EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
CONFLUENCE ACQUISITION PARTNERS I, INC.
ARTICLE I
OFFICES
Section 1.1. Registered Office and Agent. The initial registered office
shall be 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808, located
in New Castle County, and the name of the initial registered agent of the
Corporation at such address shall be The Corporation Service Company.
Section 1.2. Offices. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1. Annual Meetings. Annual meetings of stockholders shall be
held at such date, time and place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors and
stated in the notice of the meeting, for the purpose of electing a Board of
Directors, and transacting such other business as properly may be brought before
the meeting.
To be properly brought before the annual meeting, business must be either
(i) specified in the notice of annual meeting (or any supplement or amendment
thereto) given by or at the direction of the Board of Directors, (ii) otherwise
brought before the annual meeting by or at the direction of the Board of
Directors, or (iii) otherwise properly brought before the annual meeting by a
stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
sixty (60) days nor more than ninety (90) days prior to the meeting; provided,
however, that in the event that less than seventy (70) days notice or prior
public disclosure of the date of the annual meeting is given or made to
stockholders, notice by a stockholder, to be timely, must be received no later
than the close of business on the tenth (10th) day following the day on which
such notice of the date of the annual meeting was mailed or such public
disclosure was made, whichever first occurs. A stockholder's notice to the
Secretary shall set forth (a) as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, and (ii) any material interest of the
stockholder in such business, and (b) as to the stockholder giving the notice
(i) the name and record address of the stockholder and (ii) the class, series
and number of shares of capital stock of the Corporation which are beneficially
owned by the stockholder. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Article II, Section 2. The
officer of the Corporation presiding at an annual meeting shall, if the facts
warrant, determine and declare to the annual meeting that business was not
properly brought before the annual meeting in accordance with the provisions of
this Article II, Section 2, and if such officer should so determine, such
officer shall so
declare to the annual meeting and any such business not properly brought before
the meeting shall not be transacted.
Section 2.2. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise provided by statute or by the
Certificate of Incorporation, may only be called by a majority of the Board of
Directors or by the Chairman, the Chief Executive Officer or the President and
shall be called by the Secretary at the request in writing of stockholders
owning a not less than 10% of the entire capital stock of the Corporation issued
and outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 2.3. Notice of Meetings. Whenever stockholders are required or
permitted to take action at a meeting, a written notice of the meeting shall 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 meeting is
called. Unless otherwise provided by law, the written notice of any meeting
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
Section 2.4. Quorum; Vote Required for Action. Except as otherwise
provided by law or by the Certificate of Incorporation or these Bylaws, the
presence in person or by proxy of the holders of a majority of the outstanding
shares of stock of the Corporation entitled to vote thereat shall constitute a
quorum at each meeting of the stockholders and all questions shall be decided by
a vote of the holders of a majority of the shares so represented in person or by
proxy at the meeting and entitled to vote thereat. The stockholders present at
any duly organized meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum.
Section 2.5. Adjournments. Notwithstanding any other provisions of these
Bylaws, the holders of a majority of the shares of stock of the Corporation
entitled to vote at any meeting, present in person or represented by proxy,
whether or not a quorum is present, shall have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. At any such adjourned meeting at which
a quorum shall be present or represented, any business may be transacted which
might have been transacted at the meeting originally called; provided, however,
that 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 adjourned meeting.
Section 2.6. Voting Rights; Proxies. Unless otherwise provided by law or
by the Certificate of Incorporation each stockholder shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after three (3) years from its date, unless the proxy provides
for a longer period. Each proxy shall be revocable unless expressly provided
therein to be irrevocable or unless otherwise made irrevocable by law. The
notice of every meeting of the stockholders may be accompanied by a form of
proxy approved by the Board of Directors in favor of such person or persons as
the Board of Directors may select.
