Bylaws of Phase Metrics, Inc.

BYLAWS


OF


PHASE METRICS, INC. 2
TABLE OF CONTENTS


Page
---- ARTICLE I OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Principal Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


ARTICLE II MEETINGS OF STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 4. Notice of Stockholders' Meetings . . . . . . . . . . . . . . . . . . . . . . . 2
Section 5. Manner of Giving Notice; Affidavit of Notice . . . . . . . . . . . . . . . . . 2
Section 6. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 7. Adjourned Meeting; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 8. Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 9. Waiver of Notice or Consent by Absent Stockholders . . . . . . . . . . . . . . 4
Section 10. Stockholder Action by Written Consent Without a Meeting . . . . . . . . . . . . 4
Section 11. Record Date for Stockholder Notice, Voting, and Giving Consents . . . . . . . . 5
Section 12. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 13. Inspectors of Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6


ARTICLE III DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2. Number and Qualification of Directors . . . . . . . . . . . . . . . . . . . . . 7
Section 3. Election and Term of Office of Directors . . . . . . . . . . . . . . . . . . . 8
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 5. Place of Meetings and Meetings by Telephone . . . . . . . . . . . . . . . . . . 8
Section 6. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7. Other Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 8. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 9. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 10. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 11. Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 12. Notice of Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 13. Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 14. Fees and Compensation of Directors . . . . . . . . . . . . . . . . . . . . . . 10


ARTICLE IV COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 1. Committees of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2. Meetings and Action of Committees . . . . . . . . . . . . . . . . . . . . . . . 11


i 3 ARTICLE V OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1. Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2. Election of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3. Subordinate Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Removal and Resignation of Officers . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Vacancies in Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 8. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 9. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 10. Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13


ARTICLE VI INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS . . . . . . 14


ARTICLE VII RECORDS AND REPORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Maintenance and Inspection of Share Register . . . . . . . . . . . . . . . . . 15
Section 2. Maintenance and Inspection of Bylaws . . . . . . . . . . . . . . . . . . . . . 15
Section 3. Maintenance and Inspection of Other Corporate Records . . . . . . . . . . . . . 15
Section 4. Inspection by Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 5. Annual Report to Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6. Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16


ARTICLE VIII GENERAL CORPORATE MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 1. Record Date for Purposes Other Than Notice and Voting . . . . . . . . . . . . . 16
Section 2. Checks, Drafts, Evidences of Indebtedness . . . . . . . . . . . . . . . . . . . 17
Section 3. Corporate Contracts and Instruments; How Executed . . . . . . . . . . . . . . . 17
Section 4. Certificates for Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 5. Lost Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6. Representation of Shares of Other Corporations . . . . . . . . . . . . . . . . 18
Section 7. Construction and Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 18


ARTICLE IX AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1. Amendment by Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 2. Amendment by Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


ARTICLE X SECURITYHOLDERS AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 19


CERTIFICATE OF SECRETARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


ii 4
BYLAWS


OF


PHASE METRICS, INC.,


A DELAWARE CORPORATION


ARTICLE I


OFFICES


SECTION 1. REGISTERED OFFICE. The registered office shall be at the office of National Registered Agents, Inc.


SECTION 2. OTHER OFFICES. The Board of Directors may at any time establish, or may designate an officer of the corporation to establish, branch or subordinate offices at any place or places where the corporation is qualified to do business.


ARTICLE II


MEETINGS OF STOCKHOLDERS


SECTION 1. PLACE OF MEETINGS. Meetings of stockholders shall be held at any place within or outside the State of California designated by the Board of Directors. In the absence of any such designation, stockholders' meetings shall be held at the principal executive office of the corporation.


SECTION 2. ANNUAL MEETINGS. The annual meeting of stockholders shall be held each year on a date and at a time designated by the Board of Directors. At each annual meeting directors shall be elected, and any other proper business may be transacted.


SECTION 3. SPECIAL MEETING. A special meeting of the stockholders may be called at any time by the Board of Directors, or by the Chairman of the Board, or by the President, or by one or more stockholders holding shares in the aggregate entitled to cast not less than 10% of the votes at that meeting.


If a special meeting is called by any person or persons other than the Board of Directors, the request shall be in writing, specifying the time of such meeting and the general


5 nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the Chairman of the Board, the President, any Vice President, or the Secretary of the corporation. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 4 and 5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than thirty-five (35) nor more than sixty (60) days after the receipt of the request. If the notice is not given within twenty (20) days after receipt of the request, the person or persons requesting the meeting may give the notice. Nothing contained in this paragraph of this Section 3 shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of the Board of Directors may be held.


SECTION 4. NOTICE OF STOCKHOLDERS' MEETINGS. All notices of meetings of stockholders shall be sent or otherwise given in accordance with Section 5 of this Article II not less than ten (10) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in the case of a special meeting, the general nature of the business to be transacted, or (ii) in the case of the annual meeting, those matters which the Board of Directors, at the time of giving the notice, intends to present for action by the stockholders. The notice of any meeting at which directors are to be elected shall include the name of any nominee or nominees whom, at the time of the notice, management intends to present for election.


