**Exhibit 3.2**

 

**AMENDED ANDRESTATED BYLAWS**

**OF**

**ARCHIPELAGOHOLDINGS, INC.**

ARTICLE I

Stockholders

Section1.1             Annual Meetings.  An annual meeting of stockholders shall beheld for the election of directors at such date, time and place either withinor without the State of Delaware as may be designated by the Board of Directorsfrom time to time.  Any other businessproperly brought before the meeting may be transacted at the annual meeting.

 

Section1.2             Special Meetings.  Special meetings of stockholders may be calledat any time by, and only by, the Board of Directors, the Chief ExecutiveOfficer or the Chairman of the Board of Directors, to be held at such date,time and place either within or without the State of Delaware as may be statedin the notice of the meeting.

 

Section1.3             Notice of Meetings.  Whenever stockholders are required orpermitted to take any action at a meeting, a written notice of the meetingshall be given which shall state the place, date and hour of the meeting, and,in the case of a special meeting, the purpose or purposes for which the meetingis called.  Unless otherwise required bylaw, the written notice of any meeting shall be given not less than ten normore than sixty days before the date of the meeting to each stockholder entitledto vote at such meeting.  If mailed, suchnotice shall be deemed to be given when deposited in the United States mail,postage prepaid, directed to the stockholder at such stockholder’s address asit appears on the records of the Corporation.

 

Section1.4             Adjournments.  Any meeting of stockholders, annual orspecial, may be adjourned from time to time, to reconvene at the same or someother place, and notice need not be given of any such adjourned meeting if thetime and place thereof are announced at the meeting at which the adjournment istaken.  At the adjourned meeting theCorporation may transact any business which might have been transacted at theoriginal meeting.  If the adjournment isfor more than thirty days, or if after the adjournment a new record date isfixed for the adjourned meeting, a notice of the adjourned meeting shall begiven to each stockholder of record entitled to vote at the meeting.

 

Section1.5             Organization.  Meetings of stockholders shall be presidedover by a Chairman of the Board, if any, or in the absence of a Chairman of theBoard by a Vice Chairman of the Board, if any, or in the absence of a ViceChairman of the Board by a Chief Executive Officer, or in the absence of aChief Executive Officer by a Senior Executive Officer, or in the absence of aSenior Executive Officer by a Vice President, or in the absence of theforegoing persons by a chairman designated by the Board of 

 

 

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Directors, or in the absenceof such designation by a chairman chosen at the meeting.  Each of the following is a Senior ExecutiveOfficer:  Chief Financial Officer, ChiefAdministrative Officer, Chief Operating Officer, Chief Technology Officer andPresident.  A Corporate Secretary, or inthe absence of a Corporate Secretary an Assistant Corporate Secretary, shallact as secretary of the meeting, but in the absence of a Corporate Secretaryand any Assistant Corporate Secretary the chairman of the meeting may appointany person to act as secretary of the meeting.

 

Theorder of business at each such meeting shall be as determined by the chairmanof the meeting.  The chairman of themeeting shall have the right and authority to adjourn a meeting of stockholderswithout a vote of stockholders and to prescribe such rules, regulations andprocedures and to do all such acts and things as are necessary or desirable forthe proper conduct of the meeting and are not inconsistent with any rules orregulations adopted by the Board of Directors pursuant to the provisions of thecertificate of incorporation, including the establishment of procedures for themaintenance of order and safety, limitations on the time allotted to questionsor comments on the affairs of the Corporation, restrictions on entry to suchmeeting after the time prescribed for the commencement thereof and the openingand closing of the voting polls for each item upon which a vote is to be taken.

 

Section1.6             Inspectors.  Prior to any meeting of stockholders, theBoard of Directors, a Chairman of the Board, a Vice Chairman of the Board, aChief Executive Officer, a Senior Executive Officer, a Vice President or anyother officer designated by the Board shall appoint one or more inspectors toact at such meeting and make a written report thereof and may designate one ormore persons as alternate inspectors to replace any inspector who fails toact.  If no inspector or alternate isable to act at the meeting of stockholders, the person presiding at the meetingshall appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon thedischarge of his or her duties, shall take and sign an oath faithfully toexecute the duties of inspector with strict impartiality and according to thebest of his or her ability.  Theinspectors shall ascertain the number of shares outstanding and the votingpower of each, determine the shares represented at the meeting and the validityof proxies and ballots, count all votes and ballots, determine and retain for areasonable period a record of the disposition of any challenges made to anydetermination by the inspectors and certify their determination of the numberof shares represented at the meeting and their count of all votes andballots.  The inspectors may appoint orretain other persons to assist them in the performance of their duties.  The date and time of the opening and closingof the polls for each matter upon which the stockholders will vote at a meetingshall be announced at the meeting.  Noballot, proxy or vote, nor any revocation thereof or change thereto, shall beaccepted by the inspectors after the closing of the polls. In determining thevalidity and counting of proxies and ballots, the inspectors shall be limitedto an examination of the proxies, any envelopes submitted therewith, anyinformation provided by a stockholder who submits a proxy by telegram,cablegram or other electronic transmission from which it can be determined thatthe proxy was authorized by the stockholder, ballots and the regular books andrecords of the Corporation, and they may also consider other reliable 

 

 

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information for the limitedpurpose of reconciling proxies and ballots submitted by or on behalf of banks,brokers, their nominees or similar persons which represent more votes than theholder of a proxy is authorized by the record owner to cast or more votes thanthe stockholder holds of record. If the inspectors consider other reliableinformation for such purpose, they shall, at the time they make theircertification, specify the precise information considered by them, includingthe person or persons from whom they obtained the information, when theinformation was obtained, the means by which the information was obtained andthe basis for the inspectors’ belief that such information is accurate andreliable.