Section 2.7. Action of Stockholders Without Meeting. Unless otherwise
provided by the Certificate of Incorporation, any action required to be taken at
any annual or special meeting of stockholders, or any action which may be taken
at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which
- 2 -
all shares entitled to vote thereon were present and voted, and shall be
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 2.8. List of Stockholders Entitled to Vote. The officer who has
charge of the stock ledger of the Corporation shall prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 2.9. Record Date. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders, or
to receive payment of any dividend or other distribution or allotment of any
rights or 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 not precede the date on
which the resolution fixing the record date is adopted and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other action as hereinbefore described; provided, however, that if no
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, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted. If no record date has been fixed
by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, as amended ("DGCL"), the
record date shall be the first date on which a signed written consent setting
forth the action taken or proposed to be taken is delivered to the Corporation
in the manner prescribed by Article II, Section 2.7 hereof. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the DGCL with respect to the proposed action by written
consent of the stockholders, the record date for determining stockholders
entitled to consent to corporate action in writing shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action.
- 3 -
Section 2.10. Ratification. Any transaction questioned in any
stockholders' derivative suit, or any other suit to enforce alleged rights of
the Corporation or any of its stockholders, on the ground of lack of authority,
defective or irregular execution, adverse interest of any director, officer or
stockholder, nondisclosure, miscomputation or the application of improper
principles or practices of accounting may be approved, ratified and confirmed
before or after judgment by the Board of Directors or by the holders of common
stock and, if so approved, ratified or confirmed, shall have the same force and
effect as if the questioned transaction had been originally duly authorized, and
said approval, ratification or confirmation shall be binding upon the
Corporation and all of its stockholders and shall constitute a bar to any claim
or execution of any judgment in respect of such questioned transaction.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. Powers; Number; Qualifications. The business, affairs and
property of the Corporation shall be managed by or under the direction of the
Board of Directors, which may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these Bylaws directed or required to be exercised or done by
the stockholders. The number of directors shall be as fixed in such manner as
may be determined by the vote of a majority of the directors then in office, but
shall not be less than one. The directors shall be elected at the annual meeting
of the stockholders, except as provided in Article III, Section 3.2 hereof, and
each director elected shall hold office until his successor is elected and
qualified or until his earlier death, resignation or removal. A majority of the
directors may elect from its members a chairman. The chairman, if any, shall
hold this office until his successor shall have been elected and qualified.
Section 3.2. Staggered Board. Commencing with the Written Consent in Lieu
of Organizational Meeting of the Initial Class III Director, in lieu of electing
the whole number of directors annually, the directors, shall be divided, with
respect to the time for which they severally hold office, into three classes, as
nearly equal in number as is reasonably possible, with the term of office of the
first class ("Class I") to expire at the annual meeting of shareholders to be
held in 2006, the term of office of the second class ("Class II") to expire at
the annual meeting of shareholders to be held in 2007, and the term of office of
the third class ("Class III") to expire at the annual meeting of shareholders to
be held in 2008, with each director to hold office until his or her successor
shall have been duly elected and qualified unless earlier removed. At each
annual meeting of shareholders, commencing with the annual meeting of
shareholders to be held in 2006, (i) directors elected to succeed those
directors whose terms then expire shall be elected for a term of office to
expire at the third succeeding annual meeting of shareholders after their
election, with each director to hold office until his or her successor shall
have been duly elected and qualified unless earlier removed, and (ii) if
authorized by a resolution of the board of directors, directors may be elected
to fill any vacancy on the board of directors, regardless of how such vacancy
shall have been created. The initial Class III director shall be Robert May. The
initial Class III director shall elect the other Class I, Class II and Class III
directors as he deems necessary. Notwithstanding that a lesser percentage may be
permitted from time to time by applicable law, no provision of this Section 3.2
may be altered, amended or repealed in any respect, nor may any provision
inconsistent therewith be adopted, unless such alteration, amendment, repeal or
adoption is approved by the affirmative vote of the holders of at least 80
percent of the combined voting stock of the Corporation voting together as a
single class at a meeting of shareholders called by the action of the board of
directors.
