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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 13, 2023
Angi Inc.
(Exact name of registrant as specified in
charter)
Delaware |
|
001-38220 |
|
82-1204801 |
(State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
3601 Walnut Street, Suite 700
Denver, CO |
|
80205 |
(Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (303) 963-7200
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Class A Common Stock, par value $0.001 |
ANGI |
The Nasdaq Stock Market LLC
(Nasdaq Global Select Market) |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
| |
On
September 13, 2023, the board of directors of Angi Inc. (the “Company”) approved the amendment and restatement of the
Company’s Amended and Restated Bylaws (as so amended, the “Amended and Restated Bylaws”), effective concurrently with
such adoption. Among other things, the amendments to the Amended and Restated Bylaws:
| · | update the procedural mechanics and disclosure requirements in connection with stockholder nominations of directors and other proposals
made in connection with annual meetings of stockholders by, among other things: |
| · | requiring additional background information and disclosures regarding proposing stockholders and proposed nominees; |
| · | requiring any stockholder submitting a nomination notice to make a representation as to whether such stockholder intends to solicit
proxies in support of director nominees other than the Company’s nominees in accordance with Rule 14a-19 under the Securities Exchange
Act of 1934, as amended (“Rule 14a-19”), and to provide reasonable evidence that certain requirements of such rule have been
satisfied; |
| · | requiring that stockholders proposing any nominees or business provide any additional information as may reasonably be requested by
the Company; |
| · | requiring that stockholders seeking to nominate directors deliver notice to the Company that they have met all applicable requirements
of Rule 14a-19 no later than five business days prior to the applicable meeting date; |
| · | requiring that information regarding stockholders submitting a nomination and their nominees be true as of the record date for (and
as of ten business days prior to) the applicable meeting date; and |
| · | requiring stockholders directly or indirectly soliciting proxies from other stockholders to use a proxy card color other than white,
with the white proxy card being reserved for exclusive use by the Company’s board of directors; and |
| · | require stockholders to provide notice of any proposed nomination or business no earlier than 120 days (and no later than 90 days)
prior to the applicable annual meeting. |
The
foregoing summary of the amendments to the Amended and Restated Bylaws is subject to, and is qualified in its entirety by reference
to, the Amended and Restated Bylaws, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
ANGI INC. |
|
|
|
|
|
By: |
/s/
Shannon Shaw |
|
Name: |
Shannon Shaw |
|
Title: |
Chief Legal Officer |
Date: September 18, 2023
Exhibit 3.1
AMENDED AND RESTATED BYLAWS
OF
ANGI INC.
ARTICLE I
OFFICES
Section 1. Registered
Office. The registered office of Angi Inc. (the “Corporation”) shall be established and maintained at the office
of The Corporation Trust Company at 1209 Orange Street, in the City of Wilmington, County of New Castle, State of Delaware 19801, and
said Corporation Trust Company shall be the registered agent of the Corporation in charge thereof.
Section 2. Other
Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware, as the board
of directors of the Corporation (the “Board of Directors”) may from time to time determine or the business of the Corporation
may require.
ARTICLE II
STOCKHOLDERS
Section 1. Place
of Meeting. Meetings of stockholders may be held at such place, either within or without the State of Delaware, as may be designated
by the Board of Directors. If no designation is made, the place of the meeting shall be the principal office of the Corporation.
Section 2. Annual
Meeting. The annual meeting of the stockholders shall be held at such date and time as may be fixed by resolution of the Board
of Directors.
Section 3. Special
Meetings. Special meetings of the stockholders may be called by the Chairman of the Board or a majority of the Board of Directors.
Section 4. Notice
of Stockholder Business and Nominations.
(A) At
any annual meeting of the stockholders, only such nominations of individuals for election to the Board of Directors shall be made, and
only such other business shall be conducted or considered, as shall have been properly brought before the meeting. For nominations to
be properly made at an annual meeting, and for other business to be properly brought before an annual meeting, such nominations and other
business must be: (a) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction
of the Board of Directors; (b) otherwise made at the annual meeting by or at the direction of the Board of Directors; or (c) otherwise
properly requested to be brought before the annual meeting by a stockholder of the Corporation in accordance with this Section 4
of these Bylaws. For nominations of individuals for election to the Board of Directors or other business to be properly requested by a
stockholder to be made at or brought before an annual meeting pursuant to clause (c) above, a stockholder must: (i) be a stockholder
of record at the time of giving of notice of such annual meeting by or at the direction of the Board of Directors, on the record date
for determination of stockholders entitled to vote at such meeting, and at the time of the annual meeting; (ii) be entitled to vote
at such annual meeting; and (iii) comply with the procedures set forth in these Bylaws as to such nomination or other business. Clause
(c) of this Section 4 shall be the exclusive means for a stockholder to make nominations and such clause (c) shall
be the exclusive means for a stockholder to bring other business (other than matters properly brought under Rule 14a-8 under the
Exchange Act of 1934 (the “Exchange Act”) and included in the Corporation’s notice of meeting) before an annual
meeting of stockholders.