 

Section1.7             Voting; Proxies.  Unless otherwise provided in the certificateof incorporation, each stockholder entitled to vote at any meeting ofstockholders shall be entitled to one vote for each share of stock held by suchstockholder which has voting power upon the matter in question.  Each stockholder entitled to vote at ameeting of stockholders may authorize another person or persons to act for suchstockholder by proxy, but no such proxy shall be voted or acted upon afterthree years from its date, unless the proxy provides for a longer period.  A duly executed proxy shall be irrevocable ifit states that it is irrevocable and if, and only as long as, it is coupledwith an interest sufficient in law to support an irrevocable power, regardlessof whether the interest with which it is coupled is an interest in the stockitself or an interest in the Corporation generally. A stockholder may revokeany proxy which is not irrevocable by attending the meeting and voting inperson or by filing an instrument in writing revoking the proxy or another dulyexecuted proxy bearing a later date with a Corporate Secretary.  Voting at meetings of stockholders need notbe by written ballot unless so directed by the chairman of the meeting or theBoard of Directors.  Directors shall beelected by a plurality of the votes of the shares present in person orrepresented by proxy at the meeting and entitled to vote on the election ofdirectors. In all other matters, unless otherwise required by law, thecertificate of incorporation or these bylaws, a majority of the votes cast foror against the matter at the meeting by stockholders entitled to vote on thesubject matter shall be the act of the stockholders.  Where a separate vote by class or classes isrequired, the affirmative vote of the holders of a majority (or, in the case ofan election of directors, a plurality) of the votes cast for or against thematter at the meeting by stockholders in that class or classes entitled to voteon the subject matter shall be the act of such class or classes, except as otherwiserequired by law, the certificate of incorporation or these bylaws.

 

Section1.8             Fixing Date forDetermination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled tonotice of or to vote at any meeting of stockholders or any adjournment thereof,the Board of Directors may fix a record date, which record date shall notprecede the date upon which the resolution fixing the record date is adopted bythe Board of Directors, and which record date shall not be more than sixty norless than ten days before the date of such meeting.  If no record date is fixed by the Board ofDirectors, the record date for determining stockholders entitled to notice ofor to vote at a meeting of stockholders shall be at the close of business onthe day next preceding the day on which notice is given, or, if notice iswaived, at the close 

 

 

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of business on the day nextpreceding the day on which the meeting is held. A determination of stockholdersof record entitled to notice of or to vote at a meeting of stockholders shallapply to any adjournment of the meeting; provided, however, that the Board ofDirectors may fix a new record date for the adjourned meeting.

 

Inorder that the Corporation may determine the stockholders entitled to receivepayment of any dividend or other distribution or allotment of any rights or thestockholders 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 record date shall notprecede the date upon which the resolution fixing the record date is adopted,and which record date shall be not more than sixty days prior to the action forwhich a record date is being established. If no record date is fixed, therecord date for determining stockholders for any such purpose shall be at theclose of business on the day on which the Board of Directors adopts theresolution relating thereto.

 

Section1.9             List of StockholdersEntitled to Vote.  A CorporateSecretary shall prepare and make, at least ten days before every meeting ofstockholders, a complete list of the stockholders entitled to vote at themeeting, arranged in alphabetical order, and showing the address of eachstockholder and the number of shares registered in the name of eachstockholder.  Such list shall be open tothe examination of any stockholder, for any purpose germane to the meeting,during ordinary business hours, for a period of at least ten days prior to themeeting, either at a place within the municipality where the meeting is to beheld, which place shall be specified in the notice of the meeting, or, if notso specified, at the place where the meeting is to be held. The list shall alsobe produced and kept at the time and place of the meeting during the whole timethereof and may be inspected by any stockholder who is present.

 

Section 1.10           AdvanceNotice of Stockholder Nominees for Director and Other Stockholder Proposals. (a)  The matters to be considered and broughtbefore any annual or special meeting of stockholders of the Corporation shallbe limited to only such matters, including the nomination and election ofdirectors, as shall be brought properly before such meeting in compliance withthe procedures set forth in this Section 1.10.

 

(b)           For anymatter to be properly brought before any annual meeting of stockholders, thematter must be (i) specified in the notice of annual meeting given by or at thedirection of the Board of Directors, (ii) otherwise brought before the annualmeeting by or at the direction of the Board of Directors or (iii) broughtbefore the annual meeting in the manner specified in this Section 1.10(b) (x)by a stockholder that holds of record stock of the Corporation entitled to voteat the annual meeting on such matter (including any election of a director) or(y) by a person (a “Nominee Holder”) that holds such stock through a nominee or“street name” holder of record of such stock and can demonstrate to theCorporation such indirect ownership of, and such Nominee Holder’s entitlementto vote, such stock on such matter.  Inaddition to any other requirements under applicable law, the certificate ofincorporation and these bylaws, persons 

 

 