Section 3.3. Vacancies. Any vacancy in the Board of Directors, including
vacancies resulting from any increase in the authorized number of directors may
be filled by a vote of the remaining directors then in office or by a sole
remaining director and the directors so chosen shall hold office until the next
annual meeting of stockholders and until their successors are duly elected and
qualified, or until their earlier death, resignation or removal.
- 4 -
Section 3.4. Nominations. Nominations of persons for election to the Board
of Directors of the Corporation at a meeting of stockholders of the Corporation
may be made at such meeting by or at the direction of the Board of Directors, by
any committee or persons appointed by the Board of Directors or by any
stockholder of the Corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in this Article
III, Section 3.4. Such nominations by any stockholder shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than sixty (60) days nor
more than ninety (90) days prior to the meeting; provided however, that in the
event that less than seventy (70) days notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the stockholder,
to be timely, must be received no later than the close of business on the tenth
(10th) day following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first occurs. Such
stockholder's notice to the Secretary shall set forth (i) as to each person whom
the stockholder proposes to nominate for election or reelection as a director,
(a) the name, age, business address and residence address of the person, (b) the
principal occupation or employment of the person, (c) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the
person, and (d) any other information relating to the person that is required to
be disclosed in solicitations for proxies for election of directors pursuant to
the Rules and Regulations of the Securities and Exchange Commission under
Section 14 of the Securities Exchange Act of 1934, as amended, and (ii) as to
the stockholder giving the notice (a) the name and record address of the
stockholder and (b) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee to serve as a director of the Corporation. No person shall be eligible
for election as a director of the Corporation unless nominated in accordance
with the procedures set forth herein. The officer of the Corporation presiding
at an annual meeting shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and
the defective nomination shall be disregarded.
Section 3.5. Resignations. Any director may resign at any time by written
notice to the Corporation. Any such resignation shall take effect at the date of
receipt of such notice or at any later time specified therein, and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 3.6. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such place or places within or without the State of Delaware,
at such hour and on such day as may be fixed by resolution of the Board of
Directors, without further notice of such meetings. The time and place of
holding regular meetings of the Board of Directors may be changed by the
Chairman, the Chief Executive Officer, the President or any Vice President by
giving written notice thereof as provided in Article III, Section 3.8 hereof.
Section 3.7. Special Meetings. Special meetings of the Board of Directors
may be held whenever called by (i) the Chairman, the Chief Executive Officer or
the President (ii) the Chairman, the Chief Executive Officer, the President or
the Secretary on the written request of a majority of the Board of Directors; or
(iii) resolution adopted by the Board of Directors. Special meetings may be held
within or without the State of Delaware as may be stated in the notice of the
meeting.
Section 3.8. Notice of Meetings. Written notice of the time, place and
general nature of the business to be transacted at all special meetings of the
Board of Directors, and written notice of any change in the time or place of
holding the regular meetings of the Board of Directors, must be given to each
director at least forty-eight (48) hours prior to the day of the meeting;
provided, however, that notice
- 5 -
of any meeting need not be given to any director if waived by him in writing, or
if he shall be present at such meeting, except when the director attends the
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the grounds that the meeting is not
lawfully called or convened.
Section 3.9. Quorum; Vote Required for Action. Except as may be otherwise
specifically provided by law, the Certificate of Incorporation or these Bylaws,
at all meetings of the Board of Directors or any committee thereof, a majority
of the directors then in office or of such committee, as the case may be, shall
constitute a quorum for the transaction of business and, except as otherwise
provided by law or these Bylaws, 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. If a quorum shall not be present at any meeting of the Board of
Directors or of any committee thereof, a majority of the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3.10. Action by Unanimous Consent of Directors. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee of the Board of Directors may be taken without a meeting, if all
members of the board or the committee of the board, as the case may be, consent
thereto in writing, which may be in counterparts, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors or the
committee thereof. Such writing(s) shall be manually executed if practicable,
but if circumstances so require, effect shall be given to written consent
transmitted by telegraph, telex, telecopy or similar means of visual data
transmission.