(B) To
be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not
earlier than the close of business on the one hundred and twentieth (120th) day and not later than
the close of business on the ninetieth (90th) day prior to the first anniversary of the preceding year’s annual
meeting; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual
meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the
stockholder must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) day
prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90th) day
prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days
prior to the date of such annual meeting, the tenth (10th) day following the day on which public announcement of
the date of such meeting is first made by the Corporation. In no event shall any adjournment, recess, rescheduling or postponement of
an annual meeting, or the public announcement thereof, commence a new time period for the giving of a stockholder’s notice as described
above. For the avoidance of doubt, a stockholder shall not be entitled to make additional or substitute nominations following the expiration
of the time periods set forth in these Bylaws. For purposes of these Bylaws, “public announcement” shall mean disclosure in
a press release reported by a national news service or in a document publicly filed by the Corporation with the U.S. Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder
(or any successors thereto).
(C) To
be in proper form, a stockholder’s notice pursuant to this Section 4 must include the following, as applicable:
(1) As
to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made or business is brought,
as applicable, a stockholder’s notice must set forth: (i) the name and address of such stockholder, as they appear on the Corporation’s
books, of such beneficial owner, if any, and any persons that are acting in concert therewith; (ii) a representation that the stockholder
giving the notice is a holder of record of outstanding stock entitled to vote at the annual meeting, will continue to be a stockholder
of record of outstanding stock entitled to vote at such meeting through the date of such meeting and intends to appear in person or by
proxy at the meeting to make such nomination or to propose such business; (iii) (a) the class or series and number of shares
of the Corporation which are, directly or indirectly, owned of record and owned beneficially by such stockholder, such beneficial owner
and their respective affiliates or associates, or others acting in concert therewith, (b) any option, warrant, convertible security,
stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related
to any security of the Corporation or with a value derived, in whole or in part, from the value of any security of the Corporation, or
any derivative or synthetic arrangement having the characteristics of a long position in any security of the Corporation, or any contract,
derivative, swap or other transaction or series of transactions designed to produce economic benefits and risks that correspond substantially
to the ownership of any security of the Corporation, including due to the fact that the value of such contract, derivative, swap or other
transaction or series of transactions is determined by reference to the price, value or volatility of any security of the Corporation,
whether or not such instrument, contract or right shall be subject to settlement in the underlying securities of the Corporation, through
the delivery of cash or other property, or otherwise, and without regard to whether the stockholder of record, the beneficial owner, if
any, or any of their respective affiliates or associates, or others acting in concert therewith, may have entered into transactions that
hedge or mitigate the economic effect of such instrument, contract or right, or any other direct or indirect opportunity to profit or
share in any profit derived from any increase or decrease in the value of securities of the Corporation (any of the foregoing, a “Derivative
Instrument”) directly or indirectly owned beneficially by such stockholder, the beneficial owner, if any, or any of their respective
affiliates or associates, or others acting in concert therewith, (c) any proxy, contract, arrangement, understanding, or relationship
pursuant to which such stockholder, such beneficial owner or any of their respective affiliates or associates, or others acting in concert
therewith has or pursuant to any proxy, contract, understanding or relationship may acquire any right to vote any security of the Corporation,
(d) any agreement, arrangement, understanding, relationship or otherwise, including any repurchase or similar so-called “stock
borrowing” agreement or arrangement, involving such stockholder, such beneficial owner or any of their respective affiliates or
associates, or others acting in concert therewith, directly or indirectly, the intent, purpose or effect of which may be to mitigate loss
to, transfer to or from any such person, in whole or in part, any of the economic consequences of ownership, or reduce the economic risk
(of ownership or otherwise) of any security of the Corporation by, manage the risk of share price changes for, or increase or decrease
the voting power of, such stockholder, such beneficial owner or any of their respective affiliates or associates, or others acting in
concert therewith, with respect to any security of the Corporation, or which provides, directly or indirectly, the opportunity to profit
or share in any profit derived from any decrease in the price or value of any securities of the Corporation (any of the foregoing, a “Short
Interest”); (e) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder, such beneficial
owner or any of their respective affiliates or associates, or others acting in concert therewith, that are separated or separable from
the underlying shares of the Corporation; (f) any proportionate interest in securities of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership or similar entity in which such stockholder, such beneficial owner or
any of their respective affiliates or associates, or others acting in concert therewith, is a general partner or, directly or indirectly,
beneficially owns an interest in a general partner or is the manager or managing member or, directly or indirectly, beneficially owns
any interest in the manager or managing member of such general or limited partnership or similar entity; (g) any performance-related
fees (other than an asset-based fee) that such stockholder, such beneficial owner or any of their respective affiliates or associates,
or others acting in concert therewith, is entitled to based on any increase or decrease in the value of securities of the Corporation
or Derivative Instruments or Short Interests, if any; (h) any direct or indirect interest, including significant equity interests
or any Derivative Instruments or Short Interests in any principal competitor of the Corporation held by such stockholder, such beneficial
owner or any of their respective affiliates or associates, or others acting in concert therewith and (i) any direct or indirect interest
of such stockholder, such beneficial owner and their respective affiliates or associates, or others acting in concert therewith, in any
contract with, or any litigation involving, the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation
(including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement) (sub-clauses (a) through
(i) above of this Section 4(C)(1) shall be referred, collectively, as the “Ownership Information”);
(iv) if any such stockholder, such beneficial owner or any of their respective affiliates or associates, or others acting in concert