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nominated by stockholders for election as directors of the Corporationand any other proposals by stockholders shall be properly brought before anannual meeting of stockholders only if notice of any such matter to bepresented by a stockholder at such meeting (a “Stockholder Notice”) shall be deliveredto a Corporate Secretary at the principal executive office of the Corporationnot less than ninety nor more than one hundred and twenty days prior to thefirst anniversary date of the annual meeting for the preceding year (or, in thecase of the annual meeting of stockholders to be held in 2005, not less thanninety nor more than one hundred and twenty days prior to May 2, 2005);provided, however, that if and only if the annual meeting is not scheduled tobe held within a period that commences thirty days before and ends thirty daysafter such anniversary date (or May 2, 2005, in the case of the annual meetingof stockholders to be held in 2005) (an annual meeting date outside such periodbeing referred to herein as an “Other Meeting Date”), such Stockholder Noticeshall be given in the manner provided herein by the later of (i) the close ofbusiness on the date ninety days prior to such Other Meeting Date or (ii) theclose of business on the tenth day following the date on which such OtherMeeting Date is first publicly announced or disclosed. Any stockholder desiringto nominate any person or persons (as the case may be) for election as adirector or directors of the Corporation at an annual meeting of stockholdersshall deliver, as part of such Stockholder Notice, a statement in writingsetting forth the name of the person or persons to be nominated, the number andclass of all shares of each class of stock of the Corporation owned of recordand beneficially by each such person, as reported to such stockholder by suchperson, the information regarding each such person required by paragraphs (a),(e) and (f) of Item 401 of Regulation S-K adopted by the Securities andExchange Commission, each such person’s signed consent to serve as a directorof the Corporation if elected, such stockholder’s name and address, the numberand class of all shares of each class of stock of the Corporation owned ofrecord and beneficially by such stockholder and, in the case of a NomineeHolder, evidence establishing such Nominee Holder’s indirect ownership of stockand entitlement to vote such stock for the election of directors at the annualmeeting. Any stockholder who gives a Stockholder Notice of any matter (otherthan a nomination for director) proposed to be brought before an annual meetingof stockholders shall deliver, as part of such Stockholder Notice, the text ofthe proposal to be presented and a brief written statement of the reasons whysuch stockholder favors the proposal and setting forth such stockholder’s nameand address, the number and class of all shares of each class of stock of theCorporation owned of record and beneficially by such stockholder, any materialinterest of such stockholder in the matter proposed (other than as astockholder), if applicable, and, in the case of a Nominee Holder, evidenceestablishing such Nominee Holder’s indirect ownership of stock and entitlementto vote such stock on the matter proposed at the annual meeting. As used inthese bylaws, shares “beneficially owned” shall mean all shares which suchperson is deemed to beneficially own pursuant to Rules 13d-3 and 13d-5 underthe Securities Exchange Act of 1934, as amended (the “Exchange Act”). If astockholder is entitled to vote only for a specific class or category of directorsat a meeting (annual or special), such stockholder’s right to nominate one ormore individuals for election as a director at the meeting shall be limited tosuch class or category of directors.

 

 

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Notwithstandingany provision of this Section 1.10 to the contrary, in the event that thenumber of directors to be elected to the Board of Directors of the Corporationat the next annual meeting of stockholders is increased by virtue of anincrease in the size of the Board of Directors and either all of the nomineesfor director at the next annual meeting of stockholders or the size of theincreased Board of Directors is not publicly announced or disclosed by theCorporation at least one hundred days prior to the first anniversary of thepreceding year’s annual meeting (or, in the case of the annual meeting ofstockholders to be held in 2005, at least one hundred days prior to May 2,2005), a Stockholder Notice shall also be considered timely hereunder, but onlywith respect to nominees to stand for election at the next annual meeting asthe result of any new positions created by such increase, if it shall bedelivered to a Corporate Secretary at the principal executive office of theCorporation not later than the close of business on the tenth day following thefirst day on which all such nominees or the size of the increased Board ofDirectors shall have been publicly announced or disclosed.

 

(c)           Except asprovided in the immediately following sentence, no matter shall be properlybrought before a special meeting of stockholders unless such matter shall havebeen brought before the meeting pursuant to the Corporation’s notice of suchmeeting.  In the event the Corporationcalls a special meeting of stockholders for the purpose of electing one or moredirectors to the Board of Directors, any stockholder entitled to vote for theelection of such director(s) at such meeting may nominate a person or persons(as the case may be) for election to such position(s) as are specified in theCorporation’s notice of such meeting, but only if the Stockholder Noticerequired by Section 1.10(b) hereof shall be delivered to a Corporate Secretaryat the principal executive office of the Corporation not later than the closeof business on the tenth day following the first day on which the date of thespecial meeting and either the names of all nominees proposed by the Board ofDirectors to be elected at such meeting or the number of directors to beelected shall have been publicly announced or disclosed.

 

(d)           Forpurposes of this Section 1.10, a matter shall be deemed to have been “publiclyannounced or disclosed” if such matter is disclosed in a press release reportedby the Dow Jones News Service, the Associated Press or a comparable nationalnews service or in a document publicly filed by the Corporation with theSecurities and Exchange Commission.

 

(e)           In noevent shall the adjournment of an annual meeting or a special meeting, or anyannouncement thereof, commence a new period for the giving of notice asprovided in this Section 1.10. This Section 1.10 shall not apply to (i) anystockholder proposal made pursuant to Rule 14a-8 under the Exchange Act or (ii)any nomination of a director in an election in which only the holders of one ormore series of Preferred Stock of the Corporation issued pursuant to ArticleFOURTH of the certificate of incorporation are entitled to vote (unlessotherwise provided in the terms of such stock).

 

(f)            Thechairman of any meeting of stockholders, in addition to making any otherdeterminations that may be appropriate to the conduct of the meeting, shallhave the 

 

 

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power andduty to determine whether notice of nominees and other matters proposed to bebrought before a meeting has been duly given in the manner provided in thisSection 1.10 and, if not so given, shall direct and declare at the meeting thatsuch nominees and other matters shall not be considered.