Section 3.11. Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of such board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Bylaw shall constitute presence in person at such meeting.
Section 3.12. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if (i) the material facts as to his or their
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 votes 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 or their relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 3.13. Compensation. Directors shall be entitled to such
compensation for their services as may be approved by the Board of Directors,
including, if so approved by resolution of the Board of Directors, a fixed sum
and expenses of attendance at each regular or special meeting or any committee
thereof. No such payment shall preclude any director from serving the
Corporation in any other capacity
- 6 -
and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
Section 3.14. Removal. Any director or the entire Board of Directors may
be removed, with or without cause, by the holders of a majority of the shares
entitled to vote at an election of directors. The notice calling such meeting
shall state the intention to act upon such matter, and the vacancy or vacancies,
if any, caused by such removal shall be filled at such meeting by a vote of the
holders of a majority of the shares entitled to vote at an election of
directors.
Section 3.15. Committees. The Board of Directors may, by resolution
adopted by a majority of the members of the Board of Directors, designate one or
more committees, each committee to consist of two or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any committee. The alternate members of any committee may replace any
absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in a resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have such power or authority in
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending the Bylaws of the Corporation; and,
unless the resolution or the Certificate of Incorporation expressly so provide,
no committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required. Members of
special or standing committees shall be entitled to receive such compensation
for serving on such committees as the Board of Directors shall determine.
ARTICLE IV
NOTICES
Section 4.1. Notices. Whenever, under the provisions of the Certificate of
Incorporation or these Bylaws, notice is required to be given to any director or
stockholder, such notice must be in writing and may be given in person, in
writing or by mail, telegram, telecopy or other similar means of visual
communication, addressed to such director or stockholder, at his address as it
appears on the records of the Corporation, with postage or other transmittal
charges thereon prepaid. Such notice shall be deemed to be given (i) if by mail,
the day when the same shall be deposited in the United States mail, and (ii)
otherwise, when such notice is transmitted.
Section 4.2. Waiver of Notice. Whenever any notice is required to be given
under the provisions of the Certificate of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed
equivalent thereto. 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. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation.
- 7 -
ARTICLE V
OFFICERS
Section 5.1. Election; Qualifications; Term of Office. The officers of the
Corporation shall be elected or appointed by the Board of Directors and may
include, at the discretion of the Board, a Chairman of the Board, Vice Chairman
of the Board, a President, a Chief Executive Officer, a Chief Operating Officer,
a Chief Financial Officer, a Secretary, a Treasurer and such Executive, Senior
or other Vice Presidents and other officers as may be determined by the Board of
Directors. Any number of offices may be held by the same person and more than
one person may hold the same office, unless otherwise prohibited by law, the
Certificate of Incorporation or these Bylaws. The officers of the Corporation
shall hold office until their successors are chosen and qualified, except that
any officer may resign at any time by written notice to the Corporation and the
Board of Directors may remove any officer at any time at its discretion with or
without cause.
Section 5.2. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chief Executive Officer or any Vice
President, and any such officer may, in the name and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
Section 5.3. Chief Executive Officer. Subject to the provisions of these
Bylaws and to the direction of the Board of Directors, the Chief Executive
Officer shall have ultimate authority for decisions relating to the general
management and control of the affairs and business of the Corporation and shall
perform such other duties and exercise such other powers which are or from time
to time may be delegated to him or her by the Board of Directors or these
Bylaws, all in accordance with basic policies as established by and subject to
the oversight of the Board of Directors.
Section 5.4. Chief Financial Officer. The Chief Financial Officer shall
have general supervision, direction and control of the financial affairs of the
Corporation and shall perform such other duties and exercise such other powers
which are or from time to time may be delegated to him or her by the Board of
Directors or these Bylaws, all in accordance with basic policies as established
by and subject to the oversight of the Board of Directors. In the absence of a
named Treasurer, the Chief Financial Officer shall also have the powers and
duties of the Treasurer as hereinafter set forth and shall be authorized and
empowered to sign as Treasurer in any case where such officer's signature is
required.
