may designate.



     4.12. Assistant Treasurer.
The Board of Directors or any two of the officers of the Company acting jointly may appoint or
remove one or more Assistant Treasurers of the Company. Any Assistant Treasurer upon his
appointment shall perform such of the duties of the Treasurer, and also any and all such other
duties as the Board of Directors or the President or the Executive Vice-President or the Treasurer
or the Secretary may designate.



     4.13. Subordinate Officers.
The Board of Directors may select such subordinate officers as it may deem desirable. Each
such officer shall hold office for such period, have such authority, and perform such duties as the
Board of Directors may prescribe. The Board of Directors may, from time to time, authorize any
officer to appoint and remove subordinate officers and to prescribe the powers and duties thereof.



Article V. — Stock.




          5.1. Stock.
The stock of the Company shall be represented by certificates, provided that the Board of
Directors may provide by resolution or resolutions that some or all of any or all classes or series
of its stock shall be uncertificated. Any such resolution shall not apply to stock already
represented by a certificate until such certificate is surrendered to the Company. Notwithstanding
the adoption of such a resolution by the Board of Directors, every holder of stock already
represented by certificates and upon request every holder of uncertificated stock shall be entitled
to a certificate or certificates of stock of the Company in such form as the Board of Directors may
from time to time prescribe. The certificates of stock of the Company shall be numbered and shall
be entered in the books of the Company as they are issued. They shall certify the holder’s name
and number and class of shares and shall be signed by both of (i) any one of the Chairman of the
Board, the President or a Vice-President, and (ii) any one of the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, and may be sealed with the corporate seal of
the Company. If such certificate is countersigned (l) by a transfer agent other than the Company
or its employee, or, (2) by a registrar other than the Company or its employee, the signature of
the officers of the Company and the corporate seal may be facsimiles. In case any officer or
officers who shall have



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signed, or whose facsimile signature or signatures shall have been used on,
any such certificate or certificates shall cease to be such officer or officers of the Company,
whether because of death, resignation or otherwise, before such certificate or certificates shall
have been delivered by the Company, such certificate or certificates may nevertheless be adopted by
the Company and be issued and delivered as though the person or persons who signed such certificate
or certificates or whose facsimile signature shall have been used thereon had not ceased to be such
officer or officers of the Company.



          5.2. Fractional Share Interests.
The Company may, but shall not be required to, issue fractions of a share. If the Company
does not issue fractions of a share, it shall (i) arrange for the disposition of fractional
interests by those entitled thereto, (ii) pay in cash the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined, or (iii) issue scrip or
warrants in registered or bearer form that shall entitle the holder to receive a certificate for a
full share upon the surrender of such scrip or warrants aggregating a full share. A certificate
for a fractional share shall, but scrip or warrants shall not unless otherwise provided therein,
entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in
any of the assets of the Company in the event of liquidation. The Board of Directors may cause
scrip or warrants to be issued subject to the conditions that they shall become void if not
exchanged for certificates representing full shares before a specified date, or subject to the
conditions that the shares for which scrip or warrants are exchangeable may be sold by the Company
and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other
conditions that the Board of Directors may impose.



          5.3. Transfers of Stock.
Subject to any transfer restrictions then in force, the shares of stock of the Company shall
be transferable only upon its books by the holders thereof in person or by their duly authorized
attorneys or legal representatives and upon such transfer the old certificates shall be surrendered
to the Company by the delivery thereof to the person in charge of the stock and transfer books and
ledgers or to such other person as the directors may designate by whom they shall be canceled and
new certificates shall thereupon be issued. The Company shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof and accordingly shall not be
bound to recognize any equitable or other claim to or interest in such share on the part of any
other person whether or not it shall have express or other notice thereof save as expressly
provided by the laws of Delaware.



          5.4. Record Date.
For the purpose of determining the stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend
or other distribution or the allotment of any rights, or 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, in advance, a record date, that shall not be more than sixty (60) days
nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to
any other action. If no such record date is fixed by the Board of Directors, 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 next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the meeting is held;
the record date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at any 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.



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          5.5. Transfer Agent and Registrar.
The Board of Directors may appoint one or more transfer agents or transfer clerks and one or
more registrars and may require all certificates of stock to bear the signature or signatures of
any of them.