 

 

ARTICLE II

Board of Directors

Section2.1             Powers; Number;Qualifications.  The business andaffairs of the Corporation shall be managed by or under the direction of theBoard of Directors, except as may be otherwise required by law or provided inthe certificate of incorporation.  Thenumber of directors of the Corporation shall be fixed only by resolution of theBoard of Directors from time to time.  Ifthe holders of any class or classes of stock or series thereof are entitled bythe certificate of incorporation to elect one or more directors, the precedingsentence shall not apply to such directors and the number of such directorsshall be as provided in the terms of such stock.  Directors need not be stockholders.

 

Section2.2             Election; Term ofOffice; Resignation; Removal; Vacancies. Each director shall hold office until his or her successor is electedand qualified or until his or her earlier resignation or removal.  Any director may resign at any time uponwritten notice to the Board of Directors or to a Chairman of the Board, a ViceChairman of the Board, a Chief Executive Officer, a President, a SeniorExecutive Officer or a Corporate Secretary. Such resignation shall take effect at the time specified therein, andunless otherwise specified therein no acceptance of such resignation shall benecessary to make it effective.  Anydirector or the entire Board of Directors may be removed, with or withoutcause, by the holders of a majority of the voting power of the shares thenentitled to vote at an election of directors. Vacancies and newly created directorships resulting from any increase inthe authorized number of directors (other than any directors elected in themanner described in the next sentence) or from any other cause shall be filledby, and only by, a majority of the directors then in office, although less thana quorum, or by the sole remaining director. Whenever the holders of any class or classes of stock or series thereofare entitled by the certificate of incorporation to elect one or moredirectors, vacancies and newly created directorships of such class or classesor series may be filled by, and only by, a majority of the directors elected bysuch class or classes or series then in office, or by the sole remainingdirector so elected.  Any directorelected or appointed to fill a vacancy or a newly created directorship shallhold office until the next annual meeting of the stockholders, and until his orher successor is elected and qualified or until his or her earlier resignationor removal.

 

Section2.3             Regular Meetings.  Regular meetings of the Board of Directors maybe held at such places within or without the State of Delaware and at suchtimes as the Board may from time to time determine, and if so determined noticethereof need not be given.

 

 

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Section2.4             Special Meetings.  Special meetings of the Board of Directors maybe held at any time or place within or without the State of Delaware whenevercalled by the Board, by a Chairman of the Board, if any, by a Vice Chairman ofthe Board, if any, by a Chairman of the Corporate Governance and NominatingCommittee, if any, by a Chief Executive Officer, if any, by a Senior ExecutiveOfficer, if any, or by any two directors. Reasonable notice thereof shall be given by the person or personscalling the meeting.

 

Section2.5             Participation inMeetings by Conference Telephone Permitted.  Unless otherwise restricted by the certificateof incorporation or these bylaws, members of the Board of Directors, or anycommittee designated by the Board, may participate in a meeting of the Board orof such committee, as the case may be, by means of conference telephone orsimilar communications equipment by means of which all persons participating inthe meeting can hear each other, and participation in a meeting pursuant tothis bylaw shall constitute presence in person at such meeting.

 

Section2.6             Quorum; Vote Requiredfor Action.  At each meeting of theBoard of Directors, one-half of the number of directors equal to (i) the totalnumber of directors fixed by resolution of the board of directors (includingany vacancies) plus (ii) the number of directors elected by a holder or holdersof Preferred Stock voting separately as a class, as described in the fourthparagraph of Article EIGHTH of the certificate of incorporation (including anyvacancies), shall constitute a quorum for the transaction of business.  The vote of a majority of the directorspresent at a meeting at which a quorum is present shall be the act of the Boardunless the certificate of incorporation or these bylaws shall require a vote ofa greater number.  In case at any meetingof the Board a quorum shall not be present, the members or a majority of themembers of the Board present may adjourn the meeting from time to time until aquorum shall be present.

 

Section2.7             Organization.  Meetings of the Board of Directors shall bepresided over by a Chairman of the Board, if any, or in the absence of aChairman of the Board by a Vice Chairman of the Board, if any, or in theabsence of a Vice Chairman of the Board, by a Chief Executive Officer, or inthe absence of a Chief Executive Officer, by a Senior Executive Officer, or in theabsence of a Senior Executive Officer, by a chairman chosen at themeeting.  A Corporate Secretary, or inthe absence of a Corporate Secretary an Assistant Corporate Secretary, shallact as secretary of the meeting, but in the absence of a Corporate Secretaryand any Assistant Corporate Secretary the chairman of the meeting may appointany person to act as secretary of the meeting.

 

Section2.8             Action by DirectorsWithout a Meeting.  Unless otherwiserestricted by the certificate of incorporation or these bylaws, any actionrequired or permitted to be taken at any meeting of the Board of Directors, orof any committee thereof, may be taken without a meeting if all members of theBoard or of such committee, as the case may be, then in office consent theretoin writing or by electronic transmission, and the writing or writings orelectronic transmission or transmissions are filed with the minutes ofproceedings of the Board or committee.

 

 

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Section2.9             Compensation ofDirectors.  Unless otherwise restrictedby the certificate of incorporation or these bylaws, the Board of Directorsshall have the authority to fix the compensation of directors.

 

 

ARTICLE III

Committees

Section3.1             Committees.  The Board of Directors may designate one ormore committees, each committee to consist of one or more of the directors ofthe Corporation.  The Board may designateone or more directors as alternate members of any committee, who may replaceany absent or disqualified member at any meeting of the committee.  In the absence or disqualification of amember of a committee, the member or members thereof present at any meeting andnot disqualified from voting, whether or not such member or members constitutea quorum, may unanimously appoint another member of the Board to act at themeeting in the place of any such absent or disqualified member.  Any such committee, to the extent provided inthe resolution of the Board of Directors or in these bylaws, shall have and mayexercise all the powers and authority of the Board of Directors in themanagement of the business and affairs of the Corporation, and may authorizethe 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 thefollowing matters: (i) approving or adopting, or recommending to thestockholders, any action or matter expressly required by law to be submitted tostockholders for approval, or (ii) adopting, amending or repealing thesebylaws.

