Amended And Restated Bylaws

AMENDED AND RESTATED


BY-LAWS


OF


ANDOVER.NET, INC.


(A Delaware Corporation)


Effective Date: ____________


2


AMENDED AND RESTATED


BY-LAWS


OF


ANDOVER.NET, INC.


(A Delaware Corporation)


ARTICLE 1 4
SECTION 1.1 CONTENTS 4
SECTION 1.2 CERTIFICATE IN EFFECT 4 ARTICLE 2 4
SECTION 2.1 PLACE 4
SECTION 2.2 ANNUAL MEETING 5
SECTION 2.3 NOTICE OF STOCKHOLDER BUSINESS 5
SECTION 2.4 SPECIAL MEETINGS 6
SECTION 2.5 NOTICE OF MEETINGS 7
SECTION 2.6 AFFIDAVIT OF NOTICE 7
SECTION 2.7 QUORUM 7
SECTION 2.8 VOTING REQUIREMENTS 8
SECTION 2.9 PROXIES AND VOTING 8
SECTION 2.10 ACTION WITHOUT MEETING 8
SECTION 2.11 STOCKHOLDER LIST 9
SECTION 2.12 RECORD DATE 10 ARTICLE 3 11
SECTION 3.1 NUMBER; ELECTION AND TERM OF OFFICE 11
SECTION 3.2 DUTIES 11
SECTION 3.3 COMPENSATION 12
SECTION 3.4 RELIANCE ON BOOKS 12 ARTICLE 4 12
SECTION 4.1 PLACE 12
SECTION 4.2 ANNUAL MEETING 12
SECTION 4.3 REGULAR MEETINGS 13
SECTION 4.4 SPECIAL MEETINGS 13
SECTION 4.5 QUORUM 13
SECTION 4.6 ACTION WITHOUT MEETING 13
SECTION 4.7 TELEPHONE MEETINGS 14 ARTICLE 5 15
SECTION 5.1 DESIGNATION 15
SECTION 5.2 RECORDS OF MEETINGS 16 ARTICLE 6 16
SECTION 6.1 METHOD OF GIVING NOTICE 16
SECTION 6.2 WAIVER 16


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ARTICLE 7 16
SECTION 7.1 IN GENERAL 16
SECTION 7.2 ELECTION OF PRESIDENT, SECRETARY AND TREASURER 16
SECTION 7.3 ELECTION OF OTHER OFFICERS 16
SECTION 7.4 SALARIES 16
SECTION 7.5 TERM OF OFFICE 16
SECTION 7.6 DUTIES OF PRESIDENT AND CHAIRMAN OF THE BOARD 16
SECTION 7.7 DUTIES OF VICE PRESIDENT 17
SECTION 7.8 DUTIES OF SECRETARY 17
SECTION 7.9 DUTIES OF ASSISTANT SECRETARY 18
SECTION 7.10 DUTIES OF TREASURER 18
SECTION 7.11 DUTIES OF ASSISTANT TREASURER 19 ARTICLE 8 19
SECTION 8.1 DIRECTORS 20
SECTION 8.2 OFFICERS 21 ARTICLE 9 21
SECTION 9.1 ISSUANCE OF STOCK 21
SECTION 9.2 RIGHT TO CERTIFICATE; FORM 21
SECTION 9.3 FACSIMILE SIGNATURE 21
SECTION 9.4 LOST CERTIFICATES 22
SECTION 9.5 TRANSFER OF STOCK 22
SECTION 9.6 REGISTERED STOCKHOLDERS 22 ARTICLE 10 23
SECTION 10.1 THIRD PARTY ACTIONS 23
SECTION 10.2 DERIVATIVE ACTIONS 24
SECTION 10.3 EXPENSES 24
SECTION 10.4 AUTHORIZATION 24
SECTION 10.5 ADVANCE PAYMENT OF EXPENSES 25
SECTION 10.6 NON-EXCLUSIVENESS 25
SECTION 10.7 INSURANCE 26
SECTION 10.8 CONSTITUENT CORPORATIONS 26
SECTION 10.9 ADDITIONAL INDEMNIFICATION 26 ARTICLE 11 26 ARTICLE 12 27 ARTICLE 13 27 ARTICLE 14 27 ARTICLE 15 27


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ANDOVER.NET, INC.


AMENDED AND RESTATED BY-LAWS


ARTICLE 1


CERTIFICATE OF INCORPORATION


SECTION 1.1 CONTENTS. The name, location of principal office and purposes of the Corporation shall be as set forth in its Certificate of Incorporation. These By-laws, the powers of the Corporation and of its Directors and stockholders, and all matters concerning the conduct and regulation of the business of the Corporation shall be subject to such provisions in regard thereto, if any, as are set forth in said Certificate of Incorporation. The Certificate of Incorporation is hereby made a part of these By-laws.