therewith, intends to engage in a solicitation with respect to a nomination or other business pursuant to this Section 4, a statement
disclosing the name of each participant in such solicitation (as defined in Item 4 of Schedule 14A under the Exchange Act) and if involving
a nomination, a representation that such stockholder, such beneficial owner or any of their respective affiliates or associates, or others
acting in concert, therewith intends to deliver a proxy statement and form of proxy to holders of at least sixty-seven percent (67%) of
the outstanding stock entitled to vote on the election of directors; (v) a certification that each such stockholder, such beneficial
owner or any of their respective affiliates or associates, or others acting in concert therewith, has complied with all applicable federal,
state and other legal requirements in connection with its acquisition of shares or other securities of the Corporation and such person’s
acts or omissions as a stockholder of the Corporation; (vi) the names and addresses of other stockholders (including beneficial owners)
known by any such stockholder, such beneficial owner or any of their respective affiliates or associates, or others acting in concert
therewith, to financially or otherwise materially support (it being understood, for example, that statement of an intent to vote for,
or delivery of a revocable proxy to such proponent, does not require disclosure under this section, but solicitation of other stockholders
by such supporting stockholder would require disclosure under this section) such nomination(s) or proposal(s), and to the extent
known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by, and any other information
contemplated by clause (iii) of this Section 4(C)(1) with respect to, such other stockholder(s) or other
beneficial owner(s); (vii) all information that would be required to be set forth in a Schedule 13D filed pursuant to Rule 13d-1(a) or
an amendment pursuant to Rule 13d-2(a) if such a statement were required to be filed under the Exchange Act and the rules and
regulations promulgated thereunder by such stockholder, such beneficial owner and their respective affiliates or associates, or others
acting in concert therewith, if any; and (viii) any other information relating to such stockholder, such beneficial owner or any
of their respective affiliates or associates or others acting in concert therewith, if any, that would be required to be disclosed in
a proxy statement and form or proxy or other filings required to be made in connection with solicitations of proxies for, as applicable,
the business proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder;
(2) If
the notice includes any business other than a nomination of a director or directors that the stockholder proposes to bring before the
meeting, a stockholder’s notice must, in addition to the matters set forth in Section 4(C)(1) also set forth: (i) a
brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and
any material interest of such stockholder, such beneficial owner and each of their respective affiliates or associates or others acting
in concert therewith, if any, in such business; (ii) the text of the business proposal (including the text of any resolutions proposed
for consideration and, in the event that such proposal includes a proposal to amend the By-Laws of the Corporation, the text of the proposed
amendment); and (iii) a description of all agreements, arrangements and understandings between such stockholder, such beneficial
owner and each of their respective affiliates or associates or others acting in concert therewith, if any, on the one hand, and any other
person or persons (including their names), on the other hand, in connection with the business proposal by such stockholder;
(3) As
to each individual, if any, whom the stockholder proposes to nominate for election or reelection to the Board of Directors, a stockholder’s
notice must, in addition to the matters set forth in Section 4(C)(1), also set forth: (i) the name, age, business and residence
address of such person; (ii) the principal occupation or employment of such person (present and for the past five (5) years);
(iii) the completed and signed questionnaire, representation, agreement which shall be provided by the Corporation, upon request,
by the stockholder giving notice; (iv) all information relating to such individual that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for election of directors in a contested election
pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (including such individual’s
written consent to being named in a proxy statement as a nominee) and a written statement of intent to serve as a director for the full
term if elected; and (v) a description of all direct and indirect compensation and other material monetary agreements, arrangements
and understandings during the past three (3) years, and any other material relationships, between or among such stockholder and beneficial
owner, if any, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed
nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without
limitation, all biographical and related party transaction and other information that would be required to be disclosed pursuant to Rule 404
promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination
is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes
of such rule and the nominee were a director or executive officer of such registrant;
(4) In
addition, to be considered timely, a stockholder’s notice shall further be updated and supplemented, if necessary, so that the information
provided or required to be provided in such notice shall be true and correct as of the record date for determining the stockholders of
record entitled to notice of the meeting (or any adjournment, recess, rescheduling or postponement thereof) and as of the date that is
ten (10) days prior to the meeting (or any adjournment, recess, rescheduling or postponement thereof), and such update and supplement
shall be delivered to the Secretary at the principal executive offices of the Corporation not later than (a) the later of (i) ten (10) days
after the record date for determining the stockholders of record entitled to notice of the meeting (or any adjournment, recess, rescheduling
or postponement thereof) or (ii) the first public announcement of the date of notice of such record date in the case of the update
and supplement required to be made as of the record date, and (b) not later than five (5) days prior to the date for the meeting
(or any adjournment, recess, rescheduling or postponement thereof) in the case of the update and supplement required to be made as of
ten (10) days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof. The obligation to update
and supplement as set forth in this paragraph or any other section of these Bylaws shall not limit the Corporation’s rights
with respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder to amend or update
any nomination or business proposal or to submit any new nomination or business proposal, including by changing or adding nominees, matters,
business and or resolutions proposed to be brought before a meeting of the stockholders. In addition, if the stockholder giving the notice
has delivered to the Corporation a notice relating to the nomination of directors, the stockholder giving the notice shall deliver to
the Corporation no later than five (5) business days prior to the date of the meeting or, if practicable, any adjournment, recess,
rescheduling or postponement thereof (or, if not practicable, on the first practicable date prior to the date to which the meeting has
been adjourned, recessed, rescheduled, or postponed) reasonable evidence that it has complied with the requirements of Rule 14a-19
of the Exchange Act.