 

Section 3.2             CommitteeRules.  Unless the Board of Directorsotherwise provides, each committee designated by the Board may adopt, amend andrepeal rules for the conduct of its business. In the absence of a provision bythe Board or a provision in the rules of such committee to the contrary, amajority of the entire authorized number of members of such committee shallconstitute a quorum for the transaction of business, the vote of a majority ofthe members present at a meeting at the time of such vote if a quorum is thenpresent shall be the act of such committee, and in other respects eachcommittee shall conduct its business in the same manner as the Board conductsits business pursuant to Article II of these bylaws.

 

 

ARTICLE IV

Officers; Employees

Section 4.1             Officers;Election or Appointment.  The Boardof Directors shall take such action as may be necessary from time to time toensure that the Corporation has such officers as are necessary, under Section5.1 of these bylaws and the Delaware General Corporation Law as currently ineffect or as the same may hereafter be amended, to enable it to sign stockcertificates. In addition, the Board of Directors at any time and from time totime may elect (i) one or more Chairmen of the Board and/or one or more

 

 

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ViceChairmen of the Board from among its members, (ii) one or more Chief ExecutiveOfficers, one or more Presidents, one or more Chief Financial Officers, one ormore Chief Operating Officers, one or more Chief Administrative Officers and/orone or more Chief Technology Officers, (iii) one or more Vice Presidents, oneor more Controllers, one or more Corporate Secretaries and/or (iv) one or moreother officers, in the case of each of (i), (ii), (iii) and (iv) if and to theextent the Board deems desirable. The Board of Directors may give any officersuch further designations or alternate titles as it considers desirable. Inaddition, the Board of Directors at any time and from time to time mayauthorize any officer of the Corporation to appoint one or more officers of thekind described in clauses (iii) and (iv) above. Any number of offices may be held by the same person and directors mayhold any office unless the certificate of incorporation or these bylawsotherwise provide.

 

Section4.2             Term of Office;Resignation; Removal; Vacancies. Unless otherwise provided in the resolution of the Board of Directorselecting or authorizing the appointment of any officer, each officer shall holdoffice until his or her successor is elected or appointed and qualified oruntil his or her earlier resignation or removal.  Any officer may resign at any time uponwritten notice to the Board or to such person or persons as the Board maydesignate.  Such resignation shall takeeffect at the time specified therein, and unless otherwise specified therein noacceptance of such resignation shall be necessary to make it effective.  The Board may remove any officer with orwithout cause at any time.  Any officerauthorized by the Board to appoint a person to hold an office of theCorporation may also remove such person from such office with or without causeat any time, unless otherwise provided in the resolution of the Board providingsuch authorization. Any such removal shall be without prejudice to thecontractual rights of such officer, if any, with the Corporation, but theelection or appointment of an officer shall not of itself create contractualrights.  Any vacancy occurring in anyoffice of the Corporation by death, resignation, removal or otherwise may befilled by the Board at any regular or special meeting or by an officerauthorized by the Board to appoint a person to hold such office.

 

Section4.3             Powers and Duties.  The officers of the Corporation shall havesuch powers and duties in the management of the Corporation as shall be statedin these bylaws or in a resolution of the Board of Directors which is notinconsistent with these bylaws and, to the extent not so stated, as generallypertain to their respective offices, subject to the control of the Board. ACorporate Secretary or such other officer appointed to do so by the Board shallhave the duty to record the proceedings of the meetings of the stockholders,the Board of Directors and any committees in a book to be kept for thatpurpose.  The Board may require anyofficer, agent or employee to give security for the faithful performance of hisor her duties.

 

 

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ARTICLE V

Stock

Section5.1             Certificates;Uncertificated Shares.  The shares ofstock in the Corporation shall be represented by certificates, provided thatthe Board of Directors of the Corporation may provide by resolution orresolutions that some or all of any or all classes or series of its stock shallbe uncertificated shares.  Any suchresolution shall not apply to any such shares represented by a certificatetheretofore issued until such certificate is surrendered to theCorporation.  Notwithstanding theadoption of such a resolution or resolutions by the Board of Directors of theCorporation, every holder of stock represented by certificates, and uponrequest every holder of uncertificated shares, shall be entitled to have acertificate signed by or in the name of the Corporation by a Chairman or ViceChairman of the Board or a President or Vice President, and by a Controller,Assistant Controller, Corporate Secretary or Assistant Corporate Secretary,representing the number of shares of stock in the Corporation owned by suchholder.  If such certificate is manuallysigned by one officer or manually countersigned by a transfer agent or bySR-PCX-2005-90 Exhibit C Amended and Restated Bylaws of Archipelago Holdings,Inc Page 19 of 29 a registrar, any other signature on the certificate may be afacsimile. In case any officer, transfer agent or registrar who has signed orwhose facsimile signature has been placed upon a certificate shall have ceasedto be such officer, transfer agent or registrar before such certificate isissued, it may be issued by the Corporation with the same effect as if suchperson were such officer, transfer agent or registrar at the date of issue.  Certificates representing shares of stock ofthe Corporation may bear such legends regarding restrictions on transfer orother matters as any officer or officers of the Corporation may determine to beappropriate and lawful.