Section 5.5. Vice Presidents. At the request of the Chief Executive
Officer or in the absence of the Chief Executive Officer, or in the event of his
or her inability or refusal to act, the Vice President or the Vice Presidents if
there is more than one (in the order designated by the Board of Directors) shall
perform the duties of the Chief Executive Officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon such office,
Each Vice President shall perform such other duties and have such other powers
as the Board of Directors from time to time may prescribe. If there be no Vice
President, the Board of Directors shall designate the officer of the Corporation
who, in the absence of the Chief Executive Officer or in the event of the
inability or refusal of such officer to act, shall perform the duties of such
office, and when so acting, shall have all the powers of and be subject to all
the restrictions upon such office.
- 8 -
Section 5.6. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or he
Chief Executive Officer, under whose supervision the Secretary shall be. If the
Secretary shall be unable or shall refuse to cause or be given notice of all
meetings of the stockholders and special meetings of the Board of Directors,
then any Assistant Secretary shall perform such actions. If there be no
Assistant Secretary, then the Board of Directors or the Chief Executive Officer
may choose another officer to cause such notice to be given. The Secretary shall
have custody of the seal of the Corporation and the Secretary or any Assistant
Secretar5y, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any such Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest the affixing by his signature. The Secretary
shall see that all books, reports, statements, certificates and other documents
and records required by law to be kept or filed are properly kept or filed, as
the case may be.
Section 5.7. Treasurer. The Treasurer shall have custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board of Directors. The Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the Board of Directors, at its regular meetings,
or when the Board of Directors so requires, an account of all his transactions
as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give to the Corporation a bond, paid
for by the Corporation, in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
Section 5.8. Assistant Secretaries. Except as may be otherwise provided in
these Bylaws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board
of Directors, the Chief Executive Officer, or any Vice President, if there be
one, or the Secretary, and in the absence of the Secretary or in the event of
his disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
Section 5.9. Assistant Treasurers. Assistant Treasurers, if there be any,
shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chief Executive Officer, any
Chief Financial Officer, if there be one, or the Treasurer, and in the absence
of the Treasurer or in the event of his disability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Treasurer. If required
by the Board of Directors, an Assistant Treasurer shall give the Corporation a
bond, paid for by the Corporation, in such sum and with such surety or sureties
as shall be satisfactory to the Board of Directors for the faithful performance
of the duties of his office and for the restoration to the Corporation, in case
of his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession or
under his control belonging to the Corporation.
Section 5.10. Controller. The Controller shall establish and maintain the
accounting records of the Corporation in accordance with generally accepted
accounting principles applied on a consistent basis,
- 9 -
maintain proper internal control of the assets of the Corporation and shall
perform such other duties as the Board of Directors, the Chief Executive Officer
or any Chief Financial Officer of the Corporation may prescribe.
Section 5.11. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
Section 5.12. Resignations. Any officer may resign at any time by
submitting his written resignation to the Corporation. Such resignation shall
take effect at the time of its receipt by the Corporation, unless another time
be fixed in the resignation, in which case it shall become effective at the time
so fixed. The acceptance of a resignation shall not be required to make it
effective.
Section 5.13. Removal. Subject to the provisions of any employment
agreement approved by the Board of Directors, any officer of the Corporation may
be removed at any time, with or without cause, by the Board of Directors.
ARTICLE VI
STOCK
Section 6.1. Certificates. Every holder of stock in the Corporation shall
be entitled to have a certificate, signed by, or in the name of the Corporation
by, (i) the Chairman, the Chief Executive Officer, the President, or a Vice
President, and (ii) a Vice President, the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualification, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided in Section 202 of the DGCL, in lieu
of the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 6.2. Certificates Issued for Partly Paid Shares. Certificates may
be issued for partly paid shares and in such case upon the face or back of the
certificates issued to represent any such partly paid shares the total amount of
the consideration to be paid therefor, and the amount paid thereon shall be
specified.