(5) The
Corporation may also, as a condition to any such nomination or business being deemed properly brought before an annual meeting, require
any stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or business proposal, as applicable,
is made, or any proposed nominee to deliver to the Secretary, within five (5) business days of any such request, such other information
as may reasonably be required by the Corporation or its Board of Directors, in its sole discretion, to determine (a) the eligibility
of such proposed nominee to serve as a director of the Corporation, (b) whether such nominee qualifies as an “independent director”
or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly disclosed
corporate governance guideline or committee charter of the Corporation or (c) such other information that the Board of Directors
determines, in its sole discretion, could be material to a reasonable stockholder’s understanding of the independence, or lack thereof,
of such nominee. Notwithstanding anything to the contrary, only persons who are nominated in accordance with the procedures set forth
in these Bylaws shall be eligible for election as directors; and
(D) Notwithstanding
the provisions of these Bylaws, a stockholder giving the notice shall also comply with all applicable requirements of the Exchange Act
and the rules and regulations thereunder with respect to the matters set forth in this Bylaw; provided, however, that
any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the
separate and additional requirements set forth in these Bylaws with respect to nominations or proposals as to any other business to be
considered.
Section 5. Notice.
Written notice stating the date, time and place, if any, of the meeting, the means of remote communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such meeting, and in case of a special meeting, the purpose or purposes
thereof, shall be given to each stockholder entitled to vote thereat not less than ten (10) nor more than sixty (60) days prior thereto,
either personally or by mail, facsimile, telegraph or other means of electronic communication, addressed to each stockholder at his address
as it appears on the records of the Corporation; provided that notices to stockholders who share an address may be given in the
manner permitted by the General Corporation Law of the State of Delaware. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage thereon prepaid. If notice be by facsimile, telegram, or other means of
electronic communication, such notice shall be deemed to be given at the time provided in the General Corporation Law of the State of
Delaware. Such further notice shall be given as may be required by law. Meetings may be held without notice if all stockholders entitled
to vote are present (unless any such stockholders are present for the purpose of objecting to the meeting as lawfully called or convened),
or if notice is waived by those not present. Any previously scheduled meeting of the stockholders may be postponed, and (unless the Certificate
of Incorporation otherwise provides) any special meeting of the stockholders may be canceled, by resolution of the Board of Directors
upon public notice given prior to the time previously scheduled for such meeting of stockholders.
Section 6. Adjourned
Meetings. The Chairman of the meeting or a majority of the voting power of the shares so represented may adjourn the meeting from
time to time, whether or not there is a quorum. When a meeting is adjourned to another time or place, except as required by law, notice
of the adjourned meeting need not be given if the time, place, if any, thereof and the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the
adjournment is taken, if the adjournment is for not more than thirty (30) days, and if no new record date is fixed for the adjourned meeting.
At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting.
Section 7. Quorum.
Except as otherwise required by law, the holders of shares representing a majority of the voting power of the Corporation entitled to
vote, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of
business; provided, however, that where a separate vote by a class or series or classes or series is required, a majority
of the outstanding shares of such class or series or classes or series shall constitute a quorum with respect to such vote. If a quorum
shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, 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. If at such adjourned meeting, a quorum shall be present or represented, any business may
be transacted that might have been transacted at the meeting as originally notified.
Section 8. Voting
and Proxies. Except as otherwise provided in the Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to vote in person or by proxy each share of the class of capital stock having voting power held by such stockholder.
Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which
shall be reserved for exclusive use by the Board of Directors.
Section 9. Procedure
for Election of Directors; Required Vote. Election of directors at all meetings of the stockholders at which directors are to
be elected shall be by ballot, and, subject to the rights of the holders of shares of preferred stock to elect directors under specified
circumstances, a plurality of the votes cast thereat shall elect directors. Except as otherwise provided by law, the Certificate of Incorporation,
or these Bylaws, in all matters other than the election of directors, the affirmative vote of a majority of the voting power of the shares
present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders.
Section 10. Inspectors
of Elections; Opening and Closing the Polls. The Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of stockholders and make a written report thereof. One or more persons may
be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act
or is able to act at a meeting of stockholders, the Chairman of the meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before discharging the duties of an inspector, shall take and sign an oath faithfully to execute the duties of inspector
with strict impartiality and according to the best of the inspector’s ability. The inspectors shall have the duties prescribed by
law.
The Chairman of the meeting
shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting.
Section 11. Action
Without Meeting. Any action required or permitted to be taken at any annual or special meeting of 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, is 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 all of the shares entitled to vote thereon were present and voted; provided that prompt notice of such action shall be
given to those stockholders who have not so consented in writing to such action without a meeting and who would have been entitled to
notice of such meeting.