If action is proposed to be taken at any meeting for approval of (i) a contract or transaction in which a director has a direct or indirect financial interest, (ii) an amendment of the certificate of incorporation, (iii) a reorganization of the corporation, (iv) a voluntary dissolution of the corporation, or (v) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, pursuant to the Delaware General Corporation Law, the notice shall also state the general nature of that proposal.


SECTION 5. MANNER OF GIVING NOTICE; AFFIDAVIT OF NOTICE. Notice of any meeting of stockholders shall be given either personally or by first-class mail or telegraphic or other written communication, charges prepaid, addressed to the stockholder at the address of that stockholder appearing on the books of the corporation or given by the stockholder to the corporation for the purpose of notice. If no such address appears on the corporation's books or is given, notice shall be deemed to have been given if sent to that stockholder by first-class mail or telegraphic or other written communication to the corporation's principal executive office, or if published at least once in a newspaper of general circulation in the county where that office is located. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication.


If any notice addressed to a stockholder at the address of that stockholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver


2 6 the notice to the stockholder at that address, all future notices or reports shall be deemed to have been duly given without further mailing if these shall be available to the stockholder on written demand of the stockholder at the principal executive office of the corporation for a period of one year from the date of the giving of the notice.


An affidavit of the mailing or other means of giving any notice of any stockholders' meeting shall be executed by the secretary, assistant secretary, or any transfer agent of the corporation giving the notice, and shall be filed and maintained in the minute book of the corporation.


SECTION 6. QUORUM. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting of stockholders shall constitute a quorum for the transaction of business. The stockholders present at a duly called or held meeting at which a quorum is present may continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum.


SECTION 7. ADJOURNED MEETING; NOTICE. Any stockholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by the vote of the majority of the shares represented at that meeting, either in person or by proxy, but in the absence of a quorum, no other business may be transacted at that meeting, except as provided in Section 6 of this Article II.


When any meeting of stockholders, either annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place are announced at a meeting at which the adjournment is taken, unless a new record date for the adjourned meeting is fixed, or unless the adjournment is for more than forty-five (45) days from the date set for the original meeting, in which case the Board of Directors shall set a new record date. Notice of any such adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting in accordance with the provisions of Sections 4 and 5 of this Article II. At any adjourned meeting the corporation may transact any business which might have been transacted at the original meeting.


SECTION 8. VOTING. The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 11 of this Article II, subject to the provisions of the Delaware General Corporation Law (relating to voting shares held by a fiduciary, in the name of a corporation, or in joint ownership).


The stockholders' vote may be by voice vote or by ballot; provided, however, that any election for directors must be by ballot if demanded by any stockholder before the voting has begun. On any matter other than elections of directors, any stockholder may vote part of the shares in favor of the proposal and refrain from voting the remaining shares or vote them against the proposal, but, if the stockholder fails to specify the number of shares


3 7 which the stockholder is voting affirmatively, it will be conclusively presumed that the stockholder's approving vote is with respect to all shares that the stockholder is entitled to vote. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on any matter (other than the election of directors) shall be the act of the stockholders, unless the vote of a greater number or voting by classes is required by Delaware General Corporation Law or by the Certificate of Incorporation.


There shall be the right to cumulative voting.


SECTION 9. WAIVER OF NOTICE OR CONSENT BY ABSENT STOCKHOLDERS. The transactions of any meeting of stockholders, either annual or special, however called and noticed, and wherever held, shall be as valid as though a meeting had been duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each person entitled to vote, who was not present in person or by proxy, signs a Written Waiver of Notice or a Consent to a holding of the meeting, or an approval of the minutes. The Waiver of Notice or Consent need not specify either the business to be transacted or the purpose of any annual or special meeting of stockholders, except that, if action is taken or proposed to be taken for approval of any of those matters specified in the second paragraph of Section 4 of this Article II, the Waiver of Notice or Consent shall state the general nature of the proposal.


All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting.


Attendance by a person at a meeting shall also constitute a waiver of notice of that meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened, and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting if that objection is expressly made at the meeting.


SECTION 10. STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action which may be taken at any annual or special meeting of stockholders may be taken without a meeting and without prior notice, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all shares entitled to vote thereon were present and voted. In the case of election of directors, such a consent shall be effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors; provided, however, that a director may be elected at any time to fill a vacancy on the Board of Directors that has not been filled by the directors, by the written consent of the holders of a majority of the outstanding shares entitled to vote for the election of directors. All such consents shall be filed with the Secretary of the corporation and shall be maintained in the corporate records. Any stockholder giving a written consent, or the stockholder's proxy holders, or a transferee


4 8 of the shares or a personal representative of the stockholder or their respective proxy holders, may revoke the consent by a writing received by the secretary of the corporation before written consents of the number of shares required to authorize the proposed action have been filed with the secretary.


If the consents of all stockholders entitled to vote have not been solicited in writing, and if the Unanimous Written Consent of all such stockholders shall not have been received, the Secretary shall give prompt notice of the corporate action approved by the stockholders without a meeting. This notice shall be given in the manner specified in Section 5 of this Article II. In the case of approval of (i) contracts or transactions in which a director has a direct or indirect financial interest, (ii) indemnification of agents of the corporation, (iii) a reorganization of the corporation, and (iv) a distribution in dissolution other than in accordance with the rights of outstanding preferred shares, the notice shall be given at least ten (10) days before the co ...