 

Ifthe Corporation is authorized to issue more than one class of stock or morethan one series of any class, the powers, designations, preferences andrelative, participating, optional or other special rights of each class ofstock or series thereof and the qualifications or restrictions of such preferencesand/or rights shall be set forth in full or summarized on the face or back ofthe certificate which the Corporation shall issue to represent such class orseries of stock, *provided*that,except as otherwise required by law, in lieu of the foregoing requirements,there may be set forth on the face or back of the certificate which theCorporation shall issue to represent such class or series of stock a statementthat the Corporation will furnish without charge to each stockholder who sorequests the powers, designations, preferences and relative, participating,optional or other special rights of such class or series of stock and thequalifications, limitations or restrictions of such preferences and/orrights.  Within a reasonable time afterthe issuance or transfer of uncertificated shares of any class or series ofstock, the Corporation shall send to the registered owner thereof a writtennotice containing the information required by law to be set forth or stated oncertificates representing shares of such class or series or a statement thatthe Corporation will furnish without charge to each stockholder who so requeststhe powers, designations, preferences and relative, participating, optional orother special rights of such class or series and the qualifications,limitations or restrictions of such preferences and/or rights. Except asotherwise expressly provided by law, the 

 

 

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rights and obligations ofthe holders of uncertificated shares and the rights and obligations of theholders of certificates representing stock of the same class and series shallbe identical.

 

Section5.2             Lost, Stolen orDestroyed Stock Certificates; Issuance of New Certificates.  The Corporation may issue a new certificate ofstock or uncertificated shares in the place of any certificate theretoforeissued by it, alleged to have been lost, stolen or destroyed, and theCorporation may require the owner of the lost, stolen or destroyed certificate,or such owner’s legal representative, to give the Corporation a bond sufficientto indemnify it against any claim that may be made against it on account of thealleged loss, theft or destruction of any such certificate or the issuance ofsuch new certificate or uncertificated shares.

 

 

ARTICLE VI

Miscellaneous

Section6.1             Fiscal Year.  The fiscal year of the Corporation shall bedetermined by the Board of Directors.

 

Section6.2             Seal.  The Corporation may have a corporate sealwhich shall have the name of the Corporation inscribed thereon and shall be insuch form as may be approved from time to time by the Board of Directors.  The corporate seal may be used by causing itor a facsimile thereof to be impressed or affixed or in any other mannerreproduced.

 

Section6.3             Waiver of Notice ofMeetings of Stockholders, Directors and Committees.  Whenever notice is required to be given bylaw or under any provision of the certificate of incorporation or these bylaws,a written waiver thereof, signed by the person entitled to notice, or a waiverby electronic transmission by the person entitled to notice, whether before orafter the time stated therein, shall be deemed equivalent to notice.  Attendance of a person at a meeting shallconstitute a waiver of notice of such meeting, except when the person attends ameeting for the express purpose of objecting, at the beginning of the meeting,to the transaction of any business because the meeting is not lawfully calledor convened.  Neither the business to betransacted at, nor the purpose of, any regular or special meeting of thestockholders, directors or members of a committee of directors need bespecified in any written waiver of notice or any waiver by electronictransmission unless so required by the certificate of incorporation or thesebylaws.

 

Section6.4             Indemnification.  The Corporation shall indemnify to the fullextent permitted by law any person made or threatened to be made a party to anyaction, suit or proceeding, whether civil, criminal, administrative orinvestigative, by reason of the fact that such person or such person’s testatoror intestate is or was a director or officer of the Corporation, is or was adirector, officer, trustee, member, stockholder,

 

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partner, incorporator orliquidator of a Subsidiary of the Corporation, or serves or served at therequest of the Corporation as a director, officer, trustee, member,stockholder, partner, incorporator or liquidator of or in any other capacityfor any other enterprise.  Expenses,including attorneys’ fees, incurred by any such person in defending any suchaction, suit or proceeding shall be paid or reimbursed by the Corporationpromptly upon demand by such person and, if any such demand is made in advanceof the final disposition of any such action, suit or proceeding, promptly uponreceipt by the Corporation of an undertaking of such person to repay suchexpenses if it shall ultimately be determined that such person is not entitledto be indemnified by the Corporation. The rights provided to any person by thisbylaw shall be enforceable against the Corporation by such person, who shall bepresumed to have relied upon it in serving or continuing to serve as adirector, officer or in such other capacity as provided above.  In addition, the rights provided to anyperson by this bylaw shall survive the termination of such person as any suchdirector, officer, trustee, member, stockholder, partner, incorporator orliquidator and, insofar as such person served at the request of the Corporationas a director, officer, trustee, member, stockholder, partner, incorporator orliquidator of or in any other capacity for any other enterprise, shall survivethe termination of such request as to service prior to termination of suchrequest. No amendment of this bylaw shall impair the rights of any personarising at any time with respect to events occurring prior to such amendment.