ARTICLE III
DIRECTORS
Section 1. Number
and Tenure. The business and affairs of the Corporation shall be managed by the Board of Directors, the number thereof to be determined
from time to time by resolution of the Board of Directors. Each director shall serve for a term of one (1) year from the date of
his election and until his successor is elected or until his earlier resignation, removal or death. Directors need not be stockholders.
Section 2. Resignation
or Removal. Any director may at any time resign by delivering to the Board of Directors his resignation in writing. Any director
or the entire Board of Directors may at any time be removed effective immediately, with or without cause, by the vote, either in person
or represented by proxy, of a majority of the voting power of shares of stock issued and outstanding of the class or classes that elected
such director and entitled to vote at a special meeting held for such purpose or by the written consent of a majority of the voting power
of shares of stock issued and outstanding of the class or classes that elected such director.
Section 3. Vacancies.
Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by the vote
of a majority of the remaining directors elected by the stockholders who vote on such directorship, though less than a quorum, or a majority
of the voting power of shares of such stock issued and outstanding and entitled to vote on such directorship at a special meeting held
for such purpose or by the written consent of a majority of the voting power of shares of such stock issued and outstanding. The directors
so chosen shall hold office until the next annual election and until their respective successors are duly elected or until their earlier
resignation, removal or death.
Section 4. Regular
Meetings. Regular meetings of the Board of Directors shall be held at such dates, times and places as may be designated by the
Chairman of the Board, and shall be held at least once each year.
Section 5. Special
Meetings. Special meetings of the Board of Directors may be called by or at the request of the Chairman of the Board or a majority
of the directors. The person or persons calling a special meeting of the Board of Directors may fix a place and time within or without
the State of Delaware for holding such meeting.
Section 6. Notice.
Notice of any regular meeting or a special meeting shall be given to each director, either orally, by facsimile or other means of electronic
communication or by hand delivery, addressed to each director at his address as it appears on the records of the Corporation. If notice
be by facsimile or other means of electronic communication, such notice shall be deemed to be adequately delivered when the notice is
transmitted at least twenty-four (24) hours before such meeting. If by telephone or by hand delivery, the notice shall be given at least
twenty-four (24) hours prior to the time set for the meeting. Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the notice of such meeting. A meeting may be held at any time without
notice if all the directors are present or if those not present waive notice of the meeting in accordance with Article IX of these
Bylaws.
Section 7. Quorum.
At all meetings of the Board of Directors, a majority of the total number of directors shall constitute a quorum for the transaction of
business and, unless otherwise provided in the Certificate of Incorporation or these Bylaws, the affirmative vote of a majority of the
directors present at any meeting at which there is a quorum shall be an act of the Board of Directors. If a quorum is not present at any
meeting of the Board of Directors, the directors present may adjourn the meeting from time to time, without notice, until a quorum shall
be present. A director present at a meeting shall be counted in determining the presence of a quorum, regardless of whether a contract
or transaction between the Corporation and any other corporation, partnership, association, or other organization in which such director
is a director or officer or has a financial interest, is authorized or considered at such meeting.
Section 8. Action
Without Meeting. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting if all members of the Board of Directors or such committee, as the case may be, consent thereto in writing
or by electronic communication and such written consent or consents and copies of such communication or communications are filed with
the minutes of proceedings of the Board of Directors or committee.
Section 9. Action
by Conference Telephone. Members of the Board of Directors or any committee thereof may participate in a meeting of such Board
of Directors or committee by means of a conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees.
The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers
and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided
for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate
members who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of any
member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified member.
Section 11. Compensation
of Directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may
be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude
any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees may be allowed
like compensation for service as committee members.
ARTICLE IV
OFFICERS
Section 1. Number
and Salaries. The officers of the Corporation shall consist of a Chairman of the Board (the “Chairman”), a
Secretary, a Treasurer, and such other officers and agents as may be deemed necessary by the Board of Directors. Any two (2) or more
offices may be held by the same person.
Section 2. Election
and Term of Office. The officers of the Corporation shall be elected by the Board of Directors at the first meeting of the Board
of Directors following the stockholders’ annual meeting, and shall serve for a term of one (1) year and until a successor is
elected by the Board of Directors. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, any officer appointed
by the Board of Directors may be removed, with or without cause, at any time by the Chairman, the Chief Executive officer (the “CEO”)
or by the Board of Directors. Each officer shall hold his office until his successor is appointed or until his earlier resignation, removal
from office, or death. All officers elected by the Board of Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV. Such officers shall also have such powers and duties as
from time to time may be conferred by the Board of Directors or by any committee thereof. The Board of Directors or any committee thereof
may from time to time elect, or the Chairman or the CEO may appoint, such other officers (including a President, a Chief Financial Officer
and one or more Vice Presidents) and such agents, as may be necessary or desirable for the conduct of the business of the Corporation.
Such other officers and agents shall have such duties and shall hold their offices for such terms as shall be provided in these Bylaws
or as may be prescribed by the Board of Directors or such committee or by the Chairman or the CEO, as the case may be.
Section 3. The
Chairman of the Board. Except as otherwise provided in the Certificate of Incorporation, the Chairman shall be elected by the
Board of Directors from their own numbers and shall preside as Chairman at all meetings of the stockholders and of the Board of Directors.