Section 6.3. Signatures. Any of or all the signatures on the certificate
may be facsimile including, but not limited to, signatures of officers of the
Corporation and countersignatures of a transfer agent or registrar. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
Section 6.4. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or
- 10 -
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 6.5. Transfer of Stock. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation only by a person named in
the certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation or authority to
transfer, and subject to applicable federal and state securities laws and
contractual obligations, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books, unless the Corporation has a duty to
inquire as to adverse claims with respect to such transfer which has not been
discharged. The Corporation shall have no duty to inquire into adverse claims
with respect to such transfer unless (a) the Corporation has received a written
notification of an adverse claim at a time and in a manner which affords the
Corporation a reasonable opportunity to act on it prior to the issuance of a
new, reissued or re-registered share certificate and the notification identifies
the claimant, the registered owner and the issue of which the share or shares is
a part and provides an address for communications directed to the claimant; or
(b) the Corporation has required and obtained, with respect to a fiduciary, a
copy of a will, trust, indenture, articles of co-partnership, Bylaws or other
controlling instruments, for a purpose other than to obtain appropriate evidence
of the appointment or incumbency of the fiduciary, and such documents indicate,
upon reasonable inspection, the existence of an adverse claim. The Corporation
may discharge any duty of inquiry by any reasonable means, including notifying
an adverse claimant by registered or certified mail at the address furnished by
him or, if there be no such address, at his residence or regular place of
business that the security has been presented for registration of transfer by a
named person, and that the transfer will be registered unless within thirty days
from the date of mailing the notification, either (a) an appropriate restraining
order, injunction or other process issues from a court of competent
jurisdiction; or (b) an indemnity bond, sufficient in the Corporation's judgment
to protect the Corporation and any transfer agent, registrar or other agent of
the Corporation involved from any loss which it or they may suffer by complying
with the adverse claim, is filed with the Corporation
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Reliance on Books and Records. Each Director, each member of
any committee designated by the Board of Directors, and each officer of the
Corporation, shall, in the performance of his duties, be fully protected in
relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers,
by an independent certified public accountant, or by an appraiser selected with
reasonable care.
Section 7.2. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by resolution adopted 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
Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for
- 11 -
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
Corporation, or for such other purpose as the directors shall think conducive to
the interest of the Corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
Section 7.2. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 7.3. Amendments. These Bylaws may be altered, amended or repealed
or new Bylaws may be adopted from time to time in the manner prescribed in the
Certificate of Incorporation.
Section 7.4. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 8.2. The Corporation shall indemnify any person who was or is a
party, or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
- 12 -
Section 8.3. To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 or 2 of this Article, or in
defense of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
Section 8.4. Any indemnification under Sections 1 or 2 of this Article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such section. Such determination
shall be made:
(a) By the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(b) If such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or
(c) By the stockholders.
Section 8.5. Expenses (including attorneys' fees) incurred by an officer
or director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the Board of Directors deems appropriate.
Section 8.6. The indemnification and advancement of expenses provided by,
or granted pursuant to the other sections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Section 8.7. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this Article.
Section 8.8. For purposes of this Article, references to "the Corporation"
shall include, in addition to the resulting Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this Article with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation of its separate existence had continued.
- 13 -
Section 8.9. For purposes of this Article, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
Section 8.10. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 8.11. No director or officer of the Corporation shall be
personally liable to the Corporation or to any stockholder of the Corporation
for monetary damages for breach of fiduciary duty as a director or officer,
provided that this provision shall not limit the liability of a director or
officer (i) for any breach of the director's or the officer's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for
any transaction from which the director or officer derived an improper personal
benefit.
The undersigned, being the duly elected and serving Secretary of
Confluence Acquisition Partners I, Inc., does hereby certify that the foregoing
is a true and correct copy of the Bylaws of the Corporation that were duly
adopted by the directors of the Corporation by written consent dated as of June
28, 2005.
/s/ Robert W. May
-----------------------------------
Robert W. May, Secretary
- 14 -