 

Forpurposes of this bylaw, the term “Corporation” shall include any predecessor ofthe Corporation and any constituent corporation (including any constituent of aconstituent) absorbed by the Corporation in a consolidation or merger, exceptthat GAP Archa Holdings, Inc. shall not be included in the definition of “Corporation”;the term “Subsidiary” shall mean any corporation, partnership, limitedliability company or other entity in which the Corporation owns, directly or indirectly,a majority of the economic or voting ownership interest; the term “otherenterprise” shall include any corporation, partnership, limited liabilitycompany, joint venture, trust, association or other unincorporated organizationor other entity and any employee benefit plan; the term “officer,” when usedwith respect to the Corporation, shall refer to any officer elected by orappointed pursuant to authority granted by the Board of Directors of theCorporation pursuant to clauses (i), (ii), (iii) and (iv) of Section 4.1 ofthese bylaws, when used with respect to a Subsidiary or other enterprise thatis a corporation, shall refer to any person elected or appointed pursuant tothe bylaws of such Subsidiary or other enterprise or chosen in such manner asis prescribed by the bylaws of such Subsidiary or other enterprise ordetermined by the Board of Directors of such Subsidiary or other enterprise,and when used with respect to a Subsidiary or other enterprise that is not acorporation or is organized in a foreign jurisdiction, the term “officer” shallinclude in addition to any officer of such entity, any person serving in asimilar capacity or as the manager of such entity; service “at the request ofthe Corporation” shall include service as a director or officer of theCorporation which imposes duties on, or involves services by, such director orofficer with respect to an employee benefit plan, its participants orbeneficiaries; any excise taxes assessed on a person with respect to anemployee benefit plan shall be deemed to be indemnifiable expenses; and actionby a person with respect to an employee

 

 

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benefit plan which suchperson reasonably believes to be in the interest of the participants andbeneficiaries of such plan shall be deemed to be action not opposed to the bestinterests of the Corporation.

 

Tothe extent authorized from time to time by the Board of Directors, theCorporation may provide to (i) any one or more employees and agents of theCorporation, (ii) any one or more officers, employees and agents of anySubsidiary and (iii) any one or more directors, officers, employees and agentsof any other enterprise, rights of indemnification and to receive payment orreimbursement of expenses, including attorneys’ fees, on such terms and conditionsas the Board of Directors shall determine that are similar to the rightsconferred in this Section 6.4 on directors and officers of the Corporation orany Subsidiary or other enterprise.

Any such rights shall havethe same force and effect as they would have if they were conferred in thisSection 6.4.

 

Nothingin this Section 6.4 shall limit the power of the Corporation or the Board ofDirectors to provide rights of indemnification and to make payment andreimbursement of expenses, including attorneys’ fees, to directors, officers,employees, agents and other persons otherwise than pursuant to this Section6.4.

 

Section6.5             Interested Directors;Quorum.  No contract or transactionbetween the Corporation and one or more of its directors or officers, orbetween the Corporation and any other corporation, partnership, limitedliability company, joint venture, trust, association or other unincorporatedorganization or other entity in which one or more of its directors or officersserve as directors, officers, trustees or in a similar capacity or have afinancial interest, shall be void or voidable solely for this reason, or solelybecause the director or officer is present at or participates in the meeting ofthe Board of Directors or committee thereof which authorizes the contract ortransaction, or solely because his or her or their votes are counted for suchpurpose, if:  (i) the material facts asto his or her relationship or interest and as to the contract or transactionare disclosed or are known to the Board or the committee, and the Board orcommittee in good faith authorizes the contract or transaction by theaffirmative votes of a majority of the disinterested directors, even though thedisinterested directors be less than a quorum; (ii) the material facts as tohis or her relationship or interest and as to the contract or transaction aredisclosed or are known to the stockholders entitled to vote thereon, and thecontract or transaction is specifically approved in good faith by a vote of thestockholders; or (iii) the contract or transaction is fair as to theCorporation as of the time it is authorized, approved or ratified, by theBoard, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presenceof a quorum at a meeting of the Board of Directors or of a committee whichauthorizes the contract or transaction.

 

Section6.6             Form of Records.  Unless otherwise required by applicable law,any records maintained by the Corporation in the regular course of itsbusiness, including its stock ledger, books of account and minute books, may bekept on, or be in the form of, punch cards, magnetic tape, photographs,microphotographs or any other information

 

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storage device, providedthat the records so kept can be converted into clearly legible form within areasonable time.  The Corporation shallso convert any records so kept upon the request of any person entitled toinspect the same.

 

Section6.7             Laws and Regulations;Close of Business.  (a)  For purposes of these bylaws, any reference toa statute, rule or regulation of any governmental body means such statute, ruleor regulation (including any successor thereto) as the same may be amended fromtime to time.

 

(b)           Anyreference in these bylaws to the close of business on any day shall be deemedto mean 5:00 P.M. New York time on such day, whether or not such day is abusiness day.

 

Section 6.8             Amendmentof Bylaws; Status of the FSA; OTP Holders.  (a)  These bylaws may be amended,modified or repealed, and new bylaws may be adopted at any time, by the Boardof Directors. Stockholders of the Corporation may adopt additional bylaws andamend, modify or repeal any bylaw whether or not adopted by them.

 

(b)           Notwithstandingparagraph (a) of this Section 6.8, before any amendment to these bylaws shallbe effective, such amendment shall be submitted to the Board of Directors ofthe Pacific Exchange, Inc. (“PCX”) and if such Board shall determine that thesame is required, under Section 19 of the Exchange Act and the rulespromulgated thereunder, to be filed with, or filed with and approved by, theSecurities and Exchange Commission before such amendment may be effective underSection 19 of the Exchange Act and the rules promulgated thereunder, then suchamendment shall not be effective until filed with, or filed with and approvedby, the Securities and Exchange Commission, as the case may be.