The Chairman shall perform such duties and possess such powers as are customarily vested in the office of the Chairman of the Board or
as may be vested in him by the Board of Directors. During the time of any vacancy in the office of CEO or in the event of the absence
or disability of the CEO, the Chairman shall have the duties and powers of the CEO unless otherwise determined by the Board of Directors.
In no event shall any third party having dealings with the Corporation be bound to inquire as to any facts required by the terms of this
Section 3 for the exercise by the Chairman of the powers of the CEO. The Chairman shall be empowered to sign all certificates, contracts
and other instruments of the Corporation, and to do all acts that are authorized by the Board of Directors, and shall, in general, have
such other duties and responsibilities as are assigned consistent with the authority of a Chairman of the Board of a corporation. In addition,
the Board of Directors may designate by resolution one or more Vice Chairmen of the Board with such duties as may from time to time be
requested by the Board of Directors.
Section 4. The
Chief Executive Officer. The Board of Directors in consultation with the Chairman may elect a CEO. The CEO shall be responsible
for the general management of the affairs of the Corporation and shall perform all duties incidental to his or her office. The CEO shall
be empowered to sign all certificates, contracts and other instruments of the Corporation, and to do all acts that are authorized by the
Board of Directors, and shall, in general, have such other duties and responsibilities as are assigned consistent with the authority of
a Chief Executive Officer of a corporation. The CEO may be removed, with or without cause, at any time by the Board of Directors.
Section 5. The
President. The Board of Directors, the Chairman or the CEO may elect a President to have such duties and responsibilities as from
time to time may be assigned to him or her by the Chairman, the CEO or the Board of Directors. The President shall be empowered to sign
all certificates, contracts and other instruments of the Corporation, and to do all acts that are authorized by the Chairman, the CEO
or the Board of Directors, and shall, in general, have such other duties and responsibilities as are assigned consistent with the authority
of a President of a corporation.
Section 6. Chief
Financial Officer. The Chief Financial Officer (if any) shall act in an executive financial capacity. The Chief Financial Officer
shall assist the Chairman of the Board, the CEO and the President in the general supervision of the Corporation’s financial policies
and affairs. The Chief Financial Officer shall be empowered to sign all certificates, contracts and other instruments of the Corporation,
and to do all acts that are authorized by the Chairman, the CEO or the Board of Directors, and shall, in general, have such other duties
and responsibilities as are assigned consistent with the authority of a Chief Financial Officer of a corporation.
Section 7. Vice
Presidents. The Board of Directors, the CEO or the Chairman may from time to time name one or more Vice Presidents that may include
the designation of Executive Vice Presidents and Senior Vice Presidents all of whom shall perform such duties as from time to time may
be assigned to him by the Chairman, the CEO or the Board of Directors.
Section 8. The
Secretary. The Secretary shall keep the minutes of the proceedings of meetings of the stockholders and of the Board of Directors
(or, in the event of the absence of the Secretary from any such meeting, the Chairman of such meeting shall designate an officer of the
Corporation to keep such minutes); the Secretary shall give, or cause to be given, all notices in accordance with the provisions of these
Bylaws or as required by law, shall be custodian of the corporate records and of the seal of the Corporation, and, in general, shall perform
such other duties as may from time to time be assigned by the Chairman, the CEO or the Board of Directors.
Section 9. Treasurer.
The Treasurer shall have the custody of the corporate funds and securities, shall keep, or cause to be kept, correct and complete books
and records of account, including full and accurate accounts of receipts and disbursements in books belonging to the Corporation, shall
deposit all monies 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, and in general shall perform all duties incident to the office of Treasurer and such other duties as from time
to time may be assigned to him by the Chairman, the CEO or the Board of Directors.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Certificates
of Stock. Shares of stock of the Corporation may be certificated or uncertificated, as provided under the General Corporation
Law of the State of Delaware. Every holder of stock in the Corporation shall be entitled to have a certificate signed by or in the name
of the Corporation by the Chairman, CEO or President, if any (or any Vice President), and by the Treasurer or the Secretary of the Corporation,
certifying the number of shares owned by the stockholder in the Corporation.
Section 2. Facsimile
Signatures. The signature of the Chairman, CEO, President, Vice President, Treasurer or Secretary on any stock certificate may
be a facsimile. In case any officer or officers who have signed, or whose facsimile signature or signatures have been used on any such
certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise,
before such certificate or certificates have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted
by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates or whose facsimile
signature or signatures have been used thereon had not ceased to be such officer or officers of the Corporation.
Section 3. Lost
Certificates. The Board of Directors may direct that new certificate(s) be issued by the Corporation to replace any certificate(s) alleged
to have been lost or destroyed, upon its receipt of an affidavit of that fact by the person claiming the certificate(s) of stock
to be lost or destroyed. When authorizing such issue of new certificate(s), the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed certificate(s), or such owner’s 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(s) alleged to have been lost or destroyed.
Section 4. Transfer
of Stock. Upon surrender to the Corporation or its transfer agent of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered
owner of uncertificated shares, such uncertificated shares shall be canceled, and issuance of new equivalent uncertificated shares or
certificated shares shall be made to the person entitled thereto, and the transaction shall be recorded upon the books of the Corporation.