SECTION 1.2 CERTIFICATE IN EFFECT. All references in these By-laws to the Certificate of Incorporation shall be construed to mean the Certificate of Incorporation of the Corporation as from time to time amended, including (unless the context shall otherwise require) all certificates and any agreement of consolidation or merger filed pursuant to the Delaware General Corporation Law, as amended.


ARTICLE 2


MEETINGS OF STOCKHOLDERS


SECTION 2.1 PLACE. All meetings of the stockholders may be held at such place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors, the Chairman of the Board of Directors or the President and stated in the notice of the meeting or in any duly executed waiver of notice thereof.


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SECTION 2.2 ANNUAL MEETING. Annual meetings of stock holders, shall be held on the 2nd Tuesday of April in each year, if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 A.M., or at such other date and time as shall be designated from time to time by the Board of Directors, the Chairman of the Board of Directors or the President and stated in the notice of the meeting. If such annual meeting has not been held on the day herein provided therefor, a special meeting of the stockholders in lieu of the annual meeting may be held, and any business transacted or elections held at such special meeting shall have the same effect as if transacted or held at the annual meeting, and in such case all references in these By-laws, except in this Section 2.2, to the annual meeting of the stockholders shall be deemed to refer to such special meeting.


SECTION 2.3 NOTICE OF STOCKHOLDER BUSINESS. To be properly brought before the meeting, business must be of a nature that is appropriate for consideration at an Annual Meeting and must be (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, or (ii) otherwise properly brought before the meeting by or at the direction of the Board of Directors, or (iii) otherwise properly brought before the meeting by a stockholder. In addition to any other applicable requirements, for business to be properly brought before the Annual Meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, each such notice must be given either by personal delivery or by United States mail, postage prepaid, to the Secretary of the Corporation not later than (1) with respect to a matter to be brought before an Annual Meeting of Stockholders or a Special Meeting in Lieu of an Annual Meeting, sixty (60) days prior to the date set forth in the By-laws for the Annual Meeting and (2) with respect to a


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matter to be brought before a Special Meeting of the Stockholders not in lieu of an Annual Meeting, the close of business on the tenth day following the date on which notice of such meeting is first given to stockholders. The notice shall set forth (i) information concerning the stockholder, including his or her name and address, (ii) a representation that the stockholder is entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to present the matter specified in the notice, and (iii) such other information as would be required to be included in a proxy statement soliciting proxies for the presentation of such matter to the meeting.


Notwithstanding anything in these By-laws to the contrary, no business shall be transacted at the Annual Meeting except in accordance with the procedures set forth in this section; provided, however, that nothing in this section shall be deemed to preclude discussion by any stockholder of any business properly brought before the Annual Meeting in accordance with these By-laws.


SECTION 2.4 SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the President, the Chairman of the Board, or by the Board of Directors and shall be called by the President or Secretary at the request in writing of a majority of the Directors then in office. Such request shall state the purpose or purposes of the proposed meeting, which need not be the exclusive purposes for which the meeting is called. The stockholder shall not have the right, in their capacity as stockholders, to call a special meeting of the stockholders.


SECTION 2.5 NOTICE OF MEETINGS. A written notice of all meetings of stockholders stating the place, date and hour of the meeting and, in the case of a special meeting, the purpose or


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purposes for which the special meeting is called, shall be given to each stockholder entitled to vote at such meeting. Except as otherwise provided by law, such notice shall be given not less than ten nor more than sixty days before the date of the meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice.


SECTION 2.6 AFFIDAVIT OF NOTICE. An affidavit of the Secretary or an Assistant Secretary or the transfer agent of the Corporation that notice of a stockholders meeting has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.


SECTION 2.7 QUORUM. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented by proxy at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, except as hereinafter provided, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.


SECTION 2.8 VOTING REQUIREMENTS. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon


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which by express provision of any applicable statute or of the Certificate of Incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question.


SECTION 2.9 PROXIES AND VOTING. Unless otherwise provided in 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 years from its date, unless the proxy provides for a longer period. Persons holding stock in a fiduciary capacity shall be entitled to vote the shares so held, and persons whose stock is pledged shall be entitled to vote the pledged shares, unless in the transfer by the pledgor on the books of the Corporation he shall have expressly empowered the Pledgee to vote said shares, in which case only the pledgee, or his proxy, may represent and vote such shares. Shares of the capital stock of the Corporation owned by the Corporation shall not be voted, directly or indirectly.


SECTION 2.10 ACTION WITHOUT MEETING. Unless otherwise provided in the Certificate of Incorporation, until the closing of an underwritten public offering of the Corporation's Common Stock (a "Public Offering") any action referred or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without vote, if a consent in w ...