 

(c)           TheCorporation shall not take any action, and shall not permit any of itsSubsidiaries to take any action, that (i) causes Archipelago Exchange, L.L.C. (“ArcaEx”)to cease to be a Facility (as defined in the certificate of incorporation) ofPCX and PCX Equities, Inc. (“PCX Equities”) or (ii) causes the Amended andRestated Facility Services Agreement, dated as of March 22, 2002, amongArchipelago Holdings, L.L.C., PCX and PCX Equities, as it may be amended fromtime to time (“FSA”) to cease to be in full force and effect, unless each ofparagraphs (C)(3)(y), (D)(2), (D)(2)(a) and (H)(3) of Article FOURTH, the thirdparagraph of Article EIGHTH, the penultimate paragraph of Article TENTH,Article THIRTEENTH, Article FOURTEENTH, Article FIFTEENTH, Article SIXTEENTH,Article SEVENTEENTH and Article NINETEENTH of the certificate of incorporationis amended pursuant to the terms thereof, these bylaws and applicable law, toprovide that the provisions of the certificate of incorporation set forth inthis paragraph shall remain in full force and effect whether or not ArcaExremains a Facility of PCX and PCX Equities or the FSA is in full force andeffect.  For the avoidance of doubt, theterm “Subsidiary” shall include, without limitation, PCX Holdings, Inc., PCX,PCX Equities and ArcaEx.

 

 

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(d)           The Boardof Directors of the Corporation shall not (i) adopt any resolution pursuant toparagraph (C)(2)(y) of Article FOURTH of the certificate of incorporation toapprove the exercise of voting rights in excess of the Voting Limitation (asdefined in the certificate of incorporation) with respect to any Person (asdefined in the certificate of incorporation) that is, or a Person that has aRelated Person (as defined below) that is, an OTP Holder or OTP Firm (asdefined in PCX rules, as such rules may be in effect from time to time) of PCX(any such Person that is a Related Person of an OTP Holder shall hereinafteralso be deemed to be an “OTP Holder” for purposes of these bylaws and any suchPerson that is a Related Person of an OTP Firm shall hereinafter also be deemedto be an “OTP Firm” for purposes of these bylaws, as context may require); (ii)adopt any resolution pursuant to paragraph (C)(2)(y) of Article FOURTH of thecertificate of incorporation to approve any waiver of the Nonvoting AgreementProhibition (as defined in the certificate of incorporation) with respect toany agreement, plan or other arrangement to which an OTP Holder or OTP Firm isa party that relates to shares of stock of the Corporation entitled to vote onany matter; and (iii) adopt any resolution pursuant to paragraph (D)(1)(a) ofArticle FOURTH of the certificate of incorporation that would expressly permitany OTP Holder or OTP Firm, either alone or with its related Persons, at anytime, to own beneficially shares of stock of the Corporation representing inthe aggregate more than 40% of the then outstanding votes entitled to be caston any matter.  For purposes of thisSection 6.8(d), the term “Related Person” shall have the meaning set forth inthe certificate of incorporation, and shall also include (A) in the case of aPerson that is a natural person, any broker or dealer that is an OTP Holder orOTP Firm with which such natural person is associated and (B) in the case of aPerson that is an OTP Holder or OTP Firm, any broker or dealer with which suchOTP Holder or OTP Firm is associated.

 

(e)           (i) Inaddition to the requirements of Article FOURTEENTH of the certificate ofincorporation, the Corporation’s books and records shall be subject at alltimes to inspection and copying by PCX and PCX Equities to the extent suchbooks and records are related to the operation and administration of PCX or PCXEquities; (ii) in addition to the requirements of Article SEVENTEENTH of thecertificate of incorporation, the Corporation shall take reasonable stepsnecessary to cause its agents to cooperate with PCX and PCX Equities pursuantto their regulatory authority with respect to such agents’ activities relatedto PCX or PCX Equities; (iii) in addition to the requirements of ArticleEIGHTEENTH of the certificate of incorporation, the Corporation shall takereasonable steps necessary to cause its officers, directors and employees priorto accepting a position as an officer, director or employee, as applicable, ofthe Corporation to consent in writing to the applicability to them of ArticleTENTH, Article THIRTEENTH and Article FIFTEENTH of the certificate ofincorporation, as applicable, with respect to their activities related to PCXor PCX Equities; and (iv) in addition to the requirements of Article THIRTEENTHof the certificate of incorporation, the Corporation, its directors andofficers, and those of its employees whose principal place of business andresidence is outside the United States shall be deemed to irrevocably submit tothe exclusive jurisdiction of the United States federal courts, the 

 

 

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Securitiesand Exchange Commission, and PCX for the purposes of any suit, action orproceeding pursuant to the United States federal securities laws, and the rulesand regulations thereunder, arising out of, or relating to, the activities ofPCX or PCX Equities, and the Corporation and each such director, officer oremployee, in the case of any such director, officer or employee by virtue ofhis acceptance of any such position, shall be deemed to waive, and agree not toassert by way of motion, as a defense or otherwise in any suit, action orproceeding, any claims that it or they are not personally subject to thejurisdiction of the Securities and Exchange Commission, that the suit, actionor proceeding is an inconvenient forum or that the venue of the suit, action orproceeding is improper, or that the subject matter thereof may not be enforcedin or by such courts or agency.

 

(f)            Tofurther the purposes of paragraph (F) of Article FOURTH of the certificate ofincorporation, the Board of Directors of the Corporation shall cause theCorporation to call promptly shares of stock of the Corporation pursuant toparagraph  (D) or (E) of Article FOURTHof the certificate of incorporation, and notice of such call shall be givenpromptly.

 

(g)           Sections6.8(c), (d), (e) and (f) and this Section 6.8(g) of these bylaws may not beamended, modified or repealed unless such amendment, modification or repeal is(i) filed with and approved by the Securities and Exchange Commission pursuantto Section 19 of the Exchange Act or (ii) approved by stockholders voting notless than 80% of the then outstanding votes entitled to be cast in favor of anysuch amendment, modification, or repeal.

 

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