Section 5. Closing
of Transfer Books or Fixing of 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, in the case of a meeting of stockholders, 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 without a meeting (including by telegram,
cablegram or other electronic communication as permitted by law), 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 not 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 General Corporation Law of the State of Delaware,
the record date shall be the first date on which a consent setting forth the action taken or proposed to be taken is delivered to the
Corporation in the manner prescribed by Article II, Section 11 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 General Corporation Law of the State of Delaware with respect to the proposed
action by consent of the stockholders without a meeting, the record date for determining stockholders entitled to consent to corporate
action without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such
prior action.
Section 6. Registered
Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner. Except as otherwise provided by law, the Corporation shall not be bound to recognize
any equitable or other claim to or interest in such shares on the part of any other person whether or not it shall have express or other
notice thereof.
ARTICLE VI
CONTRACTS, CHECKS, AND DEPOSITS
Section 1. Contracts.
When the execution of any contract or other instrument has been authorized by the Board of Directors without specification of the executing
officers, the Chairman, the CEO, the President, any Vice President, the Treasurer and the Secretary, may execute the same in the name
of and on behalf of the Corporation and may affix the corporate seal thereto.
Section 2. Checks.
All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons
as the Board of Directors may from time to time designate.
Section 3. Accounts.
Bank accounts of the Corporation shall be opened, and deposits made thereto, by such officers or other persons as the Board of Directors
may from time to time designate.
ARTICLE VII
DIVIDENDS
Section 1. Declaration
of Dividends. Subject to the provisions, if any, of the Certificate of Incorporation, dividends upon the capital stock of the
Corporation may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash,
in property or contractual rights, or in shares of the Corporation’s capital stock.
Section 2. Reserves.
Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute discretion, thinks 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 Board of Directors
shall think conducive to the interests of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation
shall be established by the Board of Directors.
ARTICLE IX
WAIVER OF NOTICE
Whenever any notice whatever
is required to be given by law, the Certificate of Incorporation or these Bylaws, a written waiver thereof, signed by the person or persons
entitled to such notice, or a waiver by electronic communications by such person or persons whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Neither the business to be conducted at, nor the purpose of such meeting, need
be specified in such waiver. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except where a 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.
ARTICLE X
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 otherwise reproduced.
ARTICLE XI
EXCLUSIVE FORUM FOR ADJUDICATION OF DISPUTES
Unless the Corporation consents
in writing to the selection of an alternative forum, the sole and exclusive forum for (a) any derivative action or proceeding brought
on behalf of the Corporation, (b) any action asserting a claim for or based on breach of a fiduciary duty owed by any current or
former director or officer or other employee of the Corporation to the Corporation or to the Corporation’s stockholders, including
a claim alleging the aiding and abetting of such a breach of fiduciary duty, (c) any action asserting a claim against the Corporation
or any current or former director or officer or other employee of the Corporation arising pursuant to any provision of the General Corporation
Law of Delaware or the Certificate of Incorporation or these Bylaws (each as may be amended from time to time), (d) any action asserting
a claim relating to or involving the Corporation that is governed by the internal affairs doctrine, or (e) any action asserting an
“internal corporate claim” as that term is defined in Section 115 of the General Corporation Law of the State of Delaware
shall be a state court located within the State of Delaware (or, if no state court located within the State of Delaware has jurisdiction,
the federal district court for the District of Delaware).
ARTICLE XII
AMENDMENTS
Except as expressly provided
otherwise by the General Corporation Law of the State of Delaware, the Certificate of Incorporation, or other provisions of these Bylaws,
these Bylaws may be altered, amended or repealed and new Bylaws adopted at any regular or special meeting of the Board of Directors by
an affirmative vote of a majority of all directors.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
Section 1. Indemnification.