          5.6. Dividends.



          1. Power to Declare. Dividends upon the capital stock of the Company, subject to the
provisions of the Company’s Certificate of Incorporation, if any, may be declared by the Board of
Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock, subject to the provisions of the Company’s Certificate
of Incorporation and the laws of Delaware.



          2. Reserves. Before payment of any dividend, there may be set aside out of any funds
of the Company available for dividends such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the Company, or for such
other purpose
as the directors shall think conducive to the interest of the Company, and the directors may
modify or abolish any such reserve in the manner in which it was created.



          5.7. Lost, Stolen, or Destroyed Certificates.
No certificates for shares of stock of the Company shall be issued in place of any certificate
alleged to have been lost, stolen, or destroyed, except upon production of such evidence of the
loss, theft, or destruction and upon indemnification of the Company and its agents to such extent
and in such manner as the Board of Directors may from time to time prescribe.



          5.8. Inspection of Books.
The stockholders of the Company, by a majority vote at any meeting of stockholders duly
called, or in case the stockholders shall fail to act, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what times and places and under what
conditions and regulations the accounts and books of the Company (other than the stock ledger) or
any of them, shall be open to inspection of stockholders; and no stockholder shall have any right
to inspect any account or book or document of the Company except as conferred by statute or
authorized by the Board of Directors or by a resolution of the stockholders.



Article VI. — Miscellaneous Management Provisions.




     6.1. Checks, Drafts, and Notes.
All checks, drafts, or orders for the payment of money, and all notes and acceptances of the
Company shall be signed by such officer or officers, or such agent or agents, as the Board of
Directors may designate.



     6.2. Notices.



     1. Notices to directors may, and notices to stockholders shall, be in writing and delivered
personally or mailed to the directors or stockholders at their addresses appearing on the books of
the Company. Notice by mail shall be deemed to be given at the time when the same shall be mailed.
Notice to directors may also be given by telegram, telecopy or orally, by telephone or in person.



     2. Whenever any notice is required to be given under the provisions of any applicable statute
or of the Company’s Certificate of Incorporation or of these by-laws, a written waiver of notice,
signed by the person or persons entitled to said notice, whether before or after the time stated



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therein or the meeting or action to which such notice relates, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting
except when the person attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not lawfully called or
convened.



     6.3. Conflict of Interest.
No contract or transaction between the Company and one or more of its directors or officers,
or between the Company 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 of Directors of or committee
thereof that authorized the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (i) 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 of Directors or committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or (ii) the material facts as to his relationship or interest and
as to the contract or transaction are disclosed or are known to the stockholders of the Company
entitled to vote thereon, and the contract or transaction as specifically approved in good faith by
vote of such stockholders; or (iii) the contract or transaction is fair as to the Company as of the
time it is authorized, approved, or ratified, by the Board of Directors, a committee or the
stockholders. 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 that authorizes the contract or
transaction.



     6.4. Voting of Securities owned by the Company.
Subject always to the specific directions of the Board of Directors, (i) any shares or other
securities issued by any other corporation and owned or controlled by the Company may be voted in
person at any meeting of security holders of such other corporation by the President of the Company
if he is present at such meeting, or in his absence by the Treasurer of the Company if he is
present at such meeting, and (ii) whenever, in the judgment of the President, it is desirable for
the Company to execute a proxy or written consent in respect to any shares or other securities
issued by any other corporation and owned by the Company, such proxy or consent shall be executed
in the name of the Company by the President, without the necessity of any authorization by the
Board of Directors, affixation of corporate seal or countersignature or attestation by another
officer, provided that if the President is unable to execute such proxy or consent by reason of
sickness, absence from the United States or other similar cause, the Treasurer may execute such
proxy or consent. Any person or persons designated in the manner above stated as the proxy or
proxies of the Company shall have full right, power and authority to vote the shares or other
securities issued by such other corporation and owned by the Company the same as such shares or
other securities might be voted by the Company.



Article VII. — Indemnification.