(A) Each
person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit, or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he
or she, or a person of whom he or she is the legal representative is or was, at any time during which this Bylaw is in effect (whether
or not such person continues to serve in such capacity at the time any indemnification or payment of expenses pursuant hereto is sought
or at the time any proceeding relating thereto exists or is brought), a director or officer of the Corporation, or is or was at any such
time serving at the request of the Corporation as a director, officer or trustee of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (each
such person, an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a
director, officer or trustee or in any other capacity while serving as a director, officer or trustee, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to provide prior to such amendment), against all expense, liability
and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has
ceased to be a director, officer or trustee and shall inure to the benefit of his heirs, executors and administrators; provided,
however, that except as provided in paragraph (C) of this Bylaw, the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by
the Board of Directors. The right to indemnification conferred in this Bylaw shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the Corporation within
twenty (20) days after the receipt by the Corporation of a statement or statements from the claimant requesting such advance or advances
from time to time; provided, however, that if the General Corporation Law of the State of Delaware requires, the payment
of such expenses incurred by a director or officer in his capacity as a director or officer (and not in any other capacity in which service
was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) shall
be made only upon delivery to the Corporation of an undertaking (hereinafter, the “undertaking”) by or on behalf of
such director or officer, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which
there is no further right of appeal (a “final disposition”) that such director or officer is not entitled to be indemnified
for such expenses under this Bylaw or otherwise. The rights conferred upon indemnitees in this Bylaw shall be contract rights that vest
at the time of such person’s service to or at the request of the Corporation and such rights shall continue as to an indemnitee
who has ceased to be a director, officer or trustee and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
(B) To
obtain indemnification under this Bylaw, a claimant shall submit to the Corporation a written request, including therein or therewith
such documentation and information as is reasonably available to the claimant and is reasonably necessary to determine whether and to
what extent the claimant is entitled to indemnification. Upon written request by a claimant for indemnification pursuant to the first
sentence of this paragraph (B), a determination, if required by applicable law, with respect to the claimant’s entitlement thereto
shall be made as follows: (i) if requested by the claimant, by Independent Counsel (as hereinafter defined), or (ii) if no request
is made by the claimant for a determination by Independent Counsel, (a) by the Board of Directors by a majority vote of the Disinterested
Directors (as hereinafter defined), even though less than a quorum, or (b) by a committee of Disinterested Directors designated by
majority vote of the Disinterested Directors, even though less than a quorum, or (c) if there are no Disinterested Directors or the
Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board of Directors, a copy of which shall be delivered
to the claimant, or (d) if a quorum of Disinterested Directors so directs, by the stockholders of the Corporation. If it is so determined
that the claimant is entitled to indemnification, payment to the claimant shall be made within ten (10) days after such determination.
(C) If
a claim under paragraph (A) of this Bylaw is not paid in full by the Corporation within thirty (30) days after a written claim pursuant
to paragraph (B) of this Bylaw has been received by the Corporation (except in the case of a claim for advancement of expenses, for
which the applicable period is twenty (20) days), the claimant may at any time thereafter bring suit against the Corporation to recover
the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standard of conduct which makes it permissible under the General Corporation Law of the State of Delaware
for the Corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including the Disinterested Directors, Independent Counsel or stockholders) to have made
a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he
has met the applicable standard of conduct set forth in the General Corporation Law of the State of Delaware, nor an actual determination
by the Corporation (including the Disinterested Directors, Independent Counsel or stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable
standard of conduct.
(D) If
a determination shall have been made pursuant to paragraph (B) of this Bylaw that the claimant is entitled to indemnification, the
Corporation shall be bound by such determination in any judicial proceeding commenced pursuant to paragraph (C) of this Bylaw.
(E) The
Corporation shall be precluded from asserting in any judicial proceeding commenced pursuant to paragraph (C) of this Bylaw that the
procedures and presumptions of this Bylaw are not valid, binding and enforceable and shall stipulate in such proceeding that the Corporation
is bound by all the provisions of this Bylaw.
(F) The
right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred
in this Bylaw (i) shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision
of the Certificate of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise and (ii) cannot
be terminated by the Corporation, the Board of Directors or the stockholders of the Corporation with respect to a person’s service
prior to the date of such termination. Any amendment, modification, alteration or repeal of this Bylaw that in any way diminishes, limits,
restricts, adversely affects or eliminates any right of an indemnitee or his successors to indemnification, advancement of expenses or
otherwise shall be prospective only and shall not in any way diminish, limit, restrict, adversely affect or eliminate any such right with
respect to any actual or alleged state of facts, occurrence, action or omission then or previously existing, or any action, suit or proceeding
previously or thereafter brought or threatened based in whole or in part upon any such actual or alleged state of facts, occurrence, action
or omission.
(G) The
Corporation may, to the extent authorized from time to time by the Board of Directors or by the Chairman, grant rights to indemnification,
and rights to be paid by the Corporation the expenses incurred in defending any proceeding in advance of its final disposition, to any
current or former employee or agent of the Corporation to the fullest extent of the provisions of this Bylaw with respect to the indemnification
and advancement of expenses of current or former directors and officers of the Corporation.
(H) If
any provision or provisions of this Bylaw shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this Bylaw (including, without limitation, each portion of any paragraph
of this Bylaw containing any such provision held to be invalid, illegal or unenforceable, that is not itself held to be invalid, illegal
or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of
this Bylaw (including, without limitation, each such portion of any paragraph of this Bylaw containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
(I) For
purposes of this Bylaw:
(i) “Disinterested
Director” means a director of the Corporation who is not and was not a party to the matter in respect of which indemnification
is sought by the claimant.
(ii) “Independent
Counsel” means a law firm, a member of a law firm, or an independent practitioner, selected by the Disinterested Directors,
that is experienced in matters of corporation law and shall include any person who, under the applicable standards of professional conduct
then prevailing, would not have a conflict of interest in representing either the Corporation or the claimant in an action to determine
the claimant’s rights under this Bylaw.
(J) Any
notice, request or other communication required or permitted to be given to the Corporation under this Bylaw shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or courier service, or certified or registered mail, postage
prepaid, return receipt requested, to the Secretary of the Corporation and shall be effective only upon receipt by the Secretary.
Section 2. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and any current or former director, officer, employee or agent
of the Corporation and any current or former director, officer, trustee, employee or agent of another corporation or of a partnership,
joint venture, trust, or other enterprise, including any person who serves or served in any such capacity with respect to any employee
benefit plan maintained or sponsored by the Corporation, against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware.
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