7.1. Right to Indemnification.
Each person who was or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a “Proceeding”), by reason of being or having been a director or officer of the
Company or serving or having served at the request of the Company as a director, trustee, officer,
employee or agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan (an “Indemnitee”), whether
the basis of such proceeding is alleged action or failure to act in an official capacity as a
director, trustee, officer, employee or agent or in any other capacity while serving as a director,
trustee, officer, employee or agent, shall be indemnified and held harmless by the Company to the
fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the



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case of any such amendment, only to the extent that such amendment permits the Company to provide
broader indemnification rights than permitted prior thereto) (as used in this Article 7, the
“Delaware Law”), against all expense, liability and loss (including attorneys’ fees, judgments,
fines, ERISA excise
taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith and such indemnification shall continue as to an Indemnitee who
has ceased to be a director, trustee, officer, employee, or agent and shall inure to the benefit of
the Indemnitee’s heirs, executors, and administrators; provided, however, that, except as provided
in §7.2 hereof with respect to Proceedings to enforce rights to indemnification, the Company shall
indemnify any such Indemnitee in connection with a Proceeding (or part thereof) initiated by such
Indemnitee only if such Proceeding (or part thereof) was authorized by the Board of Directors of
the Company. The right to indemnification conferred in this Article 7 shall be a contract right
and shall include the right to be paid by the Company the expenses (including attorneys’ fees)
incurred in defending any such Proceeding in advance of its final disposition (an “Advancement of
Expenses”); provided, however, that, if the Delaware Law so requires, an Advancement of Expenses
incurred by an Indemnitee shall be made only upon delivery to the Company of an undertaking (an
“Undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal
(a “Final Adjudication”) that such Indemnitee is not entitled to be indemnified for such expenses
under this Article 7 or otherwise.



7.2. Right of Indemnitee to Bring Suit.
If a claim under §7.1 hereof is not paid in full by the Company within 60 days after a written
claim has been received by the Company, except in the case of a claim for an Advancement of
Expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time
thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Company to recover an Advancement
of Expenses pursuant to the terms of an Undertaking, the Indemnitee shall be entitled to be paid
also the expense of prosecuting or defending such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an Advancement of Expenses) it shall be a defense that the Indemnitee has not
met the applicable standard of conduct set forth in the Delaware Law. In addition, any suit by the
Company to recover an Advancement of Expenses pursuant to the terms of an Undertaking the Company
shall be entitled to recover such expenses upon a Final Adjudication that, the Indemnitee has not
met the applicable standard of conduct set forth in the Delaware Law. Neither the failure of the
Company (including its Board of Directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable standard of conduct
set forth in the Delaware Law, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a
defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification
or to an Advancement of Expenses hereunder, or by the Company to recover an Advancement of Expenses
pursuant to the terms of an Undertaking, the burden of proving that the Indemnitee is not entitled
to be indemnified, or to such Advancement of Expenses, under this Article 7 or otherwise shall be
on the Company.



7.3. Non-Exclusivity of Rights.
The rights to indemnification and to the Advancement of Expenses conferred in this Article 7
shall not be exclusive of any other right that any person may have or hereafter acquire under any
statute, the Company’s Certificate or Incorporation, by law, agreement, vote of stockholders
or disinterested directors or otherwise.



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7.4. Insurance.
The Company may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Company or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or not the Company would have
the power to indemnify such person against such expense, liability or loss under this Article 7 or
under the Delaware Law.



7.5. Indemnification of Employees and Agents of the Company.
The Company may, to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and to the Advancement of Expenses, to any employee or agent of the
Company to the fullest extent of the provisions of this Article 7 with respect to the
indemnification and Advancement of Expenses of directors and officers of the Company.



Article VIII. — Amendments.




     8.1. Amendments. Subject always to any limitations imposed by the Company’s
Certificate of Incorporation, these by-laws may be altered, amended, or repealed, or new by-laws
may be adopted, only by (i) the affirmative vote of the holders of at least a majority of the
outstanding voting stock of the Company, provided that the affirmative vote of the holders of at
least 67% of the outstanding voting stock of the Company shall be required for any such alteration,
amendment, repeal , or adoption that would affect or be inconsistent with the provisions of
Sections 2.11, 2.12, 3.1, 3.3 and this Section 8.1 (in each case, in addition to any separate class
vote that may be required pursuant to the terms of any then outstanding preferred stock of the
Company), or (ii) by resolution of the Board of Directors duly adopted by not less than a majority
of the directors then constituting the full Board of Directors.




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